Form 8-K

 

 

 

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): October 24, 2018

ENDOLOGIX, INC.

(Exact Name of Registrant as Specified in its Charter)

 

Delaware   000-28440   68-0328265

(State or Other

Jurisdiction of Incorporation)

  (Commission File Number)  

(IRS Employer

Identification No.)

2 Musick

Irvine, CA 92618

(Address of Principal Executive Office) (Zip Code)

Registrant’s telephone number, including area code: (949) 595-7200

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 (see General Instruction A.2 below):

☐ 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))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐


Item 1.01 Entry into a Material Definitive Agreement.

On October 24, 2018, the Company entered into an underwriting agreement with BTIG, LLC (the “Underwriting Agreement”) relating to the underwritten offering of 17,653,809 shares of the Company’s common stock, par value $0.001 per share (the “Offering”). BTIG, LLC has agreed to purchase the shares pursuant to the Underwriting Agreement at a price of $1.1329 per share. Under the terms of the Underwriting Agreement, the Company has granted BTIG, LLC an option, exercisable for 30 days, to purchase up to an additional 2,648,071 shares of common stock. The total net proceeds to the Company from the Offering are expected to be approximately $20.0 million, before deducting estimated offering expenses payable by the Company, assuming no exercise by BTIG, LLC of its option to purchase additional shares of common stock. The Offering is expected to close on or about October 29, 2018, subject to customary closing conditions.

The Underwriting Agreement contains customary representations, warranties, covenants and agreements by the Company, indemnification obligations of the Company and BTIG, LLC, including for liabilities under the Securities Act of 1933, as amended, other obligations of the parties and termination provisions. The representations, warranties and covenants contained in the Underwriting Agreement were made only for purposes of such agreement and as of specific dates, were solely for the benefit of the parties to such agreement, and may be subject to limitations agreed upon by the contracting parties. All of the Company’s directors and executive officers and their affiliated entities have agreed not to sell or transfer any shares of the Company’s common stock for 90 days, and the Company has agreed not to sell or transfer any shares of the Company’s common stock for 90 days, in each case, after October 24, 2018 without first obtaining the written consent of BTIG, LLC, subject to certain exceptions as described in the prospectus supplement.

The Offering is being made pursuant to the registration statement on Form S-3, declared effective by the Securities and Exchange Commission on August 3, 2018 (Registration No. 333-225320), a base prospectus dated August 3, 2018 and a prospectus supplement dated October 24, 2018. The Underwriting Agreement is filed as Exhibit 1.1 to this Current Report on Form 8-K and is incorporated by reference. The foregoing description of the Underwriting Agreement does not purport to be complete and is qualified in its entirety by reference to such exhibit. A copy of the opinion of DLA Piper LLP (US) relating to the legality of the shares of common stock to be issued in the Offering is attached as Exhibit 5.1 to this Current Report on Form 8-K.

Item 7.01 Regulation FD Disclosure.

On October 24, 2018, Endologix, Inc. (the “Company”) issued a press release announcing the Offering (as defined below) and on October 25, 2018, the Company issued a press release announcing the pricing of the Offering. Copies of these press releases are furnished as Exhibit 99.1 and Exhibit 99.2 to this Current Report on Form 8-K.

The information furnished under this Item 7.01, including Exhibit 99.1 and Exhibit 99.2, shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or subject to the liabilities of that section. The information shall not be deemed incorporated by reference into any other filing with the Securities and Exchange Commission made by the Company, regardless of any general incorporation language in such filing.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits

 

Exhibit No.

  

Description

1.1    Underwriting Agreement, dated October 24, 2018, between Endologix, Inc. and BTIG, LLC.
5.1    Opinion of DLA Piper LLP (US).
23.1    Consent of DLA Piper LLP (US) (included in Exhibit 5.1).
99.1    Press Release dated October 24, 2018.
99.2    Press Release dated October 25, 2018.


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.

 

Endologix, Inc.
By:  

/s/ Vaseem Mahboob

 

  Vaseem Mahboob
  Chief Financial Officer

October 26, 2018

EX-1.1

Exhibit 1.1

EXECUTION VERSION

17,653,809 Shares

Endologix, Inc.

Common Stock

UNDERWRITING AGREEMENT

October 24, 2018

BTIG, LLC

600 Montgomery St

6th Floor

San Francisco, CA 94111

Ladies and Gentlemen:

Endologix, Inc., a Delaware corporation (the “Company”) proposes to issue and sell to BTIG, LLC (the “Underwriter”) an aggregate of 17,653,809 shares (the “Firm Shares”) of Common Stock, $0.001 par value per share (the “Common Stock”), of the Company. The Firm Shares consist of 17,653,809 authorized but unissued shares of Common Stock to be issued and sold by the Company. The Company has also granted to the Underwriter an option to purchase up to an aggregate of 2,648,071 additional shares of Common Stock, on the terms and for the purposes set forth in Section 3 hereof (the “Option Shares”). The Firm Shares and any Option Shares purchased pursuant to this Underwriting Agreement (the “Agreement”) are herein collectively called the “Securities.”

The Company and the Underwriter hereby confirm their agreement with respect to the sale of the Securities by the Company to the Underwriter.

1.        Registration Statement and Prospectus. The Company has prepared and filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-3 (File No. 333-225320) under the Securities Act of 1933, as amended (the “Securities Act” or “Act”) and the rules and regulations (the “Rules and Regulations”) of the Commission thereunder, and such amendments to such registration statement as may have been required to the date of this Agreement. Such registration statement has been declared effective by the Commission. Each part of such registration statement, including the amendments, exhibits and any schedules thereto, the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Securities Act 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, as of the time the Registration Statement became effective, is herein called the “Registration Statement.” Any registration statement filed by the Company pursuant to Rule 462(b) under the Securities Act is called the “Rule 462(b) Registration Statement” and, from and after the date and time of filing of the Rule 462(b) Registration Statement, the term “Registration Statement” shall include the Rule 462(b) Registration Statement.

The prospectus in the form in which it has most recently been filed with the Commission on or prior to the date of this Agreement is herein called the “Base Prospectus.” Each preliminary prospectus supplement to the Base Prospectus (including the Base Prospectus as so supplemented), that describes the Securities 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 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 Securities and the offering thereof in accordance


with the provisions 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) is herein called the “Prospectus.” Any reference herein to the Base Prospectus, any Preliminary Prospectus or the Prospectus shall be deemed to 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, Rule 462(b) Registration Statement, the Base Prospectus, any Preliminary 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 or any successor system thereto (“EDGAR”). All references in this Agreement to financial statements and schedules and other information which is “described,” “contained,” “included” or “stated” in the Registration Statement, the Base Prospectus, any Preliminary 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 which 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 or the Prospectus, as the case may be; and all references in this Agreement to amendments or supplements to the Registration Statement, the Base Prospectus, any Preliminary 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 therein by reference therein or otherwise deemed by the Rules and Regulations to be a part thereof.

2.        Representations and Warranties of the Company.

(a)       Representations and Warranties of the Company. The Company represents and warrants to, as of the date of this Agreement, the First Closing Date (as defined below) and the Second Closing Date (if any) (as defined below) unless another specified period is referenced in any of the representations and warranties below, and agrees with, the Underwriter as follows:

(i)        Registration Statement and Prospectuses. No order preventing or suspending the use of any Preliminary Prospectus or the Prospectus (or any supplement thereto) has been issued by the Commission and no proceeding for that purpose has been initiated or is pending or, to the knowledge of the Company, threatened by the Commission. As of the time each part of the Registration Statement (or any post-effective amendment thereto) became or becomes effective (including each deemed effective date with respect to the Underwriter pursuant to Rule 430B or otherwise under the Securities Act), such part conformed or will conform in all material respects to the requirements of the Act and the Rules and Regulations. Upon the filing or first use within the meaning of the Rules and Regulations, each Preliminary Prospectus and the Prospectus (or any supplement to either) conformed or will conform in all material respects to the requirements of the Act and the Rules and Regulations. The Registration Statement and any post-effective amendment thereto has become effective under the Securities Act. The Company has complied to the Commission’s satisfaction with all requests of the Commission for additional or supplemental information. No stop order suspending the effectiveness of the Registration Statement, any post-effective amendment or any part thereof is in effect and no proceedings for such purpose have been instituted or are pending or, to the knowledge of the Company, are threatened by the Commission.

(ii)       Accurate Disclosure. Each Preliminary Prospectus, at the time of filing thereof or the time of first use within the meaning of the Rules and Regulations, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. Neither the Registration Statement nor any amendment thereto, at the effective time of each part thereof, at the First Closing Date or at the Second Closing Date, contained, contains or will contain an untrue statement of a material fact or omitted, omits or will omit to state a material fact required to be stated therein or necessary to

 

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make the statements therein not misleading. As of the Time of Sale (as defined below), neither (A) the Time of Sale Disclosure Package (as defined below) nor (B) any issuer free writing prospectus (as defined below), when considered together with the Time of Sale Disclosure Package, included an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Neither the Prospectus nor any supplement thereto, as of its issue date, at the time of any filing with the Commission pursuant to Rule 424(b) of the Rules and Regulations, at the First Closing Date or at the Second Closing Date, included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. The representations and warranties in this Section 2(a)(ii) shall not apply to statements in or omissions from any Preliminary Prospectus, the Registration Statement (or any amendment thereto), the Time of Sale Disclosure Package or the Prospectus (or any supplement thereto) made in reliance upon, and in conformity with, written information furnished to the Company by you, or by any Underwriter through you, specifically for use in the preparation of such document, it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 6(e).

Each reference to an “issuer free writing prospectus” herein means an issuer free writing prospectus as defined in Rule 433 of the Rules and Regulations.

“Time of Sale” means 4:30 p.m. (New York City time) on the date of this Agreement.

“Time of Sale Disclosure Package” means the Preliminary Prospectus dated October 24, 2018, any free writing prospectus set forth on Schedule I and the information on Schedule II, all considered together.

Each reference to a “free writing prospectus” herein means a free writing prospectus as defined in Rule 405 of the Rules and Regulations.

(iii)      Issuer Free Writing Prospectuses.

(A)        Each issuer free writing prospectus, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Securities or until any earlier date that the Company notified or notifies the Underwriter as described in Section 4(a)(iii)(B), did not and does not include any information that conflicts with the information contained in the Registration Statement, any Preliminary Prospectus or the Prospectus. The foregoing sentence does not apply to statements in or omissions from any issuer free writing prospectus based upon and in conformity with written information furnished to the Company by you or by any Underwriter through you specifically for use therein; it being understood and agreed that the only such information furnished by any Underwriter consists of the information described as such in Section 6(e).

(B)        (1) At the earliest time after the filing of the Registration Statement that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Securities Act) of the Securities and (2) at the date hereof, the Company was not and is not an “ineligible issuer,” as defined in Rule 405 under the Securities Act, including the Company or any subsidiary in the preceding three years not having been convicted of a felony or misdemeanor or having been made the subject of a judicial or administrative decree or order as described in Rule 405 of the Rules and Regulations (without taking account of any determination by the Commission pursuant to Rule 405 of the Rules and Regulations that it is not necessary that the Company be considered an ineligible issuer), nor an “excluded issuer” as defined in Rule 164 under the Securities Act.

 

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(C)        Each issuer free writing Prospectus satisfied, as of its issue date and at all subsequent times through the completion of the public offer and sale of the Securities, all other conditions to use thereof as set forth in Rules 164 and 433 under the Securities Act.

(vi)      No Other Offering Materials. The Company has not distributed and will not distribute any prospectus or other offering material in connection with the offering and sale of the Securities other than any Preliminary Prospectus, the Time of Sale Disclosure Package or the Prospectus or other materials permitted by the Act to be distributed by the Company; provided, however, that, except as set forth on Schedule I, the Company has not made and will not make any offer relating to the Securities that would constitute a free writing prospectus, except in accordance with the provisions of Section 4(a)(xv) of this Agreement.

(vii)     Financial Statements. The financial statements of the Company, together with the related notes, set forth or incorporated by reference in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus comply in all material respects with the requirements of the Securities Act and the Exchange Act and fairly present the financial condition of the Company and its consolidated subsidiaries as of the dates indicated and the results of operations and changes in cash flows for the periods therein specified in conformity with generally accepted accounting principles in the United States (“GAAP”) consistently applied throughout the periods involved; the supporting schedules included in the Registration Statement present fairly the information required to be stated therein; all non-GAAP financial information included in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus complies in all material respects with the requirements of Regulation G and Item 10 of Regulation S-K under the Act; and, except as disclosed in the Time of Sale Disclosure Package and the Prospectus, there are no material off-balance sheet arrangements (as defined in Regulation S-K under the Act, Item 303(a)(4)(ii)) or any other relationships with unconsolidated entities or other persons, that may have a material current or, to the Company’s knowledge, material future effect on the Company’s financial condition, results of operations, liquidity, capital expenditures, capital resources or significant components of revenue or expenses. No other financial statements or schedules are required to be included in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus. To the Company’s knowledge, KPMG LLP, which has expressed its opinion with respect to the financial statements and schedules filed as a part of the Registration Statement and included in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus, is (x) an independent public accounting firm within the meaning of the Act and the Rules and Regulations, (y) a registered public accounting firm (as defined in Section 2(a)(12) of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”)) and (z) not in violation of the auditor independence requirements of the Sarbanes-Oxley Act.

(viii)    Organization and Good Standing. Each of the Company and its subsidiaries listed on Schedule IV hereto (each a “Subsidiary” and, collectively, the “Subsidiaries”) has been duly organized and is validly existing as a corporation in good standing under the laws of its jurisdiction of incorporation. Each of the Company and its Subsidiaries has full corporate power and authority to own its properties and conduct its business as currently being carried on and as described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus, and is duly qualified to do business as a foreign corporation in good standing in each jurisdiction in which it owns or leases real property or in which the conduct of its business makes such qualification necessary and in which the failure to so qualify would have a material adverse effect upon the business, prospects, management, properties, operations, condition (financial or otherwise) or results of operations of the Company and its Subsidiaries, taken as a whole (“Material Adverse Effect”).

(ix)      Absence of Certain Events. Except as contemplated in the Time of Sale Disclosure Package and in the Prospectus, subsequent to the respective dates as of which information is given in the Time of Sale Disclosure Package and the Prospectus, neither the Company nor any of its Subsidiaries has incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital

 

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stock; and there has not been any change in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise or settlement (including any “net” or “cashless” exercises or settlements) of outstanding options or warrants or conversion of convertible securities), or any material change in the short-term or long-term debt (other than as a result of the conversion of convertible securities), or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock, of the Company or any of its Subsidiaries, or any material adverse change in the general affairs, condition (financial or otherwise), business, prospects, management, properties, operations or results of operations of the Company and its Subsidiaries, taken as a whole (“Material Adverse Change”) or any development which could reasonably be expected to result in any Material Adverse Change.

(x)        Absence of Proceedings. Except as set forth in the Time of Sale Disclosure Package and in the Prospectus, there is not pending or, to the knowledge of the Company, threatened or contemplated, any action, suit or proceeding (a) to which the Company or any of its Subsidiaries is a party or (b) which has as the subject thereof any officer or director of the Company or any Subsidiary, any employee benefit plan sponsored by the Company or any Subsidiary or any property or assets owned or leased by the Company or any Subsidiary before or by any court or Governmental Authority (as defined below), or any arbitrator , which, individually or in the aggregate, could reasonably be expected to result in any Material Adverse Change, or would reasonably be expected to materially and adversely affect the ability of the Company to perform its obligations under this Agreement or which are otherwise material in the context of the sale of the Securities. There are no current or, to the knowledge of the Company, pending, legal, governmental or regulatory actions, suits or proceedings (x) to which the Company or any of its Subsidiaries is subject or (y) which has as the subject thereof any officer or director of the Company or any Subsidiary, any employee plan sponsored by the Company or any Subsidiary or any property or assets owned or leased by the Company or any Subsidiary, that are required to be described in the Registration Statement, Time of Sale Disclosure Package and Prospectus by the Act or by the Rules and Regulations and that have not been so described.

(xi)       Disclosure of Legal Matters. There are no statutes, regulations, contracts or documents that are required to be described in the Registration Statement, in the Time of Sale Disclosure Package and in the Prospectus or required to be filed as exhibits to the Registration Statement by the Securities Act or by the Rules and Regulations that have not been so described or filed.

(xii)      Authorization; No Conflicts; Authority. This Agreement has been duly authorized, executed and delivered by the Company, and constitutes a valid, legal and binding obligation of the Company, enforceable in accordance with its terms, except as rights to indemnity hereunder may be limited by federal or state securities laws and except as such enforceability may be limited by bankruptcy, insolvency, reorganization or similar laws affecting the rights of creditors generally and subject to general principles of equity. The execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not (A) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its Subsidiaries pursuant to any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound or to which any of the property or assets of the Company or any of its Subsidiaries is subject, (B) result in any violation of the provisions of the Company’s charter or by-laws or (C) result in the violation of any law or statute or any judgment, order, rule, regulation or decree of any court or arbitrator or federal, state, local or foreign governmental agency or regulatory authority having jurisdiction over the Company or any of its Subsidiaries or any of their properties or assets (including the U.S. Food and Drug Administration (the “FDA”)) (each, a “Governmental Authority”), except in the case of clauses (A) or (C) as would not reasonably be expected to result in a Material Adverse Effect. No consent, approval, authorization or order of, or registration or filing with any Governmental Authority is

 

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required for the execution, delivery and performance of this Agreement or for the consummation of the transactions contemplated hereby, including the issuance or sale of the Securities by the Company, except such as may be required under the Act, the rules of the Financial Industry Regulatory Authority, Inc. (“FINRA”) , the rules and regulations of The NASDAQ Stock Market or state securities or blue sky laws; and the Company has full power and authority to enter into this Agreement and to consummate the transactions contemplated hereby, including the authorization, issuance and sale of the Securities as contemplated by this Agreement.

(xiii)        Capitalization; the Securities; Registration Rights. All of the issued and outstanding shares of capital stock of the Company, including the outstanding shares of Common Stock, are duly authorized and validly issued, fully paid and nonassessable, have been issued in compliance with all federal and state and foreign securities laws, were not issued in violation of or subject to any preemptive rights or other rights to subscribe for or purchase securities that have not been waived in writing (a copy of which has been delivered to counsel to the Underwriter), and the holders thereof are not subject to personal liability by reason of being such holders; the Securities which may be sold hereunder by the Company have been duly authorized and, when issued, delivered and paid for in accordance with the terms of this Agreement, will have been validly issued and will be fully paid and nonassessable, and the holders thereof will not be subject to personal liability by reason of being such holders; and the capital stock of the Company, including the Common Stock, conforms to the description thereof in the Registration Statement, in the Time of Sale Disclosure Package and in the Prospectus. Except as otherwise stated in the Registration Statement, in the Time of Sale Disclosure Package and in the Prospectus, (A) there are no preemptive rights or other rights to subscribe for or to purchase, or any restriction upon the voting or transfer of, any shares of Common Stock pursuant to the Company’s charter, by-laws or any agreement or other instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound; (B) neither the filing of the Registration Statement nor the offering or sale of the Securities as contemplated by this Agreement gives rise to any rights for or relating to the registration of any shares of Common Stock or other securities of the Company (collectively “Registration Rights”) and (C) any person to whom the Company has granted Registration Rights has agreed not to exercise such rights until after expiration of the Lock-Up Period (as defined below). All of the issued and outstanding shares of capital stock of each of the Company’s Subsidiaries have been duly and validly authorized and issued and are fully paid and nonassessable, and, except as otherwise described in the Registration Statement, in the Time of Sale Disclosure Package and in the Prospectus, the Company owns of record and beneficially, free and clear of any security interests, claims, liens, proxies, equities or other encumbrances, all of the issued and outstanding shares of such stock. The Company has an authorized and outstanding capitalization as set forth in the Registration Statement, in the Time of Sale Disclosure Package and in the Prospectus as of their respective dates under the caption “Capitalization.” The Common Stock (including the Securities) conforms in all material respects to the description thereof contained in the Time of Sale Disclosure Package and the Prospectus.

(xiv)        Stock Options. Except as described in the Registration Statement, in the Time of Sale Disclosure Package and in the Prospectus, there are no options, warrants, agreements, contracts or other rights in existence to purchase or acquire from the Company or any Subsidiary of the Company any shares of the capital stock of the Company or any Subsidiary of the Company. The description of the Company’s stock option, stock bonus and other stock plans or arrangements (the “Company Stock Plans”), and the options (the “Options”) or other rights granted thereunder, set forth in the Time of Sale Disclosure Package and the Prospectus accurately and fairly presents in all material respects the information required to be shown with respect to such plans, arrangements, options and rights. Each grant of an Option (A) was duly authorized no later than the date on which the grant of such Option was by its terms to be effective by all necessary corporate action, including, as applicable, approval by the board of directors of the Company (or a duly constituted and authorized committee thereof) and any required stockholder approval by the necessary number of votes or written consents, and the award agreement governing such grant (if any) was duly executed and delivered by each party thereto and (B) was made in accordance with the terms of the

 

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applicable Company Stock Plan, and all applicable laws and regulatory rules or requirements, including all applicable federal securities laws.

(xv)        Compliance with Laws. The Company and each of its Subsidiaries holds, and is operating in compliance in all material respects with, all franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders of any Governmental Authority or self-regulatory body required for the conduct of its business and all such franchises, grants, authorizations, licenses, permits, easements, consents, certifications and orders are valid and in full force and effect; and neither the Company nor any of its Subsidiaries has received notice of any revocation or modification of any such franchise, grant, authorization, license, permit, easement, consent, certification or order or has reason to believe that any such franchise, grant, authorization, license, permit, easement, consent, certification or order will not be renewed in the ordinary course; and the Company and each of its Subsidiaries is in compliance in all material respects with all applicable federal, state, local and foreign laws, regulations, orders and decrees.

(xvi)       Ownership of Assets. The Company and its Subsidiaries have good and marketable title to all property (whether real or personal) described in the Registration Statement, in the Time of Sale Disclosure Package and in the Prospectus as being owned by them, in each case free and clear of all liens, claims, security interests, other encumbrances or defects except such as are described in the Registration Statement, in the Time of Sale Disclosure Package and in the Prospectus. The property held under lease by the Company and its Subsidiaries is held by them under valid, subsisting and enforceable leases with only such exceptions with respect to any particular lease as do not interfere in any material respect with the conduct of the business of the Company or its Subsidiaries.

(xvii)      Intellectual Property. The Company and each of its Subsidiaries owns, possesses, or can acquire on reasonable terms, all Intellectual Property necessary for the conduct of the Company’s and it Subsidiaries’ business as now conducted or as described in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus to be conducted, except as such failure to own, possess or acquire such rights would not result in a Material Adverse Effect. Furthermore, except as disclosed in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus, (A) to the knowledge of the Company, there is no infringement, misappropriation or violation by third parties of any such Intellectual Property, except as such infringement, misappropriation or violation would not result in a Material Adverse Effect; (B) there is no pending or, to the knowledge of the Company, threatened, action, suit, proceeding or claim by others challenging the Company’s or any of its Subsidiaries’ rights in or to any such Intellectual Property, and the Company is unaware of any facts which would form a reasonable basis for any such claim; (C) the Intellectual Property owned by the Company and its Subsidiaries, and to the knowledge of the Company, the Intellectual Property licensed to the Company and its Subsidiaries, has not been adjudged invalid or unenforceable, in whole or in part, and there is no pending or, to the knowledge of the Company, threatened action, suit, proceeding or claim by others challenging the validity or scope of any such Intellectual Property, and the Company is unaware of any facts which would form a reasonable basis for any such claim; (D) there is no pending or, to the knowledge of the Company, threatened action, suit, proceeding or claim by others that the Company or any of its Subsidiaries infringes, misappropriates or otherwise violates any Intellectual Property or other proprietary rights of others, neither the Company or any of its Subsidiaries has received any written notice of such claim and the Company is unaware of any other fact which would form a reasonable basis for any such claim that would result in a Material Adverse Effect; and (E) to the Company’s knowledge, no employee of the Company or any of its Subsidiaries is in or has ever been in violation of any term of any employment contract, patent disclosure agreement, invention assignment agreement, non-competition agreement, non-solicitation agreement, nondisclosure agreement or any restrictive covenant to or with a former employer where the basis of such violation relates to such employee’s employment with the Company or any of its Subsidiaries or actions undertaken by the employee while employed with the Company or any of its Subsidiaries, except as such violation would not result in a Material Adverse Effect. “Intellectual Property” shall mean all patents, patent applications, trade and service marks, trade and service mark registrations, trade

 

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names, copyrights, licenses, inventions, trade secrets, domain names, technology, know-how and other intellectual property.

(xviii)    Trademarks. Each of the trademarks set forth in Schedule V is a registered trademark of the Company or its Subsidiaries.

(xix)       Health Care Authorizations. The Company has submitted and possesses, or qualifies for applicable exemptions to, such valid and current registrations, listings, approvals, clearances, licenses, certificates, authorizations or permits and supplements or amendments thereto issued or required by the appropriate state, federal or foreign regulatory agencies or bodies necessary to conduct their business, including, without limitation, all such certificates, authorizations and permits required by the United States Food and Drug Administration (the “FDA”), the United States Department of Health and Human Services (“HHS”), the United States Centers for Medicare & Medicaid Services (“CMS”), the California Department of Health Services (“CDHS”), the European Medicines Agency (“EMEA”), European Union government ministries (the “Competent Authorities”), Health Canada, Japan Ministry of Health, Labour and Welfare (the “MHLW”), Japan Pharmaceutical and Medical Devices Agency (the “PMDA”), the China Food and Drug Administration (the “CFDA”), or any other state, federal or foreign agencies or bodies engaged in the regulation of medical devices (including diagnostic products), drugs or biohazardous materials, and the Company have not received any notice of proceedings relating to the revocation or modification of, or non-compliance with, any such license, certificate, authorization or permit, except for such registrations, listings, approvals, clearances, licenses, certificates, authorizations or permits, the lack of which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(xx)        Approvals. The Company has received CE Mark approval for the Nellix EVAS System in the European Union. The Company has received FDA, CE Mark and Japanese Shonin approval for its IntuiTrak and AFX System. The Company has received FDA approval for its AFX2 Bifurcated Endograft System, its Ovation iX Iliac Stent Graft for the Ovation System and Ovation iX Abdominal Stent Graft System. The Company has received FDA and CE Mark approval for its Ovation System.

(xxi)       Clinical Trials. The studies, tests and preclinical and clinical trials conducted by or on behalf of, or sponsored by, the Company, or in which the Company has participated, that are described in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus, or the results of which are referred to in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus, were and, if still pending, are being conducted in all material respects in accordance with protocols, procedures and controls pursuant to, where applicable, accepted professional and scientific standards for products or product candidates comparable to those being developed by the Company and all applicable statutes, rules and regulations of the FDA, the CDHS, the EMEA, the Competent Authorities, Health Canada, the MHLW, the PMDA, the CFDA and other comparable drug and medical device (including diagnostic product) regulatory agencies outside of the United States to which they are subject; the descriptions of the results of such studies, tests and trials contained in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus do not contain any misstatement of a material fact or omit a material fact necessary to make such statements not misleading; the Company has no knowledge of any studies, tests or trials not described in the Disclosure Package and the Prospectus the results of which reasonably call into question in any material respect the results of the studies, tests and trials described in the Registration Statement, the Time of Sale Disclosure Package or Prospectus; and the Company has not received any notices or other correspondence from the FDA, the CDHS, the EMEA, the Competent Authorities, Health Canada, the MHLW, the PMDA, the CFDA or any other foreign, state or local governmental body exercising comparable authority or any Institutional Review Board or comparable authority requiring or threatening the termination, suspension or material modification of any studies, tests

 

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or preclinical or clinical trials conducted by or on behalf of, or sponsored by, the Company or in which the Company has participated, and, to the Company’s knowledge, there are no reasonable grounds for the same. Except as disclosed in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus, there has not been any violation of law or regulation by the Company in its respective product development efforts, submissions or reports to any regulatory authority that could reasonably be expected to require investigation, corrective action or enforcement action.

(xxii)        Compliance with Health Care Laws. The Company and, to the Company’s knowledge, its directors, employees and agents (while acting in such capacity) are in material compliance with, all health care laws applicable to the Company, or any of its products or activities, including, but not limited to, the federal Anti-Kickback Statute (42 U.S.C. Section 1320a-7b(b)), the Anti-Inducement Law (42 U.S.C. Section 1320a-7a(a)(5)), the civil False Claims Act (31 U.S.C. Section 3729 et seq.), the administrative False Claims Law (42 U.S.C. Section 1320a-7b(a)), the Stark law (42 U.S.C. Section 1395nn), the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. Section 1320d et seq.) as amended by the Health Information Technology for Economic and Clinical Health Act (42 U.S.C. Section 17921 et seq.), the exclusion laws (42 U.S.C. Section 1320a-7), the Federal Food, Drug, and Cosmetic Act (21 U.S.C. Section 301 et seq.), the Controlled Substances Act (21 U.S.C. Section 801 et seq.), the Public Health Service Act (42 U.S.C. Section 201 et seq.), the Clinical Laboratory Improvement Amendments of 1988 (42 U.S.C. Section 263a), Medicare (Title XVIII of the Social Security Act), Medicaid (Title XIX of the Social Security Act), and the Patient Protection and Affordable Care Act of 2010, as amended by the Health Care and Education Reconciliation Act of 2010, the Japan Pharmaceuticals and Medical Device Law, the European Union General Data Protection Regulation, the regulations promulgated pursuant to such laws, and any other state, federal or foreign law, accreditation standards, regulation, memorandum, opinion letter, or other issuance which imposes requirements on the manufacturing, development, testing, labeling, advertising, marketing or distribution of drugs and medical devices (including diagnostic products), kickbacks, patient or program charges, recordkeeping, claims process, documentation requirements, medical necessity, referrals, the hiring of employees or acquisition of services or supplies from those who have been excluded from government health care programs, quality, safety, privacy, security, licensure, accreditation or any other aspect of providing health care, clinical laboratory or diagnostics products or services (collectively, “Health Care Laws”). The Company has not received any notification, correspondence or any other written or oral communication, including notification of any pending or threatened claim, suit, proceeding, hearing, enforcement, investigation, arbitration or other action from any governmental authority, including, without limitation, the FDA, the CDHS, the EMEA, the Competent Authorities, Health Canada, the MHLW, the PMDA, the CFDA, the United States Federal Trade Commission, the United States Drug Enforcement Administration (“DEA”), CMS, HHS’s Office of Inspector General, the United States Department of Justice and state Attorneys General or similar agencies of potential or actual non-compliance by, or liability of, the Company under any Health Care Laws, except, with respect to any of the foregoing, such as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. To the Company’s knowledge, there are no facts or circumstances that would reasonably be expected to give rise to material liability of the Company under any Health Care Laws. The statements with respect to Health Care Laws and the Company’s compliance therewith included in the Preliminary Prospectus, in the Time of Sale Disclosure Package and in the Prospectus fairly summarize the matters therein described.

(xxiii)       Post-Market Reporting Obligations. The Company is complying in all material respects with all applicable regulatory post-market reporting obligations, including, without limitation, the FDA’s adverse event reporting requirements at 21 CFR Parts 310, 314, 600, and 803, and, to the extent applicable, the respective counterparts thereof promulgated by governmental authorities in countries outside the United States.

 

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(xxiv)       No Shutdowns or Prohibitions. The Company has not had any product, clinical laboratory or manufacturing site (whether Company-owned or that of a third party manufacturer for the Company’s products) subject to a governmental authority (including FDA) shutdown or import or export prohibition, nor received any FDA Form 483 or other governmental authority notice of inspectional observations, “warning letters,” “untitled letters,” requests to make changes to the Company’s products, processes or operations, or similar correspondence or notice from the FDA or other governmental authority alleging or asserting material noncompliance with any applicable Health Care Laws. To the Company’s knowledge, neither the FDA nor any other governmental authority is considering such action.

(xxv)        No Safety Notices. (i) Except as disclosed in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus, there have been no recalls, field notifications, field corrections, market withdrawals or replacements, warnings, “dear doctor” letters, investigator notices, safety alerts or other notice of action relating to an alleged lack of safety, efficacy, or regulatory compliance of the Company’s products (“Safety Notices”) and (ii) to the Company’s knowledge, there are no facts that would be reasonably likely to result in (x) a Safety Notice with respect to the Company’s products or services, (y) a change in labeling of any the Company’s respective products or services, or (z) a termination or suspension of marketing or testing of any the Company’s products or services, except as would not reasonably be expected, individually or in the aggregate, to result in a Material Adverse Effect.

(xxvi)       Health Care Products Manufacturing. The manufacture of the Company’s products by or, to the knowledge of the Company, on behalf of the Company is being conducted in compliance with all applicable Health Care Laws, including, without limitation, the FDA’s current good manufacturing practice regulations at 21 CFR Part 820, and, to the extent applicable, the respective counterparts thereof promulgated by the EMEA, Health Canada and other comparable drug and medical device (including diagnostic product) regulatory agencies outside of the United States to which they are subject.

(xxvii)      eXtensible Business Reporting Language. The interactive data in eXtensible Business Reporting Language 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 Commission’s rules and guidelines applicable thereto.

(xxviii)    No Violations or Defaults. Neither the Company nor any of its Subsidiaries is (A) in violation of its respective charter, by-laws or other organizational documents, or (B) in breach of or otherwise in default, and no event has occurred which, with notice or lapse of time or both, would constitute such a default in the performance of any material obligation, agreement or condition contained in any bond, debenture, note, indenture, loan agreement or any other material contract, lease or other instrument to which it is subject or by which any of them may be bound, or to which any of the material property or assets of the Company or any of its Subsidiaries is subject, except in the case of clause (B) as would not reasonably be expected to have a Material Adverse Effect.

(xxix)       Taxes. The Company and its Subsidiaries have timely filed all federal, state, local and foreign income and franchise tax returns required to be filed and are not in default in the payment of any taxes which were payable pursuant to said returns or any assessments with respect thereto, other than any which the Company or any of its Subsidiaries is contesting in good faith. There is no pending dispute with any taxing authority relating to any of such returns, and the Company has no knowledge of any proposed liability for any tax to be imposed upon the properties or assets of the Company for which there is not an adequate reserve reflected in the Company’s financial statements included in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus.

(xxx)        Exchange Listing and Exchange Act Registration. The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is included or approved for listing on The

 

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NASDAQ Global Select Market and the Company has taken no action designed to, or likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act or delisting the Common Stock from The NASDAQ Global Select Market nor has the Company received any notification that the Commission or The NASDAQ Global Select Market is contemplating terminating such registration or listing. The Company has complied in all material respects with the applicable requirements of The NASDAQ Global Select Market for maintenance of inclusion of the Common Stock thereon. The Company has filed an application to include the Securities on The NASDAQ Global Select Market. Except as previously disclosed to counsel for the Underwriter or as set forth in the Time of Sale Disclosure Package and the Prospectus, to the knowledge of the Company, no beneficial owners of the Company’s capital stock or subordinated debt who, together with their associated persons and affiliates, hold in the aggregate 10% or more of such capital stock or subordinated debt, have any direct or indirect association or affiliate with a FINRA member.

(xxxi)       Internal Controls. The Company and its Subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as disclosed in the Registration Statement, in the Time of Sale Disclosure Package and in the Prospectus, the Company’s internal control over financial reporting is effective and none of the Company, its board of directors and audit committee is aware of any “significant deficiencies” or “material weaknesses” (each as defined by the Public Company Accounting Oversight Board) in its internal control over financial reporting, or any fraud, whether or not material, that involves management or other employees of the Company and its Subsidiaries who have a significant role in the Company’s internal controls; and since the end of the latest audited fiscal year, there has been no change in the Company’s internal control over financial reporting (whether or not remediated) that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting. The Company’s board of directors has, subject to the exceptions, cure periods and the phase in periods specified in the applicable stock exchange rules (“Exchange Rules”), validly appointed an audit committee to oversee internal accounting controls whose composition satisfies the applicable requirements of the Exchange Rules and the Company’s board of directors and/or the audit committee has adopted a charter that satisfies the requirements of the Exchange Rules.

(xxxii)      No Brokers or Finders. Other than as contemplated by this Agreement, the Company has not incurred any liability for any finder’s or broker’s fee or agent’s commission in connection with the execution and delivery of this Agreement or the consummation of the transactions contemplated hereby.

(xxxiii)    Insurance. The Company and each of its Subsidiaries carries, or is covered by, insurance from reputable insurers in such amounts and covering such risks as is adequate for the conduct of its business and the value of its properties and the properties of its Subsidiaries and as is customary for companies engaged in similar businesses in similar industries; all policies of insurance and any fidelity or surety bonds insuring the Company or any of its Subsidiaries or its business, assets, employees, officers and directors are in full force and effect; the Company and its Subsidiaries are in compliance with the terms of such policies and instruments in all material respects; there are no claims by the Company or any of its Subsidiaries under any such policy or instrument as to which any insurance company is denying liability or defending under a reservation of rights clause; neither the Company nor any of its Subsidiaries has been refused any insurance coverage sought or applied for; and neither the Company nor any of its Subsidiaries has reason to believe that it 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.

 

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(xxxiv)    Investment Company Act. The Company is not and, after giving effect to the offering and sale of the Securities, will not be an “investment company,” as such term is defined in the Investment Company Act of 1940, as amended.

(xxxv)     Eligibility to use Form S-3. The conditions for use of Form S-3, set forth in the General Instructions thereto, have been satisfied.

(xxxvi)    Incorporated Documents. The documents incorporated by reference in the Time of Sale Disclosure Package and in the Prospectus, when they became effective or were filed with the Commission, as the case may be, conformed in all material respects to the requirements of the Securities Act or the Exchange Act, as applicable, and were filed on a timely basis with the Commission and none of such documents contained an untrue statement of a material fact or omitted to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; any further documents so filed and incorporated by reference in the Time of Sale Disclosure Package or in the Prospectus, when such documents are filed with the Commission, will conform in all material respects to the requirements of the Exchange Act, and will not contain an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading.

(xxxvii)  Sarbanes-Oxley Act. The Company is in compliance with all applicable provisions of the Sarbanes-Oxley Act and the rules and regulations of the Commission thereunder.

(xxxviii) FINRA Exemption. To enable the Underwriter to rely on Rule 5110(b)(7)(C)(i) of FINRA, the Company represents that the Company (i) has a non-affiliate, public common equity float of at least $100 million, (ii) has an annual trading volume of at least three million shares and (iii) has been subject to the Exchange Act reporting requirements for a period of at least 36 months.

(xxxix)    Disclosure Controls. The Company has established and maintains disclosure controls and procedures (as defined in Rules 13a-14 and 15d-14 under the Exchange Act) and such controls and procedures are effective in ensuring that material information relating to the Company, including its Subsidiaries, is made known to the principal executive officer and the principal financial officer. The Company has utilized such controls and procedures in preparing and evaluating the disclosures in the Registration Statement, in the Time of Sale Disclosure Package and in the Prospectus.

(xl)         Anti-Bribery and Anti-Money Laundering Laws. Each of the Company, its Subsidiaries, its affiliates, any of their respective officers, directors, supervisors, managers, employees, or, the knowledge of the Company, agents, has not violated, its participation in the offering will not violate, and the Company and each of its Subsidiaries has instituted and maintains policies and procedures designed to ensure continued compliance with, each of the following laws: anti-bribery laws, including but not limited to, any applicable law, rule, or regulation of any locality, including but not limited to any law, rule, or regulation promulgated to implement the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, signed December 17, 1997, including the U.S. Foreign Corrupt Practices Act of 1977, as amended, the U.K. Bribery Act 2010, or any other law, rule or regulation of similar purposes and scope, or anti-money laundering laws, including but not limited to, applicable federal, state, international, foreign or other laws, regulations or government guidance regarding anti-money laundering, including, without limitation, Title 18 U.S. Code Section 1956 and 1957, the Patriot Act, the Bank Secrecy Act, and international anti-money laundering principles or procedures by an intergovernmental group or organization, such as the Financial Action Task Force on Money Laundering, of which the United States is a member and with which designation the United States representative to the group or organization continues to concur, all as amended,

 

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and any Executive order, directive, or regulation pursuant to the authority of any of the foregoing, or any orders or licenses issued thereunder.

(xli)    OFAC.

(A)      Neither the Company nor any of its Subsidiaries, nor any of their respective directors, officers or employees, nor, to the Company’s knowledge, any agent, affiliate or representative of the Company or its Subsidiaries is an individual or entity that is, or is owned or controlled by an individual or entity that is:

(1)        the subject of any sanctions administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control, the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other relevant sanctions authority (collectively, “Sanctions”), nor

(2)        located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Burma, Crimea, Cuba, Iran, Libya, North Korea, Sudan and Syria).

(B)      Neither the Company nor any of its Subsidiaries will, directly or indirectly, use the proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other individual or entity:

(1)        to fund or facilitate any activities or business of or with any individual or entity or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or

(2)        in any other manner that will result in a violation of Sanctions by any individual or entity (including any individual or entity participating in the offering, whether as underwriter, advisor, investor or otherwise).

(C)      For the past five years, neither the Company nor any of its Subsidiaries has knowingly engaged in, and is not now knowingly engaged in, any dealings or transactions with any individual or entity, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.

(xlii)   Compliance with Environmental Laws. Except as disclosed in the Time of Disclosure Package and the Prospectus, neither the Company nor any of its Subsidiaries is in violation of any statute, any rule, regulation, decision or order of any Governmental Authority or any court, domestic or foreign, relating to the use, 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 would, individually or in the aggregate have a Material Adverse Effect; and the Company is not aware of any pending investigation which might lead to such a claim. Neither the Company nor any of its Subsidiaries anticipates incurring any material capital expenditures relating to compliance with Environmental Laws.

(xliii)  Compliance with Occupational Laws. The Company and each of its Subsidiaries (A) is in compliance, in all material respects, with any and all applicable foreign, federal, state

 

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and local laws, rules, regulations, treaties, statutes and codes promulgated by any and all Governmental Authorities (including pursuant to the Occupational Health and Safety Act) relating to the protection of human health and safety in the workplace (“Occupational Laws”); (B) has received all material permits, licenses or other approvals required of it under applicable Occupational Laws to conduct its business as currently conducted; and (C) is in compliance, in all material respects, with all terms and conditions of such permit, license or approval. No action, proceeding, revocation proceeding, writ, injunction or claim is pending or, to the Company’s knowledge, threatened against the Company or any of its Subsidiaries relating to Occupational Laws, and the Company does not have knowledge of any facts, circumstances or developments relating to its operations or cost accounting practices that could reasonably be expected to form the basis for or give rise to such actions, suits, investigations or proceedings.

(xliv)    ERISA and Employee Benefits Matters. (A) To the knowledge of the Company, no “prohibited transaction” as defined under Section 406 of ERISA or Section 4975 of the Code and not exempt under ERISA Section 408 and the regulations and published interpretations thereunder has occurred with respect to any Employee Benefit Plan. At no time has the Company or any ERISA Affiliate maintained, sponsored, participated in, contributed to or has or had any liability or obligation in respect of any Employee Benefit Plan subject to Part 3 of Subtitle B of Title I of ERISA, Title IV of ERISA, or Section 412 of the Code or any “multiemployer plan” as defined in Section 3(37) of ERISA or any multiple employer plan for which the Company or any ERISA Affiliate has incurred or could incur liability under Section 4063 or 4064 of ERISA. No Employee Benefit Plan provides or promises, or at any time provided or promised, retiree health, life insurance, or other retiree welfare benefits except as may be required by the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, or similar state law. Each Employee Benefit Plan is and has been operated in material compliance with its terms and all applicable laws, including but not limited to ERISA and the Code and, to the knowledge of the Company, no event has occurred (including a “reportable event” as such term is defined in Section 4043 of ERISA) and no condition exists that would subject the Company or any ERISA Affiliate to any material tax, fine, lien, penalty or liability imposed by ERISA, the Code or other applicable law. Each Employee Benefit Plan intended to be qualified under Code Section 401(a) is so qualified and has a favorable determination or opinion letter from the IRS upon which it can rely, and any such determination or opinion letter remains in effect and has not been revoked; to the knowledge of the Company, nothing has occurred since the date of any such determination or opinion letter that is reasonably likely to adversely affect such qualification; (B) with respect to each Foreign Benefit Plan, such Foreign Benefit Plan (1) if intended to qualify for special tax treatment, meets, in all material respects, the requirements for such treatment, and (2) if required to be funded, is funded to the extent required by applicable law, and with respect to all other Foreign Benefit Plans, adequate reserves therefor have been established on the accounting statements of the applicable Company or Subsidiary; (C) the Company does not have any obligations under any collective bargaining agreement with any union and no organization efforts are underway with respect to Company employees. As used in this Agreement, “Code” means the Internal Revenue Code of 1986, as amended; “Employee Benefit Plan” means any “employee benefit plan” within the meaning of Section 3(3) of ERISA, including, without limitation, all stock purchase, stock option, stock-based severance, employment, change-in-control, medical, disability, fringe benefit, bonus, incentive, deferred compensation, employee loan and all other employee benefit plans, agreements, programs, policies or other arrangements, whether or not subject to ERISA, under which (1) any current or former employee, director or independent contractor of the Company or its Subsidiaries has any present or future right to benefits and which are contributed to, sponsored by or maintained by the Company or any of its respective Subsidiaries or (2) the Company or any of its Subsidiaries has had or has any present or future obligation or liability; “ERISA” means the Employee Retirement Income Security Act of 1974, as amended; “ERISA Affiliate” means any member of the Company’s controlled group as defined in Code Section 414(b), (c), (m) or (o); and “Foreign Benefit Plan” means any Employee Benefit Plan established, maintained or contributed to outside of the United States of America or which covers any employee working or residing outside of the United States.

 

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(xlv)        Labor Matters. No labor problem or dispute with the employees of the Company or any of its Subsidiaries exists or, to the knowledge of the Company, is threatened or imminent, and the Company is not aware of any existing or imminent labor disturbance by the employees of any of its or its Subsidiaries’ principal suppliers, contractors or customers that would reasonably be expected to have a Material Adverse Effect.

(xlvi)       Restrictions on Subsidiary Payments to the Company. No Subsidiary of the Company is currently prohibited, directly or indirectly, from paying any dividends to the Company, from making any other distribution on such Subsidiary’s capital stock, from repaying to the Company any loans or advances to such Subsidiary from the Company or from transferring any of such Subsidiary’s property or assets to the Company or any other Subsidiary of the Company, except as described in or contemplated by the Registration Statement, the Time of Sale Disclosure Package and the Prospectus.

(xlvii)      Statistical Information. Any third-party statistical and market-related data included in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus are based on or derived from sources that the Company believes to be reliable and accurate in all material respects.

(xlviii)    Forward-looking Statements. No forward-looking statement (within the meaning of Section 27A of the Act and Section 21E of the Exchange Act) contained in the Registration Statement, the Time of Sale Disclosure Package or the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith.

3.        Purchase, Sale and Delivery of Securities.

(a)    Firm Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to issue and sell the Firm Shares to the Underwriter, and the Underwriter agrees to purchase from the Company 17,653,809 Firm Shares. The purchase price for each Firm Share shall be $1.1329 per share.

The Firm Shares will be delivered by the Company and American Stock Transfer & Trust Company, LLC (the “Custodian”), as appropriate, to you for the account of the Underwriter against payment of the purchase price therefor by wire transfer of same day funds payable to the order of the Company and the Custodian, as appropriate, at the offices of BTIG, LLC, 600 Montgomery St, 6th Floor, San Francisco, California, or such other location as may be mutually acceptable, at 9:00 a.m. Pacific time on the second (or if the Securities are priced, as contemplated by Rule 15c6-1(c) under the Exchange Act, after 4:30 p.m. Eastern time, the third) full business day following the date hereof, or at such other time and date as you and the Company determine pursuant to Rule 15c6-1(a) under the Exchange Act, such time and date of delivery being herein referred to as the “First Closing Date.”

(b)        Option Shares. On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company, hereby grants to the Underwriter an option to purchase all or any portion of the Option Shares at the same purchase price as the Firm Shares. The option granted hereunder may be exercised in whole or in part at any time (but not more than once) within 30 days after the effective date of this Agreement upon notice (confirmed in writing) by the Underwriter to the Company setting forth the aggregate number of Option Shares as to which the Underwriter is exercising the option, the names and denominations in which the certificates for the Option Shares are to be registered and the date and time, as determined by you, when the Option Shares are to be delivered, such time and date being herein referred to as the “Second Closing” and “Second Closing Date”, respectively; provided, however, that the Second Closing Date shall not be earlier than the First Closing Date nor earlier than the second business day after the date on which the option shall have been exercised. No Option Shares shall be sold and delivered unless the Firm Shares previously have been, or simultaneously are, sold and delivered.

 

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The Option Shares will be delivered by the Custodian and the Company, as appropriate, to you for the account of the Underwriter against payment of the purchase price therefor by wire transfer of same day funds payable to the order of the Custodian or the Company, as appropriate, at the offices of BTIG, LLC, 600 Montgomery St, 6th Floor, San Francisco, California, or such other location as may be mutually acceptable at 9:00 a.m., Pacific time, on the Second Closing Date.

(c)       Delivery. If the Underwriter so elects, delivery of either or both of the Firm Shares or the Option Shares may be made by credit through full fast transfer to the accounts at DTC designated by the Underwriter. Certificates representing the Firm Shares and the Option Shares in definitive form and in such denominations and registered in such names as you have set forth in your notice of option exercise, or evidence of their issuance, will be made available for checking at a reasonable time preceding the First Closing Date or the Second Closing Date, as applicable, at the office of BTIG, LLC, 600 Montgomery St, 6th Floor, San Francisco, California, or such other location as may be mutually acceptable. In the event that the Firm Shares (and Option Shares, if elected by the Underwriter) are not delivered to the Underwriter by 2:30 p.m., New York City time, on the First Closing Date (and the Second Closing Date, if elected by the Underwriter), the Company will return (or will instruct its Custodian to return) payment of the full purchase price to the Underwriter’s agent, Goldman Sachs & Co.,, via same day funds by 4:30 p.m., New York City time. The Company shall remain liable to Goldman Sachs & Co., for the full amount of the purchase price and any costs associated with recovering the purchase price until the full amount has been received by Goldman Sachs & Co.

4.        Covenants.

(a)       Covenants of the Company. The Company covenants and agrees with the Underwriter as follows:

(i)        Required Filings. During the period beginning on the date hereof and ending on the later of the Second Closing Date or such date, as in the opinion of counsel for the Underwriter, the Prospectus is no longer required by law to be delivered (assuming the absence of Rule 172 under the Securities Act), in connection with sales by an Underwriter or dealer (the Prospectus Delivery Period”), prior to amending or supplementing the Registration Statement including any Rule 462(b) Registration Statement), the Time of Sale Disclosure Package or the Prospectus, the Company shall furnish to the Underwriter for review a copy of each such proposed amendment or supplement, and the Company shall not file any such proposed amendment or supplement to which the Underwriter or counsel to the Underwriter reasonably objects. Subject to this Section 4(a)(i), immediately following execution of this Agreement, the Company will prepare the Prospectus containing the Rule 430B Information and other selling terms of the Securities, the plan of distribution thereof and such other information as may be required by the Securities Act or the Rules and Regulations or as the Underwriter and the Company may deem appropriate, and if requested by the Underwriter, an issuer free writing prospectus containing the selling terms of the Securities and such other information as the Company and the Underwriter may deem appropriate, and will file or transmit for filing with the Commission, in accordance with Rule 424(b) or Rule 433, as the case may be, copies of the Prospectus and each issuer free writing prospectus.

(ii)       Notification of Certain Commission Actions. After the date of this Agreement, the Company shall promptly advise the Underwriter in writing (A) of the receipt of any comments of, or requests for additional or supplemental information from, the Commission, (B) of the time and date of any filing of any post-effective amendment to the Registration Statement or any amendment or supplement to any Preliminary Prospectus, the Time of Sale Disclosure Package or the Prospectus, (C) of the time and date that any post-effective amendment to the Registration Statement becomes effective, (D) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or any post-effective

 

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amendment thereto or of any order preventing or suspending its use or the use of any Preliminary Prospectus, the Time of Sale Disclosure Package, the Prospectus or any issuer free writing prospectus, or (E) of any proceedings to remove, suspend or terminate from listing or quotation the Common Stock from any securities exchange upon which it is listed for trading or included or designated for quotation, or of the threatening or initiation of any proceedings for any of such purposes. If the Commission shall enter any such stop order at any time, the Company will use its best efforts to obtain the lifting of such order at the earliest possible moment. Additionally, the Company agrees that it shall comply with the provisions of Rules 424(b), 430A and 430B, as applicable, under the Securities Act and will use its reasonable efforts to confirm that any filings made by the Company under Rule 424(b), Rule 433 or Rule 462 were received in a timely manner by the Commission (without reliance on Rule 424(b)(8) or Rule 164(b)).

(iii)     Continued Compliance with Securities Laws.

(A)        During the Prospectus Delivery Period, the Company will comply as far as it is able with all requirements imposed upon it by the Securities Act, as now and hereafter amended, and by the Rules and Regulations, as from time to time in force, and by the Exchange Act so far as necessary to permit the continuance of sales of or dealings in the Securities as contemplated by the provisions hereof, the Time of Sale Disclosure Package and the Prospectus. If during such period any event occurs as a result of which the Prospectus (or if the Prospectus is not yet available to prospective purchasers, the Time of Sale Disclosure Package) would include an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances then existing, not misleading, or if during such period it is necessary or appropriate in the opinion of the Company or its counsel or the Underwriter or counsel to the Underwriter to amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the Time of Sale Disclosure Package) to comply with the Securities Act or to file under the Exchange Act 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, the Company promptly will (x) notify you of such untrue statement or omission, (y) amend the Registration Statement or supplement the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the Time of Sale Disclosure Package) or file such document (at the expense of the Company) so as to correct such statement or omission or effect such compliance, and (z) notify you when any amendment to the Registration Statement is filed or becomes effective or when any supplement to the Prospectus (or, if the Prospectus is not yet available to prospective purchasers, the Time of Sale Disclosure Package) is filed.

(B)        If at any time following issuance of an issuer free writing prospectus there occurred or occurs an event or development as a result of which such issuer free writing prospectus conflicted or would conflict with the information contained in the Registration Statement, the Preliminary Prospectus or the Prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company (x) has promptly notified or promptly will notify the Underwriter of such conflict, untrue statement or omission, (y) has promptly amended or will promptly amend or supplement, at its own expense, such issuer free writing prospectus to eliminate or correct such conflict, untrue statement or omission, and (2) has notified or promptly will notify you when such amendment or supplement was or is filed with the Commission where so required to be filed.

(C)        If immediately prior to the third anniversary of the initial effective date of the Registration Statement, any of the Securities remain unsold by the Underwriter, the Company will prior to that third anniversary file, if it has not already done so, a new shelf registration statement relating to the Securities, in a form satisfactory to the Underwriter, will use its best efforts to cause such registration statement to be declared effective within 180 days after that third anniversary, and will take all other action necessary or appropriate to permit the public offering and sale of the Securities to continue as contemplated in the expired

 

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registration statement relating to the Securities. References herein to the Registration Statement shall include such new shelf registration statement.

(iv)       Blue Sky Qualifications. The Company shall take or cause to be taken all necessary action to qualify the Securities for sale under the securities laws of such jurisdictions as you reasonably designate and to continue such qualifications in effect so long as required for the distribution of the Securities, except that the Company shall not be required in connection therewith to qualify as a foreign corporation or to execute a general consent to service of process in any state.

(v)        Provision of Documents. The Company will furnish, at its own expense, to the Underwriter and counsel for the Underwriter copies of the Registration Statement (which will include three complete manually signed copies of the Registration Statement and all consents and exhibits filed therewith), and to the Underwriter and any dealer each Preliminary Prospectus, the Time of Sale Disclosure Package, the Prospectus, any issuer free writing prospectus, and all amendments and supplements to such documents, in each case as soon as available and in such quantities as you may from time to time reasonably request.

(vi)       Rule 158. The Company will make generally available to its security holders as soon as practicable, but in no event later than 15 months after the end of the Company’s current fiscal quarter, an earnings statement (which need not be audited) covering a 12-month period that shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 of the Rules and Regulations.

(vii)      Payment and Reimbursement of Expenses. The Company, whether or not the transactions contemplated hereunder are consummated or this Agreement is terminated, will pay or cause to be paid (A) all expenses (including transfer taxes allocated to the respective transferees) incurred in connection with the delivery to the Underwriter of the Securities, (B) all expenses and fees (including, without limitation, fees and expenses of the Company’s accountants and counsel but, except as otherwise provided below, not including fees of the Underwriter’s counsel) in connection with the preparation, printing, filing, delivery, and shipping of the Registration Statement (including the financial statements therein and all amendments, schedules, and exhibits thereto), the Securities, each Preliminary Prospectus, the Time of Sale Disclosure Package, the Prospectus, any issuer free writing prospectus and any amendment thereof or supplement thereto, and the printing, delivery, and shipping of this Agreement and other underwriting documents, including Blue Sky Memoranda (covering the states and other applicable jurisdictions), (C) all filing fees and fees and disbursements of the Underwriter’s counsel incurred in connection with the qualification of the Securities for offering and sale by the Underwriter or by dealers under the securities or blue sky laws of the states and other jurisdictions which you shall designate, (D) the fees and expenses of the Custodian and any transfer agent or registrar, (E) the filing fees and fees and disbursements of Underwriter’s counsel incident to any required review and approval by FINRA of the terms of the sale of the Securities, (F) listing fees, if any, (G) the cost and expenses of the Company relating to investor presentations or any “roadshow” undertaken in connection with marketing of the Securities (it being understood and agreed that except as provided elsewhere in this Section 4(a)(vii), the Company will pay all of the travel, lodging and other expenses of the Underwriter or any of its employees, (H) the fees and disbursements of the Underwriter’s counsel, and (I) all other costs and expenses of the Company incident to the performance of its obligations hereunder that are not otherwise specifically provided for herein. If this Agreement is terminated by the Underwriter pursuant to Section 8 hereof or if the sale of the Securities provided for herein is not consummated by reason of any failure, refusal or inability on the part of the Company to perform any agreement on its part to be performed, or because any other condition of the Underwriter’s obligations hereunder required to be fulfilled by the Company is not fulfilled, the Company will reimburse the Underwriter for all out-of-pocket accountable disbursements (including but not limited to fees and disbursements of counsel, printing expenses, travel expenses, postage, facsimile and telephone charges) incurred by the Underwriter in connection with its investigation, preparing to market and marketing the Securities or in contemplation of performing their obligations hereunder. Except to the extent otherwise provided in this Agreement, the Underwriter will pay all

 

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of its own costs and expenses, including the fees and expenses of their counsel, any stock transfer taxes of any Securities held by it, and any advertising expenses connected with any offers it may make. Notwithstanding anything to the contrary in this Section 4(a)(vii) or elsewhere in this Agreement, the Company shall not, without the Company’s prior written consent, be responsible for the payment or reimbursement of fees, costs or expenses to the Underwriter pursuant to this Section 4(a)(vii) (including fees of the Underwriter’s counsel) to the extent that such aggregate fees, costs and expenses exceed $75,000.

(viii)     Use of Proceeds. The Company will apply the net proceeds from the sale of the Securities to be sold by it hereunder for the purposes set forth in the Time of Sale Disclosure Package and in the Prospectus.

(ix)       Company Lock Up. The Company will not, without the prior written consent of BTIG, LLC, from the date of execution of this Agreement and continuing to and including the date 90 days after the date of the Prospectus (the “Lock-Up Period”), (A) offer, pledge, announce the intention to sell, 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 or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into or exercisable or exchangeable for Common Stock, or (B) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Common Stock, whether any such transaction described in clause (A) or (B) above is made pursuant to the Company’s At-the-Market Program or otherwise, or is to be settled by delivery of Common Stock or such other securities, in cash or otherwise, except, in each case, for (w) the sale of Securities to the Underwriters pursuant to this Agreement, (x) issuances of shares of Common Stock upon the exercise or conversion of options, warrants or convertible securities disclosed as outstanding in the Registration Statement, the Time of Sale Disclosure Package and the Prospectus, (y) the issuance of employee stock options or other equity compensation or awards not exercisable during the Lock-Up Period or exchange of outstanding equity awards pursuant to the Company’s stock option, stock bonus and other stock plans or arrangements, in effect on the date hereof, in the ordinary course of business consistent with past practice and (z) issuances of shares to certain Company lenders in connection with term loan borrowings by the Company under the Company’s credit facility with Deerfield ELGX Revolver, LLC and certain its affiliates and with Deerfield Private Design Fund IV, L.P. and certain of its affiliates, in effect on the date hereof. The Company agrees not to accelerate the vesting of any option or warrant or the lapse of any repurchase right prior to the expiration of the Lock-Up Period.

(x)        Stockholder Lock-Ups. The Company has caused to be delivered to you prior to the date of this Agreement a letter, in the form of Exhibit A hereto (the “Lock-Up Agreement”), from each individual or entity listed on Schedule III. The Company will enforce the terms of each Lock-Up Agreement and issue stop-transfer instructions to the transfer agent for the Common Stock with respect to any transaction or contemplated transaction that would constitute a breach of or default under the applicable Lock-Up Agreement.

(xi)       No Market Stabilization or Manipulation. The Company has not taken and will not take, directly or indirectly, any action designed to or which might reasonably be expected to cause or result in, or which has constituted, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Securities

(xii)      SEC Reports. During the Prospectus Delivery Period, the Company will file on a timely basis with the Commission such periodic and special reports as required by the Rules and Regulations.

(xiii)     Internal Controls. During the Prospectus Delivery Period, the Company and its Subsidiaries will maintain such controls and other procedures, including without limitation those

 

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required by Sections 302 and 906 of the Sarbanes-Oxley Act and the applicable regulations thereunder, that are designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the Commission’s rules and forms, including without limitation, controls and procedures designed to ensure that information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is accumulated and communicated to the Company’s management, including its principal executive officer and its principal financial officer, or persons performing similar functions, as appropriate to allow timely decisions regarding required disclosure, to ensure that material information relating to Company, including its Subsidiaries, is made known to them by others within those entities.

(xiv)       Sarbanes-Oxley. During the Prospectus Delivery Period, the Company and its Subsidiaries will comply with all applicable provisions of the Sarbanes-Oxley Act.

(xv)        Free Writing Prospectuses. The Company represents and agrees that, unless it obtains the prior written consent of the Underwriter, and the Underwriter represents and agrees that, unless it obtains the prior written consent of the Company and the Underwriter, it has not made and will not make any offer relating to the Securities that would constitute an issuer free writing prospectus or that would otherwise constitute a free writing prospectus required to be filed with the Commission; provided that the prior written consent of the parties hereto shall be deemed to have been given in respect of the free writing prospectuses included in Schedule I. Any such free writing prospectus consented to by the Company and the Underwriter is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an issuer free writing prospectus, and has complied and will comply with the requirements of Rules 164 and 433 of the Rules and Regulations applicable to any Permitted Free Writing Prospectus. The Company agrees not to take any action that would result in the Company being required to file with the Commission under Rule 433(d) a free writing prospectus prepared by or on behalf of the Company that otherwise would not be required to be filed by the Company thereunder but for the action of the Company.

5.        Conditions of Underwriter’s Obligations. The obligations of the Underwriter hereunder are subject to the accuracy, as of the date hereof and at each of the First Closing Date and the Second Closing Date (as if made at such Closing Date), of and compliance with all representations, warranties and agreements of the Company contained herein, to the performance by the Company of its obligations hereunder and to the following additional conditions:

(a)        Required Filings; Absence of Certain Commission Actions. If filing of the Prospectus, or any amendment or supplement thereto, or any issuer free writing prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such issuer free writing prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or Rule 164(b)); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462(b) Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Time of Sale Disclosure Package, the Prospectus or any issuer free writing prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; any request of the Commission for additional information (to be included in the Registration Statement, the Time of Sale Disclosure Package, the Prospectus, any issuer free writing prospectus or otherwise) shall have been complied with to your satisfaction.

(b)        Continued Compliance with Securities Laws. No Underwriter shall have advised the Company that (i) the Registration Statement or any amendment thereof or supplement thereto contains an untrue statement of a material fact which, in your opinion, is material or omits to state a material fact which, in

 

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your opinion, is required to be stated therein or necessary to make the statements therein not misleading, or (ii) the Time of Sale Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any issuer free writing prospectus contains an untrue statement of fact which, in your opinion, is material, or omits to state a fact which, in your opinion, is material and is required to be stated therein, or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading.

(c)        Absence of Certain Events. Except as contemplated in the Time of Sale Disclosure Package and in the Prospectus, subsequent to the respective dates as of which information is given in the Time of Sale Disclosure Package and the Prospectus, neither the Company nor any of its Subsidiaries shall have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions, or declared or paid any dividends or made any distribution of any kind with respect to its capital stock; and there shall not have been any change in the capital stock (other than a change in the number of outstanding shares of Common Stock due to the issuance of shares upon the exercise of outstanding options or warrants, or conversion of convertible securities), or any material change in the short-term or long-term debt of the Company (other than as a result of the conversion of convertible securities), or any issuance of options, warrants, convertible securities or other rights to purchase the capital stock of the Company or any of its Subsidiaries, or any Material Adverse Change or any development involving a prospective Material Adverse Change (whether or not arising in the ordinary course of business), or any loss by strike, fire, flood, earthquake, accident or other calamity, whether or not covered by insurance, incurred by the Company or any Subsidiary, the effect of which, in any such case described above, in your judgment, makes it impractical or inadvisable to offer or deliver the Securities on the terms and in the manner contemplated in the Time of Sale Disclosure Package and in the Prospectus.

(d)        No Downgrade. On or after the Time of Sale (i) no downgrading shall have occurred in the rating accorded any of the Company’s securities by any “nationally recognized statistical organization,” as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Securities Act, and (ii) no such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Company’s securities.

(e)        Opinion of Company Counsel. On each Closing Date, there shall have been furnished to you (i) the opinion of DLA Piper LLP (US), counsel for the Company, dated such Closing Date and addressed to you in a form reasonably satisfactory to the Underwriter; (ii) a negative assurance letter of DLA Piper LLP (US), counsel for the Company, dated such Closing Date and addressed to you in in a form reasonably satisfactory to the Underwriter; and (iii) the opinion of in-house intellectual property counsel for the Company, dated such Closing Date and addressed to you in in a form reasonably satisfactory to the Underwriter.

(f)        Opinion of Underwriter’s Counsel. On each Closing Date, there shall have been furnished to you such opinion or opinions from O’Melveny & Myers LLP, counsel for the Underwriter, dated such Closing Date and addressed to you, with respect to the formation of the Company, the validity of the Securities, the Registration Statement, the Time of Sale Disclosure Package, the Prospectus and other related matters as you reasonably may request, and such counsel shall have received such papers and information as they request to enable them to pass upon such matters.

(g)        Comfort Letter. On the date hereof, on the effective date of any post-effective amendment to the Registration Statement filed after the date hereof and on each Closing Date you shall have received an accountant’s “comfort” letter of KPMG LLP, dated such date and addressed to you, in form and substance satisfactory to you.

 

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(h)      Officers’ Certificate. On each Closing Date, there shall have been furnished to you a certificate, dated such Closing Date and addressed to you, signed by the chief executive officer and by the chief financial officer of the Company, to the effect that:

(i)        The representations and warranties of the Company in this Agreement are true and correct as if made at and as of such Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Closing Date;

(ii)       No stop order or other order suspending the effectiveness of the Registration Statement or any part thereof or any amendment thereof or the qualification of the Securities for offering or sale nor suspending or preventing the use of the Time of Sale Disclosure Package, the Prospectus or any issuer free writing prospectus, has been issued, and no proceeding for that purpose has been instituted or, to the best of their knowledge, is contemplated by the Commission or any state or regulatory body; and

(iii)      Affirms the accuracy of the matters set forth in subsection (c) of this Section 5.

(i)       Lock-Up Agreement. The Underwriter shall have received all of the Lock-Up Agreements referenced in Section 4 and the Lock-Up Agreements shall remain in full force and effect.

(j)       FINRA No Objections. FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.

(k)      Other Documents. The Company shall have furnished to you and counsel for the Underwriter such additional documents, certificates and evidence as you or they may have reasonably requested.

(l)       Exchange Listing. The Securities to be delivered on such Closing Date have been approved for listing on The NASDAQ Global Select Market, subject to official notice of issuance.

(m)     CFO Certificate. On the date hereof and on each Closing Date, there shall have been furnished to you a certificate of the Chief Financial Officer of the Company, signed on behalf of the Company, regarding certain financial information in the Time of Sale Disclosure Package and the Prospectus, respectively, in form and substance and reasonably satisfactory to you.

(n)      Regulatory Affairs Certificate. On each Closing Date, the Underwriter shall have received a certificate from the director of regulatory affairs for the Company with respect to regulatory matters, in such person’s capacity as an employee of the Company, dated as of such date.

All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are satisfactory in form and substance to you and counsel for the Underwriter. The Company will furnish you with such conformed copies of such opinions, certificates, letters and other documents as you shall reasonably request.

6.        Indemnification and Contribution.

(a)      Indemnification by the Company. The Company agrees to indemnify and hold harmless the Underwriter, its affiliates, directors and officers and each person, if any, who controls the Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, from and against any losses, claims, damages or liabilities, joint or several, to which the Underwriter may become

 

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subject, under the Act or otherwise (including in settlement of any litigation if such settlement is effected with the written consent of the Company), insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon: (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, including the 430B Information and any other information deemed to be a part of the Registration Statement at the time of effectiveness and at any subsequent time pursuant to the Rules and Regulations, if applicable, any Preliminary Prospectus, the Time of Sale Disclosure Package, the Prospectus, or any amendment or supplement thereto, any issuer free writing prospectus, any issuer information that the Company has filed or is required to file pursuant to Rule 433(d) of the Rules and Regulations or any roadshow materials, (ii) the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or (iii) any investigation or proceeding by any governmental authority relating to or arising out of either clause (i) or (ii) above (whether commenced or threatened and whether or not any Underwriter is a target of or party to such investigation or proceeding), and the Company will reimburse the Underwriter for any legal or other expenses reasonably incurred by it in connection with investigating or defending against such loss, claim, damage, liability or action as such expenses are incurred; provided, however, that the Company will not be liable in any such case to the extent that any such loss, claim, damage, liability or action arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in reliance upon and in conformity with written information furnished to the Company by you, or by any Underwriter through you, specifically for use in the preparation thereof; it being understood and agreed that the only information furnished by an Underwriter consists of the information described as such in Section 6(e).

(b)        Indemnification by the Underwriter. The Underwriter will indemnify and hold harmless the Company, its affiliates, directors and officers and each person, if any, who controls the Company within the meaning of Section 15 of the Act and Section 20 of the Exchange Act, from and against any losses, claims, damages or liabilities to which the Company may become subject, under the Act or otherwise (including in settlement of any litigation if such settlement is effected with the written consent of the Underwriter), insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon (i) an untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, including the 430B Information and any other information deemed to be a part of the Registration Statement at the time of effectiveness and at any subsequent time pursuant to the Rules and Regulations, if applicable, any Preliminary Prospectus, the Time of Sale Disclosure Package, the Prospectus, or any amendment or supplement thereto, or any issuer free writing prospectus, or any issuer information that the Company has filed or is required to file pursuant to Rule 433(d) of the Rules and Regulations or any roadshow materials, (ii) 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 such untrue statement or alleged untrue statement or omission or alleged omission was made in reliance upon and in conformity with written information furnished to the Company by you, or by the Underwriter through you, specifically for use in the preparation thereof (it being understood and agreed that the only information furnished by an Underwriter consists of the information described as such in Section 6(e)), or (iii) any investigation or proceeding by any governmental authority relating to or arising out of either clause (i) or (ii) above, whether commenced or threatened and whether or not the Company is a target of or party to such investigation or proceeding, and the Underwriter will reimburse the Company for any legal or other expenses reasonably incurred by the Company in connection with investigating or defending against any such loss, claim, damage, liability or action as such expenses are incurred.

(c)        Notice and Procedures. Promptly after receipt by an indemnified party under subsection (a) or (c) above 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 subsection, notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party shall not relieve the indemnifying party from any liability that it may have to any indemnified party except

 

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to the extent such indemnifying party has been materially prejudiced by such failure (through the forfeiture of substantive rights or defenses). In case any such action shall be brought against any indemnified party, and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate in, and, to the extent that it shall wish, jointly with any other indemnifying party similarly notified, to assume the defense thereof, with counsel satisfactory to such indemnified party, and after notice from the indemnifying party to such indemnified party of the indemnifying party’s election so to assume the defense thereof, the indemnifying party shall not be liable to such indemnified party under such subsection for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof other than reasonable costs of investigation; provided, however, that if, in the sole judgment of the Underwriter, it is advisable for the Underwriter to be represented by separate counsel, the Underwriter shall have the right to employ a single counsel (in addition to local counsel) to represent the Underwriter, in which event the reasonable fees and expenses of such separate counsel shall be borne by the indemnifying party or parties and reimbursed to the Underwriter as incurred. An indemnifying party shall not be obligated under any settlement agreement, consent to judgment or other compromise relating to any action under this Section 6 to which it has not agreed in writing. In addition, no indemnifying party shall, without the prior written consent of the indemnified party (which consent shall not be unreasonably withheld or delayed, effect any settlement of any pending or threatened proceeding unless such settlement includes an unconditional release of such indemnified party for all liability on claims that are the subject matter of such proceeding and does not include a statement as to, or an admission of, fault, culpability or a failure to act by or on behalf of an indemnified party. Notwithstanding the foregoing, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel pursuant to this Section 6(c), such indemnifying party agrees that it shall be liable for any settlement effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request and (ii) such indemnifying party shall not have reimbursed such indemnified party in accordance with such request prior to the date of such settlement.

(d)        Contribution; Limitations on Liability; Non-Exclusive Remedy. If the indemnification provided for in this Section 6 is unavailable or insufficient to hold harmless an indemnified party under subsection (a) or (b) above, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of the losses, claims, damages or liabilities referred to in subsection (a) or (b) above, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriter on the other from the offering of the Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and the Underwriter on the other in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriter on the other 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 Underwriter, 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 or the Underwriter and the parties’ relevant intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Underwriter agree that it would not be just and equitable if contributions pursuant to this subsection (d) were to be determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the first sentence of this subsection (d). The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities referred to in the first sentence of this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending against any action or claim which is the subject of this subsection (d). Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which

 

-24-


the total underwriting discounts and commissions received by the Underwriter with respect to the Securities purchased by it hereunder exceeds the amount of any damages that the 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 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies that might otherwise be available to any indemnified party at law or in equity.

(e)    Information Provided by the Underwriter. The Underwriter confirms and the Company acknowledges that the statements with respect to the public offering of the Securities by the Underwriter set forth in (i) the sentences related to concessions in the second paragraph under the heading “Underwriting”, (ii) the second paragraph under the heading “Underwriting—Market Making, Stabilization and Other Transactions” and (iii) the last sentence in the paragraph under the heading “Underwriting—Passive Market Making” in the Time of Sale Disclosure Package and in the Prospectus under the caption “Underwriting” in the Time of Sale Disclosure Package and in the Prospectus are correct and constitute the only information concerning Underwriter furnished in writing to the Company by or on behalf of the Underwriter specifically for inclusion in the Registration Statement, any Preliminary Prospectus, the Time of Sale Disclosure Package, the Prospectus or any issuer free writing prospectus.

7.        Representations and Agreements to Survive Delivery. All representations, warranties, and agreements of the Company herein or in certificates delivered pursuant hereto, including but not limited to the agreements of the Underwriter and the Company contained in Section 6 hereof, shall remain operative and in full force and effect regardless of any investigation made by or on behalf of any Underwriter or any controlling person thereof, or the Company or any of its officers, directors, or controlling persons, and shall survive delivery of, and payment for, the Securities to and by the Underwriter hereunder and any termination of this Agreement.

8.        Termination of this Agreement.

(a)        Right to Terminate. You shall have the right to terminate this Agreement by giving notice to the Company as hereinafter specified at any time at or prior to the First Closing Date, and the option referred to in Section 3(b), if exercised, may be cancelled at any time prior to the Second Closing Date, if (i) the Company shall have failed, refused or been unable, at or prior to such Closing Date, to perform any agreement on its part to be performed hereunder, (ii) any condition of the Underwriter’s obligations hereunder is not fulfilled, (iii) trading in the Company’s Common Stock shall have been suspended by the Commission or The NASDAQ Stock Market or trading in securities generally on The NASDAQ Stock Market or New York Stock Exchange shall have been suspended, (iv) minimum or maximum prices for trading shall have been fixed, or maximum ranges for prices for securities shall have been required, on The NASDAQ Stock Market or New York Stock Exchange, by such Exchange or by order of the Commission or any other Governmental Authority having jurisdiction, (v) a banking moratorium shall have been declared by federal or New York state authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States, or (vi) there shall have occurred any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration by the United States of a national emergency or war, any change in financial markets, any substantial change or development involving a prospective substantial change in United States or international political, financial or economic conditions, or any other calamity or crisis that, in your judgment, is material and adverse and makes it impractical or inadvisable to proceed with the completion of the sale of and payment for the Securities. Any such termination shall be without liability of any party to any other party except that the provisions of Section 4(a)(vii) and Section 6 hereof shall at all times be effective and shall survive such termination.

 

-25-


(b)        Notice of Termination. If you elect to terminate this Agreement as provided in this Section, the Company, shall be notified promptly by you by telephone, confirmed by letter.

9.        Default by the Company.

(a)        Default by the Company. If the Company shall fail at the First Closing Date to sell and deliver the number of Securities which it is obligated to sell hereunder, then this Agreement shall terminate without any liability on the part of any Underwriter or, except as provided in Section 4(a)(vii) and Section 6 hereof, any non-defaulting party.

(b)        No Relief from Liability. No action taken pursuant to this Section shall relieve the Company so defaulting from liability, if any, in respect of such default.

10.      Notices. Except as otherwise provided herein, all communications hereunder shall be in writing and, if to the Underwriter, shall be mailed via overnight delivery service or hand delivered via courier to the Underwriter c/o BTIG, LLC, 600 Montgomery St, San Francisco, CA, 94111, Attention: Steven Druskin, fax no.: (212) 588-6554, with a copy to O’Melveny & Myers LLP, Two Embarcadero Center, 28th Floor, San Francisco, CA 94111, Attention: Peter T. Healy, Esq., fax no.: (415) 984-8701; if to the Company, shall be mailed or delivered to it at Endologix, Inc., 2 Musick, Irvine, CA 92618, Attention: Chief Financial Officer, email: vmahboob@endologix.com with a copy to DLA Piper LLP (US), 4365 Executive Drive, Suite 1100, San Diego, California 92121, Attention: Michael S. Kagnoff, Esq., or in each case to such other address as the person to be notified may have requested in writing. Any party to this Agreement may change such address for notices by sending to the parties to this Agreement written notice of a new address for such purpose.

11.      Persons Entitled to Benefit of Agreement. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns and the controlling persons, officers and directors referred to in Section 6. Nothing in this Agreement is intended or shall be construed to give to any other person, firm or corporation any legal or equitable remedy or claim under or in respect of this Agreement or any provision herein contained. The term “successors and assigns” as herein used shall not include any purchaser, as such purchaser, of any of the Securities from the Underwriter.

12.      Absence of Fiduciary Relationship. The Company acknowledges and agrees that: (a) the Underwriter has been retained solely to act as an underwriter in connection with the sale of the Securities and that no fiduciary, advisory or agency relationship between the Company and the Underwriter has been created in respect of any of the transactions contemplated by this Agreement, irrespective of whether the Underwriter has advised or is advising the Company on other matters; (b) the price and other terms of the Securities set forth in this Agreement were established by the Company following discussions and arms-length negotiations with the Underwriter and the Company is capable of evaluating and understanding and understands and accepts the terms, risks and conditions of the transactions contemplated by this Agreement; (c) it has been advised that the Underwriter and its affiliates are engaged in a broad range of transactions which may involve interests that differ from those of the Company and that the Underwriter has no obligation to disclose such interest and transactions to the Company by virtue of any fiduciary, advisory or agency relationship; (d) it has been advised that the Underwriter is acting, in respect of the transactions contemplated by this Agreement, solely for the benefit of the Underwriter, and not on behalf of the Company; (e) it, he or she waives to the fullest extent permitted by law, any claims it may have against the Underwriter for breach of fiduciary duty or alleged breach of fiduciary duty in respect of any of the transactions contemplated by this Agreement and agrees that the Underwriter shall have no liability (whether direct or indirect) to the Company in respect of such a fiduciary duty claim on behalf of or in right of the Company, including stockholders, employees or creditors of the Company.

 

-26-


13.        Governing Law; Waiver of Jury Trial. This Agreement shall be governed by and construed in accordance with the laws of the State of New York. The Company (on its behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates) and the Underwriter 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.

14.        Counterparts. This Agreement may be executed in one or more counterparts and, if executed in more than one counterpart, the executed counterparts shall each be deemed to be an original and all such counterparts shall together constitute one and the same instrument.

15.        General Provisions. This Agreement constitutes the entire agreement of the parties to this Agreement and supersedes all prior written or oral and all contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof. This Agreement may not be amended or modified unless in writing by all of the parties hereto, and no condition herein (express or implied) may be waived unless waived in writing by each party whom the condition is meant to benefit. The Section headings herein are for the convenience of the parties only and shall not affect the construction or interpretation of this Agreement. The invalidity or unenforceability of any Section, paragraph or provision of this Agreement shall not affect the validity or enforceability of any other Section, paragraph or provision hereof. If any Section, paragraph or provision of this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed to be made such minor changes (and only such minor changes) as are necessary to make it valid and enforceable.

[Signature Page Follows]

 

-27-


Please sign and return to the Company the enclosed duplicates of this letter whereupon this letter will become a binding agreement between the Company and the Underwriter in accordance with its terms.

 

Very truly yours,
Endologix, Inc.
By   /s/ Vaseem Mahboob
  Name: Vaseem Mahboob
  Title: Chief Financial Officer

Confirmed as of the date first

above mentioned

BTIG, LLC

 

By   /s/ Charlie Mather
  Name: Charlie Mather
  Tile: Managing Director


SCHEDULE I

Certain Permitted Free Writing Prospectuses

None.


SCHEDULE II

Pricing Information

1. The Company is selling 17,653,809 shares of Common Stock.

2. The Company has granted an option to the Underwriter to purchase up to an additional 2,648,071 shares of Common Stock.

3. The public offering price per share for the Securities shall be $1.1329 per share.


SCHEDULE III

List of Individuals and Entities Executing Lock-Up Agreements

Daniel Lemaitre

Gregory D. Waller

Thomas C. Wilder, III

Guido J. Neels

Thomas F. Zenty, III

Leslie Norwalk

Vaseem Mahboob

John Onopchenko

Matthew Thompson, M.D.

Jeremy Hayden


SCHEDULE IV

List of Material Subsidiaries

Nellix, Inc. (Delaware)

Endologix International Holdings B.V. (The Netherlands)

TriVascular, Inc. (California)


SCHEDULE V

Trademarks

 

Grantor    Country    Mark    Application No.    Application Date    Registration No.    Registration Date

 

Endologix, Inc.

 

  

 

U.S.

 

  

 

LOGO

 

  

 

86/854470

 

   12/18/15          
         

Endologix, Inc.

 

  

U.S.

 

  

  ACTIVESEAL  

 

  

85/518,608

 

  

01/17/12

 

  

5396605

 

  

02/06/18

 

             

Endologix, Inc.

 

  

U.S.

 

  

AFX

 

  

85/069,068

 

  

06/22/10

 

  

4214460

 

  

09/25/12

 

         

Endologix, Inc.

 

  

U.S.

 

  

ANGIOTIP

 

  

85/767055

 

  

10/30/12

 

  

5205176

 

  

05/16/17

 

             

Endologix, Inc.

 

  

U.S.

 

  

DURAPLY

 

  

86/362822

 

  

08/11/14

 

  

5433696

 

  

3/27/18

 

         

Endologix, Inc.

 

  

U.S.

 

  

  ENDOLOGIX  

 

  

75/323,314

 

  

07/11/97

 

  

2257799

 

  

06/29/99

 

             

Endologix, Inc.

 

  

U.S.

 

  

EVAS FORWARD

 

  

86/116940

 

  

11/12/13

 

  

5306786

 

  

10/10/17

 

         

Endologix, Inc.

 

  

U.S.

 

  

  INNOVATION   TAKING SHAPE  

 

  

85/369,728

 

  

07/12/11

 

  

4220343

 

  

10/09/12

 


             

Endologix, Inc.

 

  

U.S.

 

  

  INNOVATION   THAT EMPOWERS  

 

  

85/514516

 

  

01/11/12

 

  

4841631

 

  

10/27/15

 

             

Endologix, Inc.

 

  

U.S.

 

  

INTELIX

 

  

86/316249

 

  

06/20/14

 

  

5059968

 

  

10/11/16

 

             

Endologix, Inc.

 

  

U.S.

 

  

INTUITRAK

 

  

77/494,729

 

  

06/09/08

 

  

3649757

 

  

07/07/09

 

             

Endologix, Inc.

 

  

U.S.

 

  

  INTUITRAK  

DELIVERY

SYSTEM

 

  

77/520,529

 

  

07/11/08

 

  

3649866

 

  

07/07/09

 

             

Endologix, Inc.

 

  

U.S.

 

  

NELLIX

 

  

77/090544

 

  

01/24/07

 

  

3880178

 

  

11/23/10

 

             

Endologix, Inc.

 

  

U.S.

 

  

  POWERLINK  

 

  

75/658,969

 

  

03/12/99

 

  

2456038

 

  

05/29/01

 

             

Endologix, Inc.

 

  

U.S.

 

  

  POWERLINK   XL

 

  

78/718,728

 

  

09/22/05

 

  

3573999

 

  

02/10/09

 

             

Endologix, Inc.

 

  

U.S.

 

  

  SUREPASS  

 

  

78/965,443

 

  

08/31/06

 

  

3593259

 

  

03/17/09

 

             

Endologix, Inc.

 

  

U.S.

 

  

VELA

 

  

85/857988

 

  

02/22/13

 

  

5296578

 

  

09/26/17

 

             

Endologix, Inc.

 

  

U.S.

 

  

XPAND

 

  

85/126,464

 

  

09/09/10

 

  

4168563

 

  

07/03/12

 


             

Endologix, Inc.

 

  

Argentina

 

  

LOGO

 

  

3514846

 

  

06/16/16

 

  

2888199

 

  

05/19/17

 

             

Endologix, Inc.

 

  

Argentina

 

  

LOGO

 

  

3514844

 

  

06/16/16

 

  

2888198

 

  

05/19/17

 

             

Endologix, Inc.

 

  

Argentina

 

  

LOGO

 

  

3514844

 

  

06/16/16

 

         
             

Endologix, Inc.

 

  

Argentina

 

  

LOGO

 

  

3514842

 

  

06/16/16

 

  

2888196

 

  

05/19/17

 

             

Endologix, Inc.

 

  

Argentina

 

  

AFX

 

  

3064304

 

  

01/27/11

 

  

2496722

 

  

04/04/12

 

             

Endologix, Inc.

 

  

Argentina

 

  

DURAPLY

 

  

3386456

 

  

02/11/15

 

  

2773735

 

  

12/09/15

 

             

Endologix, Inc.

 

  

Argentina

 

  

INTELIX

 

  

3375648

 

  

12/19/14

 

  

2766285

 

  

12/04/15

 

             

Endologix, Inc.

 

  

Argentina

 

  

INTELIX

 

  

3375649

 

  

12/19/14

 

  

2766286

 

  

11/04/15

 


             

Endologix, Inc.

 

  

Argentina

 

  

INTELIX

 

  

3375650

 

  

12/19/14

 

  

2766287

 

  

11/04/15

 

             

Endologix, Inc.

 

  

Argentina

 

  

NELLIX

 

  

3243024

 

  

05/02/13

 

  

2658594

 

  

06/26/14

 

             

Endologix, Inc.

 

  

Argentina

 

  

VELA

 

  

3271551

 

  

08/22/13

 

  

2808433

 

  

06/03/16

 

             

Endologix, Inc.

 

  

Argentina

 

  

XPAND

 

  

3072929

 

  

03/16/11

 

  

2506706

 

  

06/01/12

 

             

Endologix, Inc.

 

  

Australia

 

  

LOGO

 

  

1326557

 

  

06/14/16

 

  

1326557

 

  

04/24/17

 

             

Endologix, Inc.

 

  

Australia

 

  

DURAPLY

 

  

1710503

 

  

02/10/15

 

  

1710503

 

  

11/04/15

 

             

Endologix, Inc.

 

  

Australia

 

  

INTELIX

 

  

1247823

 

  

12/19/14

 

  

1247823

 

  

11/25/16

 

             

Endologix, Inc.

 

  

Brazil

 

  

LOGO

 

  

911.201.521

 

  

06/17/16

 

         
             

Endologix, Inc.

 

  

Brazil

 

  

LOGO

 

  

911.201.572

 

  

06/17/16

 

         


             

Endologix, Inc.

 

  

Brazil

 

  

LOGO

 

  

911.201.599

 

  

06/17/16

 

         
             

Endologix, Inc.

 

  

Brazil

 

  

LOGO

 

  

911.201.602

 

  

06/17/16

 

         
             

Endologix, Inc.

 

  

Brazil

 

  

  ACTIVESEAL  

 

  

909861684

 

  

08/20/15

 

         
             

Endologix, Inc.

 

  

Brazil

 

  

AFX

 

  

830891226

 

  

12/21/10

 

         
             

Endologix, Inc.

 

  

Brazil

 

  

AFX

 

  

912186283

 

  

01/19/17

 

         
             

Endologix, Inc.

 

  

Brazil

 

  

DURAPLY

 

  

909861722

 

  

08/20/15

 

         
             

Endologix, Inc.

 

  

Brazil

 

  

INTELIX

 

  

909861749

 

  

08/20/15

 

  

909861749

 

  

01/02/18

 

             

Endologix, Inc.

 

  

Brazil

 

  

INTELIX

 

  

909861765

 

  

08/20/15

 

  

909861765

 

  

01/02/18

 

             

Endologix, Inc.

 

  

Brazil

 

  

INTELIX

 

  

909861773

 

  

08/20/15

 

  

909861773

 

  

01/02/18

 

             

Endologix, Inc.

 

  

Brazil

 

  

NELLIX

 

  

840506538

 

  

05/06/13

 

  

840506538

 

  

02/16/16

 


             

Endologix, Inc.

 

  

Brazil

 

  

VELA

 

  

840618530

 

  

08/22/13

 

         
             

Endologix, Inc.

 

  

Canada

 

  

DURAPLY

 

  

1714718

 

  

02/10/15

 

         
             

Endologix, Inc.

 

  

Canada

 

  

INTELIX

 

  

1707569

 

  

12/17/14

 

         
             

Endologix, Inc.

 

  

Canada

 

  

VELA

 

  

1640416

 

  

08/21/13

 

         
             

Endologix, Inc.

 

  

Chile

 

  

XPAND

 

  

1137099

 

  

12/30/14

 

  

1187135

 

  

11/27/15

 

             

Endologix, Inc.

 

  

China

 

  

LOGO

 

  

1326551

 

  

06/14/16

 

         
             

Endologix, Inc.

 

  

China

 

  

DURAPLY

 

  

1257411

 

  

02/10/15

 

  

1257411

 

  

02/10/15

 

             

Endologix, Inc.

 

  

China

 

  

INTELIX

 

  

1247823

 

  

12/19/14

 

  

1247823

 

  

12/19/14

 

             

Endologix, Inc.

 

  

Colombia

 

  

AFX

 

  

16-133051

 

  

05/11/26

 

  

582446

 

  

11/17/17

 

             

Endologix, Inc.

 

  

Colombia

 

  

  ENDOLOGIX  

 

  

16-121402

 

  

05/11/16

 

  

582446

 

  

11/17/17

 


             

Endologix, Inc.

 

  

Colombia

 

  

XPAND

 

  

1246435

 

  

12/26/14

 

  

1246435

 

  

12/26/14

 

             

Endologix, Inc.

 

  

European Community

 

  

AFX

 

  

009609884

 

  

12/20/10

 

  

009609884

 

  

12/01/11

 

             

Endologix, Inc.

 

  

European Community

 

  

ANGIOTIP

 

  

011780129

 

  

04/30/13

 

  

011780129

 

  

09/24/13

 

             

Endologix, Inc.

 

  

European Community

 

  

  CLASSICAL     REMODELING  

 

  

4598728

 

  

08/19/05

 

  

4598728

 

  

08/02/06

 

             

Endologix, Inc.

 

  

European Community

 

  

DURAPLY

 

  

1257411

 

  

02/10/15

 

  

1257411

 

  

02/10/15

 

             

Endologix, Inc.

 

  

European Community

 

  

  ENDOLOGIX,  

INC.

 

  

720649

 

  

01/12/98

 

  

720649

 

  

01/12/98

 

             

Endologix, Inc.

 

  

European Community

 

  

INTELIX

 

  

13361399

 

  

10/15/14

 

  

13361399

 

  

08/20/18

 

             

Endologix, Inc.

 

  

European Community

 

  

INTUITRAK

 

  

7453401

 

  

11/28/08

 

  

7453401

 

  

09/21/09

 

             

Endologix, Inc.

 

  

European Community

 

  

  INTUITRAK  

  DELIVERY  

  SYSTEM  

 

  

7513302

 

  

12/23/08

 

  

7513302

 

  

07/21/09

 

             

Endologix, Inc.

 

  

European Community

 

  

NELLIX

 

  

011771011

 

  

04/26/13

 

  

011771011

 

  

09/18/13

 


             

Endologix, Inc.

 

  

European Community

 

  

POWERLINK   XL

 

  

5002977

 

  

03/22/06

 

  

5002977

 

  

04/11/07

 

             

Endologix, Inc.

 

  

European Community

 

  

VISIFLEX   DELIVERY   SYSTEM  

 

  

5075528

 

  

04/24/06

 

  

5075528

 

  

04/16/07

 

             

Endologix, Inc.

 

  

European Community

 

  

VISIFLEX   SURE PASS  

 

  

5749338

 

  

02/28/07

 

  

5749338

 

  

01/31/08

 

             

Endologix, Inc.

 

  

European Union

 

  

LOGO

 

  

1326551

 

  

06/14/16

 

  

1326551

 

  

06/12/17

 

             

Endologix, Inc.

 

  

France

 

  

POWERLINK  

 

  

043299490

 

  

09/13/99

 

  

043299490

 

  

12/31/04

 

             

Endologix, Inc.

 

  

Hong Kong

 

  

DURAPLY

 

  

303301280

 

  

02/15/15

 

  

303301280

 

  

10/05/15

 

             

Endologix, Inc.

 

  

Hong Kong

 

  

INTELIX

 

  

303240954

 

  

12/18/14

 

  

303240954

 

  

09/07/16

 

             

Endologix, Inc.

 

  

Italy

 

  

POWERLINK  

 

  

001724

 

  

09/13/99

 

  

0001376420

 

  

02/27/08

 

             

Endologix, Inc.

 

  

Japan

 

  

LOGO

 

  

1326551

 

  

06/14/16

 

  

1326551

 

  

05/02/17

 


             

Endologix, Inc.

 

  

Japan

 

  

ACTIVESEAL  

 

  

2015-078597

 

  

08/17/15

 

  

5857166

 

  

06/10/16

 

             

Endologix, Inc.

 

  

Japan

 

  

AFX

 

  

2015-078596

 

  

08/17/15

 

  

5824704

 

  

02/05/16

 

             

Endologix, Inc.

 

  

Japan

 

  

DURAPLY

 

  

1257411

 

  

02/10/15

 

  

1257411

 

  

01/19/16

 

             

Endologix, Inc.

 

  

Japan

 

  

ENDOLOGIX,   INC.

 

  

1155/1998

 

  

01/12/98

 

  

4352035

 

  

01/14/00

 

             

Endologix, Inc.

 

  

Japan

 

  

INTELIX

 

  

1247823

 

  

12/19/14

 

  

1247823

 

  

10/27/15

 

             

Endologix, Inc.

 

  

Japan

 

  

NELLIX

 

  

2013-031634

 

  

04/25/13

 

  

5613989

 

  

09/06/13

 

             

Endologix, Inc.

 

  

Japan

 

  

VELA

 

  

2013-6/4901

 

  

08/21/13

 

         
             

Endologix, Inc.

 

  

Japan

 

  

VISIFLEX   DELIVERY   SYSTEM  

 

  

2006-035170

 

  

04/17/06

 

  

4974084

 

  

07/28/06

 

             

Endologix, Inc.

 

  

Japan

 

  

VISIFLEX   SUREPASS  

 

  

2007-017236

 

  

02/28/07

 

  

5066349

 

  

07/27/07

 

             

Endologix, Inc.

 

  

Korea

 

  

DURAPLY

 

  

1257411

 

  

02/10/15

 

  

1257411

 

  

02/10/15

 


             

Endologix, Inc.

 

  

Korea

 

  

INTELIX

 

  

1247823

 

  

12/19/14

 

  

1247823

 

  

06/13/16

 

             

Endologix, Inc.

 

  

Malaysia

 

  

DURAPLY

 

  

2015052019

 

  

02/11/15

 

  

2015052019

 

  

12/29/16

 

             

Endologix, Inc.

 

  

Malaysia

 

  

INTELIX

 

  

2014069128

 

  

12/18/14

 

  

2014069128

 

  

04/22/16

 

             

Endologix, Inc.

 

  

Malaysia

 

  

INTELIX

 

  

2014069135

 

  

12/18/14

 

  

2014069135

 

  

05/10/16

 

             

Endologix, Inc.

 

  

Mexico

 

  

XPAND

 

  

1246435

 

  

12/26/14

 

  

1246435

 

  

07/26/16

 

             

Endologix, Inc.

 

  

New Zealand  

 

  

DURAPLY

 

  

1024501

 

  

02/10/15

 

  

1024501

 

  

12/02/15

 

             

Endologix, Inc.

 

  

New Zealand  

 

  

INTELIX

 

  

1247823

 

  

12/19/14

 

  

1019974

 

  

09/27/16

 

             

Endologix, Inc.

 

  

Peru

 

  

XPAND

 

  

601318

 

  

12/29/14

 

  

00223114

 

  

04/22/15

 

             

Endologix, Inc.

 

  

Singapore

 

  

DURAPLY

 

  

40201513229

 

  

02/10/15

 

  

40201513229

 

  

01/06/16

 

             

Endologix, Inc.

 

  

Singapore

 

  

INTELIX

 

  

40201508694

 

  

12/19/14

 

  

40201508694

 

  

11/11/15

 

             

Endologix, Inc.

 

  

Taiwan

 

  

DURAPLY

 

  

104008448

 

  

02/11/15

 

  

1764288

 

  

04/16/16

 


             

Endologix, Inc.

 

  

Taiwan

 

  

INTELIX

 

  

103072703

 

  

12/18/14

 

  

1740066

 

  

11/16/15

 

             

Endologix, Inc.

 

  

Thailand

 

  

DURAPLY

 

  

973443

 

  

02/11/15

 

  

171110590

 

  

09/28/17

 

             

Endologix, Inc.

 

  

Thailand

 

  

INTELIX

 

  

966979

 

  

12/19/14

 

         
             

Endologix, Inc.

 

  

Thailand

 

  

INTELIX

 

  

966980

 

  

12/19/14

 

         
             

Endologix, Inc.

 

  

United Kingdom

 

  

POWERLINK  

 

  

2369587

 

  

09/13/99

 

  

2369587

 

  

12/09/05

 

             

Endologix, Inc.

 

  

Venezuela

 

  

XPAND

 

  

20754-14

 

  

12/30/14

 

  

P352404

 

  

06/07/16

 

             

Endologix, Inc.

 

  

Vietnam

 

  

DURAPLY

 

  

1257411

 

  

02/10/15

 

  

1257411

 

  

11/03/16

 

             

Endologix, Inc.

 

  

Vietnam

 

  

INTELIX

 

  

1247823

 

  

12/19/14

 

  

1247823

 

  

05/21/15

 

             

Endologix, Inc.

 

  

U.S.

 

  

ALTO

 

  

87/906,099

 

  

5/3/2018

 

         
             

Endologix, Inc.

 

  

U.S.

 

  

VERTA

 

  

87/116,482

 

  

7/26/2016

 

         
             

TriVascular, Inc.

 

  

U.S.

 

  

ALLEGRO

 

  

86/758,465

 

  

9/16/2015

 

         


             

TriVascular, Inc.

 

  

U.S.

 

  

CUSTOMSEAL  

 

  

86/047,875

 

  

8/26/2013

 

  

4,732,342

 

  

5/5/2015

 

             

TriVascular, Inc.

 

  

U.S.

 

  

OVATION

 

  

77/941,535

 

  

2/22/2010

 

  

4,440,468

 

  

11/26/2013

 

             

TriVascular, Inc.

 

  

U.S.

 

  

OVATION ALTO  

 

  

86/047,894

 

  

8/26/2013

 

  

5,195,890

 

  

5/2/2017

 

             

TriVascular, Inc.

 

  

U.S.

 

  

OVATION PRIME  

 

  

85/900,037

 

  

4/10/2013

 

  

4,452,625

 

  

12/17/2013

 

             

TriVascular, Inc.

 

  

U.S.

 

  

LOGO

 

  

85/832,445

 

  

1/25/2013

 

  

4,449,077

 

  

12/10/2013

 

             

TriVascular, Inc.

 

  

U.S.

 

  

TRIVASCULAR  

 

  

75/879,907

 

  

12/21/1999

 

  

2,867,015

 

  

7/27/2004

 

             

TriVascular, Inc.

 

  

U.S.

 

  

LOGO  

 

  

85/831,355

 

  

1/24/2013

 

  

4,395,789

 

  

9/3/2013

 

             

TriVascular, Inc.

 

  

Australia

 

  

CUSTOMSEAL  

 

  

1608471

 

  

2/27/2014

 

  

1608471

 

  

1/21/2015

 

             

TriVascular, Inc.

 

  

Australia

 

  

OVATION

 

  

1379343

 

  

8/20/2010

 

  

1379343

 

  

1/10/2011

 

             

TriVascular, Inc.

 

  

Australia

 

  

OVATION ALTO  

 

  

1608211

 

  

2/26/2014

 

  

1608211

 

  

5/28/2014

 

             

TriVascular, Inc.

 

  

Australia

 

  

OVATION PRIME  

 

  

1583683

 

  

10/2/2013

 

  

1583683

 

  

1/7/2014

 


             

TriVascular, Inc.

 

  

Australia

 

  

LOGO

 

  

1537921

 

  

1/29/2013

 

  

1537921

 

  

7/31/2013

 

             

TriVascular, Inc.

 

  

Australia

 

  

TRIVASCULAR  

 

  

888603

 

  

9/7/2001

 

  

888603

 

  

9/7/2001

 

             

TriVascular, Inc.

 

  

Australia

 

  

LOGO  

 

  

983475

 

  

12/30/2003

 

  

983475

 

  

8/16/2004

 

             

TriVascular, Inc.

 

  

Brazil

 

  

CUSTOMSEAL  

 

  

840.803.346

 

  

2/26/2014

 

  

840803346

 

  

10/18/2016

 

             

TriVascular, Inc.

 

  

Brazil

 

  

OVATION

 

  

830727035

 

  

8/20/2010

 

  

830727035

 

  

1/6/2015

 

             

TriVascular, Inc.

 

  

Brazil

 

  

OVATION ALTO  

 

  

840.803.419

 

  

2/26/2014

 

  

840.803.419

 

  

3/20/2018

 

             

TriVascular, Inc.

 

  

Brazil

 

  

OVATION PRIME  

 

  

840.666.152

 

  

10/4/2013

 

  

840666152

 

  

8/23/2016

 

             

TriVascular, Inc.

 

  

Brazil

 

  

LOGO  

 

  

830854487

 

  

11/24/2010

 

  

830854487

 

  

6/3/2014

 

             

TriVascular, Inc.

 

  

Canada

 

  

CUSTOMSEAL  

 

  

1,665,277

 

  

2/25/2014

 

         
             

TriVascular, Inc.

 

  

Canada

 

  

OVATION

 

  

1493184

 

  

8/20/2010

 

  

TMA858,759

 

  

8/28/2013

 

             

TriVascular, Inc.

 

  

Canada

 

  

OVATION ALTO  

 

  

1,665,276

 

  

2/25/2014

 

         


             

TriVascular, Inc.

 

  

Canada

 

  

OVATION PRIME  

 

  

1,645,991

 

  

10/2/2013

 

         
             

TriVascular, Inc.

 

  

Canada

 

  

LOGO

 

  

1,611,335

 

  

1/25/2013

 

  

TMA934,553  

 

  

4/12/2016

 

             

TriVascular, Inc.

 

  

Canada

 

  

TRIVASCULAR  

 

  

1,612,136

 

  

1/31/2013

 

  

TMA882,992  

 

  

7/29/2014

 

             

TriVascular, Inc.

 

  

Canada

 

  

LOGO  

 

  

1200748

 

  

12/30/2003

 

  

TMA825955  

 

  

6/8/2012

 

             

TriVascular, Inc.

 

  

China

 

  

CUSTOMSEAL  

 

  

14075157

 

  

2/26/2014

 

  

14075157

 

  

4/28/2015

 

             

TriVascular, Inc.

 

  

China

 

  

OVATION

 

  

8598413

 

  

8/23/2010

 

  

8598413

 

  

11/7/2011

 

             

TriVascular, Inc.

 

  

China

 

  

OVATION ALTO  

 

  

14075158

 

  

2/26/2014

 

  

14075158

 

  

4/28/2015

 

             

TriVascular, Inc.

 

  

China

 

  

OVATION PRIME  

 

  

13321289

 

  

10/8/2013

 

  

13321289

 

  

6/21/2015

 

             

TriVascular, Inc.

 

  

China

 

  

LOGO  

 

  

8898103

 

  

11/30/2010

 

  

8898103

 

  

12/14/2011

 

             

TriVascular, Inc.

 

  

EUTM

 

  

OVATION

 

  

009325234

 

  

8/20/2010

 

  

009325234

 

  

2/3/2011

 

             

TriVascular, Inc.

 

  

EUTM

 

  

OVATION ALTO  

 

  

012636908

 

  

2/25/2014

 

  

012636908

 

  

7/16/2014

 


             

TriVascular, Inc.

 

  

EUTM

 

  

OVATION PRIME  

 

  

012189148

 

  

10/2/2013

 

  

012189148

 

  

2/26/2014

 

             

TriVascular, Inc.

 

  

EUTM

 

  

LOGO

 

  

011523305

 

  

1/28/2013

 

  

011523305

 

  

6/24/2013

 

             

TriVascular, Inc.

 

  

EUTM

 

  

TRIVASCULAR  

 

  

002374593

 

  

9/13/2001

 

  

002374593

 

  

3/12/2003

 

             

TriVascular, Inc.

 

  

EUTM

 

  

LOGO  

 

  

003598836

 

  

12/31/2003

 

  

003598836

 

  

4/29/2005

 

             

TriVascular, Inc.

 

  

EUTM

 

  

TRIVASCULAR2 &   Design

 

  

007457344

 

  

11/27/2008

 

  

007457344

 

  

6/16/2009

 

             

TriVascular, Inc.

 

  

India

 

  

OVATION

 

  

2012141

 

  

8/20/2010

 

  

2012141

 

  

8/23/2016

 

             

TriVascular, Inc.

 

  

India

 

  

LOGO  

 

  

2060383

 

  

11/29/2010

 

  

2060383

 

  

11/29/2010

 

             

TriVascular, Inc.

 

  

Japan

 

  

CUSTOMSEAL  

 

  

2014-14237

 

  

2/26/2014

 

  

5672406

 

  

5/23/2014

 

             

TriVascular, Inc.

 

  

Japan

 

  

OVATION

 

  

2010-065871

 

  

8/20/2010

 

  

5614976

 

  

9/13/2013

 

             

TriVascular, Inc.

 

  

Japan

 

  

OVATION ALTO  

 

  

2014-14238

 

  

2/26/2014

 

  

5672407

 

  

5/23/2014

 

             

TriVascular, Inc.

 

  

Japan

 

  

OVATION PRIME  

 

  

2013-024875

 

  

4/4/2013

 

  

5613251

 

  

9/6/2013

 


             

TriVascular, Inc.

 

  

Japan

 

  

LOGO

 

  

2013-5504

 

  

1/30/2013

 

  

5643434

 

  

1/17/2014

 

             

TriVascular, Inc.

 

  

Japan

 

  

TRIVASCULAR  

 

  

2001-115594

 

  

12/27/2001

 

  

4731627

 

  

12/5/2003

 

             

TriVascular, Inc.

 

  

Japan

 

  

LOGO   

 

  

2004-030615

 

  

3/18/2004

 

  

4778040

 

  

6/11/2004

 

             

TriVascular, Inc.

 

  

Mexico

 

  

OVATION

 

  

1113689

 

  

8/20/2010

 

  

1235645

 

  

8/20/2010

 

             

TriVascular, Inc.

 

  

Mexico

 

  

LOGO   

 

  

1139285

 

  

12/2/2010

 

  

1213946

 

  

4/27/2011

 


EXHIBIT A

Form of Lock-Up Agreement

October     , 2018

BTIG, LLC

600 Montgomery St

6th Floor

San Francisco, CA, 94111

Dear Sirs:

As an inducement to BTIG, LLC (the “Underwriter”) to execute an underwriting agreement (the “Underwriting Agreement”) providing for a public offering (the “Offering”) of common stock, par value $0.001 per share (the “Common Stock”), of Endologix, Inc. and any successor (by merger or otherwise) thereto (the “Company”), the undersigned hereby agrees that without, in each case, the prior written consent of the Underwriter during the period specified in the second succeeding paragraph (the “Lock-Up Period”), the undersigned will not: (1) offer, pledge, announce the intention to sell, 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, make any short sale or otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any securities convertible into, exercisable or exchangeable for or that represent the right to receive Common Stock (including without limitation, Common Stock which may be deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of the Securities and Exchange Commission (the “SEC”) and securities which may be issued upon exercise of a stock option or warrant) whether now owned or hereafter acquired (the “Undersigned’s Securities”); (2) enter into any swap or other agreement that transfers, in whole or in part, any of the economic consequences of ownership of the Undersigned’s Securities, whether any such transaction described in clause (1) or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or otherwise; (3) make any demand for or exercise any right with respect to, the registration of any Common Stock or any security convertible into or exercisable or exchangeable for Common Stock; or (4) publicly disclose the intention to do any of the foregoing.

The undersigned agrees that the foregoing restrictions preclude the undersigned from engaging in any hedging or other transaction which is designed to or which reasonably could be expected to lead to or result in a sale or disposition of the Undersigned’s Securities even if such Securities would be disposed of by someone other than the undersigned. Such prohibited hedging or other transactions would include without limitation any short sale or any purchase, sale or grant of any right (including without limitation any put or call option) with respect to any of the Undersigned’s Securities or with respect to any security that includes, relates to, or derives any significant part of its value from the Undersigned’s Securities.

The Lock-Up Period will commence on the date of this Agreement and continue and include the date 90 days after the date of the final prospectus used to sell Common Stock in the Offering pursuant to the Underwriting Agreement.

Notwithstanding the foregoing, and subject to the conditions below, the undersigned may transfer the Undersigned’s Securities (i) as a bona fide gift or gifts or for bona fide estate planning purposes, (ii) to any trust or other entity for the direct or indirect benefit of the undersigned or the immediate family of the undersigned, (iii) if the undersigned is a corporation, partnership, limited liability company, trust or other business entity (1) transfers to another corporation, partnership, limited liability company, trust or other business entity that is a direct or indirect affiliate (as defined in Rule 405 promulgated under the Securities

 

C-1


Act of 1933, as amended) of the undersigned or (2) distributions of shares of Common Stock or any security convertible into or exercisable for Common Stock to limited partners, limited liability company members or stockholders of the undersigned, (iv) if the undersigned is a trust, transfers to the beneficiary of such trust, (v) by testate succession or intestate succession or by operation of law pursuant to a domestic relations order, diverse settlement or similar order, (vi) to a nominee or custodian or a person or entity to whom a disposition or transfer would be permissible under clauses (i) through (v) above, (vii) to the Company in connection with the repurchase of shares of Common Stock or securities convertible into or exchangeable or exercisable for any shares of Common Stock upon the death, disability or termination of employment of such employee, (viii) pursuant to an order of a court or regulatory agency, or (ix) pursuant to the Underwriting Agreement; provided, in the case of clauses (i)-(viii), that (x) such transfer shall not involve a disposition for value, (y) the donee, trustee, distribute or transferee agrees in writing with the Underwriter to be bound by the terms of this Lock-Up Agreement, and (z) no filing by any party under Section 16(a) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), shall be required or shall be made voluntarily in connection with such transfer. For purposes of this Agreement, “immediate family” shall mean any relationship by blood, marriage or adoption, nor more remote than first cousin.

In addition, the foregoing restrictions shall not apply to (i) the exercise of stock options or other equity compensation or awards granted pursuant to the Company’s equity incentive plans (through the surrender to the Company of shares of Common Stock or otherwise); provided that such restrictions shall apply to any of the Undersigned’s Securities issued upon such exercise, (ii) sales, withholdings, surrender or forfeiture of shares of Common Stock to cover tax payments resulting from the vesting of any restricted stock awards or restricted stock units granted pursuant to the Company’s equity incentive plans or (iii) the establishment of any contract, instruction or plan (a “Plan”) that satisfies all of the requirements of Rule 10b5-1(c)(1)(i)(B) under the Exchange Act; provided that no sales of the Undersigned’s Securities shall be made pursuant to such a Plan prior to the expiration of the Lock-Up Period (as such may have been extended pursuant to the provisions hereof), and such a Plan may only be established if no public announcement of the establishment or existence thereof and no filing with the SEC or other regulatory authority in respect thereof or transactions thereunder or contemplated thereby, by the undersigned, the Company or any other person, shall be required, and no such announcement or filing is made voluntarily, by the undersigned, the Company or any other person, prior to the expiration of the Lock-Up Period (as such may have been extended pursuant to the provisions hereof).

In furtherance of the foregoing, the Company and its transfer agent and registrar are hereby authorized to decline to make any transfer of shares of Common Stock if such transfer would constitute a violation or breach of this Agreement.

The undersigned hereby represents and warrants that it: (i) has full power and authority to enter into this Agreement and that upon request, the undersigned will execute and additional documents necessary to ensure the validity or enforcement of this Agreement, and (ii) now has, and except as contemplated by this Agreement, for the duration of this Agreement, will have, good and marketable title to the Undersigned’s Securities, free and clear of all liens, encumbrances and claims whatsoever. All authority herein conferred or agreed to be conferred and any obligations of the undersigned shall be binding upon the successors, assigns, heirs or personal representatives of the undersigned.

The undersigned understands that the undersigned shall be released from all obligations under this Agreement if (i) the Company notifies the Underwriter that it does not intend to proceed with the Offering, (ii) the Underwriting Agreement does not become effective, or if the Underwriting Agreement (other than the provisions thereof which survive termination) shall terminate or be terminated prior to payment for and delivery of the Common Stock to be sold thereunder, or (iii) the Offering is not completed by November 15, 2018.

 

C-2


The undersigned understands that the Underwriter is entering into the Underwriting Agreement and proceeding with the Offering in reliance upon this Agreement.

This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.

 

Very truly yours,

 

                Printed Name of Holder

 

By:  

 

                    Signature

 

C-3

EX-5.1

Exhibit 5.1

LOGO

 

        

 

DLA Piper LLP (US)

4365 Executive Drive
San Diego, California 92121-2133
T 858.677.1400
F 858.677.1401

 

October 24, 2018

Endologix, Inc.

2 Musick

Irvine, CA 92618

Ladies and Gentlemen:

You have requested our opinion with respect to certain matters in connection with the sale and issuance by Endologix, Inc., a Delaware corporation (the “Company”), of up to an aggregate of 17,653,809 shares (the “Shares”) of the Company’s common stock, par value $0.001 per share (the “Common Stock”), pursuant to a Registration Statement on Form S-3 (File 333-225320) (the “Registration Statement”) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “Act”), the related prospectus dated August 3, 2018 (the “Base Prospectus”), as supplemented by the prospectus supplement dated October 24, 2018, filed with the Commission pursuant to Rule 424(b) promulgated under the Act (together the “Prospectus Supplement”). The Shares include shares of Common Stock that are subject to an option to purchase additional shares granted to the underwriters in the offering.

In connection with this opinion, we have examined and relied upon the Registration Statement and the related Base Prospectus and Prospectus Supplement, the Company’s Amended and Restated Certificate of Incorporation and Amended and Restated Bylaws, as currently in effect, and the originals or copies certified to our satisfaction of such other documents, records, certificates, memoranda and other instruments as in our judgment are necessary or appropriate to enable us to render the opinion expressed below.

In rendering this opinion, we have assumed the genuineness and authenticity of all signatures on original documents; the genuineness and authenticity of all documents submitted to us as originals; the conformity to originals of all documents submitted to us as copies; the accuracy, completeness and authenticity of certificates of public officials; and the due authorization, execution and delivery of all documents where due authorization, execution and delivery are prerequisites to the effectiveness of such documents (other than with respect to the Company).

On the basis of the foregoing, and in reliance thereon, we are of the opinion that the Shares have been duly and validly authorized and, when issued and sold pursuant to that certain Underwriting Agreement by and between the Company and BTIG, LLC, dated October 24, 2018, in accordance with the Registration Statement and the related Base Prospectus and Prospectus Supplement, will be validly issued, fully paid and nonassessable.

We consent to the reference to our firm under the caption “Legal Matters” in the Prospectus Supplement and to the filing of this opinion as an exhibit to a Current Report of the Company on Form 8-K. In giving our consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Commission thereunder.

 

        

 

Very truly yours,

 

DLA PIPER LLP (US)

 
EX-99.1

Exhibit 99.1

 

LOGO

INVESTOR CONTACT:

Endologix, Inc.

Vaseem Mahboob, CFO

(949) 595-7200

Endologix Announces Public Offering of Common Stock

IRVINE, Calif., October 24, 2018 – Endologix, Inc. (Nasdaq: ELGX) (“Endologix” or the “Company”), developer and marketer of innovative treatments for aortic disorders, announced today that it has commenced a registered underwritten public offering of $20.0 million of its shares of common stock. In addition, Endologix has granted the underwriter a 30-day option to purchase up to an additional $3.0 million of its shares of common stock. All of the shares in the offering are to be sold by Endologix.

BTIG, LLC is acting as sole book-running manager for the offering.

Endologix intends to use the net proceeds from this offering to redeem all of its $18.3 million 2.25% Convertible Senior Notes due 2018 and to pay related fees, costs, expenses and other related payments, and the remaining proceeds, if any, for working capital and general corporate purposes.

A shelf registration statement on Form S-3 relating to the public offering of the shares of common stock described above was filed with the Securities and Exchange Commission (the “SEC”) and became effective on August 3, 2018. Before you invest, you should read the prospectus in the registration statement and related preliminary prospectus supplement that Endologix will file with the SEC for more complete information about Endologix and this offering. An electronic copy of the preliminary prospectus supplement and accompanying prospectus relating to the offering will be available on the website of the SEC at www.sec.gov. Copies of the preliminary prospectus supplement, when available, and the accompanying prospectus relating to the offering may be obtained by contacting BTIG, LLC, at 825 Third Avenue, 6th Floor, New York, NY, 10022, or by telephone at (212) 593-7555 or by e-mail at equitycapitalmarkets@btig.com.

This press release shall not constitute an offer to sell or the solicitation of an offer to buy these securities, nor shall there be any sale of these securities in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or other jurisdiction.

ABOUT ENDOLOGIX

Endologix, Inc. develops and manufactures minimally invasive treatments for aortic disorders. The Company’s focus is endovascular stent grafts for the treatment of abdominal aortic aneurysms (AAA). AAA is a weakening of the wall of the aorta, the largest artery in the body, resulting in a balloon-like enlargement. Once AAA develops, it continues to enlarge and, if left untreated, becomes increasingly susceptible to rupture. The overall patient mortality rate for ruptured AAA is approximately 80%, making it a leading cause of death in the United States. For more information, visit www.endologix.com.

FORWARD-LOOKING STATEMENTS

This press release contains “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995 and other federal securities laws. Any statements contained in this press release that are not statements of historical fact, including but not limited to statements regarding the proposed offering of common stock and the intended use of proceeds of the common stock offering, are forward-looking statements. Words such as “believes,” “anticipates,” “plans,” “expects,” “will,” “intends,” “potential,” “possible” and similar expressions are intended to identify forward-looking statements. These forward-looking statements include our expectations regarding the proposed offering and the use of proceeds from such offering and are based on information available to us as of the date they were made. Forward-looking statements involve risks, uncertainties and other factors related


to our business and the general economic environment, many of which are beyond our control. These risks, uncertainties and other factors could cause our actual results to differ materially and adversely from those projected in forward-looking statements. Although we believe that the forward-looking statements contained herein are reasonable, we can give no assurance that our expectations are correct. All forward-looking statements are expressly qualified in their entirety by this cautionary statement. For a detailed description of our risks and uncertainties, you are encouraged to review the Company’s Annual Report on Form 10-K for the year ended December 31, 2017 and the other documents that the Company files with the SEC. The Company does not undertake any obligation to publicly update its forward-looking statements based on events, conditions or circumstances after the date hereof, except as required by law.

EX-99.2

Exhibit 99.2

 

LOGO

INVESTOR CONTACT:

Endologix, Inc.

Vaseem Mahboob, CFO

(949) 595-7200

Endologix Announces Pricing of Public Offering of Common Stock

IRVINE, Calif., October 25, 2018 – Endologix, Inc. (Nasdaq: ELGX) (“Endologix” or the “Company”), developer and marketer of innovative treatments for aortic disorders, announced today the pricing of a registered underwritten public offering of its common stock for net proceeds of $20.0 million, before deducting underwriting discounts and commissions and estimated offering expenses payable by Endologix. All of the shares sold in the offering were sold by Endologix. The offering is expected to close on October 29, 2018, subject to customary closing conditions. In addition, Endologix has granted the underwriter a 30-day option to purchase up to an additional $3.0 million of shares of its common stock.

BTIG, LLC is acting as sole book-running manager for the offering.

Endologix intends to use the net proceeds from this offering to redeem all of its $18.3 million 2.25% Convertible Senior Notes due 2018 and to pay related fees, costs, expenses and other related payments, and the remaining proceeds, if any, for working capital and general corporate purposes.

A shelf registration statement on Form S-3 relating to the public offering of the shares of common stock described above was filed with the Securities and Exchange Commission (the “SEC”) and became effective on August 3, 2018. Before you invest, you should read the prospectus in the registration statement and related preliminary prospectus supplement that Endologix will file with the SEC for more complete information about Endologix and this offering. An electronic copy of the prospectus supplement and accompanying prospectus relating to the offering will be available on the website of the SEC at www.sec.gov. Copies of the prospectus supplement, when available, and the accompanying prospectus relating to the offering may be obtained by contacting BTIG, LLC, at 825 Third Avenue, 6th Floor, New York, NY, 10022, or by telephone at (212) 593-7555 or by e-mail at equitycapitalmarkets@btig.com.

This press release shall not constitute an offer to sell or the solicitation of an offer to buy these securities, nor shall there be any sale of these securities in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or other jurisdiction.

ABOUT ENDOLOGIX

Endologix, Inc. develops and manufactures minimally invasive treatments for aortic disorders. The Company’s focus is endovascular stent grafts for the treatment of abdominal aortic aneurysms (AAA). AAA is a weakening of the wall of the aorta, the largest artery in the body, resulting in a balloon-like enlargement. Once AAA develops, it continues to enlarge and, if left untreated, becomes increasingly susceptible to rupture. The overall patient mortality rate for ruptured AAA is approximately 80%, making it a leading cause of death in the United States. For more information, visit www.endologix.com.

FORWARD-LOOKING STATEMENTS

This press release contains “forward-looking statements” within the meaning of the Private Securities Litigation Reform Act of 1995 and other federal securities laws. Any statements contained in this press release that are not statements of historical fact, including but not limited to statements regarding the proposed offering of common stock and the intended use of proceeds of the common stock offering, are forward-looking statements. Words such as “believes,” “anticipates,” “plans,” “expects,” “will,” “intends,” “potential,” “possible” and similar expressions are intended to identify forward-looking statements. These forward-looking statements include our expectations


regarding the proposed offering and the use of proceeds from such offering and are based on information available to us as of the date they were made. Forward-looking statements involve risks, uncertainties and other factors related to our business and the general economic environment, many of which are beyond our control. These risks, uncertainties and other factors could cause our actual results to differ materially and adversely from those projected in forward-looking statements. Although we believe that the forward-looking statements contained herein are reasonable, we can give no assurance that our expectations are correct. All forward-looking statements are expressly qualified in their entirety by this cautionary statement. For a detailed description of our risks and uncertainties, you are encouraged to review the Company’s Annual Report on Form 10-K for the year ended December 31, 2017 and the other documents that the Company files with the SEC. The Company does not undertake any obligation to publicly update its forward-looking statements based on events, conditions or circumstances after the date hereof, except as required by law.

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