Exhibit 1.1
_______________ Shares
AngioDynamics, Inc.
Common Stock
($0.01 Par Value)
UNDERWRITING AGREEMENT
----------------------
_______________, 2004
RBC Capital Markets
Xxxxx, Xxxxxxxx & Xxxx
As the Representatives of the several
underwriters named in Schedule I hereto
c/o RBC Capital Markets Corporation
0 Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Ladies and Gentlemen:
AngioDynamics, Inc., a Delaware corporation (the "Company") proposes to
sell to the several underwriters (the "Underwriters") named in Schedule I hereto
for whom you are acting as representatives (the "Representatives") an aggregate
of __________ shares of the Company's common stock, $0.01 par value (the "Firm
Shares"). The respective amounts of the Firm Shares to be so purchased by the
several Underwriters are set forth opposite their names in Schedule I hereto. In
addition, the Company proposes to sell at the Underwriters' option an aggregate
of up to __________ additional shares of the Company's common stock (the "Option
Shares"). The Company is a wholly-owned subsidiary of E-Z-EM , Inc., a Delaware
corporation ("E-Z-EM").
As the Representatives, you have advised the Company (a) that you are
authorized to enter into this agreement (this "Agreement") on behalf of the
several Underwriters, and (b) that the several Underwriters are willing, acting
severally and not jointly, to purchase the numbers of Firm Shares set forth
opposite their respective names in Schedule I, plus their pro rata portion of
the Option Shares if you elect to exercise the over-allotment option in whole or
in part for the accounts of the several Underwriters. The Firm Shares and the
Option Shares (to the extent the aforementioned option is exercised) are herein
collectively called the "Shares."
RBC Capital Markets Corporation ("RBC") has agreed to reserve a portion of
the Shares to be purchased by it under this Agreement for sale to the Company's
directors, officers, employees and business associates and other parties related
to the Company (collectively, the "Participants"), as set forth in the
Prospectus under the heading "Underwriting" (the "Directed Share Program"). The
Shares to be sold by RBC and its affiliates pursuant to the Directed Share
Program are referred to hereinafter as the "Directed Shares." Any Directed
Shares not confirmed for purchase by any Participants by the end of the business
day on which this Agreement is executed will be offered to the public by the
Underwriters as set forth in the Prospectus.
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. Representations and Warranties of the Company and E-Z-EM.
--------------------------------------------------------
The Company and E-Z-EM, jointly and severally, represent and warrant
to each of the Underwriters as follows:
(a) A registration statement on Form S-1 (File No. 333-113329) with
respect to the Shares has been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the "Act"), and the
Rules and Regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder and has been filed with the
Commission. Copies of such registration statement, including any amendments
thereto, the preliminary prospectuses (meeting the requirements of the Rules and
Regulations) contained therein and the exhibits, financial statements and
schedules, as finally amended and revised, have heretofore been delivered by the
Company to you. Such registration statement, together with any registration
statement filed by the Company pursuant to Rule 462(b) of the Act, herein
referred to as the "Registration Statement," which shall be deemed to include
all information omitted therefrom in reliance upon Rule 430A and contained in
the Prospectus referred to below, has become effective under the Act and no
post-effective amendment to the Registration Statement has been filed as of the
date of this Agreement. "Prospectus" means the form of prospectus first filed
with the Commission pursuant to Rule 424(b). Each preliminary prospectus
included in the Registration Statement prior to the time it becomes effective is
herein referred to as a "Preliminary Prospectus."
(b) The Commission has not issued an order preventing or suspending
the use of any Prospectus relating to the proposed offering of the Shares nor,
to the Company's knowledge, instituted proceedings for that purpose. The
Registration Statement conforms, and the Prospectus and any amendments or
supplements to the Registration Statement and Prospectus, will conform to, the
requirements of the Act and the Rules and Regulations. The Registration
Statement and any amendment thereto do not contain, and will not contain, any
untrue statement of a material fact and do not omit, and will not omit, to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus and any amendments and
supplements thereto do not contain, and will not contain, any untrue statement
of material fact; and do not omit, and will not omit, to state any material fact
required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the Company and E-Z-EM make no representations or warranties as to
information contained in or omitted from the Registration Statement or the
Prospectus, or any such amendment or supplement, in reliance upon, and in
conformity with, written information furnished to the Company or E-Z-EM by or on
behalf of any Underwriter through the Representatives, specifically for use in
the preparation thereof. There are no contracts or documents that are required
to be filed as exhibits to the Registration Statement or described in the
Registration Statement or the Prospectus which are not so filed or described as
required by the Rules and Regulations, and such contracts and documents as are
summarized in the Registration Statement or the Prospectus are fairly summarized
in all material respects.
(c) 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
and contribution 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 Company has full power and
authority to enter into this Agreement and to authorize, issue and sell the
Shares as contemplated by this Agreement.
(d) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own or lease its properties and conduct its
business as described in the Registration Statement. Leocor, Inc., the Company's
only subsidiary (the "Subsidiary"), has been duly organized and is validly
existing as a corporation in good standing under the laws of the jurisdiction of
its incorporation. The Company is duly qualified to transact business and is in
good standing as a foreign corporation in Florida and New York. The outstanding
shares of capital stock of the Subsidiary have been duly authorized and validly
issued, are fully paid and non-assessable and are wholly owned by the Company
free and clear of all liens, encumbrances and equities and claims; and no
options, warrants or other rights to purchase, agreements or other obligations
to issue or other rights to convert any obligations into shares of capital stock
or ownership interests in the Subsidiary are outstanding.
(e) The outstanding shares of common stock of the Company ("Common
Shares") have been duly authorized and validly issued and are fully paid and
non-assessable; the Shares to be issued and sold by the Company have been duly
authorized and when issued and paid for as contemplated herein will be validly
issued, fully paid and non-assessable, and no preemptive rights, rights of first
refusal, rights of co-sale or similar rights in favor of E-Z-EM with respect to
any of the Shares, exist with respect to any of the Shares or the issue and sale
thereof. Neither the filing of the Registration Statement nor the offering or
sale of the Shares as contemplated by this Agreement gives rise to any rights,
other than those which have been described in the Registration Statement and
waived or satisfied, for or relating to the registration of any Common Shares.
(f) The information set forth under the caption "Capitalization" in
the Prospectus is true and correct. All of the Shares conform to the description
thereof contained in the Prospectus. The form of certificates for the Shares
conforms to the corporate law of the jurisdiction of the Company's
incorporation. Immediately after the issuance and sale of the Shares to the
Underwriters, no shares of preferred stock of the Company ("Preferred Stock")
will be issued and outstanding and no holder of any shares of capital stock,
securities convertible into or exchangeable or exercisable for capital stock or
options, warrants or other rights to purchase capital stock or any other
securities of the Company shall have any existing or future right to acquire any
shares of Preferred Stock of the Company.
(g) The Master Separation and Distribution Agreement between E-Z-EM
and the Company, dated ___________, (the "Master Separation and Distribution
Agreement") has been duly authorized, executed and delivered by the Company and
constitutes a valid and binding agreement of the Company; and each of the other
agreements described in the Prospectus under the heading "Relationship and
Arrangements With E-Z-EM." that has been filed as an exhibit to the Registration
Statement, in each case between E-Z-EM and the Company (collectively, together
with the Master Separation and Distribution Agreement, the "Separation and
Transition Agreements"), has been duly authorized and, when executed and
delivered by the Company, will be duly executed and delivered by the Company,
and, will constitute a valid and binding agreement of the Company, enforceable
in accordance with its terms, except as rights to indemnity and contribution
hereunder may be limited by federal or state securities laws and except as such
enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting the rights of creditors generally, and subject to general
principles of equity.
(h) The Shares have been approved for inclusion on the Nasdaq
National Market, subject only to official notice of issuance.
(i) The Company has not distributed and will not distribute any
prospectus or other offering material (including, without limitation, content on
the Company's website that may be deemed to be a prospectus or other offering
material) in connection with the offering and sale of the Shares other than any
Preliminary Prospectus or the Prospectus or other materials permitted by the Act
to be distributed by the Company.
(j) The consolidated financial statements of the Company and its
consolidated subsidiaries, together with related notes and schedules as set
forth in the Registration Statement, present fairly the financial position and
the results of operations and cash flows of the Company and its consolidated
subsidiaries, at the indicated dates and for the indicated periods. Such
financial statements and related schedules have been prepared in accordance with
U.S. generally accepted principles of accounting, consistently applied
throughout the periods involved, except as disclosed therein, and all
adjustments, which include only normal recurring adjustments, necessary for a
fair presentation of results for such periods have been made. The summary
financial and statistical data included in the Registration Statement has been
compiled on a basis
consistent with the financial statements presented therein and the books and
records of the Company. No "non-GAAP financial measures" (as defined in
Regulation G under the Act) are disclosed in the Registration Statement or the
Prospectus except for disclosure that complies with the requirements of Item 10
of Regulation S-K and Regulation G promulgated by the Commission. The
statistical and market-related data included in the Prospectus are based on or
derived from sources which the Company reasonably and in good faith believes are
reliable and accurate.
(k) Upon the effectiveness of the Registration Statement, the Company
will be in material compliance with all applicable provisions of the
Xxxxxxxx-Xxxxx Act of 2002 and all rules and regulations promulgated thereunder
or implementing the provisions thereof (the "Xxxxxxxx-Xxxxx Act") that are then
in effect.
(l) Upon the effectiveness of the Registration Statement, the Nasdaq
National Market ("Nasdaq") shall have approved the Shares for inclusion, the
Company will be in material compliance with all applicable corporate governance
requirements set forth in the Nasdaq Marketplace Rules that are then in effect.
(m) The Company maintains 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 of the Company in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii) access to the
Company's assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets of the
Company is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(n) The Company has established and maintains disclosure controls and
procedures (as such term is defined in Rule 13a-15(e) under the Exchange Act),
which are designed to ensure that material information relating to the Company
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 in the
time periods specified in the Commission's rules and forms.
(o) Xxxxx Xxxxxxxx LLP, who have audited certain financial statements
of the Company and delivered its opinion with respect to the audited financial
statements and schedules included in the Registration Statement and the
Prospectus, are independent public accountants with respect to the Company
within the meaning of the Act and the Rules and Regulations (including without
limitation the Xxxxxxxx-Xxxxx Act).
(p) There is no action, suit, claim or proceeding pending or, to the
knowledge of the Company or E-Z-EM, threatened against the Company or the
Subsidiary before any court or administrative agency or otherwise which if
determined adversely to the Company or the Subsidiary could reasonably be
expected to have a material adverse effect on the results of operations,
condition (financial or otherwise),
business, or prospects of the Company, whether or not arising from transactions
in the ordinary course of business (a "Material Adverse Effect") or prevent the
consummation of the transactions contemplated hereby, except as set forth in the
Registration Statement and the Prospectus.
(q) No labor problem or dispute with the employees of the Company
exists or, to the Company's knowledge, is threatened or imminent, and the
Company is not aware of any existing labor disturbance by the employees of any
of its principal suppliers, contractors or customers, that could have a Material
Adverse Effect.
(r) The Company and the Subsidiary have good and marketable title to
all of the real property, and have title to all of the personal assets,
reflected in the financial statements (or as described in the Registration
Statement) hereinabove described, subject to no lien, mortgage, pledge, charge
or encumbrance of any kind except those reflected in such financial statements
(or as described in the Registration Statement) or which are not material in
amount. The Company and the Subsidiary occupy their leased properties under
valid and binding leases conforming in all material respects to the description
thereof set forth in the Registration Statement and the Prospectus. The Company
has not received any written notice of any claim adverse to its ownership of any
property of any claim against the continued possession of any owned or leased
property.
(s) All tax liabilities have been adequately provided for in the
financial statements of the Company, and the Company does not know of any actual
or proposed additional material tax assessments.
(t) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, as it may be amended or
supplemented, there has not been any material adverse change or any development
involving a prospective change which has had or is reasonably likely to have a
Material Adverse Effect, whether or not occurring in the ordinary course of
business, and there has not been any material transaction entered into or any
material transaction that is probable of being entered into by the Company or
the Subsidiary , other than transactions in the ordinary course of business and
changes and transactions described in the Registration Statement and the
Prospectus, as it may be amended or supplemented. The Company and the Subsidiary
have no material contingent obligations that are not disclosed in the Company's
financial statements in the Registration Statement and the Prospectus.
(u) Neither the Company nor the Subsidiary is or with the giving of
notice or lapse of time or both, will be, in violation of or in default under
its certificate of incorporation ("Charter") or by-laws ("By-Laws") or under any
agreement, lease, contract, indenture or other instrument or obligation to which
it is a party or by which it, or any of its properties, is bound and which
default has had or is reasonably likely to have a Material Adverse Effect. The
execution and delivery of this Agreement, the Separation and Transition
Agreement and the consummation of the transactions herein and therein
contemplated and the fulfillment of the terms hereof and thereof will not
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, any
contract, indenture, mortgage, deed of trust or other agreement or instrument to
which the Company or the Subsidiary is a party (except to the extent that any
such conflict or breach has been properly waived), or of the Charter or By-Laws
of the Company or any order, rule or regulation applicable to the Company or the
Subsidiary of any court or of any regulatory body or administrative agency or
other governmental body having jurisdiction over the Company or the Subsidiary.
(v) No approval, consent, order or authorization by or filing with
any regulatory, administrative or other governmental body is required in
connection with the execution and delivery by the Company of this Agreement and
the consummation by the Company of the transactions herein contemplated (except
such additional steps as may be required under the Act, by the National
Association of Securities Dealers, Inc. (the "NASD") or under state securities
or blue sky laws).
(w) The Company has made all filings, applications and submissions
required by, and possess all material licenses, marketing authorizations,
certifications, permits, franchises, approvals, clearances and other regulatory
authorizations (including without limitation, ISO9001/EN46001 certifications and
the CE xxxx by the European Union under the Medical Devices Directive)
("Permits") from governmental authorities (including, without limitation, the
FDA, and any foreign, federal, state or local governmental or regulatory
authority performing functions similar to those performed by the FDA) as are
necessary to conduct its businesses as currently conducted and to own, lease and
operate its properties and market its products in the manner described in the
Prospectus. There is no claim, proceeding or controversy, pending or, to the
knowledge of the Company or E-Z-EM, threatened, involving the status of or
sanctions under any of the Permits. The Company is the sole and exclusive holder
of rights under all Permits. The Company has fulfilled and performed all of its
material obligations with respect to the Permits, and no event has occurred
which allows, or after notice or lapse of time would allow, the revocation,
termination, modification or other impairment of the rights of the Company under
such Permit. None of the Permits contains any restriction that is materially
burdensome on the Company.
(x) Neither the Company, nor any of its officers, directors or
affiliates, has taken or may take, directly or indirectly, any action designed
to stabilize or manipulate the price of any security of the Company or which has
caused or resulted in, or which might reasonably be expected to cause or result
in, the stabilization or manipulation of the price of any security of the
Company.
(y) The Company is not required to register as an "investment
company" as such term is defined under the Investment Company Act of 1940, and
the rules and regulations of the Commission thereunder (the "1940 Act").
(z) The Company and the Subsidiary carry, or are covered by,
insurance in such amounts and covering such risks as is adequate for the conduct
of their respective businesses and the value of their respective properties and
as is customary for companies engaged in similar industries. All policies of
insurance insuring the Company or the Subsidiary or any of their respective
businesses, assets, employees, officers and
directors are in full force and effect, and the Company and the Subsidiary are
in compliance with the terms of such policies in all material respects.
(aa) The Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income Security Act
of 1974, as amended, including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in ERISA) has occurred
with respect to any "pension plan" (as defined in ERISA) for which the Company
would have any liability; the Company has not incurred liability under (i) Title
IV of ERISA with respect to termination of, or withdrawal from, any "pension
plan" or (ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as
amended, including the regulations and published interpretations thereunder (the
"Code"); and each "pension plan" for which the Company would have any liability
that is intended to be qualified under Section 401(a) of the Code is so
qualified in all material respects and nothing has occurred, whether by action
or by failure to act, which would cause the loss of such qualification.
(bb) 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.
(cc) Other than the Subsidiary and the shares of preferred stock and
common stock of Surgica, Inc. owned by the Company, the Company does not own,
directly or indirectly, any shares of capital stock and does not have any other
equity or ownership or proprietary interest in any corporation, partnership,
association, trust, limited liability company, joint venture or other entity.
(dd) The Company has not sent or received any notice indicating the
termination of or intention to terminate any of the contracts or agreements
referred to or described in the Registration Statement or the Prospectus, or
filed as an exhibit to the Registration Statement, and no such termination has
been threatened by the Company, or any other party to any such contract or
agreement.
(ee) Neither the Company nor the Subsidiary is in violation of any
statute, any rule, regulation, decision or order of any governmental agency or
body or any court, domestic or foreign, relating to the use, disposal or release
of hazardous chemicals, toxic substances or radioactive and biological materials
or relating to the protection or restoration of the environment or human
exposure to hazardous chemicals, toxic substances or radioactive and biological
materials (collectively, "Environmental Laws" except for any violation that
would not have a Material Adverse Effect. Neither the Company nor the Subsidiary
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 that might reasonably be
expected to lead to such a claim.
(ff) No payments or inducements have been made or given, directly or
indirectly, to any federal or local official or candidate for, any federal or
state office in the United States or foreign offices by the Company or the
Subsidiary, or, to the knowledge of the Company, by any of their officers,
directors, employees or agents or by any other person in connection with any
opportunity, contract, permit, certificate, consent, order, approval, waiver or
other authorization relating to the business of the Company or the Subsidiary,
except for such payments or inducements as were lawful under applicable laws,
rules and regulations. Neither the Company nor the Subsidiary, nor, to the
knowledge of the Company, any director, officer, agent, employee or other person
associated with or acting on behalf of the Company or the Subsidiary, (i) has
used any corporate funds for any unlawful contribution, gift, entertainment or
other unlawful expense relating to political activity; (ii) made any direct or
indirect unlawful payment to any government official or employee from corporate
funds; (iii) violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977; or (iv) made any bribe, unlawful rebate, payoff,
influence payment, kickback or other unlawful payment in connection with the
business of the Company or the Subsidiary.
(gg) Each of the Company and the Subsidiary owns, licenses, or
otherwise has rights in all Unites States and foreign patents, trademarks,
service marks, tradenames, copyrights, trade secrets and other proprietary
rights necessary for the conduct of its respective business as currently carried
on and as proposed to be carried on as described in the Registration Statement
and the Prospectus (collectively and together with any applications or
registrations for the foregoing, the "Intellectual Property"), except where the
failure to own, license or otherwise have rights to the Intellectual Property
would not have a Material Adverse Effect. Except as specifically described in
the Registration Statement or the Prospectus, (i) to the Company's knowledge, no
third parties have obtained rights to any such Intellectual Property from the
Company, other than licenses granted in the ordinary course and those that would
not have a Material Adverse Effect; (ii) to the Company's knowledge, there is no
infringement, misappropriation or other violation by third parties of any such
Intellectual Property; (iii) there is no pending or, to the Company's,
threatened in writing, action, suit, proceeding or claim by others challenging
the Company's or the Subsidiary's 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; (iv) there is no pending or, to the Company's
knowledge, threatened in writing, action, suit, proceeding or claim by others
challenging the validity, enforceability, 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; (v) except as described in the Registration Statement
and the Prospectus, there is no pending or, to the Company's knowledge,
threatened in writing, action, suit, proceeding or claim by others that the
Company the Subsidiary, or any of the Company's or its Subsidiary's products,
product candidates, or services infringes, misappropriates, or otherwise
violates, or would infringe upon, misappropriate or otherwise violate the
development or commercialization of a third party's products, product
candidates, or services described in the Prospectus, any patent, trademark,
copyright, trade secret or other proprietary right of others, and the Company
has not received any notice and are otherwise unaware of any facts which would
form a reasonable basis for any such claim; (vi) to the Company's knowledge,
there is no patent or patent application that contains
claims that can reasonably be deemed to cover or may cover any Intellectual
Property described in the Prospectus as being owned by or licensed to the
Company or the Subsidiary or that is necessary for the conduct of the Company's
business as currently or contemplated to be conducted or that interferes with
the issued or pending claims of any such Intellectual Property; (vii) there is
no prior art or public or commercial activity of which the Company is aware that
may render any patent held by the Company or the Subsidiary invalid or any
patent application held by the Company or the Subsidiary unpatentable which has
not been disclosed to the U.S. Patent and Trademark Office and any other patent
office in which any Intellectual Property is pending for such patent or patent
application; and (viii) to the Company's knowledge, neither the Company nor the
Subsidiary has committed any act or omitted to undertake any act the effect of
such commission or omission would render the Intellectual Property invalid or
unenforceable in whole or in part. To the Company' knowledge, none of the
technology employed by the Company has been obtained or is being used by the
Company in violation of the rights of any person or third party. Schedule III
lists the Intellectual Property in which the Company or the Subsidiary has
rights.
(hh) The conduct of business by the Company and the Subsidiary
complies, and at all times has complied, in all material respects with federal,
state, local and foreign laws, statutes, ordinances, rules, regulations,
decrees, orders, Permits and other similar items ("Laws") applicable to its
business, including, without limitation, (a) the Federal Food, Drug and Cosmetic
Act and similar federal, state, local and foreign laws applicable to the
evaluation, testing, manufacturing, distribution, advertising and marketing of
each of the Company's products, in whatever stage of development or
commercialization, and (b) the Federal Anti-Kickback Statute and any similar
health care fraud and abuse laws. Neither the Company nor the Subsidiary has
received any notification asserting, or has knowledge of, any present or past
failure to comply with or violation of any such Laws.
(ii) Except to the extent disclosed in the Registration Statement and
the Prospectus (or any amendment or supplement thereto), the clinical,
pre-clinical and other studies, tests and research conducted by or on behalf of
or sponsored by the Company or the Subsidiary are, and at all times have been,
conducted in accordance with the Federal. Food, Drug and Cosmetic Act and the
regulations and guidelines promulgated thereunder, as well as other applicable
federal, state, local and foreign Laws, and consistent with current clinical and
scientific research standards and procedures. The descriptions of the results of
such studies, tests and research are accurate and complete in all material
respects and fairly present the data derived from such studies, tests and
research, and neither the Company nor E-Z-EM has any knowledge of any other
studies, tests or research the results of which are inconsistent with or
otherwise call into question the results described or referred to in the
Registration Statement and the Prospectus. Except to the extent disclosed in the
Registration Statement and the Prospectus (or any amendment or supplement
thereto), the Company has not notified the FDA of any adverse reactions with
respect to any clinical or pre-clinical studies, tests or research that are
described in the Registration Statement and the Prospectus or the results of
which are referred to in the Registration Statement and the Prospectus, and the
Company has not received any notices or other correspondence from the FDA or any
other foreign, federal,
state or local governmental or regulatory authority with respect to any clinical
or pre-clinical studies, tests or research that are described in the
Registration Statement and the Prospectus or the results of which are referred
to in the Registration Statement and the Prospectus which require the
termination, suspension, delay or modification of such studies, tests or
research, otherwise require the Company to engage in any remedial activities
with respect to such studies, test or research, or threaten to impose or
actually impose any fines or other disciplinary actions.
(jj) Except to the extent disclosed in the Registration Statement and
the Prospectus (or any amendment or supplement thereto) and as would not have a
Material Adverse Effect, the Company has not received any Form 483s or other
Notices of Adverse Findings or Warning Letters from the FDA or similar forms,
notices or letters from any other regulatory agency in which the agency asserts
that the operations or facilities of the Company or in which the Company's
products are manufactured may not be in compliance with applicable laws. The
Company has not received any written or oral notice that the FDA or any other
regulatory agency has commenced, or threatened to initiate, any action to
withdraw its approval, request a recall or halt distribution of any of the
Company's products, or commenced or threatened to initiate any action to seize,
or enjoin the production of, any of the Company's products.
(kk) The Company has established and administers a compliance program
(including a written compliance policy) applicable to the Company, to assist the
Company and the directors, officers and employees of the Company in complying
with applicable regulatory guidelines (including, without limitation, those
administered by the FDA and any foreign, federal, state or local governmental or
regulatory authority performing functions similar to those performed by the FDA)
and to provide compliance policies governing applicable areas for medical device
companies (including, without limitation, pre-clinical and clinical testing,
product design and development, product testing, product manufacturing, product
labeling, product storage, premarket clearance and approval, advertising and
promotion, product sales and distribution, medical device reporting regulations,
and record keeping).
(ll) The Company has not failed to file with the applicable regulatory
authorities (including, without limitation, the FDA or any foreign, federal,
state or local governmental or regulatory authority performing functions similar
to those performed by the FDA) any filing, declaration, listing, registration,
report or submission required by law; all such filings, declarations, listing,
registrations, reports or submission were in compliance with applicable laws
when filed and no deficiencies have been asserted by any applicable regulatory
authority (including, without limitation, the FDA or any foreign, federal, state
or local governmental or regulatory performing functions similar to those
performed by the FDA) with respect to any such filings, declarations, listings,
registrations, reports or submissions.
(mm) The information contained in the Registration Statement and the
Prospectus regarding the Company's expectations, plans and intentions, and any
other information that constitutes "forward-looking" information within the
meaning of the Act
and the Exchange Act were made by the Company on a reasonable basis and reflect
the Company's good faith belief and/or estimate of the matters described
therein.
(nn) Except as disclosed in the Prospectus, there are no
relationships, direct or indirect, or related-party transactions involving the
Company, the Subsidiary or any other person that are required to be described in
the Registration Statement or the Prospectus. The Company is not, directly or
indirectly, extending or maintaining credit, arranging for the extension of
credit or renewing an extension of credit, in the form of a personal loan to or
for any director or executive officer (or equivalent thereof) of the Company.
There are no outstanding loans, advances (except normal advances for business
expenses in the ordinary course of business) or guarantees of indebtedness by
the Company to or for the benefit of any of the officers or directors of the
Company or any of the members of any of them, except as disclosed in the
Prospectus.
(oo) Neither the Company nor the Subsidiary nor any officer, employee
or agent of the Company or the Subsidiary has made an untrue statement of a
material fact or fraudulent statement to the FDA or any other governmental
entity, failed to disclose a material fact required to be disclosed to the FDA
or any other governmental entity, or committed an act, made a statement, or
failed to make a statement that, at the time such disclosure was made, in each
case, relating to Company's business, could reasonably be expected to provide a
basis for the FDA or any other governmental entity to invoke any policies
respecting Fraud, Untrue Statements of Material Facts, Bribery, and Illegal
Gratuities, including but not limited to the FDA policy set forth in 56 Fed.
Reg. 46191 (September 10, 1991) or any similar policy. Neither the Company nor
the Subsidiary has been convicted of any crime or engaged in any conduct for
which debarment is mandated by 21 U.S.C. Section 335a(a) or any similar Law for
which debarment is authorized by 21 U.S.C. Section 335a(b) or any similar Law
(pp) There are no transactions, arrangements and other relationships
between and/or among the Company, any of its affiliates (as such term is defined
in Rule 405 under the Act) and any unconsolidated entity, including, but not
limited to, any structural finance, special purpose or limited purpose entity
(each, an "Off Balance Sheet Transaction") that could reasonably be expected to
affect materially the Company's liquidity or the availability of or requirements
for its capital resources, including those Off Balance Sheet Transactions
described in the Commission's Statement about Management's Discussion and
Analysis of Financial Condition and Results of Operations (Release Nos. 33-8056;
34-45321; FR-61), required to be described in the Prospectus which have not been
described as required.
(qq) The Company has not offered, or caused RBC or its affiliates to
offer, Shares to any person pursuant to the Directed Share Program with the
intent to unlawfully influence (i) a customer or supplier of the Company to
alter the customer's or supplier's level or type of business with the Company,
or (ii) a trade journalist or publication to write or publish favorable
information about the Company or its products.
(rr) Each officer and director of the Company and E-Z-EM has
executed a letter that contains "lock-up" provisions (the "Lock-Up Agreements")
with transfer restricitions substantially similar to those set forth in the
letters attached as Exhibit A (for officers and directors) and Exhibit B (for
E-Z-EM).
2. Representations and Warranties of E-Z-EM.
----------------------------------------
E-Z-EM represents and warrants to each of the Underwriters as follows:
(a) E-Z-EM has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(b) All issued shares of capital stock of the Company are owned
directly by E-Z-EM, free and clear of all liens, encumbrances, equities or
claims.
(c) This Agreement has been duly authorized, executed and delivered
by E-Z-EM; and constitutes a valid, legal and binding obligation of E-Z-EM,
enforceable in accordance with its terms, except as rights to indemnity and
contribution hereunder may be limited by federal or state securities laws and
except as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting the rights of creditors generally, and
subject to general principles of equity. The execution and delivery of this
Agreement and the consummation of the transactions herein contemplated and the
fulfillment of the terms hereof will not conflict with or result in a breach of
any of the terms or provisions of, or constitute a default under, any contract,
indenture, mortgage, deed of trust or other agreement or instrument to which
E-Z-EM is a party (except to the extent that any such conflict, breach or
default has been properly waived), or of the Charter or By-Laws of E-Z-EM or any
order, rule or regulation applicable to E-Z-EM of any court or of any regulatory
body or administrative agency or other governmental body having jurisdiction
over E-Z-EM.
(d) The Master Separation and Distribution Agreement has been duly
authorized, executed and delivered by E-Z-EM and constitutes a valid and binding
agreement of E-Z-EM; and each of the other Separation and Transition Agreements
has been duly authorized and, when executed and delivered by E-Z-EM, will be
duly executed and delivered by E-Z-EM, and, will constitute a valid and binding
agreement of E-Z-EM enforceable in accordance with its terms, except as rights
to indemnity and contribution hereunder may be limited by federal or state
securities laws and except as such enforceability may be limited by bankruptcy,
insolvency, reorganization or similar laws affecting the rights of creditors
generally, and subject to general principles of equity. The execution and
delivery of this Agreement and the Separation and Transition Agreements and the
consummation of the transactions herein and therein contemplated and the
fulfillment of the terms hereof and thereof will not conflict with or result in
a breach of any of the terms or provisions of, or constitute a default under,
any contract, indenture, mortgage, deed of trust or other agreement or
instrument to which E-Z-EM is a party, or of the Charter or By-Laws of E-Z-EM or
any order, rule or regulation applicable to the E-Z-EM of any court or of any
regulatory body or administrative agency or other governmental body having
jurisdiction.
(e) No approval, consent, order or authorization by or filing with
any regulatory, administrative or other governmental body is required in
connection with the execution and delivery by E-Z-EM of this Agreement and the
Separation and Transition Agreements and the consummation by E-Z-EM of the
transactions herein and therein contemplated (except such additional steps as
may be required under the Act, by the NASD or under state securities or blue sky
laws).
(f) Neither E-Z-EM, nor any of its officers, directors or affiliates,
has taken or may take, directly or indirectly, any action designed to stabilize
or manipulate the price of any security of the Company or which has caused or
resulted in, or which might reasonably be expected to cause or result in, the
stabilization or manipulation of the price of any security of the Company.
(g) E-Z-EM is in compliance in all material respects with all
presently applicable provisions of ERISA; no "reportable event" (as defined in
ERISA) has occurred with respect to any "pension plan" (as defined in ERISA) for
which the Company would have any liability; the Company has not incurred
liability under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the Code;
and each "pension plan" for which the Company would have any liability that is
intended to be qualified under Section 401(a) of the Code is so qualified in all
material respects and nothing has occurred, whether by action or by failure to
act, which would cause the loss of such qualification.
(h) E-Z-EM has filed all Federal, State, local, foreign and franchise
tax returns which have been required to be filed and has paid all taxes
indicated by said returns and all assessments received by it to the extent that
such taxes have become due and are not being contested in good faith and for
which an adequate reserve for accrual has been established in accordance with
U.S. generally accepted accounting principles, except whether the failure to
file and pay would not have a Material Adverse Effect.
3. Purchase, Sale and Delivery of the Firm Shares.
----------------------------------------------
(a) On the basis of the representations, warranties and covenants
herein contained, and subject to the conditions herein set forth, the Company
agrees to sell to the Underwriters and each Underwriter agrees, severally and
not jointly, to purchase, at a price of $_____ per share, the number of Firm
Shares set forth opposite the name of each Underwriter in Schedule I hereof,
subject to adjustments in accordance with Section 10 hereof.
(b) Payment for the Firm Shares to be sold hereunder is to be made to
the Company in New York Clearing House funds by wire transfer of Federal (same
day) against delivery of certificates therefore to the Representatives for the
several accounts of the Underwriters. Such delivery is to be made through the
facilities of the Depository Trust Company, New York, New York at 10:00 a.m.,
New York time, on the third business day after the date of this Agreement or at
such other time and date not later than five business days thereafter as you and
the Company shall agree upon, such time and date being herein referred to as the
"Closing Date." As used herein, "business day"
means a day on which the New York Stock Exchange is open for trading and on
which banks in New York are open for business and are not permitted by law or
executive order to be closed.
(c) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company hereby grants an option to the several Underwriters to purchase the
Option Shares at the price per share as set forth in the first paragraph of this
Section. The option granted hereby may be exercised in whole or in part by
giving written notice (i) at any time before the Closing Date and (ii) only once
thereafter within 30 days after the date of this Agreement, by you, as the
Representatives of the several Underwriters, to the Company, setting forth the
number of Option Shares as to which the several Underwriters are exercising the
option, the names and denominations in which the Option Shares are to be
registered and the time and date at which such certificates are to be delivered.
The time and date at which certificates for Option Shares are to be delivered
shall be determined by the Representatives but shall not be earlier than three
nor later than 10 full business days after the exercise of such option, nor in
any event prior to the Closing Date (such time and date being herein referred to
as the "Option Closing Date"). If the date of exercise of the option is three or
more days before the Closing Date, the notice of exercise shall set the Closing
Date as the Option Closing Date. The number of Option Shares to be purchased by
each Underwriter shall be in the same proportion to the total number of Option
Shares being purchased as the number of Firm Shares being purchased by such
Underwriter bears to the total number of Firm Shares, adjusted by you in such
manner as to avoid fractional shares. The option with respect to the Option
Shares granted hereunder may be exercised only to cover over-allotments in the
sale of the Firm Shares by the Underwriters. You, as the Representatives of the
several Underwriters, may cancel such option at any time prior to its expiration
by giving written notice of such cancellation to the Company. To the extent, if
any, that the option is exercised, payment for the Option Shares shall be made
to the Company on the Option Closing Date by wire transfer of Federal (same day)
funds drawn to the order of the Company against delivery of certificates
therefore through the facilities of the Depository Trust Company, New York, New
York.
4. Offering by the Underwriters.
----------------------------
It is understood that the several Underwriters are to make a public
offering of the Firm Shares as soon as the Representatives deem it advisable to
do so. The Firm Shares are to be initially offered to the public at the initial
public offering price set forth in the Prospectus. The Representatives may from
time to time thereafter change the public offering price and other selling
terms. To the extent, if at all, that any Option Shares are purchased pursuant
to Section 3 hereof, the Underwriters will offer them to the public on the
foregoing terms.
It is further understood that you will act as the Representatives for
the Underwriters in the offering and sale of the Shares in accordance with a
Master Agreement Among Underwriters entered into by you and the several other
Underwriters.
5. Covenants of the Company and E-Z-EM.
-----------------------------------
Each of the Company and E-Z-EM, jointly and severally, covenants and
agrees with the several Underwriters that:
(a) The Company will (i) use its best efforts to cause the
Registration Statement to become effective or, if the procedure in Rule 430A of
the Rules and Regulations is followed, to prepare and timely file with the
Commission, under Rule 424(b) of the Rules and Regulations, a Prospectus in a
form approved by the Representatives containing information previously omitted
at the time of effectiveness of the Registration Statement in reliance on Rule
430A of the Rules and Regulations; and (ii) not file any amendment to the
Registration Statement or supplement to the Prospectus of which the
Representatives shall not previously have been advised and furnished with a copy
or to which the Representatives shall have reasonably objected in writing or
which is not in compliance with the Rules and Regulations.
(b) The Company will not take, directly or indirectly, any action
designed to cause or result in, or that has constituted or might reasonably be
expected to constitute, the stabilization or manipulation of the price of any
securities of the Company.
(c) The Company will advise the Representatives promptly (i) when the
Registration Statement or any post-effective amendment thereto shall have become
effective; (ii) of the receipt of any comments from the Commission; (iii) of any
request of the Commission for amendment of the Registration Statement or for
supplement to the Prospectus or for any additional information; and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the use of the Prospectus or of the institution of any
proceedings for that purpose. The Company will use its best efforts to prevent
the issuance of any such stop order preventing or suspending the use of the
Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(d) The Company will cooperate with the Representatives in
endeavoring to qualify the Shares for sale under (or obtain exemptions from the
application of) the securities laws of such jurisdictions as the Representatives
may reasonably have designated in writing and will make such applications, file
such documents, and furnish such information as may be reasonably required for
that purpose, provided the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction where it is not now so qualified or required to file such a
consent. The Company will, from time to time, prepare and file such statements,
reports, and other documents, as are or may be required to continue such
qualifications in effect for so long a period as the Representatives may
reasonably request for distribution of the Shares. The Company will advise the
Representatives promptly of the suspension of the qualification or registration
of (or any such exemption relating to) the Common Shares for offering, sale or
trading in any jurisdiction or any initiation or threat of any proceeding for
any such purpose, and in the event of the issuance of any order suspending such
qualification, registration or exemption, the Company shall use its best efforts
to obtain the withdrawal thereof at the earliest possible moment.
(e) The Company will deliver to, or upon the order of, the
Representatives, from time to time, as many copies of any Preliminary Prospectus
as the Representatives may reasonably request. The Company will deliver to, or
upon the order of, the Representatives during the period when delivery of a
Prospectus is required under the Act, as many copies of the Prospectus in final
form, or as thereafter amended or supplemented, as the Representatives may
reasonably request. The Company will deliver to the Representatives at or before
the Closing Date, four signed copies of the Registration Statement and all
amendments thereto including all exhibits filed therewith, and will deliver to
the Representatives such number of copies of the Registration Statement
(including such number of copies of the exhibits filed therewith that may
reasonably be requested) and of all amendments thereto, as the Representatives
may reasonably request.
(f) The Company will comply with the Act and the Rules and
Regulations, and the Exchange Act, and the rules and regulations of the
Commission thereunder, so as to permit the completion of the distribution of the
Shares as contemplated in this Agreement and the Prospectus. If during the
period in which a prospectus is required by law to be delivered by an
Underwriter or dealer, any event shall occur as a result of which, in the
judgment of the Company or in the reasonable opinion of the Underwriters, it
becomes necessary to amend or supplement the Prospectus in order to make the
statements therein, in the light of the circumstances existing at the time the
Prospectus is delivered to a purchaser, not misleading, or, if it is necessary
at any time to amend or supplement the Prospectus to comply with any law, the
Company promptly will prepare and file with the Commission an appropriate
amendment to the Registration Statement or supplement to the Prospectus so that
the Prospectus as so amended or supplemented will not, in the light of the
circumstances when it is so delivered, be misleading, or so that the Prospectus
will comply with the law.
(g) The Company will make generally available to its security
holders, as soon as it is practicable to do so, but in any event not later than
15 months after the effective date of the Registration Statement, an earning
statement (which need not be audited) in reasonable detail, covering a period of
at least 12 consecutive months beginning after the effective date of the
Registration Statement, which earning statement shall satisfy the requirements
of Section 11(a) of the Act and Rule 158 of the Rules and Regulations.
(h) No offering, sale, short sale or other disposition of any shares
of Common Shares of the Company or other securities convertible into or
exchangeable or exercisable for shares of Common Shares or derivative of Common
Shares (or agreement for such) will be made for a period of 180 days after the
date of this Agreement, directly or indirectly, by the Company otherwise than
hereunder or with the prior written consent of RBC Xxxx Xxxxxxxx Inc.; provided,
that this provision will not restrict the Company from awarding options or other
awards to purchase shares of its common stock pursuant to its employee benefit
plans as described in the Prospectus or prevent the issuance by the Company of
shares of its common stock upon exercise of any such options.
(i) The Company will promptly deliver to the Underwriters copies of
all correspondence to and from, and all documents issued to and by, the
Commission in connection with the registration of the Shares under the 1933 Act
and listing of the Shares on the Nasdaq National Market.
(j) The Company will direct the Company's transfer agent to place
stop transfer restrictions upon any such securities of the Company that are
bound by such Lockup Agreements for the duration of the period contemplated in
such agreements.
(k) The Company shall apply the net proceeds of its sale of the
Shares as described under the heading "Use of Proceeds" in the Prospectus.
(l) The Company shall not invest, or otherwise use the proceeds
received by the Company from its sale of the Shares in such a manner as would
require the Company or the Subsidiary to register as an investment company under
the 1940 Act.
(m) The Company will maintain a transfer agent and, if necessary
under the jurisdiction of incorporation of the Company, a registrar for the
Common Shares.
(n) The Company will comply with all applicable securities and other
applicable laws, rules and regulations in each jurisdiction in which the
Directed Shares are offered in connection with the Directed Share Program.
6. Covenants of E-Z-EM.
-------------------
E-Z-EM covenants and agrees with the several Underwriters that:
(a) E-Z-EM will not take, directly or indirectly, any action designed
to cause or result in, or that has constituted or might reasonably be expected
to constitute, the stabilization or manipulation of the price of any securities
of the Company.
7. Costs and Expenses.
------------------
Whether or not the transactions contemplated hereunder are consummated
or this Agreement becomes effective as to all of its provisions or is
terminated, the Company and E-Z-EM, jointly and severally, agree to pay (i) all
costs, expenses and fees incident to the performance of the obligations of the
Company and E-Z-EM under this Agreement, including, without limiting the
generality of the foregoing, all fees and expenses of legal counsel for the
Company and E-Z-EM and of the Company's independent accountants, all costs and
expenses incurred in connection with the preparation, printing, filing and
distribution of the Registration Statement, Preliminary Prospectuses and the
Prospectus (except that the Company shall not be responsible for any printing or
distribution costs incurred more than nine months after the effective date of
the Registration Statement); (ii) the filing fees of the Commission and all
costs, fees and expenses (including legal fees and disbursements of counsel for
the Underwriters) incurred by the Underwriters in connection with qualifying or
registering all or any part of the Shares for offer and sale under applicable
state and foreign securities laws and blue
sky laws, including the preparation of a blue sky memorandum relating to the
Shares and clearance of such offering with the National Association of
Securities Dealers, Inc. (the "NASD") of the terms of the sale of the Shares;
(iii) all fees and expenses of the Company's transfer agent, printing of the
certificates for the Shares and all transfer taxes, if any, with respect to the
sale and delivery of the Shares to the several Underwriters, (iv) all fees and
expenses in connection with qualification and inclusion of the Shares other than
outstanding shares of Common Stock on the Nasdaq National Market, and (v) the
cost of printing or producing any agreement among underwriters, this Agreement,
closing documents (including compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Shares. The
provisions of this Section shall not affect any agreement which the Company and
E-Z-EM may make for the allocation or sharing of such expenses and costs.
The Company and E-Z-EM shall not, however, be required to pay for any
of the Underwriters expenses, including fees and expenses of legal counsel
(other than those related to qualification under NASD regulation and State
securities or blue sky laws) except that, if this Agreement shall not be
consummated because the conditions in Section 8 hereof are not satisfied, or
because this Agreement is terminated by the Representatives pursuant to Section
13 hereof, or by reason of any failure, refusal or inability on the part of the
Company or E-Z-EM to perform any undertaking or satisfy any condition of this
Agreement or to comply with any of the terms hereof on its part to be performed,
unless such failure to satisfy said condition or to comply with said terms be
due to the default or omission of any Underwriter, then the Company and E-Z-EM
shall reimburse the several Underwriters for reasonable out-of-pocket expenses,
including all fees and disbursements of counsel, reasonably incurred in
connection with investigating, marketing and proposing to market the Shares or
in contemplation of performing their obligations hereunder; but neither the
Company nor E-Z-EM shall in any event be liable to any of the several
Underwriters for damages on account of loss of anticipated profits from the sale
by the Company of the Shares.
8. Conditions of Obligations of the Underwriters.
---------------------------------------------
The several obligations of the Underwriters to purchase the Firm
Shares on the Closing Date and the Option Shares, if any, on the Option Closing
Date are subject to the accuracy, as of the Closing Date and the Option Closing
Date, if any, of the representations and warranties of the Company and E-Z-EM
contained herein, and to the performance by the Company and E-Z-EM of their
covenants and obligations hereunder and to each of the following additional
conditions:
(a) The Registration Statement and all post-effective amendments
thereto shall have become effective and any and all filings required by Rule 424
and Rule 430A of the Rules and Regulations shall have been made, and any request
of the Commission for additional information (to be included in the Registration
Statement or otherwise) shall have been disclosed to the Representatives and
complied with to their reasonable satisfaction. No stop order suspending the
effectiveness of the Registration Statement, as amended from time to time, shall
have been issued and no proceedings for that purpose shall have been taken or,
to the knowledge of the Company or E-Z-EM,
shall be contemplated by the Commission and no injunction, restraining order, or
order of any nature by a Federal or state court of competent jurisdiction shall
have been issued as of the Closing Date which would prevent the issuance of the
Shares. The NASD shall have raised no objection to the fairness and
reasonableness of the underwriting terms and arrangements.
(b) The Representatives shall have received on the Closing Date and
the Option Closing Date, if any, the opinion of Davies, Ward, Xxxxxxxx &
Xxxxxxxx, counsel for the Company and E-Z-EM, dated the Closing Date or the
Option Closing Date, if any, addressed to the Underwriters to the effect that:
(i) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Delaware with corporate power and authority to own or lease its properties and
conduct its business as described in the Registration Statement; and the Company
is duly qualified to transact business as a foreign corporation in Florida and
New York.
(ii) The Company has authorized and outstanding capital stock
as set forth under the "Actual" column under the caption "Capitalization" in the
Prospectus; the outstanding shares of the Company's Common Shares have been duly
authorized and validly issued and are fully paid and non-assessable; all of the
Shares conform, in all material respects, to the description thereof contained
in the Prospectus; the certificates for the Shares, assuming they are in the
form filed with the Commission, are in due and proper form under the Delaware
General Corporate Law; the shares of Common Shares, including the Option Shares,
if any, to be sold by the Company pursuant to this Agreement have been duly
authorized and will be validly issued, fully paid and non-assessable when issued
and paid for as contemplated by this Agreement; and no preemptive rights of
shareholders exist with respect to any of the Shares or the issue or sale
thereof under the Company's Charter or Bylaws or any document filed as an
exhibit to the Registration Statement.
(iii) Based solely on a telephone conversation with the Staff of
the Commission, the Registration Statement has become effective under the Act
and, to the knowledge of such counsel, no stop order proceedings with respect
thereto have been instituted or are pending or threatened under the Act.
(iv) The statements under the captions 'Management-Treatment of
E-Z-EM Options," "Management-Employee Compensation Plans," "Related Party
Transactions," "Description of Securities," "Shares Eligible for Future Sale,"
"Relationship and Arrangements with E-Z-EM" and "U.S. Federal Tax Considerations
for Non-U.S. Holders" in the Prospectus, insofar as such statements constitute a
summary of documents referred to therein or matters of law, fairly summarize in
all material respects such documents and matters of law.
(v) Such counsel does not know of any contracts or documents
required to be filed as exhibits to the Registration Statement or described in
the Registration Statement or the Prospectus which are not so filed or described
as required.
(vi) Such counsel knows of no material legal or governmental
proceedings pending or threatened in writing against the Company except as set
forth in the Prospectus.
(vii) The execution and delivery of this Agreement and the
Separation and Transition Agreements by the Company and the consummation of the
transactions herein and therein contemplated do not and will not conflict with
or result in a breach of any of the terms or provisions of, or constitute a
default under, the Charter or By-Laws of the Company, or any agreement or
instrument that has been filed as an exhibit to the Registration Statement,
except for any breach or default that has been waived.
(viii) This Agreement and the Separation and Transition
Agreements have been duly authorized, executed and delivered by the Company, and
are legal, valid and binding agreements of the Company, 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.
(ix) No approval, consent, order or authorization by or filing
with any regulatory, administrative or other governmental body is required in
connection with the execution and delivery of this Agreement and the Separation
and Transition Agreements and the consummation by the Company of the
transactions herein and therein contemplated which has not been obtained or made
(other than as may be required under the Act, by the NASD or under state
securities and blue sky laws as to which such counsel need express no opinion).
(x) The Company is not, and after giving effect to the
offering and sale of the Shares and the application of the net proceeds
therefrom as described in the Prospectus, will not be required to register as an
investment company under the 1940 Act.
(xi) E-Z-EM is validly existing as a corporation in good
standing under the laws of the State of Delaware.
(xii) The execution and delivery of this Agreement by E-Z-EM and
the Separation and Transition Agreements and the consummation of the
transactions herein and therein contemplated do not and will not conflict with
or result in a breach of any of the terms or provisions of, or constitute a
default under, the Charter or By-Laws of E-Z-EM, or any agreement or instrument
that has been filed as an exhibit to any of the reports filed by E-Z-EM pursuant
to the Exchange Act, except for any breach of default that has been waived.
(xiii) This Agreement and the Separation and Transition
Agreements have been duly authorized, executed and delivered by E-Z-EM, and are
legal, valid and binding agreements of E-Z-EM, 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.
(xiv) No approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body is necessary in connection with the execution and delivery of
this Agreement and the Separation and Transition Agreements by E-Z-EM and the
consummation of the transactions herein and therein contemplated which have not
been obtained or made (other than as may be required under the Act, by the NASD
or under state securities and blue sky laws, as to which such counsel need
express no opinion).
In rendering such opinion, Davies, Ward, Xxxxxxxx & Vineberg may rely
as to matters governed by the laws of states other than New York, the General
Corporation Law of the State of Delaware or Federal laws, on local counsel in
such jurisdictions, provided that in each case Davies Xxxx Xxxxxxxx & Xxxxxxxx
LLP shall state that they believe that they and the Underwriters are justified
in relying on such other counsel. In addition to the matters set forth above,
such opinion shall also include a statement to the effect that nothing has come
to the attention of such counsel which leads them to believe that (i) the
Registration Statement, at the time it became effective under the Act (but after
giving effect to any modifications incorporated therein pursuant to Rule 430A
under the Act) contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading (except that such counsel need express no view
as to financial statements, financial schedules and other financial data), and
(ii) the Prospectus, or any supplement thereto, on the date it was filed
pursuant to the Rules and Regulations and as of the Closing Date or the Option
Closing Date, if any, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements, in
the light of the circumstances under which they are made, not misleading (except
that such counsel need express no view as to financial statements, financial
schedules and other financial data). Such opinion shall also include a statement
to the effect that the Registration Statement, the Prospectus and each amendment
or supplement thereto comply as to form in all material respects with the
requirements of the Act and the applicable rules and regulations thereunder
(except that such counsel need express no view as to financial statements,
financial schedules and other financial data). With respect to such statement,
Davies Xxxx Xxxxxxxx & Xxxxxxxx LLP may state that their belief is based upon
the procedures set forth therein, but is without independent check and
verification.
(c) The Representatives shall have received on the Closing Date and
the Option Closing Date, if any, opinions of Xxxx Xxxxx LLP, special counsel for
the Company with respect to patent and proprietary rights, dated the Closing
Date and the Option Closing Date, if any, addressed to the Underwriters (and
stating that it may be relied upon by Xxxxxx & Xxxxxxx LLP, counsel for the
Underwriters) to the effect that:
(i) To such counsel's knowledge, except as described in the
Prospectus, (A) the Company and the Subsidiary have valid license rights or
clear title to the Intellectual Property referenced in the Prospectus, and there
are no rights of third parties to any such Intellectual Property, except where
the failure to have such valid
license rights or clear title to the Intellectual Property would not have a
Material Adverse Effect; (B) no third parties have obtained rights to any
Intellectual Property from the Company, other than licenses granted in the
ordinary course and rights that would not have a Material Adverse Effect; (C)
there is no infringement, misappropriation, or other violation by third parties
of any of the Intellectual Property of the Company or the Subsidiary that would
have a Material Adverse Effect; (D) there is no infringement, misappropriation,
or other violation by the Company or the Subsidiary of any Intellectual Property
of others; (E) there is no pending or threatened action, suit, proceeding or
claim by governmental authorities or others that the Company or the Subsidiary
infringe or otherwise violate any Intellectual Property of others; (F) there is
no pending or threatened action, suit, proceeding or claim by governmental
authorities or others challenging the rights of the Company or the Subsidiary in
or to, or challenging the scope of, any Intellectual Property of the Company or
the Subsidiary referenced in the Prospectus; and (G) there is no patent or
patent application owned by third parties that contains valid claims that cover
or may cover any Intellectual Property described in the Prospectus as being
owned by or licensed to the Company or the Subsidiary.
(ii) To such counsel's knowledge, the patent applications of
the Company and the Subsidiary presently on file disclose patentable subject
matter, and such counsel is not aware of any inventorship challenges, any
interference which has been declared or provoked, prior art or public or
commercial activity, or any other material fact with respect to the patent
applications of the Company and the Subsidiary presently on file that (A) would
preclude the issuance of patents with respect to such applications or (B) would
lead such counsel to conclude that such patents, when issued, would not be valid
and enforceable.
(iii) Except as set forth in the Registration Statement and
Prospectus, to such counsel's knowledge, there is no fact which would serve as
an Intellectual Property bar to any of the businesses known to such counsel
which are conducted by the Company and the Subsidiary as described in the
Prospectus.
(iv) Such counsel has reviewed the Risk Factors and Business
portions of the Registration Statement and the Prospectus referencing certain
Company patent rights, (collectively, the "Patent Sections") (attached hereto as
Exhibit A). Such counsel has no reason to believe that the information in the
Patent Sections contains any untrue statement or material fact or omits to state
a material fact necessary to make the statements therein not misleading and
insofar as the attached Patent Sections constitute statements or summaries of
matters of law, the Patent Sections are, to such counsel's knowledge, in all
material respects, accurate and complete statements or summaries, as the case
may be, of the matters referred to therein.
(d) The Representatives shall have received on the Closing Date and
the Option Closing Date, if any, the opinion of Xxxxx & Xxxxxxx LLP, special
counsel for the Company with respect to regulatory matters, dated the Closing
Date or the Option Closing Date, if any addressed to the Underwriters to the
effect that:
(i) counsel serves as special regulatory counsel to the
Company in the U.S. Food and Drug Administration ("FDA") area only. In such
capacity, counsel has been retained by the Company to review certain information
under the captions "Risk Factors -- If we cannot obtain and maintain clearance
or approval from governmental agencies, we will not be able to sell our
products," "Risk Factors -- Modifications to our current products may require
new marketing clearances or approvals or require us to cease marketing or recall
the modified products until such clearances or approvals are obtained," "Risk
Factors -- If we fail to comply with the FDA's Quality System Regulation and
other applicable postmarket regulatory requirements, we may be subject to a wide
variety of enforcement actions by the FDA," and "Business--Government Regulation
-- United States FDA Regulation," in the Company's final Prospectus dated as of
_____________ (the "Prospectus"), forming a part of the Company's Registration
Statement on Form S-1, as amended (Registration No. 333-113329).
(ii) counsel is of the opinion that the statements in the
Prospectus under the captions "Risk Factors -- If we cannot obtain and maintain
clearance or approval from governmental agencies, we will not be able to sell
our products," "Risk Factors -- Modifications to our current products may
require new marketing clearances or approvals or require us to cease marketing
or recall the modified products until such clearances or approvals are
obtained," "Risk Factors -- If we fail to comply with the FDA's Quality System
Regulation and other applicable postmarket regulatory requirements, we may be
subject to a wide variety of enforcement actions by the FDA," and
"Business--Government Regulation -- United States FDA Regulation," insofar as
such statements purport to summarize applicable provisions of the Federal Food,
Drug, and Cosmetic Act ("FDC Act") and the regulations promulgated thereunder,
are accurate summaries in all material respects of the provisions purported to
be summarized under such captions in the Prospectus.
(iii) During the course of preparation of the Registration
Statement, counsel participated in certain discussions with certain officers and
employees of the Company as to the FDA regulatory matters dealt with under the
captions "Risk Factors -- If we cannot obtain and maintain clearance or approval
from governmental agencies, we will not be able to sell our products," "Risk
Factors -- Modifications to our current products may require new marketing
clearances or approvals or require us to cease marketing or recall the modified
products until such clearances or approvals are obtained," "Risk Factors -- If
we fail to comply with the FDA's Quality System Regulation and other applicable
postmarket regulatory requirements, we may be subject to a wide variety of
enforcement actions by the FDA," and "Business--Government Regulation -- United
States FDA Regulation" in the Prospectus. While counsel has not undertaken to
determine independently, and does not assume any responsibility for, the
accuracy, completeness, or fairness of the statements under the above-referenced
captions in the Prospectus, counsel may state on the basis of these discussions
and activities as special FDA regulatory counsel to the Company in connection
with review of the statements contained in such captioned sections that no facts
have come to counsel's attention that cause counsel to believe that the
statements in the Prospectus under the such captions, insofar as such statements
relate to FDA regulatory matters, at the time the
Registration Statement became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or as of the date
hereof, contains an untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(e) The Representatives shall have received from Xxxxxx & Whitney
LLP, counsel for the Underwriters, an opinion dated the Closing Date and the
Option Closing Date, if any, with respect to the formation of the Company, the
validity of the Shares and other related matters as the Representatives
reasonably may request, and such counsel shall have received such papers and
information as they request to enable them to pass upon such matters.
(f) The Representatives shall have received at or prior to the
Closing Date from Xxxxxx & Xxxxxxx LLP a memorandum or summary, in form and
substance satisfactory to the Representatives, with respect to the qualification
for offering and sale by the Underwriters of the Shares under the State
securities or blue sky laws of such jurisdictions as the Representatives may
reasonably have designated to the Company.
(g) You shall have received, on each of the dates hereof, the Closing
Date and the Option Closing Date, if any, a letter dated the date hereof, the
Closing Date or the Option Closing Date, if any, in form and substance
satisfactory to you, of Xxxxx Xxxxxxxx LLP confirming that they are independent
public accountants within the meaning of the Act and the applicable published
Rules and Regulations thereunder and stating that in their opinion the financial
statements and schedules examined by them and included in the Registration
Statement comply in form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and Regulations; and
containing such other statements and information as is ordinarily included in
accountants' "comfort letters" to Underwriters with respect to the financial
statements and certain financial and statistical information contained in the
Registration Statement and the Prospectus, delivered according to Statement of
Auditing Standards No. 72 (or any successor bulletin).
(h) The Representatives shall have received on the Closing Date and
the Option Closing Date, if any, a certificate or certificates of the Company's
Chief Executive Officer and Chief Financial Officer to the effect that, as of
the Closing Date or the Option Closing Date, if any, each of them severally
represents as follows:
(i) The Registration Statement has become effective under the
Act and no stop order suspending the effectiveness of the Registrations
Statement has been issued, and no proceedings for such purpose have been taken
or are, to his knowledge, contemplated by the Commission;
(ii) The representations and warranties of the Company
contained in Section 1 hereof are true and correct as of the Closing Date or the
Option Closing Date, if any;
(iii) They have carefully examined the Registration Statement
and the Prospectus and, in their opinion, as of the effective date of the
Registration Statement, the Registration Statement and Prospectus did not omit
to state a material fact required to be stated therein or necessary in order to
make the statements therein not misleading, and since the effective date of the
Registration Statement, no event has occurred which should have been set forth
in a supplement to or an amendment of the Prospectus which has not been so set
forth in such supplement or amendment; and
(iv) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not been any
material adverse change or any development involving a prospective change, which
has had or is reasonably likely to have a Material Adverse Effect, whether or
not arising in the ordinary course of business.
(i) The Representatives shall have received on the Closing Date and
the Option Closing Date, if any, a certificate or certificates of the E-Z-EM's
Chief Executive Officer and Chief Financial Officer to the effect that, as of
the Closing Date or the Option Closing Date, if any, each of them severally
represents as follows:
(i) The representations and warranties of E-Z-EM contained in
Section 2 hereof are true and correct as of the Closing Date or the Option
Closing Date, if any; and
(ii) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not been any
material adverse change or any development involving a prospective change, which
has had or is reasonably likely to have a Material Adverse Effect, whether or
not arising in the ordinary course of business.
(j) The Firm Shares and Option Shares, if any, have been approved for
designation upon notice of issuance on the Nasdaq National Market.
(k) Executed copies of the Lockup Agreements described in Section
5(j) have been delivered to the Representatives.
(l) Each transaction required to have occurred pursuant to the Master
Separation and Distribution Agreement, prior to the initial public offering of
the Shares, and the execution and delivery by E-Z-EM and the Company of the
Ancillary Agreements, as defined in the Master Separation and Distribution
Agreement, shall have occurred.
The opinions and certificates mentioned in this Agreement shall be
deemed to be in compliance with the provisions hereof only if they are in all
material respects satisfactory to the Representatives and to Xxxxxx & Xxxxxxx
LLP, counsel for the Underwriters.
If any of the conditions hereinabove provided for in this Section
shall not have been fulfilled when and as required by this Agreement to be
fulfilled, the
obligations of the Underwriters hereunder may be terminated by the
Representatives by notifying the Company and E-Z-EM of such termination in
writing on or prior to the Closing Date or the Option Closing Date, if any.
In such event, the Company, E-Z-EM and the Underwriters shall not be
under any obligation to each other (except to the extent provided in Sections 7
and 10 hereof).
9. Conditions of the Obligations of the Company.
--------------------------------------------
The obligations of the Company to sell and deliver the portion of the
Shares required to be delivered as and when specified in this Agreement are
subject to the conditions that at the Closing Date or the Option Closing Date,
if any, no stop order suspending the effectiveness of the Registration Statement
shall have been issued and in effect or proceedings therefore initiated or
threatened.
10. Indemnification.
---------------
(a) The Company and E-Z-EM, jointly and severally, agree:
(i) to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of the Act,
against any losses, claims, damages or liabilities to which such Underwriter or
any such controlling person may become subject under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto, or (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; provided, however, that the Company and
E-Z-EM will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement, or omission or alleged omission made in the
Registration Statement, any Preliminary Prospectus amendment or supplement, in
reliance upon and in conformity with written information furnished to the
Company by or through the Representatives specifically for use in the
preparation thereof; provided, further that the foregoing indemnity agreement
with respect to any Preliminary Prospectus shall not inure to the benefit of any
Underwriter if (I) a loss, claim, liability, expense or damage results solely
from an untrue statement of a material fact contained in, or the omission of a
material fact from, such Preliminary Prospectus, which untrue statement or
omission was completely corrected in the Prospectus (as then amended or
supplemented) and (II) the Company sustains the burden of proving that the
Underwriters sold Shares to the person alleging such loss, claim, liability,
expense or damage without sending or giving, at or prior to the written
confirmation of such sale, a copy of the Prospectus (as then amended or
supplemented) and (III) the Company had previously furnished copies thereof to
the Underwriters within a reasonable amount of time prior to such sale or such
confirmation and (IV) the Underwriters failed to deliver the corrected
Prospectus, if required by law to have so
delivered it and if delivered would have been a complete defense against the
person asserting such loss, claim, liability, expense or damage.
(ii) to reimburse each Underwriter and each such controlling
person upon demand for any legal or other out-of-pocket expenses reasonably
incurred by such Underwriter or such controlling person in connection with
investigating or defending any such loss, claim, damage or liability, action or
proceeding or in responding to a subpoena or governmental inquiry related to the
offering of the Shares, whether or not such Underwriter or controlling person is
a party to any action or proceeding. In the event that it is finally judicially
determined that the Underwriters were not entitled to receive payments for legal
and other expenses pursuant to this subparagraph, the Underwriters will promptly
return all sums that had been advanced pursuant hereto.
(b) Each Underwriter severally and not jointly will indemnify and
hold harmless the Company, each of its directors, each of its officers who have
signed the Registration Statement, E-Z-EM and each person, if any, who controls
the Company and E-Z-EM within the meaning of the Act, against any losses,
claims, damages or liabilities to which the Company or any such director,
officer, E-Z-EM or controlling person may become subject under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto, or (ii) the omission or the alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading in the light of the circumstances under
which they were made; and will reimburse any legal or other expenses reasonably
incurred by the Company or any such director, officer, E-Z-EM or controlling
person in connection with investigating or defending any such loss, claim,
damage, liability, action or proceeding; provided, however, that each
Underwriter will be liable in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission has been made in the Registration Statement, any Preliminary
Prospectus, the Prospectus or such amendment or supplement, in reliance upon and
in conformity with written information furnished to the Company or E-Z-EM by or
through the Representatives specifically for use in the preparation thereof.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to this Section, such person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought (the
"Indemnifying Party") in writing. No indemnification provided for in Section
10(a) or (b) shall be available to any party who shall fail to give notice as
provided in this Subsection if the party to whom notice was not given was
unaware of the proceeding to which such notice would have related and was
materially prejudiced by the failure to give such notice, but the failure to
give such notice shall not relieve the indemnifying party or parties from any
liability which it or they may have to the indemnified party for contribution or
otherwise than on account of the provisions of Section 10(a) or (b). In case any
such proceeding shall be brought against any indemnified party and it shall
notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
reasonably satisfactory to such indemnified party and shall pay as incurred the
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own counsel
at its own expense. Notwithstanding the foregoing, the indemnifying party shall
pay as incurred (or within 30 days of presentation) the fees and expenses of the
counsel retained by the indemnified party in the event (i) the indemnifying
party and the indemnified party shall have mutually agreed to the retention of
such counsel, (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them or (iii) the
indemnifying party shall have failed to assume the defense and employ counsel
reasonably acceptable to the indemnified party within a reasonable period of
time after notice of commencement of the action.
It is understood that the indemnifying party shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the reasonable fees and expenses of more than one separate firm for all such
indemnified parties. Such firm shall be designated in writing by you in the case
of parties indemnified pursuant to Section 10(a) and by the Company and E-Z-EM
in the case of parties indemnified pursuant to Section 10(b). The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. In addition, the indemnifying party will not, without
the prior written consent of the indemnified party, settle or compromise or
consent to the entry of any judgment in any pending or threatened claim, action
or proceeding of which indemnification may be sought hereunder (whether or not
any indemnified party is an actual or potential party to such claim, action or
proceeding) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such claim, action or proceeding.
(d) If the indemnification provided for in this Section is
unavailable to or insufficient to hold harmless an indemnified party under
Section 10(a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) referred to therein,
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions or proceedings in respect thereof) in such proportion as
is appropriate to reflect the relative benefits received by the Company and
E-Z-EM on the one hand and the Underwriters on the other from the offering of
the Shares. If, however, the allocation provided by the immediately preceding
sentence is not permitted by applicable law then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company and E-Z-EM on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, (or actions or
proceedings in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company and E-Z-EM on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Company and E-Z-EM bear to the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or E-Z-EM on the one hand or the
Underwriters on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, E-Z-EM and the Underwriters agree that it would not be just
and equitable if contributions pursuant to this Subsection were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this Subsection. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) referred
to above in this Subsection shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Subsection, (i) no Underwriter shall be required to
contribute any amount in excess of the underwriting discounts and commissions
applicable to the Shares purchased by such Underwriter and (ii) no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this Subsection
to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) In any proceeding relating to the Registration Statement, any
Preliminary Prospectus, the Prospectus or any supplement or amendment thereto,
each party against whom contribution may be sought under this Section hereby
consents to the jurisdiction of any court having jurisdiction over any other
contributing party, agrees that process issuing from such court may be served
upon him or it by any other contributing party and consents to the service of
such process and agrees that any other contributing party may join him or it as
an additional defendant in any such proceeding in which such other contributing
party is a party.
(f) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section shall be paid by the indemnifying party to the indemnified party as such
losses, claims, damages, liabilities or expenses are incurred. The indemnity and
contribution agreements contained in this Section and the representations and
warranties of the Company and E-Z-EM set forth in this Agreement shall remain
operative and in full force and effect, regardless of (i) any investigation made
by or on behalf of any Underwriter or any person controlling any Underwriter,
the Company, E-Z-EM, its directors or officers or any persons controlling the
Company or E-Z-EM , (ii) acceptance of any Shares and payment
therefore hereunder, and (iii) any termination of this Agreement. A successor to
any Underwriter, or to the Company or E-Z-EM , its directors or officers, or any
person controlling the Company or E-Z-EM , shall be entitled to the benefits of
the indemnity, contribution and reimbursement agreements contained in this
Section.
11. Directed Share Program Indemnification.
---------------------------------------
(a) The Company and E-Z-EM, jointly and severally, agree:
(i) to indemnify and hold harmless RBC and each person, if any, who
controls RBC within the meaning of the Act ("RBC Entities"), from and against
any and all losses, claims, damages or liabilities (i) caused by any untrue
statement or alleged untrue statement of a material fact contained in any
material prepared by or with the consent of the Company for distribution to
Participants in connection with the Directed Share Program, or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading; (ii)
caused by the failure of any Participant to pay for and accept delivery of
Directed Shares that the Participant has agreed to purchase; or (iii) related
to, arising out of, or in connection with the Directed Share Program other than
losses, claims, damages or liabilities (or expenses relating thereto) that are
finally judicially determined to have resulted from the bad faith or gross
negligence of the RBC Entities.
(ii) to reimburse each RBC Entity and each such controlling person
upon demand for any legal or other out-of-pocket expenses reasonably incurred by
such RBC Entity or such controlling person in connection with investigating or
defending any such loss, claim, damage or liability, action or proceeding or in
responding to a subpoena or governmental inquiry related to the offering of the
Directed Shares, whether or not such RBC Entity or controlling person is a party
to any action or proceeding. In the event that it is finally judicially
determined that the RBC Entities were not entitled to receive payments for legal
and other expenses pursuant to this subparagraph, the RBC Entities will promptly
return all sums that had been advanced pursuant hereto.
(b) In case any proceeding (including any governmental investigation)
shall be instituted involving any RBC Entity in respect of which indemnity may
be sought pursuant to Section 11(a), the RBC Entity seeking indemnity shall
promptly notify the Company and E-Z-EM in writing. No indemnification provided
for in Section 11(a) or (b) shall be available to the RBC Entities if they fail
to give notice as provided in this Subsection if the Company and E-Z-EM were
materially prejudiced by the failure to give such notice, but the failure to
give such notice shall not relieve the Company or E-Z-EM from any liability
which it or they may have to such RBC Entity for contribution or otherwise than
on account of the provisions of Section 11(a) or (b). In case any such
proceeding shall be brought against any RBC Entity and it shall notify the
Company and E-Z-EM of the commencement thereof, the Company and E-Z-EM shall be
entitled to participate therein and to assume the defense thereof, with counsel
satisfactory to such RBC Entity and shall pay as incurred the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, the RBC Entities shall have the right to retain their own counsel at
their own expense. Notwithstanding the foregoing, the
Company and E-Z-EM shall pay as incurred (or within 30 days of presentation) the
fees and expenses of the counsel retained by the RBC Entities in the event (i)
the Company and the RBC Entities shall have mutually agreed to the retention of
such counsel, (ii) the named parties to any such proceeding (including any
impleaded parties) include both the Company and the RBC Entities and
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them or (iii) the Company or
E-Z-EM shall have failed to assume the defense and employ counsel reasonably
acceptable to the RBC Entities within a reasonable period of time after notice
of commencement of the action.
It is understood that the Company and E-Z-EM shall not, in connection
with any proceeding or related proceedings in the same jurisdiction, be liable
for the reasonable fees and expenses of more than one separate firm for all the
RBC entities. Such firm shall be designated in writing by the RBC Entities. The
Company and E-Z-EM shall not be liable for any settlement of any proceeding
effected without their written consent but if settled with such consent or if
there be a final judgment for the plaintiff, the Company and E-Z-EM agree to
indemnify the RBC Entities from and against any loss or liability by reason of
such settlement or judgment. In addition, the Company and E-Z-EM will not,
without the prior written consent of the RBC Entities, settle or compromise or
consent to the entry of any judgment in any pending or threatened claim, action
or proceeding of which indemnification may be sought hereunder (whether or not
any RBC Entity is an actual or potential party to such claim, action or
proceeding) unless such settlement, compromise or consent includes an
unconditional release of each RBC Entity from all liability arising out of such
claim, action or proceeding.
(c) If the indemnification provided for in Section 11(a) is unavailable to
or insufficient to hold harmless a RBC Entity in respect of any losses, claims,
damages or liabilities (or actions or proceedings in respect thereof) referred
to therein, then the Company and E-Z-EM, in lieu of indemnifying the RBC Entity
thereunder, shall contribute to the amount paid or payable by the RBC Entity as
a result of such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company and E-Z-EM on the one hand
and the RBC Entities on the other hand from the offering of the Directed Shares
or (ii) if the allocation provided by clause 11(c)(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 8(c)(i) above but also the relative
fault of the Company and E-Z-EM on the one hand and of the RBC Entities on the
other hand in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company and E-Z-EM on the one hand and of the RBC
Entities on the other hand in connection with the offering of the Directed
Shares shall be deemed to be in the same respective proportions as the net
proceeds from the offering of the Directed Shares (before deducting expenses)
received by the Company and the total underwriting discounts and commissions
received by the RBC Entities for the Directed Shares, bear to the aggregate
Public Offering Price of the Shares. 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 E-Z-EM on the one hand or by the RBC Entities on the other hand and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission.
(d) The Company and the RBC Entities agree that it would not be just or
equitable is contribution pursuant to this Section 11 were determined by pro
rata allocation (even in the RBC Entities were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in Section 11(c). The amount paid or
payable by the RBC Entities as a result of the losses, claims, damages and
liabilities (or actions or proceedings in respect thereof) referred to in the
immediately preceding paragraph shall be deemed to include any legal or other
expenses reasonably incurred by the RBC entities in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 11,(i) no RBC Entity shall be required to contribute
any amount in excess of the underwriting discounts and commissions applicable to
the Directed Shares purchased by such RBC Entity and (ii) 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 RBC Entities' obligations in this Section
11(d) to contribute are several in proportion to their respective obligations
and not joint.
(e) Any losses, claims, damages, liabilities or expenses for which an RBC
Entity is entitled to indemnification or contribution under this Section shall
be paid by the Company or E-Z-EM as such losses, claims, damages, liabilities or
expenses are incurred. The indemnity and contribution agreements contained in
this Section and the representations and warranties of the Company and E-Z-EM
set forth in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any RBC Entity or
any person controlling any RBC Entity, the Company, E-Z-EM, its directors or
officers or any persons controlling the Company or E-Z-EM , (ii) acceptance of
any Directed Shares and payment therefore hereunder, and (iii) any termination
of this Agreement. A successor to any RBC Entity, or to the Company or E-Z-EM ,
its directors or officers, or any person controlling the Company or E-Z-EM ,
shall be entitled to the benefits of the indemnity, contribution and
reimbursement agreements contained in this Section.
12. Default by Underwriters.
-----------------------
If on the Closing Date or the Option Closing Date, if any, any
Underwriter shall fail to purchase and pay for the portion of the Shares which
such Underwriter has agreed to purchase and pay for on such date (otherwise than
by reason of any default on the part of the Company or E-Z-EM), you, as the
Representatives of the Underwriters, shall use your reasonable efforts to
procure within 36 hours thereafter one or more of the other Underwriters, or any
others, to purchase from the Company such amounts as may be agreed upon and upon
the terms set forth herein, the Firm Shares or Option Shares, as the case may
be, which the defaulting Underwriter or Underwriters failed to purchase. If
during such 36 hours you, as such Representatives, shall not have procured such
other
Underwriters, or any others, to purchase the Firm Shares or Option Shares, as
the case may be, agreed to be purchased by the defaulting Underwriter or
Underwriters, then (a) if the aggregate number of shares with respect to which
such default shall occur does not exceed 10% of the Firm Shares or Option
Shares, as the case may be, covered hereby, the other Underwriters shall be
obligated, severally, in proportion to the respective numbers of Firm Shares or
Option Shares, as the case may be, which they are obligated to purchase
hereunder, to purchase the Firm Shares or Option Shares, as the case may be,
which such defaulting Underwriter or Underwriters failed to purchase, or (b) if
the aggregate number of shares of Firm Shares or Option Shares, as the case may
be, with respect to which such default shall occur exceeds 10% of the Firm
Shares or Option Shares, as the case may be, covered hereby, the Company and
E-Z-EM or you as the Representatives of the Underwriters will have the right, by
written notice given within the next 36-hour period to the parties to this
Agreement, to terminate this Agreement without liability on the part of the
non-defaulting Underwriters or of the Company or E-Z-EM except to the extent
provided in Section 10 hereof. In the event of a default by any Underwriter or
Underwriters, as set forth in this Section, the Closing Date or Option Closing
Date, if any, may be postponed for such period, not exceeding seven days, as
you, as Representatives, may determine in order that the required changes in the
Registration Statement or in the Prospectus or in any other documents or
arrangements may be effected. The term "Underwriter" includes any person
substituted for a defaulting Underwriter. Any action taken under this Section
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
13. Notices.
-------
All communications hereunder shall be in writing and, except as
otherwise provided herein, will be mailed, delivered, or faxed and confirmed as
follows:
if to the Underwriters, to RBC Capital Markets Corporation
0 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxx Xxxxx
Syndicate Director
Fax: (000) 000-0000
if to the Company to AngioDynamics, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
President and Chief Executive
Officer
Fax: (000) 000-0000
if to E-Z-EM to E-Z-EM, Inc.
0000 Xxxxxx Xxxxxx
Xxxx Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxx
Vice President-General Counsel
Fax: (000) 000-0000
14. Termination.
-----------
(a) This Agreement may be terminated by you by notice to the Company
and E-Z-EM at any time prior to the Closing Date if any of the following has
occurred: (i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change or any
development involving a prospective change, which has had or is reasonably
likely to have a Material Adverse Effect that makes it, in your judgment,
impracticable to proceed with the public offering or to market the shares, (ii)
any outbreak or escalation of hostilities or declaration of war or national
emergency or other national or international calamity or crisis or change in
economic or political conditions if the effect of such outbreak, escalation,
declaration, emergency, calamity, crisis or change on the financial markets of
the United States would, in your reasonable judgment, make it impracticable or
inadvisable to market the Shares or to enforce contracts for the sale of the
Shares, or (iii) suspension of trading in securities generally on the New York
Stock Exchange or the American Stock Exchange or limitation on prices (other
than limitations on hours or numbers of days of trading) for securities on
either such Exchange, (iv) the enactment, publication, decree or other
promulgation of any statute, regulation, rule or order of any court or other
governmental authority which in your opinion materially and adversely affects or
may materially and adversely affect the business or operations of the Company,
(v) declaration of a banking moratorium by United States or New York State
authorities, (vi) any downgrading, or placement on any watch list for possible
downgrading, in the rating of the Company's debt securities by any "nationally
recognized statistical rating organization" (as defined for purposes of Rule
436(g) under the Exchange Act); (vii) the suspension of trading of the Company's
Common Shares by the Nasdaq National Market, the Commission, or any other
governmental authority or, (viii) the taking of any action by any governmental
body or agency in respect of its monetary or fiscal affairs which in your
reasonable opinion has a material adverse effect on the securities markets in
the United States; or
(b) as provided in Sections 8 and 11 of this Agreement.
15. Successors.
----------
This Agreement has been and is made solely for the benefit of the
Company, E-Z-EM and Underwriters and their respective successors, executors,
administrators, heirs and assigns, and the officers, directors and controlling
persons referred to herein, and no other person will have any right or
obligation hereunder. No purchaser of any of the Shares from any Underwriter
shall be deemed a successor or assign merely because of such purchase.
16. Information Provided by Underwriters.
------------------------------------
The Company, E-Z-EM and the Underwriters acknowledge and agree that
the only information furnished or to be furnished by any Underwriter to the
Company for inclusion in any Prospectus or the Registration Statement consists
of the information contained in the Prospectus in the first paragraph under the
caption "Underwriting - Commissions and Expenses."
17. Miscellaneous.
-------------
The reimbursement, indemnification and contribution agreements
contained in this Agreement and the representations, warranties and covenants in
this Agreement shall remain in full force and effect regardless of (a) any
termination of this Agreement, (b) any investigation made by or on behalf of any
Underwriter or controlling person thereof, or by or on behalf of the Company or
its directors or officers and (c) delivery of and payment for the Shares under
this Agreement.
This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
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 only be amended or modified in writing, signed 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.
[remainder of page intentionally blank]
If the foregoing letter is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company, E-Z-EM and the
several Underwriters in accordance with its terms.
Very truly yours,
ANGIODYNAMICS, INC.
By
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Executive Officer
E-Z-EM, INC.
By
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President and Chief Executive
Officer
The foregoing Underwriting Agreement is hereby confirmed
and accepted as of the date first above written.
RBC XXXX XXXXXXXX INC.
XXXXX, XXXXXXXX & XXXX
[Additional Representatives]
As the Representatives of the several
Underwriters listed on Schedule I
By: RBC Xxxx Xxxxxxxx Inc.
By:
---------------------------------
Name:
---------------------------------
Title:
---------------------------------
SCHEDULE I
Schedule of Underwriters
Number of Firm Shares
Underwriter to be Purchased
---------------------- ---------------------
RBC Xxxx Xxxxxxxx Inc.
Xxxxx, Xxxxxxxx & Xxxx
[others]
Total ------------------------
------------------------
Schedule II
List Of Intellectual Property Owned
In Whole Or In Part By Angiodynamics, Inc. OR THE SUBSIDIARY
Exhibit A
List of Subsidiaries