Exhibit 1.1
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7,000,000 SHARES
Mykrolis Corporation
Common Stock
UNDERWRITING AGREEMENT
Dated ___, 2001
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TABLE OF CONTENTS
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Section 1 Representations and Warranties............................................................ 2
(a) Compliance with Registration Requirements................................................. 2
(b) Offering Materials Furnished to Underwriters.............................................. 3
(c) Distribution of Offering Material By the Company.......................................... 3
(d) The Underwriting Agreement................................................................ 3
(e) Authorization of the Common Shares........................................................ 3
(f) No Applicable Registration or Other Similar Rights........................................ 3
(g) No Material Adverse Change................................................................ 3
(h) Independent Accountants................................................................... 4
(i) Preparation of the Financial Statements................................................... 4
(j) Incorporation and Good Standing of the Company and its Subsidiaries....................... 4
(k) Capitalization and Other Capital Stock Matters............................................ 5
(l) Stock Exchange Listing.................................................................... 5
(m) Non-Contravention of Existing Instruments; No Further Authorizations or Approvals Required 5
(n) No Material Actions or Proceedings........................................................ 6
(o) Intellectual Property Rights.............................................................. 6
(p) All Necessary Permits, etc................................................................ 7
(q) Title to Properties....................................................................... 7
(r) Tax Law Compliance........................................................................ 7
(s) Company Not an "Investment Company"....................................................... 7
(t) Insurance................................................................................. 7
(u) No Price Stabilization or Manipulation.................................................... 8
(v) Related Party Transactions................................................................ 8
(w) No Unlawful Contributions or Other Payments............................................... 8
(x) Company's Accounting System............................................................... 8
(y) Compliance with Environmental Laws........................................................ 8
(z) ERISA Compliance.......................................................................... 9
Section 2 Purchase, Sale and Delivery of the Common Shares.......................................... 10
(a) The Firm Common Shares.................................................................... 10
(b) The First Closing Date.................................................................... 11
(c) The Optional Common Shares; the Second Closing Date....................................... 11
(d) Public Offering of the Common Shares...................................................... 11
(e) Payment for the Common Shares............................................................. 12
(f) Delivery of the Common Shares............................................................. 12
(g) Delivery of Prospectus to the Underwriters................................................ 12
Section 3 Additional Covenants...................................................................... 12
(a) Representatives' Review of Proposed Amendments and Supplements............................ 13
(b) Securities Act Compliance................................................................. 13
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(c) Amendments and Supplements to the Prospectus and Other Securities Act Matters............. 13
(d) Copies of any Amendments and Supplements to the Prospectus................................ 13
(e) Blue Sky Compliance....................................................................... 14
(f) Use of Proceeds........................................................................... 14
(g) Transfer Agent............................................................................ 14
(h) Earnings Statement........................................................................ 14
(i) Periodic Reporting Obligations............................................................ 14
(j) Agreement Not To Offer or Sell Additional Securities...................................... 14
Section 4 Payment of Expenses....................................................................... 15
Section 5 Conditions of the Obligations of the Underwriters......................................... 16
(a) Accountants' Comfort Letter............................................................... 16
(b) Compliance with Registration Requirements; No Stop Order; No Objection from NASD.......... 16
(c) No Material Adverse Change................................................................ 17
(d) Opinion of Counsel for the Company........................................................ 17
(e) Opinion of Counsel for the Underwriters................................................... 17
(f) Officers' Certificate..................................................................... 17
(g) Bring-down Comfort Letter................................................................. 17
(h) Lock-Up Agreement from Certain Securityholders of the Company............................. 18
(i) Additional Documents...................................................................... 18
Section 6 Reimbursement of Underwriters' Expenses................................................... 18
Section 7 Effectiveness of this Agreement........................................................... 18
Section 8 Indemnification........................................................................... 19
(a) Indemnification of the Underwriters....................................................... 19
(b) Directed Share Program Indemnification.................................................... 20
(c) Indemnification of the Company, its Directors and Officers................................ 21
(d) Notifications and Other Indemnification Procedures........................................ 21
(e) Settlement................................................................................ 22
Section 9 Contribution.............................................................................. 22
Section 10 Default of One or More of the Several Underwriters........................................ 24
Section 11 Termination of this Agreement............................................................. 24
Section 12 Representations and Indemnities to Survive Delivery....................................... 25
Section 13 Notices................................................................................... 25
Section 14 Successors................................................................................ 26
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Section 15 Partial Unenforceability.................................................................. 26
Section 16 Governing Law Provisions.................................................................. 26
(a) Governing Law Provisions.................................................................. 26
(b) Consent to Jurisdiction................................................................... 26
(c) Waiver of Immunity........................................................................ 27
Section 17 General Provisions........................................................................ 27
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UNDERWRITING AGREEMENT
_________, 2001
Banc of America Securities LLC
Xxxxxxx Xxxxx Xxxxxx Inc.
ABN AMRO Rothschild LLC
As Representatives of the several Underwriters
c/o Banc of America Securities LLC
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
Introductory.
Mykrolis Corporation, a Delaware corporation (the "COMPANY"), proposes to
issue and sell to the several underwriters named in Schedule A (the
"UNDERWRITERS") an aggregate of 7,000,000 shares (the "FIRM COMMON SHARES") of
its Common Stock, par value $.01 per share (the "COMMON STOCK"). In addition,
the Company has granted to the Underwriters an option to purchase up to an
additional 1,050,000 shares (the "OPTIONAL COMMON SHARES") of Common Stock, as
provided in Section 2. The Firm Common Shares and, if and to the extent such
option is exercised, the Optional Common Shares are collectively called the
"COMMON SHARES". Banc of America Securities LLC ("BAS"), Xxxxxxx Xxxxx Barney
Inc. and ABN AMRO Rothschild LLC have agreed to act as representatives of the
several Underwriters (in such capacity, the "REPRESENTATIVES") in connection
with the offering and sale of the Common Shares.
The Company has prepared and filed with the Securities and Exchange
Commission (the "COMMISSION") a registration statement on Form S-1 (File No.
333-57182), which contains a form of prospectus to be used in connection with
the public offering and sale of the Common Shares. Such registration statement,
as amended, including the financial statements, exhibits and schedules thereto,
in the form in which it was declared effective by the Commission under the
Securities Act of 1933 and the rules and regulations promulgated thereunder
(collectively, the "SECURITIES ACT"), including any information deemed to be a
part thereof at the time of effectiveness pursuant to Rule 430A or Rule 434
under the Securities Act, is called the "REGISTRATION STATEMENT". Any
registration statement filed by the Company pursuant to Rule 462(b) under the
Securities Act is called the "RULE 462(B) REGISTRATION STATEMENT", and from and
after the date and time of filing of the Rule 462(b) Registration Statement the
term "REGISTRATION STATEMENT" shall include the Rule 462(b) Registration
Statement. Such prospectus, in the form first used by the Underwriters to
confirm sales of the Common Shares, is called the "PROSPECTUS"; provided,
however, if the Company has, with the consent of BAS, elected to rely upon Rule
434 under the Securities Act, the term "PROSPECTUS" shall mean the
Company's prospectus subject to completion (each, a "PRELIMINARY PROSPECTUS")
dated [___] (such preliminary prospectus is called the "RULE 434 PRELIMINARY
PROSPECTUS"), together with the applicable term sheet (the "TERM SHEET")
prepared and filed by the Company with the Commission under Rules 434 and 424(b)
under the Securities Act and all references in this Agreement to the date of the
Prospectus shall mean the date of the Term Sheet. All references in this
Agreement to the Registration Statement, the Rule 462(b) Registration Statement,
a preliminary prospectus, the Prospectus or the Term Sheet, or any amendments or
supplements to any of the foregoing, shall include any copy thereof filed with
the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
System ("XXXXX").
The Representatives have agreed to reserve up to 350,000 Common Shares to
be purchased by them under this Agreement for sale to the Company's directors,
officers, employees and business associates and other parties related to the
Company (collectively, "PARTICIPANTS"), as set forth in the Prospectus under the
heading "Underwriting" (the "DIRECTED SHARE PROGRAM"). The Shares to be sold by
Xxxxxxx Xxxxx Barney Inc. pursuant to the Directed Share Program ("DIRECTED
SHARES") will be sold by Xxxxxxx Xxxxx Xxxxxx Inc. pursuant to this Agreement at
the public offering price. Any Directed Shares not orally confirmed for
purchase by any Participant by the end of the business day immediately following
the date on which this Agreement is executed will be offered to the public by
the Underwriters as set forth in the Prospectus.
The Company hereby confirms its agreement with the Underwriters as follows:
Section 1. Representations and Warranties.
The Company hereby represents, warrants and covenants to each Underwriter
as follows:
(a) Compliance with Registration Requirements. The Registration Statement and
any Rule 462(b) Registration Statement have been declared effective by the
Commission under the Securities Act (other than any Rule 462(b)
Registration Statement to be filed by the Company after the effectiveness
of this Agreement). The Company has complied to the Commission's
satisfaction with all requests of the Commission for additional or
supplemental information. No stop order suspending the effectiveness of
the Registration Statement or any Rule 462(b) Registration Statement is in
effect and no proceedings for such purpose have been instituted or to the
knowledge of the Company, are pending or are contemplated or threatened by
the Commission.
Each preliminary prospectus and the Prospectus when filed complied in all
material respects with the Securities Act and, if filed by electronic
transmission pursuant to XXXXX (except as may be permitted by Regulation S-T
under the Securities Act), was identical to the copy thereof delivered to the
Underwriters for use in connection with the offer and sale of the Common Shares.
Each of the Registration Statement, any Rule 462(b) Registration Statement and
any post-effective amendment thereto, at the time it became effective and at all
subsequent times up to and including the First Closing Date (and if Optional
Common Shares are purchased, the Second Closing Date, if applicable), complied
and will comply in all material respects with the Securities Act and did not and
will not contain any untrue statement of a material fact or omit
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to state a material fact required to be stated therein or necessary to make the
statements therein not misleading. The Prospectus, as amended or supplemented,
as of its date and as of the first Closing Date (and if Optional Common Shares
are purchased, the Second Closing Date, if applicable), did not and will not
contain any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The representations
and warranties set forth in the two immediately preceding sentences do not apply
to statements in or omissions from the Registration Statement, any Rule 462(b)
Registration Statement, or any post-effective amendment thereto, or the
Prospectus, or any amendments or supplements thereto, made in reliance upon and
in conformity with information relating to any Underwriter furnished to the
Company in writing by the Representatives expressly for use therein. There are
no contracts or other documents required to be described in the Prospectus or to
be filed as exhibits to the Registration Statement which have not been described
or filed as required.
(b) Offering Materials Furnished to Underwriters. The Company has delivered to
each of the Representatives one complete manually signed copy of the
Registration Statement and a copy of each consent and certificate of
experts filed as a part thereof, and conformed copies of the Registration
Statement (without exhibits) and preliminary prospectuses and the
Prospectus, as amended or supplemented, in such quantities and at such
places as the Representatives have reasonably requested for each of the
Underwriters.
(c) Distribution of Offering Material By the Company. The Company has not
distributed and will not distribute, prior to the later of the Second
Closing Date (as defined below) and the completion of the Underwriters'
distribution of the Common Shares, any offering material in connection with
the offering and sale of the Common Shares other than a preliminary
prospectus, the Prospectus or the Registration Statement.
(d) The Underwriting Agreement. This Agreement has been duly authorized,
executed and delivered by the Company.
(e) Authorization of the Common Shares. The Common Shares to be purchased by
the Underwriters from the Company have been duly authorized for issuance
and sale pursuant to this Agreement and, when issued and delivered by the
Company pursuant to this Agreement against payment of the consideration set
forth herein, will be validly issued, fully paid and nonassessable.
(f) No Applicable Registration or Other Similar Rights. There are no persons
with registration or other similar rights to have any equity or debt
securities registered for sale under the Registration Statement or included
in the offering contemplated by this Agreement, except for such rights as
have been duly waived.
(g) No Material Adverse Change. Except as otherwise disclosed in the
Prospectus, subsequent to the respective dates as of which information is
given in the Prospectus: (i) there has been no material adverse change, or
any development that could reasonably be expected to result in a material
adverse change, in the condition, financial or otherwise, or in the
earnings, business, operations or prospects contemplated by the Prospectus,
whether or not arising from transactions in the ordinary course of
business, of the Company and its subsidiaries, considered
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as one entity (any such change is called a "MATERIAL ADVERSE CHANGE"); (ii)
the Company and its subsidiaries, considered as one entity, have not
incurred any material liability or obligation, indirect, direct or
contingent, not in the ordinary course of business nor entered into any
material transaction or agreement not in the ordinary course of business;
and (iii) there has been no dividend or distribution of any kind declared,
paid or made by the Company or, except for dividends paid to the Company or
other subsidiaries, any of its subsidiaries on any class of capital stock
or repurchase or redemption by the Company or any of its subsidiaries of
any class of capital stock.
(h) Independent Accountants. PricewaterhouseCoopers LLP, who have expressed
their opinion with respect to the financial statements (which term as used
in this Agreement includes the related notes thereto) and supporting
schedules filed with the Commission as a part of the Registration Statement
and included in the Prospectus, are independent public or certified public
accountants as required by the Securities Act.
(i) Preparation of the Financial Statements. The financial statements filed
with the Commission as a part of the Registration Statement and included in
the Prospectus present fairly in all material respects the combined and
consolidated financial position, as applicable, of the Company and its
subsidiaries as of and at the dates indicated and the results of their
operations and cash flows for the periods specified. The supporting
schedules included in the Registration Statement present fairly in all
material respects the information required to be stated therein. Such
financial statements and supporting schedules have been prepared in
conformity with generally accepted accounting principles as applied in the
United States applied on a consistent basis throughout the periods
involved, except as may be expressly stated in the related notes thereto.
No other financial statements or supporting schedules are required to be
included in the Registration Statement. The financial data set forth in the
Prospectus under the captions "Prospectus Summary--Summary Financial Data",
"Selected Financial Data" and "Capitalization" fairly present in all
material respects the information set forth therein on a basis consistent
with that of the audited financial statements contained in the Registration
Statement.
(j) Incorporation and Good Standing of the Company and its Subsidiaries. Each
of the Company and its subsidiaries has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation and has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectus and, in the case of the Company, to enter into
and perform its obligations under this Agreement. The Company and each
subsidiary of the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except for such
jurisdictions where the failure to so qualify or to be in good standing
would not, individually or in the aggregate, result in a Material Adverse
Change. All of the issued and outstanding capital stock of each subsidiary
of the Company has been duly authorized and validly issued, is fully paid
and nonassessable and is owned by the Company, directly or through
subsidiaries, free and clear of any security interest, mortgage, pledge,
lien, encumbrance or claim. The Company does not own or control, directly
or indirectly, any corporation, association or other entity other than the
subsidiaries listed in Exhibit 21 to the Registration Statement. Except as
described in the Prospectus, as a result of the separation of the Company
from Millipore Corporation (the "Parent"), all assets previously
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owned by the Parent or any of its subsidiaries relating to the businesses
of the Company are owned, leased or licensed directly or indirectly through
one or more subsidiaries, by the Company, except where the failure of the
Company to own, lease or license such assets would not reasonably be
expected to result in a Material Adverse Change.
(k) Capitalization and Other Capital Stock Matters. The authorized, issued and
outstanding capital stock of the Company is as set forth in the Prospectus
in the column entitled "Actual" under the caption "Capitalization" (except
for issuances following the date of the table under the caption
"Capitalization," if any, pursuant to employee benefit plans or upon
exercise of outstanding options described in the Prospectus). The Common
Stock conforms in all material respects to the description thereof
contained in the Prospectus. All of the issued and outstanding shares of
Common Stock have been duly authorized and validly issued, are fully paid
and nonassessable and have been issued in compliance with federal and state
securities laws. None of the outstanding shares of Common Stock were
issued in violation of any preemptive rights, rights of first refusal or
other similar rights to subscribe for or purchase securities of the
Company. There are no authorized or outstanding options, warrants,
preemptive rights, rights of first refusal or other rights to purchase, or
equity or debt securities convertible into or exchangeable or exercisable
for, any capital stock of the Company or any of its subsidiaries other than
those described in the Prospectus or issued or granted after the date
thereof. The description of the Company's stock option, stock bonus and
other stock plans or arrangements, and the options or other rights granted
thereunder, set forth in the Prospectus accurately and fairly presents, in
all material respects, the information required to be shown with respect to
such plans, arrangements, options and rights.
(l) Stock Exchange Listing. The Common Shares have been approved for listing
on the New York Stock Exchange, subject only to official notice of
issuance.
(m) Non-Contravention of Existing Instruments; No Further Authorizations or
Approvals Required. Neither the Company nor any of its subsidiaries is in
violation of its charter or by-laws or is in default (or, with the giving
of notice or lapse of time, would be in default) ("DEFAULT") under any
indenture, mortgage, loan or credit agreement, note, contract, franchise,
lease or other instrument to which the Company or any of its subsidiaries
is a party or by which it or any of them may be bound or to which any of
the property or assets of the Company or any of its subsidiaries is subject
(each, an "EXISTING INSTRUMENT"), in each case, except for such violations
or Defaults as would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Change. The Company's execution,
delivery and performance of this Agreement and consummation of the
transactions contemplated hereby and by the Prospectus (i) have been duly
authorized by all necessary corporate action, and will not result in any
violation of the provisions of the charter or by-laws of the Company or any
subsidiary of the Company or, to the knowledge of the Company, the charter
or by-laws of the Parent, (ii) will not conflict with or constitute a
breach of, or Default or a Debt Repayment Triggering Event (as defined
below) under, or result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Company or any of its
subsidiaries or, to the knowledge of the Company, any property or assets of
the Parent, pursuant to, or require the consent of any other party to, any
Existing Instrument, except for such conflicts, breaches, Defaults, Debt
Repayment Triggering Events, liens, charges or encumbrances as would not,
individually or in the aggregate, result in a Material Adverse Change and
(iii) will not result in any violation of any law,
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administrative regulation or administrative or court decree applicable to
the Company or any subsidiary of the Company, except for such violations
which would not reasonably be expected to result in a Material Adverse
Change. No consent, approval, authorization or other order of, or
registration or filing with, any court or other governmental or regulatory
authority or agency, is required for the Company's execution, delivery and
performance of this Agreement and consummation of the transactions
contemplated hereby and by the Prospectus, except such as have been
obtained or made by the Company and are in full force and effect under the
Securities Act, applicable state securities or blue sky laws and from the
National Association of Securities Dealers, Inc. (the "NASD") or as have
been obtained under the laws and regulations of jurisdictions outside the
United States in which Directed Shares are offered, or such filings as are
not material. As used herein, a "DEBT REPAYMENT TRIGGERING EVENT" means any
event or condition which gives, or with the giving of notice or lapse of
time would give, the holder of any note, debenture or other evidence of
indebtedness (or any person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any of its subsidiaries. Except as set forth
in the Prospectus, to the knowledge of the Company, no indenture, mortgage,
loan or credit agreement, note, contract, lease or other instrument to
which the Parent or any of its subsidiaries (other than the Company or any
of the Company subsidiaries) is a party or by which it is bound limits or
in the future may limit the borrowing ability or otherwise constrains, or
in the future may constrain, the actions of the Company or any of its
subsidiaries, and, to the knowledge of the Company, no default or event of
default by the Parent or any of its subsidiaries under any such indenture,
mortgage, loans or credit agreement, note, contract, lease or other
instrument shall give any party thereto any rights against the Company or
any of its subsidiaries.
(n) No Material Actions or Proceedings. Except as otherwise disclosed in the
Prospectus, there are no legal or governmental actions, suits or
proceedings pending or, to the Company's knowledge, threatened (i) against
or affecting the Company or any of its subsidiaries, (ii) which has as a
subject thereof any officer or director of, or property (including
intellectual property) owned or leased by, the Company or any of its
subsidiaries or (iii) relating to environmental or discrimination matters,
where in any such case (A) there is a reasonable possibility that such
action, suit or proceeding might be determined adversely to the Company or
such subsidiary and (B) any such action, suit or proceeding, if so
determined adversely, would reasonably be expected to result in a Material
Adverse Change or adversely affect the consummation of the transactions
contemplated by this Agreement. No material labor dispute with the
employees of the Company or any of its subsidiaries exists or, to the
Company's knowledge, is threatened or imminent which would reasonably be
expected to result in a Material Adverse Change.
(o) Intellectual Property Rights. Except as otherwise disclosed in the
Prospectus, the Company and its subsidiaries own or possess sufficient
trademarks, trade names, patent rights, copyrights, licenses, approvals,
trade secrets and other similar rights (collectively, "INTELLECTUAL
PROPERTY RIGHTS") reasonably necessary to conduct their businesses as now
conducted; and the expected expiration of any of such Intellectual Property
Rights would not reasonably be expected to result in a Material Adverse
Change. Except as otherwise disclosed in the Prospectus, neither the
Company nor any of its subsidiaries has received any notice of infringement
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or conflict with asserted Intellectual Property Rights of others (and the
Company knows of no such infringement or conflict), which infringement or
conflict, if the subject of an unfavorable decision, would result in a
Material Adverse Change.
(p) All Necessary Permits, etc. The Company and each subsidiary possess such
valid and current certificates, authorizations or permits issued by the
appropriate state, federal or foreign regulatory agencies or bodies
necessary to conduct their respective businesses (other than any the
absence of which would not, singly or in the aggregate, result in a
Material Adverse Change), and neither the Company nor any subsidiary has
received any notice of proceedings relating to the revocation or
modification of, or non-compliance with, any such certificate,
authorization or permit which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would reasonably be expected
to result in a Material Adverse Change.
(q) Title to Properties. Except as otherwise disclosed in the Prospectus, the
Company and each of its subsidiaries has good and marketable title to all
real property owned by the Company and good title to all other properties
and assets reflected as owned in the financial statements referred to in
Section 1(i) above (or elsewhere in the Prospectus), in each case, except
as disclosed in the Prospectus, free and clear of any security interests,
mortgages, liens, encumbrances, equities, claims and other defects, except
such as do not materially and adversely affect the use made of such
property by the Company or such subsidiary. The real property,
improvements, equipment and personal property held under lease by the
Company or any subsidiary are held under valid and enforceable leases, with
such exceptions as are not material and do not materially interfere with
the use made of such real property, improvements, equipment or personal
property by the Company or such subsidiary and except, in the case of any
subsidiary, such exceptions that would not reasonably be expected to result
in a Material Adverse Change.
(r) Tax Law Compliance. The Company and its subsidiaries have filed all
necessary federal, state and foreign income and franchise tax returns or
have properly requested extensions thereof (which extensions have not
expired) and have paid all taxes required to be paid by any of them and, if
due and payable, any related or similar assessment, fine or penalty levied
against any of them, except as may be being contested in good faith and by
applicable proceedings. The Company has made adequate charges, accruals
and reserves in the applicable financial statements referred to in Section
1(i) above in respect of all federal, state and foreign income and
franchise taxes for all periods as to which the tax liability of the
Company or any of its subsidiaries has not been finally determined.
(s) Company Not an "Investment Company". The Company is not, and after receipt
of payment for the Common Shares and the application of the net proceeds
therefrom as described in the Prospectus will not be, an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended (the "INVESTMENT COMPANY ACT") and will conduct its business in a
manner so that it will not become subject to the Investment Company Act.
(t) Insurance. Each of the Company and its subsidiaries are insured by
recognized, financially sound and reputable institutions with policies in
such amounts and with such deductibles and covering such risks as the
Company has reasonably deemed adequate and
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customary for its businesses including, but not limited to, policies
covering real and personal property owned or leased by the Company and its
subsidiaries against theft, damage, destruction and acts of vandalism. The
Company has no reason to believe that it or any subsidiary will not be able
(i) to renew its existing insurance coverage as and when such policies
expire or (ii) to obtain comparable coverage from similar institutions as
may be necessary or appropriate to conduct its business as now conducted
and at a cost that would not result in a Material Adverse Change.
(u) No Price Stabilization or Manipulation. Neither the Parent nor the Company
has taken or will take, directly or indirectly, any action designed to or
that might be reasonably expected to cause or result in stabilization or
manipulation of the price of the Common Stock to facilitate the sale or
resale of the Common Shares.
(v) Related Party Transactions. There are no business relationships or
related-party transactions involving the Company or any subsidiary or any
other person required to be described in the Prospectus which have not been
described as required.
(w) No Unlawful Contributions or Other Payments. Neither the Company nor any
of its subsidiaries nor, to the Company's knowledge, any employee or agent
of the Company or any subsidiary, has made any contribution or other
payment to any official of, or candidate for, any federal, state or foreign
office in violation of any law or of the character required to be disclosed
in the Prospectus.
(x) Company's Accounting System. The Company maintains a system of accounting
controls sufficient to provide reasonable assurances that (i) transactions
are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles as applied in the United States and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(y) Compliance with Environmental Laws. Except as would not, individually or
in the aggregate, result in a Material Adverse Change, (i) neither the
Company nor any of its subsidiaries is in violation of any federal, state,
local or foreign law or regulation relating to pollution or protection of
human health or the environment (including, without limitation, ambient
air, surface water, groundwater, land surface or subsurface strata) or
wildlife, including without limitation, laws and regulations relating to
emissions, discharges, releases or threatened releases of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum and petroleum products (collectively, "MATERIALS OF ENVIRONMENTAL
CONCERN"), or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Materials of Environment Concern (collectively, "ENVIRONMENTAL LAWS"),
which violation includes, but is not limited to, noncompliance with any
permits or other governmental authorizations required for the operation of
the business of the Company or its subsidiaries under applicable
Environmental Laws, or noncompliance with the terms and conditions thereof,
nor has the Company, the Parent or any of their subsidiaries received any
written communication, whether from a governmental authority, citizens
group, employee or
8
otherwise, that alleges that the Company or any of its subsidiaries or the
Parent or its subsidiaries, to the extent the Company has agreed in writing
to indemnify the Parent therefor, is in violation of any Environmental Law;
(ii) there is no claim, action or cause of action filed with a court or
governmental authority, no investigation with respect to which the Company
or the Parent or any of their subsidiaries has received written notice, and
no written notice by any person or entity alleging potential liability for
investigatory costs, cleanup costs, governmental responses costs, natural
resources damages, property damages, personal injuries, attorneys' fees or
penalties, arising out of, based on or resulting from the presence, or
release into the environment, of any Materials of Environmental Concern at
any location owned, leased or operated by the Company or any of its
subsidiaries, now or in the past (including any location owned, leased or
operated by the Parent or its subsidiaries and for which the Company has
agreed in writing to indemnify the Parent for losses related thereto)
(collectively, "ENVIRONMENTAL CLAIMS"), pending or, to the Company's
knowledge, threatened against the Company or any of its subsidiaries or any
person or entity whose liability for any Environmental Claim the Company or
any of its subsidiaries has retained or assumed either contractually or by
operation of law; and (iii) to the Company's knowledge, there are no past
or present actions, activities, circumstances, conditions, events or
incidents, including, without limitation, the release, emission, discharge,
presence or disposal of any Materials of Environmental Concern, that would
reasonably be expected to result in a violation of any Environmental Law or
form the basis of a potential Environmental Claim against the Company or
any of its subsidiaries or against any person or entity whose liability for
any Environmental Claim the Company or any of its subsidiaries has retained
or assumed either contractually or by operation of law.
(z) ERISA Compliance. The Company and its subsidiaries and any "employee
benefit plan" (as defined under the Employee Retirement Income Security Act
of 1974, as amended, and the regulations and published interpretations
thereunder (collectively, "ERISA")) established or maintained by the
Company, its subsidiaries or their ERISA Affiliates (as defined below) are
in compliance in all material respects with ERISA. "ERISA AFFILIATE"
means, with respect to the Company or a subsidiary of the Company, any
member of any group of organizations described in Sections 414(b),(c),(m)
or (o) of the Internal Revenue Code of 1986, as amended, and the
regulations and published interpretations thereunder (the "CODE") of which
the Company or such subsidiary is a member. Except as would not result in
a Material Adverse Change, (A) no "reportable event" (as defined under
ERISA) has occurred or is reasonably expected to occur with respect to any
"employee benefit plan" established or maintained by the Company, its
subsidiaries or any of their ERISA Affiliates, and (B) no "employee benefit
plan" established or maintained by the Company, its subsidiaries or any of
their ERISA Affiliates, if such "employee benefit plan" were terminated,
would have any "amount of unfunded benefit liabilities" (as defined under
ERISA). Neither the Company, its subsidiaries nor any of their ERISA
Affiliates has incurred or reasonably expects to incur any liability under
(i) Title IV of ERISA with respect to termination of, or withdrawal from,
any "employee benefit plan" or (ii) Sections 412, 4971, 4975 or 4980B of
the Code, except, in each case, as would not result in a Material Adverse
Change. Each "employee benefit plan" established or maintained by the
Company, its subsidiaries or any of their ERISA Affiliates that is intended
to be qualified under Section 401(a) of the Code is so qualified and
nothing has occurred, whether by action or failure to act, which would
cause the loss of such qualification, except where the failure to so
qualify would not result in a Material Adverse Change.
9
(aa) Each of the Master Separation and Distribution Agreement, the General
Assignment and Assumption Agreement, the Master Patent Assignment, the Master
Invention Disclosure Assignment, the Master Patent License Agreement, the Master
Patent Grantback License Agreement, the Master Trademark Assignments, the Master
Trademark License Agreement, the Master Trade Secret and Know-How Agreement, the
Tax Sharing Agreement, the Employee Matters Agreement, the Master Transitional
Services Agreement, the Membrane Manufacture and Supply Agreement, the Research
Agreement, the Product Distribution Agreement, the Contract Manufacturing
Agreement, the Separation Revolving Credit Agreement and the Separation Note
(collectively, the "INTERCOMPANY AGREEMENTS"), has been duly authorized,
executed and delivered by the Company and the Parent, is in full force and
effect, and constitutes a valid and legally binding obligation of the Company
and the Parent, enforceable against each of the Company and the Parent in
accordance with its terms, subject to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
(bb) The Registration Statement, the Prospectus and any preliminary
prospectus comply, and any amendments or supplements thereto, will comply with
any applicable laws or regulations of foreign jurisdictions in which the
Prospectus or any preliminary prospectus, as amended or supplemented, if
applicable, are distributed in connection with the Directed Share Program.
(cc) No consent, approval, authorization or order of, or qualification
with, any governmental body or agency, other than those obtained, is required in
connection with the offering of the Directed Shares under the securities laws
and regulations in any jurisdiction where the Directed Shares are being offered.
(dd) The Company has not offered, or caused the Representatives to offer,
Shares to any person pursuant to the Directed Share Program with the specific
intent to unlawfully influence (1) a customer or supplier of the Company to
alter the customer's or supplier's level or type of business with the Company,
or (2) a trade journalist or publication to write or publish favorable
information about the Company or its products.
Any certificate signed by an officer of the Company and delivered to the
Representatives or to counsel for the Underwriters in connection with the
consummation of the transactions contemplated hereby and dated the date hereof,
the First Closing Date or the Second Closing Date shall be deemed to be a
representation and warranty by the Company to each Underwriter as to the matters
set forth therein.
Section 2. Purchase, Sale and Delivery of the Common Shares.
(a) The Firm Common Shares. The Company agrees to issue and sell to the
several Underwriters the Firm Common Shares upon the terms herein set
forth. On the basis of the representations, warranties and agreements
herein contained, and upon the terms but subject to the conditions herein
set forth, the Underwriters agree, severally and not jointly, to purchase
from the Company the respective number of Firm Common Shares set forth
opposite their names
10
on Schedule A. The purchase price per Firm Common Share to be paid by the
several Underwriters to the Company shall be $[___] per share.
(b) The First Closing Date. Delivery of certificates for the Firm Common
Shares to be purchased by the Underwriters and payment therefor shall be
made at the offices of Xxxx and Xxxx LLP, 00 Xxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx (or such other place as may be agreed to by the Company and
the Representatives) at 9:00 a.m. Boston time, on [___], or such other time
and date not later than 1:30 p.m. Boston time, on [___] as the
Representatives shall designate by notice to the Company (the time and date
of such closing are called the "FIRST CLOSING DATE"). The Company hereby
acknowledges that circumstances under which the Representatives may provide
notice to postpone the First Closing Date as originally scheduled include,
but are in no way limited to, any determination by the Company or the
Representatives to recirculate to the public copies of an amended or
supplemented Prospectus or a delay as contemplated by the provisions of
Section 10.
(c) The Optional Common Shares; the Second Closing Date. In addition, on the
basis of the representations, warranties and agreements herein contained,
and upon the terms but subject to the conditions herein set forth, the
Company hereby grants an option to the several Underwriters to purchase,
severally and not jointly, up to an aggregate of [___] Optional Common
Shares from the Company at the purchase price per share to be paid by the
Underwriters for the Firm Common Shares. The option granted hereunder is
for use by the Underwriters solely in covering any over-allotments in
connection with the sale and distribution of the Firm Common Shares. The
option granted hereunder may be exercised at any time (but not more than
once) upon written notice by the Representatives to the Company, which
notice may be given at any time within 30 days from the date of this
Agreement. Such notice shall set forth (i) the aggregate number of
Optional Common Shares as to which the Underwriters are exercising the
option, (ii) the names and denominations in which the certificates for the
Optional Common Shares are to be registered and (iii) the time, date and
place at which such certificates will be delivered (which time and date may
be simultaneous with, but not earlier than, the First Closing Date; and in
such case the term "FIRST CLOSING DATE" shall refer to the time and date of
delivery of certificates for the Firm Common Shares and the Optional Common
Shares). Such time and date of delivery, if subsequent to the First
Closing Date, is called the "SECOND CLOSING DATE" and shall be determined
by the Representatives and shall not be earlier than three nor later than
five full business days after delivery of such notice of exercise. If any
Optional Common Shares are to be purchased, each Underwriter agrees,
severally and not jointly, to purchase the number of Optional Common Shares
(subject to such adjustments to eliminate fractional shares as the
Representatives may determine) that bears the same proportion to the total
number of Optional Common Shares to be purchased as the number of Firm
Common Shares set forth on Schedule A opposite the name of such Underwriter
bears to the total number of Firm Common Shares. The Representatives may
cancel the option at any time prior to its expiration by giving written
notice of such cancellation to the Company.
(d) Public Offering of the Common Shares. The Representatives hereby advise
the Company that the Underwriters intend to offer for sale to the public,
as described in the Prospectus, their respective portions of the Common
Shares as soon after this Agreement has been executed and the Registration
Statement has been declared effective as the Representatives, in their sole
judgment, have determined is advisable and practicable.
11
(e) Payment for the Common Shares. Payment for the Common Shares shall be made
at the First Closing Date (and, if applicable, at the Second Closing Date)
by wire transfer of immediately available funds to the order of the
Company.
It is understood that the Representatives have been authorized, for their
own respective accounts and the accounts of the several Underwriters, to accept
delivery of and receipt for, and make payment of the purchase price for, the
Firm Common Shares and any Optional Common Shares the Underwriters have agreed
to purchase. BAS, individually and not as a Representative of the Underwriters,
may (but shall not be obligated to) make payment for any Common Shares to be
purchased by any Underwriter whose funds shall not have been received by the
Representatives by the First Closing Date or the Second Closing Date, as the
case may be, for the account of such Underwriter, but any such payment shall not
relieve such Underwriter from any of its obligations under this Agreement.
(f) Delivery of the Common Shares. The Company shall deliver, or cause to be
delivered, to the Representatives for the accounts of the several
Underwriters certificates, if any, for the Firm Common Shares at the First
Closing Date, against the irrevocable release of a wire transfer of
immediately available funds for the amount of the purchase price therefor.
The Company shall also deliver, or cause to be delivered, to the
Representatives for the accounts of the several Underwriters, certificates,
if any, for the Optional Common Shares the Underwriters have agreed to
purchase at the First Closing Date or the Second Closing Date, as the case
may be, against the irrevocable release of a wire transfer of immediately
available funds for the amount of the purchase price therefor. The
certificates, if any, for the Common Shares shall be in definitive form and
registered in such names and denominations as the Representatives shall
have requested at least two full business days prior to the First Closing
Date (or the Second Closing Date, as the case may be) and shall be made
available for inspection on the business day preceding the First Closing
Date (or the Second Closing Date, as the case may be) at a location in New
York City as the Representatives may designate. Time shall be of the
essence, and delivery at the time and place specified in this Agreement is
a further condition to the obligations of the Underwriters.
(g) Delivery of Prospectus to the Underwriters. Not later than 12:00 p.m. on
the second business day following the date the Common Shares are first
released by the Underwriters for sale to the public, the Company shall
deliver or cause to be delivered, copies of the Prospectus in such
quantities and at such places as the Representatives shall reasonably
request.
Section 3. Additional Covenants.
The Company further covenants and agrees with each Underwriter as follows:
(a) Representatives' Review of Proposed Amendments and Supplements. During the
period beginning on the date hereof and ending on the later of the First
Closing Date or such date, as in the opinion of counsel for the
Underwriters, the Prospectus is no longer required by law to be delivered
in connection with sales by an Underwriter or dealer (the "PROSPECTUS
DELIVERY PERIOD"), prior to amending or supplementing the Registration
Statement (including
12
any registration statement filed under Rule 462(b) under the Securities
Act) or the Prospectus, the Company shall furnish to the Representatives
for review a copy of each such proposed amendment or supplement, and the
Company shall not file any such proposed amendment or supplement to which
the Representatives reasonably object.
(b) Securities Act Compliance. After the date of this Agreement, the Company
shall promptly advise the Representatives in writing (i) of the receipt of
any comments of, or requests for additional or supplemental information
from, the Commission, (ii) of the time and date of any filing of any post-
effective amendment to the Registration Statement or any amendment or
supplement to any preliminary prospectus or the Prospectus, (iii) of the
time and date that any post-effective amendment to the Registration
Statement becomes effective and (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or any post-effective amendment thereto or of any order preventing or
suspending the use of any preliminary prospectus or the Prospectus, or of
any proceedings to remove, suspend or terminate from listing or quotation
the Common Stock from any securities exchange upon which it is listed for
trading or included or designated for quotation, or of the threatening or
initiation, to the extent known by the Company, of any proceedings for any
of such purposes. If the Commission shall enter any such stop order at any
time, the Company will use its reasonable best efforts to obtain the
lifting of such order at the earliest possible moment. Additionally, the
Company agrees that it shall comply with the provisions of Rules 424(b),
430A and 434, as applicable, under the Securities Act and will use its
reasonable efforts to confirm that any filings made by the Company under
such Rule 424(b) were received in a timely manner by the Commission.
(c) Amendments and Supplements to the Prospectus and Other Securities Act
Matters. If, during the Prospectus Delivery Period, any event shall occur
or condition exist as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to a purchaser,
not misleading, or if in the reasonable opinion of the Representatives or
counsel for the Underwriters it is otherwise necessary to amend or
supplement the Prospectus to comply with law, the Company agrees to
promptly prepare (subject to Section 3(a) hereof), file with the Commission
and furnish at its own expense to the Underwriters and to dealers,
amendments or supplements to the Prospectus so that the statements in the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when the Prospectus is delivered to a purchaser, be
misleading or so that the Prospectus, as amended or supplemented, will
comply with law. The Underwriters shall cease to use the Prospectus upon
receiving written notice from the Company that an amendment or supplement
is required under this paragraph.
(d) Copies of any Amendments and Supplements to the Prospectus. The Company
agrees to furnish the Representatives, without charge, during the
Prospectus Delivery Period, as many copies of the Prospectus and any
amendments and supplements thereto as the Representatives may reasonably
request.
(e) Blue Sky Compliance. The Company shall cooperate with the Representatives
and counsel for the Underwriters to qualify or register the Common Shares
for sale under (or obtain exemptions from the application of) the state
securities or blue sky laws or Canadian provincial Securities laws of those
jurisdictions designated by the Representatives, shall comply
13
with such laws and shall continue such qualifications, registrations and
exemptions in effect so long as required for the distribution of the Common
Shares. The Company shall not be required to qualify as a foreign
corporation or to take any action that would subject it to general service
of process in any such jurisdiction where it is not presently qualified or
where it would be subject to taxation as a foreign corporation. 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 reasonable best
efforts to obtain the withdrawal thereof at the earliest possible moment.
(f) Use of Proceeds. The Company shall apply the net proceeds from the sale of
the Common Shares sold by it in the manner described under the caption "Use
of Proceeds" in the Prospectus.
(g) Transfer Agent. The Company shall engage and maintain, at its expense, a
registrar and transfer agent for the Common Stock.
(h) Earnings Statement. As soon as practicable, the Company will make
generally available to its security holders and to the Representatives an
earnings statement (which need not be audited) covering the twelve-month
period ending [______, 2002] that satisfies the provisions of Section 11(a)
of the Securities Act.
(i) Periodic Reporting Obligations. During the Prospectus Delivery Period the
Company shall file, on a timely basis, with the Commission and the New York
Stock Exchange all reports and documents required to be filed under the
Exchange Act. Additionally, the Company shall report the use of proceeds
from the issuance of the Common Shares as may be required under Rule 463
under the Securities Act.
(j) Agreement Not To Offer or Sell Additional Securities. During the period of
180 days following the date of the Prospectus, the Company will not,
without the prior written consent of BAS (which consent may be withheld at
the sole discretion of BAS), directly or indirectly, sell, offer, issue,
contract or grant any option to sell, pledge, transfer or establish an open
"put equivalent position" within the meaning of Rule 16a-1(h) under the
Exchange Act, or otherwise dispose of or transfer, or announce the offering
of, or file any registration statement under the Securities Act in respect
of, any shares of Common Stock, options or warrants to acquire shares of
the Common Stock or securities exchangeable or exercisable for or
convertible into shares of Common Stock (other than as contemplated by this
Agreement with respect to the Common Shares); provided, however, that the
Company may (i) issue shares of its Common Stock or options to purchase its
Common Stock, or Common Stock upon exercise of options, pursuant to any
stock option, stock bonus or other stock plan or arrangement described in
the Prospectus; (ii) file one or more Registration Statements on Form S-8;
and (iii) issue shares in connection with an acquisition, but only if the
holders of such shares, options or shares issued upon exercise of such
options so described in clause (iii) of this sentence agree in writing not
to sell, offer, dispose of or otherwise transfer any such shares or options
during such 180-day period without the prior written consent of BAS (which
consent may be withheld at the sole discretion of the BAS).
14
(k) In connection with the Directed Share Program, the Company will ensure that
the Directed Shares will be restricted to the extent required by the
National Association of Securities Dealers, Inc. (the "NASD") or the NASD
rules from sale, transfer, assignment, pledge or hypothecation for a period
of three months following the date of the effectiveness of the Registration
Statement. Xxxxxxx Xxxxx Xxxxxx Inc. will notify the Company as to which
Participants will need to be so restricted. The Company will direct the
removal of such transfer restrictions upon the expiration of such period of
time.
(l) To 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.
BAS, on behalf of the several Underwriters, may, in its sole discretion,
waive in writing the performance by the Company of any one or more of the
foregoing covenants, including extending the time for their performance.
Section 4. Payment of Expenses. The Company agrees to pay all costs, fees
and expenses incurred in connection with the performance of its obligations
hereunder and in connection with the transactions contemplated hereby, including
without limitation (i) all expenses incident to the issuance and delivery of the
Common Shares (including all printing and engraving costs), (ii) all fees and
expenses of the registrar and transfer agent of the Common Stock, (iii) all
necessary issue, transfer and other stamp taxes in connection with the issuance
and sale of the Common Shares to the Underwriters, (iv) all fees and expenses of
the Company's counsel, independent public or certified public accountants and
other advisors, (v) all costs and expenses incurred in connection with the
preparation, printing, filing, shipping and distribution of the Registration
Statement (including financial statements, exhibits, schedules, consents and
certificates of experts), each preliminary prospectus and the Prospectus, and
all amendments and supplements thereto, (vi) all filing fees, reasonable
attorneys' fees and reasonable expenses incurred by the Company or the
Underwriters in connection with qualifying or registering (or obtaining
exemptions from the qualification or registration of) all or any part of the
Common Shares for offer and sale under the state securities or blue sky laws or
the provincial securities laws of Canada, and, if requested by the
Representatives, preparing and printing a "Blue Sky Survey" or memorandum, and
any supplements thereto, and advising the Underwriters of such qualifications,
registrations and exemptions, (vii) the filing fees incident to, and the
reasonable fees and expenses of counsel for the Underwriters in connection with,
the NASD's review and approval of the Underwriters' participation in the
offering and distribution of the Common Shares, (viii) the fees and expenses
associated with listing the Common Shares on the New York Stock Exchange, (ix)
all other fees, costs and expenses referred to in Item 13 of Part II of the
Registration Statement; and (x) all reasonable fees and disbursements of counsel
incurred by the Underwriters in connection with the sales of shares pursuant to
the Directed Share Program and stamp duties, similar taxes or duties or other
taxes, if any, incurred by the Underwriters in connection with the Directed
Share Program. Except as provided in this Section 4, Section 6, Section 8 and
Section 9 hereof, the Underwriters shall pay their own expenses, including the
fees and disbursements of their counsel.
Section 5. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Common
Shares as provided herein on the First
15
Closing Date and, with respect to the Optional Common Shares, the Second Closing
Date, shall be subject to the accuracy of the representations and warranties on
the part of the Company set forth in Section 1 hereof as of the date hereof and
as of the First Closing Date as though then made and, with respect to the
Optional Common Shares, as of the Second Closing Date as though then made, to
the timely performance by the Company of its covenants and other obligations
hereunder, and to each of the following additional conditions:
(a) Accountants' Comfort Letter. On the date hereof, the Representatives shall
have received from PricewaterhouseCoopers LLP, independent public or
certified public accountants for the Company, a letter dated the date
hereof addressed to the Underwriters, in form and substance satisfactory to
the Representatives, containing statements and information of the type
ordinarily included in accountant's "comfort letters" to underwriters,
delivered according to Statement of Auditing Standards No. 72 (or any
successor bulletin), with respect to the audited and unaudited financial
statements and certain financial information contained in the Registration
Statement and the Prospectus (and the Representatives shall have received
an additional three conformed copies of such accountants' letter for each
of the several Underwriters).
(b) Compliance with Registration Requirements; No Stop Order; No Objection from
NASD. For the period from and after effectiveness of this Agreement and
prior to the First Closing Date and, with respect to the Optional Common
Shares, the Second Closing Date:
(i) the Company shall have filed the Prospectus with the Commission
(including the information required by Rule 430A under the Securities Act)
in the manner and within the time period required by Rule 424(b) under the
Securities Act; or the Company shall have filed a post-effective amendment
to the Registration Statement containing the information required by such
Rule 430A, and such post-effective amendment shall have become effective;
or, if the Company elected to rely upon Rule 434 under the Securities Act
and obtained the Representatives' consent thereto, the Company shall have
filed a Term Sheet with the Commission in the manner and within the time
period required by such Rule 424(b);
(ii) no stop order suspending the effectiveness of the Registration
Statement, any Rule 462(b) Registration Statement, or any post-effective
amendment to the Registration Statement, shall be in effect and no
proceedings for such purpose shall have been instituted or threatened by
the Commission; and
(iii) the NASD shall have raised no objection to the fairness and
reasonableness of the underwriting terms and arrangements.
(c) No Material Adverse Change. For the period from and after the date of this
Agreement and prior to the First Closing Date and, with respect to the
Optional Common Shares, the Second Closing Date, in the judgment of the
Representatives there shall not have occurred any Material Adverse Change.
16
(d) Opinion of Counsel for the Company. On each of the First Closing Date and
the Second Closing Date the Representatives shall have received the
favorable opinion of Ropes & Xxxx, counsel for the Company, or local
counsel, as applicable, dated as of such Closing Date, with respect to the
matters set forth in Exhibit A (and the Representatives shall have received
an additional two conformed copies of such counsel's legal opinion for each
of the several Underwriters).
(e) Opinion of Counsel for the Underwriters. On each of the First Closing Date
and the Second Closing Date the Representatives shall have received the
favorable opinion of Xxxx and Xxxx LLP, counsel for the Underwriters, dated
as of such Closing Date, with respect to the matters set forth in
paragraphs (i), (vii) (with respect to subparagraph (i) only), (viii),
(ix), (x) (xi) and (xiii) (with respect to the captions "Description of
Capital Stock" and "Underwriting" under subparagraph (i) only), and the
next-to-last paragraph of Exhibit A (and the Representatives shall have
received an additional two conformed copies of such counsel's legal opinion
for each of the several Underwriters).
(f) Officers' Certificate. On each of the First Closing Date and the Second
Closing Date, the Representatives shall have received a written certificate
executed by the Chairman of the Board, Chief Executive Officer or President
of the Company and the Chief Financial Officer or Chief Accounting Officer
of the Company, dated as of such Closing Date, to the effect set forth in
subsections (b)(ii) of this Section 5, and further to the effect that:
(i) for the period from and after the date of this Agreement and prior
to such Closing Date, there has not occurred any Material Adverse Change;
(ii) the representations, warranties and covenants of the Company set
forth in Section 1 of this Agreement are true and correct with the same
force and effect as though expressly made on and as of such Closing Date;
and
(iii) the Company has complied in all material respects with all the
agreements hereunder and satisfied in all material respects all the
conditions on its part to be performed or satisfied hereunder at or prior
to such Closing Date.
(g) Bring-down Comfort Letter. On each of the First Closing Date and, if
applicable, the Second Closing Date, the Representatives shall have
received from PricewaterhouseCoopers LLP, independent public or certified
public accountants for the Company, a letter dated such date, in form and
substance satisfactory to the Representatives, to the effect that they
reaffirm the statements made in the letter furnished by them pursuant to
subsection (a) of this Section 5, except that the specified date referred
to therein for the carrying out of procedures shall be no more than three
business days prior to the First Closing Date or Second Closing Date, as
the case may be (and the Representatives shall have received an additional
two conformed copies of such accountants' letter for each of the several
Underwriters).
(h) Lock-Up Agreement from Certain Securityholders of the Company. On the date
hereof, the Company shall have furnished to the Representatives an
agreement in the form of Exhibit B hereto from the Parent and each director
and officer of the Company identified in
17
Exhibit C. Such agreement shall be in full force and effect on each of the
First Closing Date and, if applicable, the Second Closing Date.
(i) Additional Documents. On or before each of the First Closing Date and the
Second Closing Date, the Representatives and counsel for the Underwriters
shall have received such information, documents and opinions as they may
reasonably require for the purposes of enabling them to pass upon the
issuance and sale of the Common Shares as contemplated herein, or in order
to evidence the accuracy of any of the representations and warranties, or
the satisfaction of any of the conditions or agreements, herein contained.
If any condition specified in this Section 5 is not satisfied when and as
required to be satisfied, this Agreement may be terminated by the
Representatives by notice to the Company at any time on or prior to the First
Closing Date and, with respect to the Optional Common Shares, at any time prior
to the Second Closing Date, which termination shall be without liability on the
part of any party to any other party, except that Section 4, Section 6, Section
8 and Section 9 shall at all times be effective and shall survive such
termination.
Section 6. Reimbursement of Underwriters' Expenses. If this Agreement is
terminated by the Representatives pursuant to Section 5, Section 7 or Section
11, or if the sale to the Underwriters of the Common Shares on the First Closing
Date is not consummated because of any refusal, inability or failure on the part
of the Company to perform any agreement herein or to comply with any provision
hereof, the Company agrees to reimburse the Representatives and the other
Underwriters (or such Underwriters as have terminated this Agreement with
respect to themselves), severally, upon demand for all out-of-pocket expenses
that shall have been reasonably incurred by the Representatives and the
Underwriters in connection with the proposed purchase and the offering and sale
of the Common Shares, including but not limited to reasonable fees and
disbursements of counsel, printing expenses, travel expenses, postage, facsimile
and telephone charges.
Section 7. Effectiveness of this Agreement. This Agreement shall not become
effective until the later of (i) the execution of this Agreement by the parties
hereto and (ii) notification by the Commission to the Company and the
Representatives of the effectiveness of the Registration Statement under the
Securities Act.
Prior to such effectiveness, this Agreement may be terminated by any party
by written notice to each of the other parties hereto, and any such termination
shall be without liability on the part of (a) the Company to any Underwriter,
except that the Company shall be obligated to reimburse the expenses of the
Representatives and the Underwriters to the extent required by Sections 4 and 6
hereof, (b) any Underwriter to the Company, or (c) any party hereto to any other
party except that the provisions of Section 8 and Section 9 shall at all times
be effective and shall survive such termination.
Section 8. Indemnification.
(a) Indemnification of the Underwriters. Officers. The Company agrees to
indemnify and hold harmless each Underwriter, its officers and employees,
and each person, if any, who controls any Underwriter within the meaning of
the Securities Act and the Exchange
18
Act against any loss, claim, damage, liability or expense, as incurred,
to which such Underwriter or such controlling person may become subject,
under the Securities Act, the Exchange Act or other federal or state
statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the
written consent of the Company), insofar as such loss, claim, damage,
liability or expense (or actions in respect thereof as contemplated below)
arises out of or is based (i) upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement, or
any amendment thereto, including any information deemed to be a part
thereof pursuant to Rule 430A or Rule 434 under the Securities Act, or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading;
or (ii) upon any untrue statement or alleged untrue statement of a material
fact contained in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; or (iii) in whole or in part upon any inaccuracy in the
representations and warranties of the Company contained herein; or (iv) in
whole or in part upon any failure of the Company to perform its obligations
hereunder or under law; or (v) upon any act or failure to act or any
alleged act or failure to act by any Underwriter in connection with, or
relating in any manner to, the Common Stock or the offering contemplated
hereby, and which is included as part of or referred to in any loss, claim,
damage, liability or action arising out of or based upon any matter covered
by clause (i) or (ii) above, provided that the Company shall not be liable
under this clause (v) to the extent that a court of competent jurisdiction
shall have determined by a final judgment that such loss, claim, damage,
liability or action resulted directly from any such acts or failures to act
undertaken or omitted to be taken by such Underwriter through its bad faith
or willful misconduct; and to reimburse each Underwriter and each such
controlling person for any and all reasonable expenses (including the
reasonable fees and disbursements of counsel chosen by BAS) as such
expenses are reasonably incurred by such Underwriter or such controlling
person in connection with investigating, defending, settling, compromising
or paying any such loss, claim, damage, liability, expense or action;
provided, however, that the foregoing indemnity agreement shall not apply
to any loss, claim, damage, liability or expense to the extent, but only to
the extent, arising out of or based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon and
in conformity with written information furnished to the Company by the
Representatives expressly for use in the Registration Statement, any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto); and provided, further, that with respect to any preliminary
prospectus, the foregoing indemnity agreement shall not inure to the
benefit of any Underwriter from whom the person asserting any loss, claim,
damage, liability or expense purchased Common Shares, or any person
controlling such Underwriter, if the Company identified the untrue
statement or omission in writing to the Underwriters and copies of the
Prospectus were timely delivered to the Underwriters pursuant to Section 2
and a copy of the Prospectus (as then amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) was not
sent or given by or on behalf of such Underwriter to such person, if
required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Common Shares to such person, and if the
delivery of such Prospectus (as so amended or supplemented) would have
caused such loss, claim, damage, liability or expense not to have been
incurred. The indemnity agreement set forth in this Section 8(a) shall be
in addition to any liabilities that the Company may otherwise have.
19
(b) Directed Share Program Indemnification. Officers. The Company agrees to
indemnify and hold harmless each Underwriter, its officers and employees,
and each person, if any, who controls any Underwriter within the meaning of
the Securities Act and the Exchange Act (the "DIRECTED SHARE ENTITIES")
against any loss, claim, damage, liability or expense, as incurred, to
which such Directed Share Entity may become subject, under the Securities
Act, the Exchange Act or other federal or state statutory law or
regulation, or at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of the
Company), insofar as such loss, claim, damage, liability or expense (or
actions in respect thereof as contemplated below) (i) arises out of or is
based upon any untrue statement or alleged untrue statement of a material
fact contained in the prospectus wrapper material prepared by or with the
consent of the Company for distribution in foreign jurisdictions in
connection with the Directed Share Program attached to the Prospectus or
any preliminary prospectus, or arises out of or is based upon the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statement therein, in light of the
circumstances in which they were made, when considered in conjunction with
the Prospectus or any applicable preliminary prospectus, not misleading;
(ii) are caused by the failure of any Participant to pay for and accept
delivery of the Directed Shares allocated by the Company to such
Participant; or (iii) relate to, arise out of, or occur in connection with
the Directed Share Program, provided that, in the case of clause (i) the
Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Underwriters
specifically for inclusion therein and that in the case of clause (iii) the
Company will not be liable to the extent that such loss, claim, damage or
liability results from the gross negligence or willful misconduct of the
Underwriters; and provided, further, that with respect to any preliminary
prospectus, which is the basis of such loss, claim, damage, liability or
expense, the foregoing indemnity agreement shall not inure to the benefit
of any Underwriter from whom the person asserting any loss, claim, damage,
liability or expense purchased Common Shares, or any other Directed Share
Entity if the Company identified the untrue statement or omission in
writing to the Underwriter and copies of the Prospectus were timely
delivered to the Underwriter pursuant to Section 2 and a copy of the
Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by
or on behalf of such Underwriter to such person, if required by law so to
have been delivered, at or prior to the written confirmation of the sale of
the Common Shares to such person, and if the delivery of such Prospectus
(as so amended or supplemented) would have caused such loss, claim, damage,
liability or expense not to have been incurred. The indemnity agreement
set forth in this Section 8(b) shall be in addition to any liabilities that
the Company may otherwise have.
(c) Indemnification of the Company, its Directors and Officers. Each
Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, each of its directors, each of its officers who
signed the Registration Statement and each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act,
against any loss, claim, damage, liability or expense, as incurred, to
which the Company, or any such director, officer or controlling person may
become subject, under the Securities Act, the Exchange Act, or other
federal or state statutory law or regulation, or at common law or otherwise
(including in settlement of any litigation, if such settlement is effected
with the written consent of such Underwriter), insofar as such loss, claim,
damage, liability or expense (or actions
20
in respect thereof as contemplated below) arises out of or is based upon
any untrue or alleged untrue statement of a material fact contained in the
Registration Statement, any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto), or arises out of or is based upon the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement, any preliminary
prospectus, the Prospectus (or any amendment or supplement thereto), in
reliance upon and in conformity with written information furnished to the
Company by the Representatives expressly for use therein; and to reimburse
the Company, or any such director, officer or controlling person for any
reasonable legal and other expense reasonably incurred, as incurred, by the
Company, or any such director, officer or controlling person in connection
with investigating, defending, settling, compromising or paying any such
loss, claim, damage, liability, expense or action. The Company hereby
acknowledges that the only information that the Underwriters have furnished
to the Company expressly for use in the Registration Statement, any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) are the statements set forth in the table in the first paragraph
and as the third, ninth, tenth, eleventh, thirteenth and sixteenth
paragraphs under the caption "Underwriting" in the Prospectus; and the
Underwriters confirm that such statements are correct. The indemnity
agreement set forth in this Section 8(c) shall be in addition to any
liabilities that each Underwriter may otherwise have.
(d) Notifications and Other Indemnification Procedures. Promptly after receipt
by an indemnified party under this Section 8 of notice of the commencement
of any action, such indemnified party will, if a claim in respect thereof
is to be made against an indemnifying party under this Section 8, notify
the indemnifying party in writing of the commencement thereof, but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party to the extent it is
not prejudiced as a proximate result of such failure. In case any such
action is brought against any indemnified party and such indemnified party
seeks or intends to seek indemnity from an indemnifying party, the
indemnifying party will be entitled to participate in, and, to the extent
that it shall elect, jointly with all other indemnifying parties similarly
notified, by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume
the defense thereof with counsel reasonably satisfactory to such
indemnified party; provided, however, if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that a conflict may arise
between the positions of the indemnifying party and the indemnified party
in conducting the defense of any such action or that there may be legal
defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party,
the indemnified party or parties shall have the right to select separate
counsel to assume such legal defenses and to otherwise participate in the
defense of such action on behalf of such indemnified party or parties.
Upon receipt of notice from the indemnifying party to such indemnified
party of such indemnifying party's election so to assume the defense of
such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with
the proviso to the next preceding sentence (it being
21
understood, however, that the indemnifying party shall not be liable for
the expenses of more than one separate counsel (together with local
counsel), approved by the indemnifying party (BAS in the case of Section
8(c) and Section 9), representing the indemnified parties who are parties
to such action) or (ii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of commencement of
the action, in each of which cases the reasonable fees and expenses of
counsel employed by the indemnified party shall be at the expense of the
indemnifying party.
(e) Settlement. The indemnifying party under this Section 8 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 against any loss, claim, damage, liability or expense by
reason of such settlement or judgment. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by Section 8(d) hereof, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into
more than 30 days after receipt by such indemnifying party of the aforesaid
request and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement, compromise or consent to
the entry of judgment in any pending or threatened action, suit or
proceeding in respect of which any indemnified party is or could have been
a party and indemnity was or could have been sought hereunder by such
indemnified party, unless such settlement, compromise or consent includes
an unconditional release of such indemnified party from all liability on
claims that are the subject matter of such action, suit or proceeding.
Section 9. Contribution. If the indemnification provided for in Section 8
is for any reason held to be unavailable to or otherwise insufficient to hold
harmless an indemnified party in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount paid or payable by such indemnified party, as
incurred, as a result of any losses, claims, damages, liabilities or expenses
referred to therein (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party, on the one hand, and the
indemnified party, on the other hand, from the offering of the Common Shares
pursuant to this Agreement or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the indemnifying party, on the one hand, and the
indemnified party, on the other hand, in connection with the statements or
omissions or inaccuracies in the representations and warranties herein which
resulted in such losses, claims, damages, liabilities or expenses, as well as
any other relevant equitable considerations. The relative benefits received by
the Company, on the one hand, and the Underwriters, on the other hand, in
connection with the offering of the Common Shares pursuant to this Agreement
shall be deemed to be in the same respective proportions as the total net
proceeds from the offering of the Common Shares pursuant to this Agreement
(before deducting expenses) received by the Company, and the total underwriting
discount
22
received by the Underwriters, in each case as set forth on the front cover page
of the Prospectus (or, if Rule 434 under the Securities Act is used, the
corresponding location on the Term Sheet) bear to the aggregate initial public
offering price of the Common Shares as set forth on such cover. The relative
fault of the Company, on the one hand, and the Underwriters, on the other hand,
shall be determined by reference to, among other things, whether any such untrue
or alleged untrue statement of a material fact or omission or alleged omission
to state a material fact or any such inaccurate or alleged inaccurate
representation or warranty relates to information supplied by the Company, on
the one hand, or the Underwriters, on the other hand, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in Section 8(d), any legal or other fees or
expenses reasonably incurred by such party in connection with investigating or
defending any action or claim. The provisions set forth in Section 8(d) with
respect to notice of commencement of any action shall apply if a claim for
contribution is to be made under this Section 9; provided, however, that no
additional notice shall be required with respect to any action for which notice
has been given under Section 8(d) for purposes of indemnification.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 9 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 in this Section 9.
Notwithstanding the provisions of this Section 9, no Underwriter shall be
required to contribute any amount in excess of the underwriting commissions
received by such Underwriter in connection with the Common Shares underwritten
by it and distributed to the public. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 9 are several, and not joint, in proportion to their
respective underwriting commitments as set forth opposite their names in
Schedule A. For purposes of this Section 9, each officer and employee of an
Underwriter and each person, if any, who controls an Underwriter within the
meaning of the Securities Act and the Exchange Act shall have the same rights to
contribution as such Underwriter, and each director of the Company, each officer
of the Company who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of the Securities Act and the
Exchange Act shall have the same rights to contribution as the Company.
Section 10. Default of One or More of the Several Underwriters. If, on the
First Closing Date or the Second Closing Date, as the case may be, any one or
more of the several Underwriters shall fail or refuse to purchase Common Shares
that it or they have agreed to purchase hereunder on such date, and the
aggregate number of Common Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase does not exceed 10% of the
aggregate number of the Common Shares to be purchased on such date, the other
23
Underwriters shall be obligated, severally, in the proportions that the number
of Firm Common Shares set forth opposite their respective names on Schedule A
bears to the aggregate number of Firm Common Shares set forth opposite the names
of all such non-defaulting Underwriters, or in such other proportions as may be
specified by the Representatives with the consent of the non-defaulting
Underwriters, to purchase the Common Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date. If, on the
First Closing Date or the Second Closing Date, as the case may be, any one or
more of the Underwriters shall fail or refuse to purchase Common Shares and the
aggregate number of Common Shares with respect to which such default occurs
exceeds 10% of the aggregate number of Common Shares to be purchased on such
date, and arrangements satisfactory to the Representatives and the Company for
the purchase of such Common Shares are not made within 48 hours after such
default, this Agreement shall terminate without liability of any party to any
other party except that the provisions of Section 4, Section 6, Section 8 and
Section 9 shall at all times be effective and shall survive such termination. In
any such case either the Representatives or the Company shall have the right to
postpone the First Closing Date or the Second Closing Date, as the case may be,
but in no event for longer than seven days in order that the required changes,
if any, to the Registration Statement and the Prospectus or any other documents
or arrangements may be effected.
As used in this Agreement, the term "UNDERWRITER" shall be deemed to
include any person substituted for a defaulting Underwriter under this Section
10. Any action taken under this Section 10 shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
Section 11. Termination of this Agreement. Prior to the First Closing Date
this Agreement may be terminated by the Representatives by written notice given
to the Company if at any time (i) trading or quotation in any of the Company's
securities shall have been suspended or limited by the Commission or by the New
York Stock Exchange, or trading in securities generally on either the Nasdaq
Stock Market or the New York Stock Exchange shall have been suspended or
limited, or minimum or maximum prices shall have been generally established on
any of such stock exchanges by the Commission or the NASD; (ii) a general
banking moratorium shall have been declared by any federal, New York, Delaware
or California authorities; (iii) there shall have occurred any outbreak or
escalation of national or international hostilities or any crisis or calamity,
or any change in the United States or international financial markets, or any
substantial change or development involving a prospective substantial change in
United States' or international political, financial or economic conditions, as
in the judgment of the Representatives is material and adverse and makes it
impracticable to market the Common Shares in the manner and on the terms
described in the Prospectus or to enforce contracts for the sale of securities;
(iv) in the judgment of the Representatives there shall have occurred any
Material Adverse Change; or (v) the Company shall have sustained a loss by
strike, fire, flood, earthquake, accident or other calamity of such character as
in the judgment of the Representatives may interfere materially with the conduct
of the business and operations of the Company regardless of whether or not such
loss shall have been insured. Any termination pursuant to this Section 11 shall
be without liability on the part of (a) the Company to any Underwriter, except
that the Company shall be obligated to reimburse the expenses of the
Representatives and the Underwriters to the extent required by Sections 4 and 6
hereof, (b) any
24
Underwriter to the Company, or (c) of any party hereto to any other party except
that the provisions of Section 8 and Section 9 shall at all times be effective
and shall survive such termination.
Section 12. Representations and Indemnities to Survive Delivery. The
respective indemnities, agreements, representations, warranties and other
statements of the Company, of its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or the Company or any of its or their partners, officers or directors or any
controlling person, as the case may be, and will survive delivery of and payment
for the Common Shares sold hereunder and any termination of this Agreement.
Section 13. Notices. All communications hereunder shall be in writing and
shall be mailed, hand delivered or telecopied and confirmed to the parties
hereto as follows:
If to the Representatives:
Banc of America Securities LLC
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: 415.913.5558
Attention: Xxxxxxx X. XxXxxx, Xx.
with a copy to:
Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 212.583.8567
Attention: Xxxxx Xxxxx, Esq.
with a copy to:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: 617.526.5000
Attention: Xxxxxxx X. Xxxxx, Esq.
If to the Company:
Mykrolis Corporation
Patriots Park
Xxxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: 781.533.3120
Attention: Xxxxx X. Xxxxxxx, Esq.
25
with a copy to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Facsimile: 617.951.7000
Attention: Xxxxx X. Xxxxx, Esq.
Any party hereto may change the address for receipt of communications by
giving written notice to the others.
Section 14. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto, including any substitute Underwriters pursuant
to Section 10 hereof, and to the benefit of the employees, officers and
directors and controlling persons referred to in Section 8 and Section 9, and in
each case their respective successors, and no other person will have any right
or obligation hereunder. The term "SUCCESSORS" shall not include any purchaser
of the Common Shares as such from any of the Underwriters merely by reason of
such purchase.
Section 15. Partial Unenforceability. The invalidity or unenforceability of
any Section, paragraph or provision of this Agreement shall not affect the
validity or enforceability of any other Section, paragraph or provision hereof.
If any Section, paragraph or provision of this Agreement is for any reason
determined to be invalid or unenforceable, there shall be deemed to be made such
minor changes (and only such minor changes) as are necessary to make it valid
and enforceable.
Section 16. Governing Law Provisions.
(a) Governing Law Provisions. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed in such state.
(b) Consent to Jurisdiction. Any legal suit, action or proceeding arising out
of or based upon this Agreement or the transactions contemplated hereby
("RELATED PROCEEDINGS") may be instituted in the federal courts of the
United States of America located in the City and County of New York,
Borough of Manhattan or the courts of the State of New York in each case
located in the City and County of New York, Borough of Manhattan
(collectively, the "SPECIFIED COURTS"), and each party irrevocably submits
to the exclusive jurisdiction (except for proceedings instituted in regard
to the enforcement of a judgment of any such court (a "RELATED JUDGMENT"),
as to which such jurisdiction is non-exclusive) of such courts in any such
suit, action or proceeding. Service of any process, summons, notice or
document by mail to such party's address set forth above shall be effective
service of process for any suit, action or other proceeding brought in any
such court. The parties irrevocably and unconditionally waive any
objection to the laying of venue of any suit, action or other proceeding in
the Specified Courts and irrevocably and unconditionally waive and agree
not to plead or claim in any such court that
26
any such suit, action or other proceeding brought in any such court has
been brought in an inconvenient forum.
(c) Waiver of Immunity. With respect to any Related Proceeding, each party
irrevocably waives, to the fullest extent permitted by applicable law, all
immunity (whether on the basis of sovereignty or otherwise) from
jurisdiction, service of process, attachment (both before and after
judgment) and execution to which it might otherwise be entitled in the
Specified Courts, and with respect to any Related Judgment, each party
waives any such immunity in the Specified Courts or any other court of
competent jurisdiction, and will not raise or claim or cause to be pleaded
any such immunity at or in respect of any such Related Proceeding or
Related Judgment, including, without limitation, any immunity pursuant to
the United States Foreign Sovereign Immunities Act of 1976, as amended.
Section 17. General Provisions. This Agreement constitutes the entire
agreement of the parties to this Agreement and supersedes all prior written or
oral and all contemporaneous oral agreements, understandings and negotiations
with respect to the subject matter hereof. This Agreement may be executed in two
or more counterparts, each one of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement may not be amended or modified unless in writing by all of the
parties hereto, and no condition herein (express or implied) may be waived
unless waived in writing by each party whom the condition is meant to benefit.
The Table of Contents and the Section headings herein are for the convenience of
the parties only and shall not affect the construction or interpretation of this
Agreement.
27
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to the Company the enclosed copies hereof, whereupon this
instrument, along with all counterparts hereof, shall become a binding agreement
in accordance with its terms.
Very truly yours,
Mykrolis Corporation
By:___________________________
Name:
Title:
The foregoing Underwriting Agreement is hereby confirmed and accepted by the
Representatives in San Francisco, California as of the date first above written.
Banc of America Securities LLC
Xxxxxxx Xxxxx Barney Inc
ABN AMRO Rothschild LLC
SCHEDULE A
By: Banc of America Securities LLC
By:____________________________
Name
Title
28
SCHEDULE A
Number of
Firm Common
Shares to
be
Underwriters Purchased
Banc of America Securities LLC................................................... [___]
Xxxxxxx Xxxxx Xxxxxx Inc......................................................... [___]
ABN AMRO Rothschild LLC.......................................................... [___]
[___]............................................................................ [___]
Total........................................................................ 7,000,000
29
EXHIBIT A
Opinion of counsel for the Company to be delivered pursuant to Section 5(d)
of the Underwriting Agreement.
References to the Prospectus in this Exhibit A include any supplements
thereto at the Closing Date.
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) The Company has the corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectus.
(iii) The Company is duly qualified and is in good standing as a foreign
corporation with the Secretary of State in the Commonwealth of Massachusetts and
the States of California, New Hampshire and Texas.
(iv) Each of the Company's domestic subsidiaries listed on Exhibit A hereto
(collectively, the "Domestic Subsidiaries") has been duly incorporated, is
validly existing as a corporation in good standing under the laws of the State
of Delaware and has the corporate power to carry on its business as described in
the Prospectus. Each of the Company's Domestic Subsidiaries is duly qualified
and is in good standing as a foreign corporation authorized to do business in
each jurisdiction listed on Exhibit A.
(v) Except as described in the Prospectus, all of the outstanding shares of
capital stock of each of the Company's Domestic Subsidiaries have been duly
authorized and validly issued and are fully paid and non-assessable. To our
knowledge, all of the outstanding shares of capital stock of each of the
Company's Domestic Subsidiaries are owned by the Company, directly or indirectly
through one or more subsidiaries.
(vi) The authorized capital stock of the Company conforms in all material
respects as to legal matters to the description thereof set forth in the
Prospectus. All of the shares of Common Stock outstanding on the date hereof
prior to the Closing have been duly authorized and validly issued, are fully
paid and nonassessable. The form of certificate used to evidence the Common
Stock is in due and proper form and complies with all applicable requirements
of the charter and by-laws of the Company and the General Corporation Law of the
State of Delaware.
(vii) The Underwriting Agreement has been duly authorized, executed and
delivered by the Company. Each of the Intercompany Agreements has been duly
authorized, executed and delivered by the Company and the Parent, and each
constitutes a valid and binding agreement of the Company and the Parent
enforceable in accordance with its terms, except as rights to indemnification
thereunder may be limited by applicable law and except as the enforcement
A-1
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditors' rights generally or by
general equitable principles.
(viii) The Common Shares to be purchased by the Underwriters from the
Company have been duly authorized for issuance and sale pursuant to the
Underwriting Agreement and, when issued and delivered by the Company pursuant to
the Underwriting Agreement against payment of the consideration set forth
therein, will be validly issued, fully paid and nonassessable, and the issuance
of such Common Shares will not violate any statutory or, to our knowledge,
contractual preemptive or similar rights.
(ix) Based solely on the oral advice of the staff of the Commission, the
Registration Statement and the Rule 462(b) Registration Statement, if any, has
been declared effective by the Commission under the Securities Act. We do not
know of the issuance of any stop order suspending the effectiveness of either of
the Registration Statement or the Rule 462(b) Registration Statement, if any, or
of any proceedings for such purpose under the Securities Act. Any required
filing of the Prospectus and any supplement thereto pursuant to Rule 424(b)
under the Securities Act has been made in the manner and within the time period
required by such Rule 424(b).
(x) The Registration Statement, including any Rule 462(b) Registration
Statement, the Prospectus, and each amendment or supplement to the Registration
Statement and the Prospectus as of their respective effective or issue dates
(other than the financial statements and supporting schedules and other
financial and accounting data included therein or in exhibits to or excluded
from the Registration Statement, as to which no opinion need be rendered)
complied as to form in all material respects with the applicable requirements of
the Securities Act.
(xi) The Common Shares have been approved for listing upon official notice
of issuance on the New York Stock Exchange.
(xii) The statements (i) in the Prospectus under the captions "Risk
Factors--Risks Related to Our Separation from Millipore--Our ability to engage
in acquisitions and other strategic transactions using our stock is subject to
limitations because of the federal income tax requirements for a tax-free
distribution," "--We may be responsible for federal income tax liabilities that
relate to the proposed distribution of shares of common stock by Millipore",
"Description of Capital Stock," "Agreements between Mykrolis and Millipore,"
"Shares Eligible for Future Sale" and "Underwriting" and (ii) in Item 14 and
Item 15 of the Registration Statement, insofar as such statements constitute
matters of law, summaries of legal matters or legal conclusions, have been
reviewed by such counsel and accurately summarize, in all material respects, the
provisions of the laws and the documents referred to therein.
(xiii) To the knowledge of such counsel, there are no legal or
governmental proceedings pending or threatened which are required to be
disclosed in the Registration Statement, other than those disclosed therein.
A-2
(xiv) To the knowledge of such counsel, there are no contracts or other
documents required to be described in the Registration Statement or to be filed
as exhibits thereto other than those described or referred to therein or filed
or incorporated by reference as exhibits thereto.
(xv) The execution and delivery of the Underwriting Agreement and the
Intercompany Agreements by the Company and the Parent and the performance by the
Company and the Parent of their obligations thereunder will not (A) require any
consent, approval, authorization or other order of, or qualification with, any
court or governmental body or agency (except as such as may be required under
the Act or the securities or "blue sky" laws of the various states or from the
National Association of Securities Dealers, Inc.), (B) except as set forth in
the Prospectus, conflict with or constitute a breach of any of the terms or
provisions of, or a default under, or constitute a Debt Repayment Triggering
Event under, the charter or by-laws of the Company or the Parent or any of the
Company's Domestic Subsidiaries or any indenture, loan agreement, mortgage,
lease or other agreement, or instrument that is filed as an exhibit to the
Registration Statement or that is filed as an exhibit to the Parent's Annual
Report on 10-K for the year ended December 31, 2000 or to any report filed
subsequently thereto pursuant to Section 13(a) or 15(d) of the Exchange Act, or
(C) to our knowledge, violate or conflict with any applicable Massachusetts, the
Delaware General Corporation Law or federal law or any rule, regulation,
judgment, order or decree of any Massachusetts or federal court or any
Massachusetts or federal governmental body or agency having jurisdiction over
the Company or the Parent, any of the Company's Domestic Subsidiaries or their
respective property, except in each case, (i) where such violation, conflict,
breach or default would not have a material adverse effect on the Company,
including in connection with the consummation of the transactions contemplated
by the Underwriting Agreement and the Intercompany Agreements; (ii) that we
express no opinion as to state securities or "blue sky" laws of the various
states, and (iii) that we express no opinion in this paragraph (xv) as to
compliance with the antifraud provisions of federal and state securities laws or
the provisions of the Underwriting Agreement providing for indemnification or
contribution, which may be affected by public policy considerations or court
decisions that may limit the right of the indemnified party to obtain
indemnification or contribution.
(xvi) The Company is not subject to regulation as an "investment company"
under the Investment Company Act.
(xvii) To our knowledge, there are no contracts, agreements or
understandings between the Company or the Parent and any person granting such
person the right to require the Company to file a registration statement under
the Act with respect to any securities of the Company or to require the Company
to include such securities with the Common Shares registered pursuant to the
Registration Statement.
(xx) To our knowledge, neither the Company nor any Domestic Subsidiary is
in violation of its charter or by-laws or is in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any indenture, loan agreement, mortgage, lease or other agreement
or instrument that is filed as an exhibit to the Registration Statement.
A-3
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company,
representatives of the independent public or certified public accountants for
the Company and with representatives of the Underwriters at which the contents
of the Registration Statement and the Prospectus, and any supplements or
amendments thereto, and related matters were discussed and, although such
counsel is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus (other than as specified above), and
any supplements or amendments thereto, on the basis of the foregoing, nothing
has come to their attention which would lead them to believe that either the
Registration Statement or any amendments thereto, at the time the Registration
Statement or such amendments 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 that the
Prospectus, as of its date or at the First Closing Date or the Second Closing
Date, as the case may be, contained an untrue statement of a material fact or
omitted 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 (it being understood that such counsel need express no belief as to
the financial statements or schedules or other financial, accounting or
statistical data derived therefrom, included or referred to in the Registration
Statement or the Prospectus or any amendments or supplements thereto).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the General
Corporation Law of the State of Delaware or the federal law of the United
States, to the extent they deem proper and specified in such opinion, upon the
opinion (which shall be dated the First Closing Date or the Second Closing Date,
as the case may be, shall be satisfactory in form and substance to the
Underwriters, shall expressly state that the Underwriters may rely on such
opinion as if it were addressed to them and shall be furnished to the
Representatives) of other counsel of good standing whom they believe to be
reliable and who are satisfactory to counsel for the Underwriters; provided,
however, that such counsel shall further state that they believe that they and
the Underwriters are justified in relying upon such opinion of other counsel,
and (B) as to matters of fact, to the extent they deem proper, on certificates
of responsible officers of the Company and public officials.
In addition, on each of the First Closing Date and the Second Closing Date
the Representatives shall have received the favorable opinions of counsel for
Nihon Mykrolis KK dated as of such Closing Date, to the effect that:
(i) Such subsidiary has been duly organized, is validly existing as a
corporation in good standing under the laws of the jurisdiction of
incorporation.
(ii) Except as described in the Prospectus, all of the outstanding
shares of capital stock of such subsidiary have been duly authorized and validly
issued and are fully paid and non-assessable. To our knowledge, all of the
outstanding shares of capital stock of such subsidiary are owned by the Company,
directly or indirectly through one or more subsidiaries.
A-4
EXHIBIT B
__________, 2001
Banc of America Securities LLC
Xxxxxxx Xxxxx Xxxxxx Inc
ABN AMRO Rothschild LLC
As Representatives of the Several Underwriters
c/o Banc of America Securities LLC
000 Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Re: Mykrolis Corporation (the "COMPANY")
Ladies and Gentlemen:
The undersigned is or may become an owner of record or beneficially of
certain shares of Common Stock of the Company ("COMMON STOCK") or securities
convertible into or exchangeable or exercisable for Common Stock. The Company
proposes to carry out a public offering of Common Stock (the "OFFERING") for
which you will act as the representatives of the underwriters. The undersigned
recognizes that the Offering will be of benefit to the undersigned and will
benefit the Company. The undersigned acknowledges that you and the other
underwriters are relying on the representations and agreements of the
undersigned contained in this letter in carrying out the Offering and in
entering into underwriting arrangements with the Company with respect to the
Offering.
In consideration of the foregoing, the undersigned hereby agrees that the
undersigned will not, without the prior written consent of Banc of America
Securities LLC (which consent may be withheld in its sole discretion), directly
or indirectly, sell, offer, contract or grant any option to sell (including
without limitation any short sale), pledge, transfer, establish an open "put
equivalent position" within the meaning of Rule 16a-1(h) under the Securities
Exchange Act of 1934, or otherwise dispose of any shares of Common Stock,
options or warrants to acquire shares of Common Stock, or securities
exchangeable or exercisable for or convertible into shares of Common Stock
currently or hereafter owned either of record or beneficially (as defined in
Rule 13d-3 under the Securities Exchange Act of 1934, as amended) by the
undersigned, or publicly announce the undersigned's intention to do any of the
foregoing, for a period commencing on the date hereof and continuing through the
close of trading on the New York Stock Exchange regular session on the date 180
days after the date of the prospectus relating to the Offering. The undersigned
also agrees and consents to the entry of stop transfer instructions with the
Company's transfer agent and registrar against the transfer of shares of Common
Stock or securities convertible into or exchangeable or exercisable for Common
Stock held by the undersigned except in compliance with the foregoing
restrictions.
With respect to the Offering only, the undersigned waives any registration
rights relating to registration under the Securities Act of any Common Stock
owned either of record or beneficially by the undersigned, including any rights
to receive notice of the Offering.
B-1
This agreement is irrevocable and will be binding on the undersigned and
the respective successors, heirs, personal representatives, and assigns of the
undersigned.
_______________________
Printed Name of Holder
By:____________________
Signature
-------------------------
Printed Name of Person Signing
(Indicate capacity of person signing if signing
as custodian, trustee, or on behalf of an
entity)
B-2
EXHIBIT C
PERSONS TO SIGN LOCK UP AGREEMENTS
Millipore Corporation
All officers and directors of Mykrolis
C-1
