Exhibit 1.1
DRAFT OF 2/26/00
_________________ SHARES
PE CORPORATION
CELERA GENOMICS GROUP COMMON STOCK, $.01 PAR VALUE
UNDERWRITING AGREEMENT
____ .____, 2000
___________, 2000
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx, Xxxxx & Co.
XX Xxxxx Securities Corporation
ING Barings LLC
Bear, Xxxxxxx & Co. Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
PE CORPORATION , a Delaware corporation (the "COMPANY"), proposes to
issue and sell to the several Underwriters named in Schedule I hereto (the
"UNDERWRITERS") ____________ shares of its PE Corporation -- Celera Genomics
Group Common Stock, $.01 par value (the "FIRM SHARES"). The Company also
proposes to issue and sell to the several Underwriters not more than an
additional ____________ shares of its PE Corporation -- Celera Genomics Group
Common Stock, $.01 par value (the "ADDITIONAL SHARES"), if and to the extent
that you shall have determined to exercise, on behalf of the Underwriters, the
right to purchase such shares of common stock granted to the Underwriters in
Section 2 hereof. The Firm Shares and the Additional Shares are hereinafter
collectively referred to as the "SHARES." The shares of PE Corporation -- Celera
Genomics Group Common Stock, $.01 par value, of the Company to be outstanding
after giving effect to the sales contemplated hereby are hereinafter referred to
as the "CELERA GENOMICS STOCK."
It is understood that the Celera Genomics Stock is intended to reflect
the performance of the Celera Genomics Group, the Company's genomics business.
For purposes of this Agreement, the term "Celera Genomics Group" shall have the
meaning given to that term in the Prospectus. It is further understood that the
Company will allocate all of the net proceeds from the sale of the Shares to the
Celera Genomics Group.
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on Form S-3 (File No. 333-95771),
including a prospectus, relating to the Shares. The registration statement as
amended at the time it becomes effective, including the information (if any)
deemed to be part of the registration statement at the time of effectiveness
pursuant to Rule 430A under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), is hereinafter referred to as the "REGISTRATION STATEMENT";
the prospectus in the form first used to confirm sales of Shares is hereinafter
referred to as the "PROSPECTUS." The term "preliminary prospectus" as used in
this Agreement shall mean each preliminary prospectus included in the
Registration Statement prior to the time it becomes effective. Unless otherwise
indicated, any reference herein to the Registration Statement, the Prospectus or
the preliminary prospectus shall include all documents incorporated therein by
reference. If the Company has filed an abbreviated registration statement to
register additional shares of Celera Genomics Stock pursuant to Rule 462(b)
under the Securities Act (the "RULE 462 REGISTRATION STATEMENT"), then any
reference herein to the term "REGISTRATION STATEMENT" shall be deemed to include
such Rule 462 Registration Statement.
1. REPRESENTATIONS AND WARRANTIES. The Company represents and warrants
to and agrees with each of the Underwriters that:
(1) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(2) (i) Each document, if any, filed or to be filed pursuant
to the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT"), and incorporated by reference in the Prospectus complied, or
will comply when so filed, in all material respects with the Exchange
Act and the applicable rules and regulations of the Commission
thereunder, (ii) the Registration Statement, when it became effective,
did not contain and, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) the Registration Statement and
the Prospectus comply and, as amended or supplemented, if applicable,
will comply in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder and (iv)
the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in
this paragraph do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use therein.
(3) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State
of Delaware, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company.
(4) Each subsidiary of the Company has been duly incorporated,
is validly existing as a corporation, or other form of organization
with limited liability, in good standing under the laws of the
jurisdiction of its incorporation, has the corporate (or equivalent)
power and authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact business
and is in good standing in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent
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that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole; all of the issued shares of the Company's
subsidiaries have been duly and validly authorized and issued, are
fully paid and non-assessable and are owned directly or indirectly by
the Company (other than directors qualifying or nominee shares), free
and clear of all liens, encumbrances, equities or claims. Except for
the entities listed on EXHIBIT A hereto (the "SIGNIFICANT
SUBSIDIARIES"), none of the Company's subsidiaries is material to the
business of the Celera Genomics Group as described in the Prospectus.
(5) This Agreement has been duly authorized, executed and
delivered by the Company.
(6) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus.
(7) The shares of Celera Genomics Stock outstanding prior to
the issuance of the Shares have been duly authorized and are validly
issued, fully paid and non-assessable.
(8) The Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be
validly issued, fully paid and non-assessable, and the issuance of such
Shares will not be subject to any preemptive or similar rights.
(9) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
will not contravene any provision of applicable law or the certificate
of incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or the
Celera Genomics Group, or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over the Company
or any subsidiary, and no consent, approval, authorization or order of,
or qualification with, any governmental body or agency is required for
the performance by the Company of its obligations under this Agreement,
except such as may be required by the securities or Blue Sky laws of
the various states and the foreign securities laws in connection with
the offer and sale of the Shares.
(10) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of either the Company and its subsidiaries, taken as a
whole, or the Celera Genomics Group from that set forth in the
Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement).
(11) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party
or to which any of the properties of the Company or any of its
subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and are not so described, or
any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration Statement
that are not described or filed as required.
(12) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Securities Act,
complied when so filed in all material respects with the Securities Act
and the applicable rules and regulations of the Commission thereunder.
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(13) The Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as such term is defined in the Investment Company Act of 1940,
as amended.
(14) The Company and its subsidiaries (i) are in compliance
with any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants (including, without limitation, all laws and regulations
relating to biohazardous substances) ("ENVIRONMENTAL LAWS"), (ii) have
received all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and conditions of
any such permit, license or approval, except where such noncompliance
with Environmental Laws, failure to receive required permits, licenses
or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not, singly or in the
aggregate, have a material adverse effect on either the Company and its
subsidiaries, taken as a whole, or the Celera Genomics Group.
(15) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the aggregate,
have a material adverse effect on either the Company and its
subsidiaries, taken as a whole, or the Celera Genomics Group.
(16) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, (i) none of
the Company, any of its subsidiaries or the Celera Genomics Group has
incurred any material liability or obligation, direct or contingent,
nor entered into any material transaction not in the ordinary course of
business; (ii) the Company has not purchased any of its outstanding
capital stock, nor declared, paid or otherwise made any dividend or
distribution of any kind on its capital stock other than ordinary and
customary dividends; and (iii) there has not been any material change
in the capital stock, short-term debt or long-term debt of either the
Company and its subsidiaries, taken as a whole, or the Celera Genomics
Group, except in each case as described in the Prospectus.
(17) The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title
to all personal property owned by them which is material to the
business of either the Company and its subsidiaries, taken as a whole,
or the Celera Genomics Group, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Prospectus
or such as do not materially affect the value of such property and do
not interfere with the use made and proposed to be made of such
property by the Company or such subsidiary; and any real or personal
property and buildings held under lease by the Company or any of its
subsidiaries are held by such entity under valid, subsisting and
enforceable leases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property
and buildings by such entity, in each case except as described in the
Prospectus.
(18) The Company and its subsidiaries own or possess adequate
licenses or other rights to use the patents and patent applications,
copyrights, trademarks, service marks, trade names, technology and
know-how (including trade secrets and other unpatented and/or
unpatentable proprietary rights) necessary in any material respect to
conduct their business in the
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manner described in the Prospectus (collectively, the "COMPANY
INTELLECTUAL PROPERTY"); neither the Company nor any of its
subsidiaries is obligated to pay a royalty, grant a license, or provide
other consideration to any third party in connection with the Company
Intellectual Property other than as disclosed in the Prospectus or as
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole, or the Celera Genomics Group, and
neither the Company nor any of its subsidiaries has received any notice
of infringement or conflict with (and the Company does not know of any
infringement of conflict with) asserted rights of others with respect
to the Company Intellectual Property which could reasonably be expected
to result in any material adverse effect on the condition, financial or
otherwise, or in the earnings, business or operations of either the
Company and its subsidiaries, taken as a whole, or the Celera Genomics
Group; and, except as disclosed in the Prospectus, the discoveries,
inventions, products or processes of the Company and its subsidiaries
referred to in the Prospectus do not, to the knowledge of the Company,
infringe or conflict with any right or patent of any third party, or
any discovery, invention, product or process which is the subject of a
patent application filed by any third party, known to the Company,
which infringement or conflict could reasonably be expected to result
in any material adverse effect on the condition, financial or
otherwise, or in the earnings, business or operations of either the
Company and its subsidiaries, taken as a whole, or the Celera Genomics
Group. No third party, including any academic or governmental
organization, possesses rights to the Company Intellectual Property
which, if exercised, could reasonably be expected to result in any
material adverse effect on the ability of either the Company and its
subsidiaries, taken as a whole, or the Celera Genomics Group to conduct
its respective business in the manner described in the Prospectus.
(19) In connection with the filing of all patent applications
filed or caused to be filed by the Company and its subsidiaries with
the United States Patent and Trademark Office (the "PTO") and
applicable foreign and international patent authorities (the "COMPANY
PATENT APPLICATIONS"), the Company conducted reasonable investigations
of the published literature and patent references relating to the
inventions claimed in such applications; to the best of the Company's
knowledge, it has complied with the PTO's duty of candor and disclosure
for the Company Patent Applications and has made no misrepresentation
in the Company Patent Applications; the Company is unaware of any facts
material to a determination of patentability regarding the Company
Patent Applications not called to the attention of the PTO; the Company
is unaware of any facts not called to the attention of the PTO which
would preclude the grant of a patent for the Company Patent
Applications; and the Company has no knowledge of any facts which would
materially conflict with the Company's or its subsidiary's, as
applicable, ownership rights to the Company Patent Applications.
(20) No material labor dispute with the employees of the
Company and its subsidiaries exists, except as described in or
contemplated by the Prospectus, or, to the knowledge of the Company, is
imminent; and the Company is not aware of any existing, threatened or
imminent labor disturbance by the employees of any of its principal
suppliers, manufacturers or contractors that could result in any
material adverse effect on either the Company and its subsidiaries,
taken as a whole, or the Celera Genomics Group.
(21) The Company and its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks
and in such amounts as are prudent and customary in the business in
which they are engaged (including, without limitation, the aspects of
its business involving biohazardous substances); neither the Company
nor its subsidiaries have been refused any insurance coverage sought or
applied for; and the Company has no reason to believe that it and its
subsidiaries will not be able to renew its existing insurance coverage
as and
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when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue their business at a cost that
could not have a material adverse effect on either the Company and its
subsidiaries, taken as a whole, or the Celera Genomics Group.
(22) The Company possesses all material certificates,
authorizations and permits issued by the appropriate federal, state or
foreign regulatory authorities necessary to conduct its business,
including without limitation, all such certificates, authorizations and
permits required by the United States Food and Drug Administration (the
"FDA") or any other federal, state or foreign agencies or bodies
engaged in the regulation of pharmaceuticals or biohazardous
substances, and the Company has not received any notice of proceedings
relating to the revocation or modification of any such certificate,
authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, could result in
a material adverse effect on either the Company and its subsidiaries,
taken as a whole, or the Celera Genomics Group. The Company is in
compliance in all material respects with all applicable federal, state,
local and foreign laws, regulations, orders and decrees, including
without limitation, all regulations prescribed by the FDA or any other
federal, state or foreign agencies or bodies engaged in the regulation
of pharmaceuticals or biohazardous substances, except where
noncompliance would not, singly or in the aggregate, have a material
adverse effect on either the Company and its subsidiaries, taken as a
whole, or the Celera Genomics Group.
(23) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability;
(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 the existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(24) PricewaterhouseCoopers LLP are, and during the periods
covering their report included in the Registration Statement and the
Prospectus were, independent accountants with respect to the Company as
required by the Securities Act. The financial statements of the Company
and the Celera Genomics Group (together with the related notes thereto)
included in the Registration Statement present fairly the financial
position and results of operations of each of the Company and the
Celera Genomics Group at the respective dates and for the respective
periods to which they apply, subject to normal year-end adjustments.
Such financial statements (together with the related notes thereto)
have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved except
as otherwise stated therein.
(25) The Shares are duly listed and admitted and authorized for
trading on each of the New York Stock Exchange and the Pacific
Exchange, in each case subject to official notice of issuance.
(26) Except for the June 30, 1999 PE Corporation/Celera
Genomics Group Stock Option Agreement with The Institute for Genomic
Research, there are no contracts, agreements or understandings between
the Company and any person, granting such person the right to require
the Company to file a registration statement under the Securities Act
with respect to any securities of the Company or to require the Company
to include such securities with the Shares registered pursuant to the
Registration Statement.
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(27) The businesses, assets and properties identified in the
Prospectus as comprising the businesses, assets and properties of the
Celera Genomics Group constitute all of the material businesses, assets
and properties actually used in the business of the Celera Genomics
Group.
(28) Each material contract, agreement and license to which
the Company or any of its subsidiaries is bound is legal, valid,
binding, enforceable, and in full force and effect. Neither the Company
and its subsidiaries nor, to the Company's knowledge, any other party
is in breach or default with respect to any such contract, agreement
and license and, to the Company's knowledge, no event has occurred
which with notice or lapse of time would constitute a breach or
default, or permit termination, modification, or acceleration, under
any such contract, agreement or license. Neither the Company and its
subsidiaries nor, to the Company's knowledge, any other party has
repudiated any provision of any such contract, agreement or license.
(29) The Company has reviewed its operations and that of its
subsidiaries to evaluate the extent to which the business or operations
of the Company or any of its subsidiaries have been or will be affected
by the Year 2000 Problem (that is, any significant risk that computer
hardware or software applications used by the Company and its
subsidiaries will not, in the case of dates or time periods occurring
after December 31, 1999, function at least as effectively as in the
case of dates or time periods occurring prior to January 1, 2000); as a
result of such review, (i) the Company has no reason to believe, and
does not believe, that (A) there are any issues related to the
Company's preparedness to address the Year 2000 Problem that are of a
character required to be described or referred to in the Registration
Statement or Prospectus which have not been accurately described in the
Registration Statement or Prospectus or (B) the Year 2000 Problem has
had or will have a material adverse effect on the condition, financial
or otherwise, or on the earnings, business or operations of either the
Company and its subsidiaries, taken as a whole, or the Celera Genomics
Group or result in any material loss or interference with the business
or operations of the Company and its subsidiaries, taken as a whole, or
the Celera Genomics Group; and (ii) the Company reasonably believes,
after due inquiry, that the suppliers, vendors, customers or other
material third parties used or served by the Company and such
subsidiaries are addressing or will address the Year 2000 Problem in a
timely manner, except to the extent that a failure to address the Year
2000 Problem by any supplier, vendor, customer or material third party
would not have a material adverse effect on the condition, financial or
otherwise, or on the earnings, business or operations of either the
Company and its subsidiaries, taken as a whole, or the Celera Genomics
Group.
2. AGREEMENTS TO SELL AND PURCHASE. The Company hereby agrees to sell
to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the
conditions hereinafter stated, agrees, severally and not jointly, to purchase
from the Company the respective number of Firm Shares set forth in Schedule I
hereto opposite its name at $________ a share (the "PURCHASE PRICE").
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Additional Shares, and the Underwriters shall have a
one-time right to purchase, severally and not jointly, up to ___________
Additional Shares at the Purchase Price. If you, on behalf of the Underwriters,
elect to exercise such option, you shall so notify the Company in writing not
later than 30 days after the date of this Agreement, which notice shall specify
the number of Additional Shares to be purchased by the Underwriters and the date
on which such shares are to be purchased. Such date may be the same as the
Closing Date (as defined
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below) but not earlier than the Closing Date, earlier than one business day
after the date of such notice, or later than ten business days after the date of
such notice. Additional Shares may be purchased as provided in Section 4 hereof
solely for the purpose of covering over-allotments made in connection with the
offering of the Firm Shares. If any Additional Shares are to be purchased, each
Underwriter agrees, severally and not jointly, to purchase the number of
Additional Shares (subject to such adjustments to eliminate fractional shares as
you may determine) that bears the same proportion to the total number of
Additional Shares to be purchased as the number of Firm Shares set forth in
Schedule I hereto opposite the name of such Underwriter bears to the total
number of Firm Shares.
The Company hereby agrees that, without the prior written consent of
Xxxxxx Xxxxxxx & Co. Incorporated on behalf of the Underwriters, it will not,
during the period ending 90 days after the date of the Prospectus, (i) offer,
pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase, lend, or otherwise transfer or dispose of, directly or indirectly, any
shares of Celera Genomics Stock or any securities convertible into or
exercisable or exchangeable for Celera Genomics Stock or (ii) enter into any
swap or other arrangement that transfers to another, in whole or in part, any of
the economic consequences of ownership of the Celera Genomics Stock, whether any
such transaction described in clause (i) or (ii) above is to be settled by
delivery of Celera Genomics Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the Shares to be sold
hereunder, (B) the issuance by the Company of shares of Celera Genomics Stock
upon the exercise of an option or warrant or the conversion of a security
outstanding on the date hereof described in the Registration Statement or of
which the Underwriters have been advised in writing, (C) the issuance of options
to purchase Celera Genomics Stock pursuant to the PE Corporation /Celera
Genomics Group 1999 Stock Incentive Plan, provided such options are not
exercisable during the period ending 90 days after the date of the Prospectus,
(D) the issuance of shares pursuant to the PE Corporation 1993 Director Stock
Purchase and Deferred Compensation Plan, (E) the issuance of shares of Celera
Genomics Stock pursuant to the Company's Employee Stock Purchase Plans as such
plans are in effect on the date hereof, or (F) the issuance by the Company of
any securities (and the agreement by the Company to provide such securities) as
full or partial consideration in connection with any future acquisitions or
strategic investments of the Celera Genomics Group or securities of the Company
issuable upon exercise or conversion of such securities, provided that the
persons to whom such securities are issued execute a "lock-up" agreement
substantially in the form of EXHIBIT A covering the period ending 90 days after
the date of the Prospectus. It is expressly understood that the Company's PE
Corporation -- PE Biosystems Group Common Stock, $.01 par value per share, shall
not be considered a security "convertible into or exercisable or exchangeable
for" Celera Genomics Stock for purposes of this paragraph and shall not
otherwise be covered by this paragraph.
3. TERMS OF PUBLIC OFFERING. The Company is advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Company is further
advised by you that the Shares are to be offered to the public initially at
$_______ a share (the "PUBLIC OFFERING PRICE") and to certain dealers selected
by you at a price that represents a concession not in excess of $_______ a share
under the Public Offering Price, and that any Underwriter may allow, and such
dealers may reallow, a concession, not in excess of $______ a share, to any
Underwriter or to certain other dealers.
4. PAYMENT AND DELIVERY. Payment for the Firm Shares shall be made to
the Company in Federal or other funds immediately available in New York City
against delivery of such Firm Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on ___________, 2000, or at such
other time on the same or such other date, not later than __________, 2000, as
shall be designated in writing by you. The time and date of such payment are
hereinafter referred to as the
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"CLOSING DATE". The Closing of the offering and sale of the Firm Shares will be
held at the offices of Ropes & Gray, 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx
Xxxx 00000-0000.
Payment for any Additional Shares shall be made to the Company in
Federal or other funds immediately available in New York City against delivery
of such Additional Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on the date specified in the
notice described in Section 2 or at such other time on the same or on such other
date, in any event not later than ________, 2000, as shall be designated in
writing by you. The time and date of such payment are hereinafter referred to as
the "OPTION CLOSING DATE". The Closing of the offering and sale of the
Additional Shares will be held at the offices of Ropes & Gray, 000 Xxxxx Xxxxxx,
Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000-0000.
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
5. CONDITIONS TO THE UNDERWRITERS' OBLIGATIONS. The obligations of the
Company to sell the Shares to the Underwriters and the several obligations of
the Underwriters to purchase and pay for the Shares on the Closing Date and the
Option Closing Date, as the case may be, are subject to the condition that the
Registration Statement shall have become effective not later than ________ (New
York City time) on the date hereof.
The several obligations of the Underwriters are subject to the
following further conditions:
(1) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date and the Option Closing Date, as the case
may be:
(1) there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or
potential downgrading or of any review for a possible change
that does not indicate the direction of the possible change,
in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization," as
such term is defined for purposes of Rule 436(g)(2) under the
Securities Act; and
(2) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of either the Company and its subsidiaries, taken
as a whole, or the Celera Genomics Group from that set forth
in the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement) that, in
your judgment, is material and adverse and that makes it, in
your judgment, impracticable to market the Shares on the terms
and in the manner contemplated in the Prospectus.
(2) The Underwriters shall have received on the Closing Date
and the Option Closing Date, as the case may be, a certificate, dated
such date and signed by an executive officer of the Company, to the
effect set forth in Section 5(a)(i) above and to the effect that the
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representations and warranties of the Company contained in this
Agreement are true and correct as of such date and that the Company has
complied with all of the agreements and satisfied all of the conditions
on its part to be performed or satisfied hereunder on or before such
date.
The officer signing and delivering such certificate may rely
upon the best of his or her knowledge as to proceedings threatened.
(3) The Underwriters shall have received on the Closing Date
and the Option Closing Date, as the case may be, an opinion of Xxxxxxx
X. Xxxxx, Esq., Senior Vice President, General Counsel and Secretary of
the Company, dated such date, to the effect that:
(1) the Company is duly qualified to transact
business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole;
(2) each Significant Subsidiary of the Company has
been duly incorporated, is validly existing as a corporation
in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to
conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on
the Company and its subsidiaries, taken as a whole;
(3) all of the issued shares of capital stock of
each Significant Subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and
non-assessable and are owned directly by the Company, free and
clear of all liens, encumbrances, equities or claims;
(4) such counsel does not know of any legal or
governmental proceedings pending or threatened that are
required to be described in the Registration Statement or the
Prospectus and are not so described, or of any statutes,
regulations, contracts or other documents that are required to
be described in the Registration Statement or the Prospectus
or to be filed as exhibits to the Registration Statement or
incorporated by reference therein that are not described or
filed as required;
(5) to such counsel's knowledge, the Company and its
subsidiaries (A) are in compliance with any and all applicable
Environmental Laws, (B) have received all permits, licenses or
other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and
(C) are in compliance with all terms and conditions of any
such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses
or approvals would not, singly or in the aggregate, have a
material adverse effect on either the Company and its
subsidiaries, taken as a whole, or the Celera Genomics Group;
and
(6) such counsel has no reason to believe that the
Registration Statement, as of its effective date (including
the documents filed pursuant to the Exchange Act and
11
incorporated by reference in the Registration Statement and
the Prospectus (the "INCORPORATED DOCUMENTS") on file with
the Commission on such effective date), contained any untrue
statement of a material fact or omitted to state any material
fact required to be stated therein or necessary in order to
make the statements therein not misleading or that the
Prospectus (including the Incorporated Documents) as of the
Closing Date or the Option Closing Date, as the case may be,
contains any untrue statement of a material fact or omits to
state any material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading, except that in each case
such counsel expresses no belief with respect to the financial
statements or schedules or other financial or statistical data
contained or incorporated by reference in the Registration
Statement, the Prospectus or the Incorporated Documents.
(4) The Underwriters shall have received on the Closing Date
and the Option Closing Date, as the case may be, an opinion of Xxxxxxx
Xxxxxxx & Xxxxxxxx, outside counsel for the Company, dated such date,
to the effect that:
(1) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware and has the corporate power and
authority to conduct its business as described in the
Prospectus;
(2) the authorized capital stock of the Company,
including the Celera Genomics Stock, conforms as to legal
matters to the description thereof contained in the
Prospectus;
(3) the shares of Celera Genomics Stock outstanding
prior to the issuance of the Shares have been duly authorized
and are validly issued, fully paid and non-assessable;
(4) the Shares have been duly authorized and, when
issued and delivered in accordance with the terms of this
Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be
subject to any preemptive right under Delaware law or the
Company's Certificate of Incorporation;
(5) this Agreement has been duly authorized, executed
and delivered by the Company;
(6) the issue and sale of the Shares by the Company
and the compliance by the Company with all of the provisions
of the Underwriting Agreement will not breach or result in a
default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument filed or
incorporated by reference as an exhibit to the Registration
Statement, nor will such action violate the Certificate of
Incorporation or By-laws of the Company or any federal or New
York statute or the Delaware General Corporation Law or any
rule or regulation that has been issued pursuant to any
federal or New York statute or the Delaware General
Corporation Law or any order known to such counsel issued
pursuant to any federal or New York statute or the Delaware
General Corporation Law by any court or governmental agency or
body or court having jurisdiction over the Company or any of
its subsidiaries or any of their properties;
(7) no consent, approval, authorization, order,
registration or qualification of or with any federal or New
York governmental agency or body or any Delaware
12
governmental agency or body acting pursuant to the Delaware
General Corporation Law or, to such counsel's knowledge, any
federal or New York court or any Delaware court acting
pursuant to the Delaware General Corporation Law is required
for the issue and sale of the Shares by the Company and the
compliance by the Company with all of the provisions of this
Agreement, except for the registration under the Securities
Act of the Shares, and such consents, approvals,
authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws or foreign
securities laws in connection with the purchase and
distribution of the Shares by the Underwriters;
(8) the statements (A) in the Prospectus under the
captions "Business -- Legal Proceedings," "Description of
Capital Stock," "Management and Allocation Policies," and
"Underwriters" (but only with respect to the description of
the Underwriting Agreement set forth therein) and (B) in the
Registration Statement Item 15, in each case insofar as such
statements purport to constitute summaries of the legal
matters, documents or proceedings referred to therein,
constitute accurate summaries of such legal matters, documents
and proceedings and fairly summarize the matters referred to
therein;
(9) the opinions of such counsel and statements set
forth in the Prospectus under the caption "Certain United
States Tax Consequences," insofar as such statements purport
to constitute summaries of the legal matters, documents or
proceedings referred to therein, constitute accurate summaries
of such legal matters, documents and proceedings and fairly
summarize the matters referred to therein;
(10) the Company is not an "investment company" as
such term is defined in the Investment Company Act of 1940, as
amended;
(11) the Registration Statement has become effective
and, to such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement is in effect, and
no proceedings for such purpose are pending before or
threatened by the Commission; and
(12) such counsel (A) is of the opinion that the
Registration Statement and the Prospectus as of the effective
date of the Registration Statement, complied as to form in all
material respects with the requirements of the Act and the
applicable rules and regulations of the Commission thereunder
and that the Incorporated Documents complied as to form when
filed in all material respects with the requirements of the
Exchange Act and the applicable rules and regulations of the
Commission thereunder, except that in each case such counsel
expresses no opinion with respect to the financial statements
or schedules or other financial or statistical data contained
or incorporated by reference in the Registration Statement,
the Prospectus or the Incorporated Documents, and (B) has no
reason to believe that the Registration Statement, as of its
effective date (including the Incorporated Documents on file
with the Commission on such effective date), contained any
untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary in
order to make the statements therein not misleading or that
the Prospectus (including the Incorporated Documents) as of
the Closing Date or the Option Closing Date, as the case may
be, contains any untrue statement of a material fact or omits
to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading, except that in each case
such counsel expresses no belief with respect to the financial
statements or
13
schedules or other financial or statistical data contained or
incorporated by reference in the Registration Statement, the
Prospectus or the Incorporated Documents.
(5) The Underwriters shall have received on the Closing Date
and the Option Closing Date, as the case may be, an opinion of Ropes &
Gray, counsel for the Underwriters, dated such date, in a form
satisfactory to the Underwriters.
With respect to Section 5(c)(vi) above, Xxxxxxx X. Xxxxx,
Esq., may state that his belief is based upon his participation in the
preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto and documents incorporated by
reference and review and discussion of the contents thereof, but is
without independent check or verification except as specified. With
respect to Section 5(d)(xii) above, Xxxxxxx Xxxxxxx & Xxxxxxxx may
state that their opinion and belief are based upon their participation
in the preparation of the Registration Statement and Prospectus and any
amendments or supplements thereto and documents incorporated by
reference and review and discussion of the contents thereof, but are
without independent check or verification except as specified.
The opinions of Xxxxxxx X. Xxxxx, Esq. and Xxxxxxx Xxxxxxx &
Xxxxxxxx in Sections 5(c) and 5(d) above shall be rendered to the
Underwriters at the request of the Company and shall so state therein.
(6) The Underwriters shall have received, on each of the date
hereof, the Closing Date and the Option Closing Date, a letter dated
such date, in form and substance satisfactory to the Underwriters, from
PricewaterhouseCoopers LLP, independent public accountants, containing
statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained or
incorporated by reference in the Registration Statement and the
Prospectus; PROVIDED that the letter delivered on the Closing Date
shall use a "cut-off date" not earlier than the date hereof.
(7) The "lock-up" agreements, each substantially in the form
of EXHIBIT B hereto, between you and certain officers and directors of
the Company and certain officers of the Celera Genomics Group relating
to sales and certain other dispositions of shares of Celera Genomics
Stock or certain other securities, delivered to you on or before the
date hereof, shall be in full force and effect on the Closing Date and
the Option Closing Date, as the case may be.
The several obligations of the Underwriters to purchase
Additional Shares hereunder are subject to the delivery to you on the
Option Closing Date of such other documents as you may reasonably
request with respect to the good standing of the Company, the due
authorization and issuance of the Additional Shares and other matters
related to the issuance of the Additional Shares.
6. COVENANTS OF THE COMPANY. In further consideration of the agreements
of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(1) To furnish you, without charge, __________ signed copies
of the Registration Statement (including exhibits thereto and, if
requested by you, documents incorporated by reference) and for delivery
to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto but, if requested by you, including
documents incorporated by reference) and to furnish to you in New York
City, without charge, prior to 10:00 a.m. New York City time on the
business day next succeeding the date of this Agreement and during the
period
14
mentioned in Section 6(c) below, as many copies of the Prospectus,
any documents incorporated by reference, and any supplements and
amendments thereto or to the Registration Statement as you may
reasonably request. The terms "supplement" and "amendment" or
"amend" as used in this Agreement shall include all documents
subsequently filed by the Company with the Commission pursuant to
the Exchange Act that are deemed to be incorporated by reference in
the Prospectus.
(2) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to you a copy of each such
proposed amendment or supplement and not to file any such proposed
amendment or supplement to which you reasonably object, and to file
with the Commission within the applicable period specified in Rule
424(b) under the Securities Act any prospectus required to be filed
pursuant to such Rule.
(3) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, 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 opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to
the dealers (whose names and addresses you will furnish to the Company)
to which Shares may have been sold by you on behalf of the Underwriters
and to any other dealers upon request, either 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.
(4) To endeavor to qualify the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request; PROVIDED that in connection therewith the Company
shall not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction.
(5) To make generally available to the Company's security
holders and, upon your request, to you as soon as practicable an
earning statement covering the twelve-month period ending March 31,
2001 that satisfies the provisions of Section 11(a) of the Securities
Act and the rules and regulations of the Commission thereunder.
7. EXPENSES. Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, the Company agrees to
pay or cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees, disbursements and
expenses of the Company's counsel and the Company's accountants in connection
with the registration and delivery of the Shares under the Securities Act and
all other fees or expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all printing costs
associated therewith, and the mailing and delivering of copies thereof to the
Underwriters and dealers, in the quantities hereinabove specified, (ii) all
costs and expenses related to the transfer and delivery of the Shares to the
Underwriters, including any transfer or other taxes payable thereon, (iii) the
cost of printing or producing any Blue Sky memorandum in connection with the
offer and sale of the Shares under state securities laws and all expenses in
connection with the qualification of the Shares for offer and sale under state
securities laws as
15
provided in Section 6(d) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection with such
qualification and in connection with the Blue Sky memorandum, (iv) all filing
fees and the reasonable fees and disbursements of counsel to the Underwriters
incurred in connection with the review and qualification of the offering of the
Shares by the National Association of Securities Dealers, Inc., (v) all costs
and expenses incident to listing the Shares on the New York Stock Exchange, (vi)
the cost of printing certificates represen ting the Shares, (vii) the costs and
charges of any transfer agent, registrar or depositary, (viii) the costs and
expenses of the Company relating to investor presentations on any "road show"
undertaken in connection with the marketing of the offering of the Shares,
including, without limitation, expenses associated with the production of road
show slides and graphics, fees and expenses of any consultants engaged in
connection with the road show presentations with the prior approval of the
Company, travel and lodging expenses of the representatives and officers of the
Company and any such consultants, and the cost of any aircraft chartered in
connection with the road show, and (ix) all other costs and expenses incident to
the performance of the obligations of the Company hereunder for which provision
is not otherwise made in this Section. It is understood, however, that except as
provided in this Section, Section 8 entitled "Indemnity and Contribution", and
the last paragraph of Section 10 below, the Underwriters will pay all of their
costs and expenses, including fees and disbursements of their counsel, stock
transfer taxes payable on resale of any of the Shares by them and any
advertising expenses connected with any offers they may make.
8. INDEMNITY AND CONTRIBUTION.
(1) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all losses,
claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) caused by any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any amendment thereof, any
preliminary prospectus or the Prospectus (as amended or supplemented if
the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based
upon information relating to any Underwriter furnished to the Company
in writing by such Underwriter through you expressly for use therein;
PROVIDED, HOWEVER, that the foregoing indemnity agreement with respect
to any preliminary prospectus shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims,
damages or liabilities purchased Shares, or any person controlling such
Underwriter, if 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
Shares to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses,
claims, damages or liabilities, unless such failure is the result of
noncompliance by the Company with Section 6(a) hereof.
(2) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers
who sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Company to such Underwriter, but only
with reference to information relating to such
16
Underwriter furnished to the Company in writing by such Underwriter
through you expressly for use in the Registration Statement, any
preliminary prospectus, the Prospectus or any amendments or supplements
thereto.
(3) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Section 8(a), or 8(b) such
person (the "INDEMNIFIED PARTY") shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in
writing and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified
party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the
fees and disbursements of such counsel related to such proceeding. In
any such proceeding, any indemnified party shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the indemnifying
party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by Xxxxxx Xxxxxxx & Co. Incorporated, in the case
of parties indemnified pursuant to Section 8(a), and by the Company, in
the case of parties indemnified pursuant to Section 8(b). The
indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are
the subject matter of such proceeding.
(4) To the extent the indemnification provided for in Section
8(a) or 8(b) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to
therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriters on the other hand from the offering
of the Shares or (ii) if the allocation provided by clause (i) of this
sentence is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) of this sentence but also the relative fault of the Company
on the one hand and of the Underwriters on the other hand in connection
with the statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other hand in connection with the
offering of the Shares shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Shares (before
deducting expenses) received by the Company and the total underwriting
discounts and commissions received by the Underwriters, in each case
17
as set forth in the table on the cover of the Prospectus, bear to the
aggregate Public Offering Price of the Shares. 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 the
untrue or alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Underwriters'
respective obligations to contribute pursuant to this Section 8 are
several in proportion to the respective number of Shares they have
purchased hereunder, and not joint.
(5) The Company and the Underwriters agree that it would not
be just or equitable if contribution pursuant to this Section 8 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 that does not take account of the equitable considerations
referred to in Section 8(d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages and
liabilities referred to in the immediately preceding paragraph shall be
deemed to include, subject to the limitations set forth above, any
legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 8, no Underwriter shall
be required to contribute any amount in excess of the amount by which
the total price at which the Shares underwritten by it and distributed
to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section
8 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in
equity.
(6) The indemnity and contribution provisions contained in
this Section 8 and the representations, warranties and other statements
of the Company contained in this Agreement shall remain operative and
in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter or by or on
behalf of the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of
the Shares.
9. TERMINATION. This Agreement shall be subject to termination by
notice given by you to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the National Association
of Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses (i) through (iv) above, such event, singly or
together with any other such event, makes it, in your judgment, impracticable to
market the Shares on the terms and in the manner contemplated in the Prospectus.
10. EFFECTIVENESS; DEFAULTING UNDERWRITERS. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
18
If, on the Closing Date or the Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase Shares that
it has or they have agreed to purchase hereunder on such date, and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of the Shares to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm Shares set forth
opposite their respective names in Schedule I bears to the aggregate number of
Firm Shares set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as you may specify, to purchase the
Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; PROVIDED that in no event shall the number of
Shares that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 10 by an amount in excess of one-ninth of
such number of Shares without the written consent of such Underwriter. If, on
the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of Firm
Shares to be purchased, and arrangements satisfactory to you and the Company for
the purchase of such Firm Shares are not made within 36 hours after such
default, this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. If, on the Option Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Additional Shares and the
aggregate number of Additional Shares with respect to which such default occurs
is more than one-tenth of the aggregate number of Additional Shares to be
purchased, the non-defaulting Underwriters shall have the option to (i)
terminate their obligation hereunder to purchase Additional Shares or (ii)
purchase not less than the number of Additional Shares that such non-defaulting
Underwriters would have been obligated to purchase in the absence of such
default. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement (other than as a result of an event specified in clause (i), (iii) or
(iv) of Section 9(a) hereof), the Company will reimburse the Underwriters or
such Underwriters as have so terminated this Agreement with respect to
themselves, severally, for all out-of-pocket expenses (including the fees and
disbursements of their counsel) reasonably incurred by such Underwriters in
connection with this Agreement or the offering contemplated hereunder. If this
Agreement shall be terminated because of a default by any Underwriter or
Underwriters, the Company shall not be obligated to reimburse any defaulting
Underwriter for any such expenses.
11. COUNTERPARTS. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
12. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
13. HEADINGS. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
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[Underwriting Agreement]
Very truly yours,
PE CORPORATION
By:
--------------------------
Name:
Title:
Accepted as of the date hereof
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx, Xxxxx & Co.
XX Xxxxx Securities Corporation
ING Barings LLC
Bear Xxxxxxx & Co. Inc.
Acting severally on behalf
of themselves and the
several Underwriters named
in Schedule I hereto.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By:
--------------------------
Name:
Title:
SCHEDULE I
Number of
Firm Shares
Underwriter To Be Purchased
----------- ---------------
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx, Xxxxx & Co.
XX Xxxxx Securities Corporation
ING Barings LLC
Bear, Xxxxxxx & Co. Inc.
[NAMES OF OTHER UNDERWRITERS]
-------------
Total.........................................................
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EXHIBIT A
SIGNIFICANT SUBSIDIARIES
The Xxxxxx Xxxxx Corporation (New York, USA)
GenScope, Inc. (Delaware, USA)
EXHIBIT B
[FORM OF LOCK-UP LETTER]
______________ ___, 2000
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx, Xxxxx & Co.
XX Xxxxx Securities Corporation
ING Barings LLC
Bear, Xxxxxxx & Co. Inc.
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs and Mesdames:
The undersigned understands that Xxxxxx Xxxxxxx & Co. Incorporated
("XXXXXX XXXXXXX") proposes to enter into an Underwriting Agreement (the
"UNDERWRITING AGREEMENT") with PE Corporation, a Delaware corporation (the
"COMPANY"), providing for the public offering (the "PUBLIC OFFERING") by the
several Underwriters, including Xxxxxx Xxxxxxx (the "UNDERWRITERS"), of up to
____________ shares (the "SHARES") of the Company's PE Corporation -- Celera
Genomics Group Common Stock, $.01 par value (the "CELERA GENOMICS STOCK").
To induce the Underwriters that may participate in the Public Offering
to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of Xxxxxx
Xxxxxxx on behalf of the Underwriters, it will not, during the period commencing
on the date hereof and ending 90 days after the date of the final prospectus
relating to the Public Offering (the "PROSPECTUS"), (1) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any shares of Celera
Genomics Stock or any securities convertible into or exercisable or exchangeable
for Celera Genomics Stock or (2) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of
ownership of the Celera Genomics Stock, whether any such transaction described
in clause (1) or (2) above is to be settled by delivery of Celera Genomics Stock
or such other securities, in cash or otherwise. The foregoing sentence shall not
apply to transactions relating to shares of Celera Genomics Stock or other
securities acquired in open market transactions after the completion of the
Public Offering. In addition, the undersigned agrees that, without the prior
written consent of Xxxxxx Xxxxxxx on behalf of the Underwriters, it will not,
during the period commencing on the date hereof and ending 90 days after the
date of the Prospectus, make any demand for or exercise any right with respect
to, the registration of any shares of Celera Genomics Stock or any security
convertible into or exercisable or exchangeable for Celera Genomics Stock. It is
expressly understood that the Company's PE Corporation -- PE Biosystems Group
Common Stock, $.01 par value per share, shall not be considered a security
"convertible into or exercisable or exchangeable for" Celera Genomics Stock for
purposes of this paragraph and shall not otherwise be covered by this paragraph.
Whether or not the Public Offering actually occurs depends on a number
of factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
-------------------------
(Name)
