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EXHIBIT 1.1
8,500,000 SHARES
THIRD WAVE TECHNOLOGIES, INC.
COMMON STOCK
Underwriting Agreement
, 2000
Xxxxxx Brothers Inc .
CIBC World Markets
Xxxx Xxxxxxxx Xxxxxxx
Xxxxxx X. Xxxxx & Co.
Fidelity Capital Markets
As Representatives of the several
Underwriters named in Schedule 1,
c/x Xxxxxx Brothers Inc.
Three World Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Third Wave Technologies, Inc., a Delaware corporation (the "COMPANY"),
proposes to sell 8,500,000 shares (the "FIRM STOCK") of the Company's Common
Stock, par value $0.001 per share (the "COMMON STOCK")
It is understood that, subject to the conditions hereinafter stated,
8,500,000 shares of the Firm Stock will be sold to the several Underwriters
named in Schedule 1 hereto (the "UNDERWRITERS"). Xxxxxx Brothers Inc., CIBC
World Markets, Xxxx Xxxxxxxx Xxxxxxx, Xxxxxx X. Xxxxx & Co. and Fidelity Capital
Markets shall act as representatives (the "REPRESENTATIVES") of the several
Underwriters.
In addition, the Company proposes to grant to the Underwriters an option to
purchase up to an additional 1,275,000 shares of the Common Stock on the terms
and for the purposes set forth in Section 3 (the "OPTION STOCK"). The Firm Stock
and the Option Stock, if purchased, are hereinafter collectively called the
"STOCK." This is to confirm the agreement concerning the purchase of the Stock
from the Company by the Underwriters.
SECTION 1. Representations, Warranties and Agreements of the Company. The
Company represents, warrants and agrees that:
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(a) A registration statement on Form S-1 (No. 333-42694), including the
related preliminary prospectus, for the registration of the Stock has (i) been
prepared by the Company in conformity with the requirements of the Securities
Act of 1933, as amended (the "SECURITIES ACT"), and the rules and regulations
(the "RULES AND REGULATIONS") of the U.S. Securities and Exchange Commission
(the "COMMISSION") thereunder, (ii) been filed with the Commission under the
Securities Act and (iii) become effective under the Securities Act, and no
post-effective amendment to the Registration Statement has been filed as of the
date of this Agreement. The Company has caused to be delivered to you copies of
such registration statement and each of the amendments thereto and has consented
to the use of such copies for the purposes permitted by the Securities Act. As
used in this Agreement, "EFFECTIVE TIME" means the date and the time as of which
such registration statement, or the most recent post-effective amendment
thereto, if any, was declared effective by the Commission; "EFFECTIVE DATE"
means the date of the Effective Time; "PRELIMINARY PROSPECTUS" means each
prospectus included in such registration statement, or amendments thereof,
before it became effective under the Securities Act and any prospectus filed
with the Commission by the Company with the consent of the Representatives
pursuant to Rule 424(a) of the Rules and Regulations; "REGISTRATION STATEMENT"
means such registration statement, as amended at the Effective Time, including
all information contained in the final prospectus filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations and deemed to be a part of
the registration statement as of the Effective Time pursuant to Rule 430A of the
Rules and Regulations; and "PROSPECTUS" means the prospectus first used to
confirm sales of Stock. If the Company has filed an abbreviated registration
statement to register additional shares of Common 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. The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus.
(b) The Registration Statement and the Prospectus comply, and on the
Delivery Dates (as hereinafter defined) and any later date on which Option Stock
is to be purchased, the Prospectus will comply, in all material respects, with
the provisions of the Securities Act and the Rules and Regulations; on the
Effective Date, the Registration Statement did not contain any untrue statement
of a material fact and did not omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; and, on
the Effective Date the Prospectus did not and, on the Delivery Dates and any
later date on which Option Stock is to be purchased, will not contain any untrue
statement of a material fact or omit 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; provided, however, that none of the
representations and warranties in this subparagraph (b) shall apply to
statements in, or omissions from, the Registration Statement or the Prospectus
made in reliance upon and in conformity with information herein or otherwise
furnished in writing to the
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Company by or on behalf of the Underwriters for use in the Registration
Statement or the Prospectus
(c) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation, is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in which its respective ownership or
lease of property or the conduct of its business requires such qualification
(except for such instances, if any, where the failure to be so qualified would
not have a material adverse effect on the business, properties, financial
condition or results of operations of the Company) (a "MATERIAL ADVERSE
EFFECT"); and no proceeding has been instituted in any such jurisdiction
revoking, limiting or curtailing, or seeking to revoke, limit or curtail, such
power and authority or qualification. The Company has all power and authority
necessary to own or hold its properties and to conduct the businesses in which
it is engaged. The Company is in possession of, and operating in compliance in
all material respects with, all authorizations, licenses, certificates,
consents, orders and permits from foreign, federal, state and other regulatory
authorities which are material to the conduct of its business, all of which are
valid and in full force and effect. The Company is not in violation of its
charter or bylaws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any bond, debenture,
note or other evidence of indebtedness, or in any lease, contract, indenture,
mortgage, deed of trust, loan agreement, joint venture or other agreement or
instrument to which the Company is a party or by which the Company or its
properties may be bound; and the Company is not in violation of any law, order,
rule, regulation, writ, injunction, judgment or decree of any court, government
or governmental agency or body, domestic or foreign, having jurisdiction over
the Company or its properties; except for any such violations or defaults, if
any, which, individually or in the aggregate, would not have a Material Adverse
Effect.
(c) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued, are fully paid and non-assessable
and conform to the description thereof contained in the Prospectus. No further
approval or authority of the stockholders or the Board of Directors of the
Company will be required for the issuance and sale of the Stock by the Company
as contemplated herein.
(d) The shares of the Stock to be issued and sold by the Company to the
Underwriters hereunder have been duly and validly authorized and, when issued
and delivered against payment therefor in accordance with this Agreement, will
be duly and validly issued, fully paid and non-assessable; and the Stock and the
Common Stock will conform to the descriptions thereof contained in the
Prospectus. All outstanding shares of capital stock of the Company have been
issued in compliance in all material respects with all federal and state
securities laws, were not issued in violation of or subject to any preemptive
rights or other
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rights to subscribe for or purchase securities and conform in all material
respects to the statements relating thereto contained in the Registration
Statement and the Prospectus (and such statements correctly state the substance
of the instruments defining the capitalization of the Company); all shares of
Stock will be sold free and clear of any pledge, lien, security interest,
encumbrance, claim or equitable interest; and no preemptive right, co-sale
right, registration right, right of first refusal or other similar right of
stockholders exists with respect to any of the Stock or the issuance and sale
thereof. Except as disclosed in the Prospectus or in the financial statements of
the Company and the related notes thereto included in the Prospectus, the
Company has no outstanding options to purchase, or any preemptive rights or
other rights to subscribe for or to purchase, any securities or obligations
convertible into, or any contracts or commitments to issue or sell, shares of
its capital stock or any such options, rights, convertible securities or
obligations. The description of the Company's stock option, stock bonus and
other stock plans or arrangements, and the options or other rights granted or to
be granted and exercised thereunder, set forth in the Prospectus accurately and
fairly presents the information required to be shown with respect to such plans,
arrangements, options and rights.
(e) This Agreement has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement on the part of the Company,
enforceable in accordance with its terms, except as rights to indemnification
and contribution hereunder may be limited by applicable law and except as
enforcement hereof may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting
creditors' rights generally or by general equitable principles. The Company has
full legal right, power and authority to enter into this Agreement and perform
the transactions contemplated hereby.
(f) The execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated hereby will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to which the Company is a
party or by which the Company is bound or to which any of the property or assets
of the Company is subject, nor will such actions result in any violation of the
provisions of the charter or by-laws of the Company or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties or assets. No consent,
approval, authorization or order of or qualification with any court, government
or governmental agency or body, domestic or foreign, having jurisdiction over
the Company, or any of its properties is required for the execution and delivery
of this Agreement and the consummation by the Company of the transactions herein
contemplated, except such as may be required under the Securities Act or under
state or other securities or Blue Sky laws, all of which requirements under the
Securities Act have been satisfied.
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(g) Except as fully and accurately described in the Prospectus, 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
owned or to be owned by such person or to require the Company to include such
securities in the securities registered pursuant to the Registration Statement
or in any securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act.
(h) Except as fully and accurately described in the Prospectus, the
Company has not sold or issued any shares of Common Stock during the six-month
period preceding the date of the Prospectus, including any sales pursuant to
Rule 144A under, or Regulations D or S of, the Securities Act other than shares
issued pursuant to employee benefit plans, qualified stock options plans or
other employee compensation plans or pursuant to outstanding options, rights or
warrants.
(i) The Company has not sustained, since the date of the latest audited
financial statements included in the Prospectus, any material loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since such date, there has not been any
change in the capital stock or long-term debt of the Company or any material
adverse change, or any development involving a prospective material adverse
change, in or affecting the general affairs, management, financial position,
stockholders' equity, results of operations, business or prospects of the
Company, otherwise than as fully and accurately described in the Prospectus.
(j) Ernst & Young LLP, which has examined the financial statements of the
Company, together with the related schedules and notes thereto, as of and for
each of the years ended December 31, 1998, 1999 and the six month period ended
June 30, 2000 (collectively, the "FINANCIAL STATEMENTS"), filed with the
Commission as a part of the Registration Statement, which are included in the
Prospectus, are independent accountants within the meaning of the Securities Act
and the Rules and Regulations; the audited financial statements of the Company,
together with the related schedules and notes, and the unaudited financial
information, forming part of the Registration Statement and Prospectus, fairly
present the financial position and the results of operations of the Company at
the respective dates and for the respective periods to which they apply; and all
audited financial statements of the Company, together with the related schedules
and notes thereto, and the unaudited financial information, filed with the
Commission as part of the Registration Statement, have been prepared in
accordance with U.S. generally accepted accounting principles ("GAAP")
consistently applied throughout the periods involved except as may be otherwise
stated therein.
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Except as and to the extent (a) reflected and reserved against at June 30, 2000
in the Financial Statements or (b) incurred in the ordinary course of business
after June 30, 2000 and not material in amount, the Company has no liability or
obligation, secured or unsecured, whether accrued, absolute, contingent,
unasserted or otherwise, which is material to the Company. The selected and
summary financial and statistical data included in the Registration Statement
accurately and fairly present the information shown therein and have been
compiled on a basis consistent with the audited financial statements presented
therein. No other financial statements, schedules or statistical data are
required to be included in the Registration Statement.
(k) The Company does not now have and has never had, a Subsidiary (as
defined in Section 15).
(l) The Company has good and marketable title in fee simple to all real
property and good and marketable title to all personal property owned by them,
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 materially interfere with the use made and proposed
to be made of such property by the Company; and all assets held under lease by
the Company are held by them 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 the Company. Except as
fully and accurately described in the Registration Statement and Prospectus, the
Company owns or leases all such properties as are necessary for its operations
as now conducted and as proposed to be conducted. The description of the
Company's properties contained in the Prospectus is true and complete in all
material respects.
(m) The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
customary in the business in which it is engaged, including, but not limited to,
insurance covering real and personal property owned or leased by the Company
against theft, damage, destruction, acts of vandalism and all other risks
customarily insured against; all policies of insurance and fidelity or surety
bonds insuring the Company, and its business, assets, employees, officers and
directors are in full force and effect; the Company is in compliance with the
terms of such policies and instruments in all material respects; there are no
claims by the Company under any such policy or instrument as to which any
insurance company is denying liability or defending under a reservation of
rights clause; the Company has never been refused any insurance coverage sought
or applied for; and the Company has no reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary to
continue its business at a commercially reasonable cost.
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(n) The Company owns, licenses or otherwise possesses legally enforceable
rights to use all patents, patent rights, inventions, trade secrets, know-how,
trademarks, service marks, trade names and copyrights which are necessary to
conduct its business as described in the Registration Statement and Prospectus;
the expiration of any such patents, patent rights, trade secrets, trademarks,
service marks, trade names or copyrights would not result in a Material Adverse
Effect; except as fully and accurately described in the Registration Statement
or the Prospectus, the Company has not received any notice of, and has no
knowledge of, any infringement of or conflict with asserted rights of the
Company by others with respect to any such patent, patent rights, inventions,
trade secrets, know-how, trademarks, service marks, trade names or copyrights;
and except as fully and accurately described in the Registration Statement or
the Prospectus, the Company has not received any notice of, and the Company has
no knowledge of, any infringement of or conflict with asserted rights of others
with respect to any patent, patent rights, inventions, trade secrets, know-how,
trademarks, service marks, trade names or copyrights which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, could
result in a Material Adverse Effect.
(o) There is no pending or, to the Company's knowledge, threatened,
action, suit, claim or proceeding against the Company, its directors, officers
or properties, assets or rights, before any court, government or governmental
agency or body, domestic or foreign, having jurisdiction over the Company or
over its directors, officers or properties, assets or rights which (i) could
have a Material Adverse Effect, (ii) might prevent consummation of the
transactions contemplated hereby or (iii) is required to be described in the
Registration Statement or Prospectus and is not so fully and accurately
described.
(p) There are no agreements, contracts, leases or documents which are
required to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and Regulations
which have not been fully and accurately described in the Prospectus or filed as
exhibits to the Registration Statement.
(q) No relationship, direct or indirect, exists between or among the
Company on the one hand, and the directors, officers, stockholders, customers or
suppliers of the Company on the other hand, which is required to be described in
the Prospectus which is not so fully and accurately described.
(r) No labor disturbance by the employees of the Company exists or, to the
Company's knowledge, is threatened or imminent. No collective bargaining
agreement exists with any employees of the Company and, to the Company's
knowledge, no such agreement is threatened or imminent.
(s) The Company has fulfilled its obligations, if any, under the minimum
funding standards of Section 302 of the U.S. Employee Retirement
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Income Security Act of 1974 ("ERISA") and the regulations and published
interpretations thereunder with respect to each "plan" as defined in Section
3(3) of ERISA and such regulations and published interpretations in which its
employees are eligible to participate and each such plan is in compliance in all
material respects with the presently applicable provisions of ERISA and such
regulations and published interpretations. No "REPORTABLE EVENT" (as defined in
ERISA) has occurred with respect to any "PENSION PLAN" (as defined in ERISA) for
which the Company could have any liability. The Company has not incurred and
will not incur any unpaid liability (i) to the Pension Benefit Guaranty
Corporation (other than for the payment of premiums in the ordinary course),
(ii) to any such plan under Title IV of ERISA, or (iii) Sections 412 or 4971 of
the Internal Revenue Code of 1986, as amended, including the regulations and
published interpretations thereunder (the "CODE") and each "PENSION PLAN" for
which the Company would have any liability that is intended to be qualified
under Section 401(a) of the Code is so qualified in all material respects and
nothing has occurred, whether by action or by failure to act, which could cause
the loss of such qualification.
(t) The Company has timely filed all Tax Returns (as defined below) that
it was required to file, and all such Tax Returns were complete and accurate in
all material respects. The Company has paid on a timely basis all Taxes (as
defined below) that were due and payable. The unpaid Taxes of the Company for
tax periods through the date of the most recent balance sheet of the Financial
Statements do not exceed the accruals and reserves for Taxes (other than
reserves for deferred Taxes) set forth on such balance sheet. The Company does
not have any actual or potential liability for any Tax obligation of any
taxpayer (including, without limitation, any affiliated group of corporations or
other entities that included the Company during a prior period) other than the
Company. For purposes of this Agreement, "TAXES" means all taxes, charges, fees,
levies or other similar assessments or liabilities, including without limitation
income, gross receipts, ad valorem, premium, value-added, excise, real property,
personal property, sales, use, transfer, withholding, employment, payroll,
profits, license, lease, service, service use, severance, stamp, occupation,
windfall profits, customs, franchise and other taxes imposed by the United
States of America or any state, local or foreign government, or any agency
thereof, or other political subdivision of the United States or any such
government, and any interest, fines, penalties, assessments or additions to tax
resulting from, attributable to or incurred in connection with any tax or any
contest or dispute thereof. For purposes of this Agreement, "TAX RETURNS" means
all reports, returns, declarations, statements or other information required to
be supplied to a taxing authority in connection with Taxes.
(v) The Company (i) makes and keeps accurate books and records and
(ii) maintains internal accounting controls which provide reasonable assurance
that (A) transactions are executed in accordance with management's
authorization, (B) transactions are recorded as necessary to permit preparation
of
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its financial statements in conformity with GAAP and to maintain accountability
for its assets, (C) access to its assets is permitted only in accordance with
management's authorization and (D) the reported accountability for its assets is
compared with existing assets at reasonable intervals and prompt appropriate
action is taken with respect to any differences.
(w) Neither the Company, nor any director, officer, agent, employee or
other person associated with or acting on behalf of the Company, has used any
corporate funds for any unlawful contribution, gift, entertainment or other
unlawful expense relating to political activity; made any direct or indirect
unlawful payment to any foreign or domestic government official or employee from
corporate funds; violated or is in violation of any provision of the Foreign
Corrupt Practices Act of 1977; or made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(x) Except as fully and accurately described in the Registration Statement
and Prospectus: (i) the Company is in compliance in all material respect with
all rules, laws and regulations relating to the use, treatment, storage and
disposal of toxic substances and protection of health or the environment
("ENVIRONMENTAL LAWS"); (ii) the Company has not received any notice from any
foreign, federal, state or local governmental authority or third party of an
asserted claim under Environmental Laws; (iii) the Company will not be required
to make any material capital expenditures to comply with Environmental Laws; and
(iv) no property which is, or was previously, owned, leased or occupied by the
Company has been designated as a Superfund site pursuant to the Comprehensive
Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. ss.
9601, et seq.), or otherwise designated as a contaminated site under applicable
foreign, federal, state or local law.
(y) The Company has been advised concerning the Investment Company Act of
1940, as amended and rules and regulations pertaining thereto (the "1940 ACT"),
and the rules and regulations thereunder, and the Company has in the past
conducted, and intends in the future to conduct, its affairs in such a manner as
to ensure that it will not become an "INVESTMENT COMPANY" or a company
"CONTROLLED" by an "investment company" within the meaning of the 1940 Act.
(z) None of the directed stock distributed in connection with the directed
stock program will be offered or sold outside of the United States.
(aa) The Stock has been approved for quotation on the Nasdaq National
Market, subject only to official notice of issuance.
(bb) The Company has filed a registration statement pursuant to Section
12(g) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"),
to register the Common Stock under the Exchange Act.
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(cc) Each of the Company, its directors and officers has not distributed
and will not distribute prior to the later of (i) the First Delivery Date, or
any date on which Option Stock is to be purchased, as the case may be, and (ii)
completion of the distribution of the Stock, any offering material in connection
with the offering and sale of the Stock other than any Preliminary Prospectuses,
the Prospectus, the Registration Statement and other materials, if any,
permitted by the Securities Act.
(dd) The Company and each of its directors and officers has not taken and
will not take, directly or indirectly, any action designed to or that might
reasonably be expected to cause or result in stabilization or manipulation of
the price of the Stock to facilitate the sale or resale of the Stock.
(ee) Each of the Company's executive officers, directors and stockholders
has agreed in writing (the "LOCK-UP AGREEMENTS") that such holder of Securities
(as defined below) will not, directly or indirectly, for a period of 180-days
from the date that the Registration Statement is declared effective by the
Commission (the "LOCK-UP PERIOD"), offer, sell, contract to sell, grant any
option to purchase, pledge or otherwise dispose of or transfer (collectively, a
"DISPOSITION") any shares of Common Stock or any securities convertible into or
exchangeable for, or any right to purchase or acquire, shares of Common Stock
(collectively, "SECURITIES") now owned or hereafter acquired by such holder or
with respect to which such holder has or hereafter acquires the power of
disposition, otherwise than (i) as a bona fide gift or gifts, or transfers to
family limited partnerships or to trusts for the benefit of such holder and his
or her family provided that each donee thereof agrees in writing to be bound by
this restriction or (ii) with the prior written consent of Xxxxxx Brothers Inc.
The foregoing restriction has been expressly agreed to preclude the holder of
the Securities from engaging in any hedging or other transaction which is
designed to or reasonably expected to lead to or result in a Disposition of
Securities during the Lock-up Period, even if such Securities would be disposed
of by someone other than such holder. Such prohibited hedging or other
transactions would include, without limitation, any short sale (whether or not
against the box) or any purchase, sale or grant of any right (including, without
limitation, any put or call option) with respect to any Securities or with
respect to any security (other than a broad-based market basket or index) that
includes, relates to or derives any significant part of its value from
Securities. Furthermore, each holder of Securities has also agreed and consented
to the entry of stop transfer instructions with the Company's transfer agent
against the transfer of the Securities held by such holder except in compliance
with this restriction. The Company has provided to counsel for the Underwriters
a complete and accurate list of all security holders of the Company and the
number and type of securities held by each security holder. The Company has
provided to counsel for the Underwriters true, accurate and complete copies of
all of the Lock-up Agreements presently in effect or effected hereby.
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(ff) Except as otherwise fully and accurately described in the Prospectus,
there are no outstanding loans, advances (except normal advances for business
expenses in the ordinary course of business) or guarantees of indebtedness by
the Company to or for the benefit of any of the officers or directors of the
Company or any of the members of the families of any of them.
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Stock shall be deemed a representation and warranty by the Company, as to
matters covered thereby, to each Underwriter.
SECTION 2. Purchase of the Stock by the Underwriters. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to issue and sell 8,500,000
shares of the Firm Stock to the several Underwriters. Each of the Underwriters,
severally and not jointly, agrees to purchase the number of shares of the Firm
Stock set forth opposite that Underwriter's name in Schedule 1 hereto. The
respective purchase obligations of the Underwriters with respect to the Firm
Stock shall be rounded among the Underwriters to avoid fractional shares, as the
Representatives may determine. Except as otherwise provided in this Section 2,
the agreement of each Underwriter is to purchase only the respective number of
shares of the Stock specified in Schedule 1.
In addition, the Company grants to the Underwriters an option to purchase
up to 1,275,000 shares of Option Stock. Such option is granted for the purpose
of covering over-allotments in the sale of Firm Stock and is exercisable as
provided in Section 4 hereof. Shares of Option Stock shall be purchased
severally for the account of the Underwriters in proportion to the number of
shares of Firm Stock set forth opposite the name of such Underwriters in
Schedule 1 hereto. The respective purchase obligations of each Underwriter with
respect to the Option Stock shall be adjusted by the Representatives so that no
Underwriter shall be obligated to purchase Option Stock other than in 100 share
amounts.
The price of all Stock shall be $_____ per share.
The Company shall not be obligated to deliver any of the Stock to be
delivered on any Delivery Date (as hereinafter defined), except upon payment for
all the Stock to be purchased on such Delivery Date as provided herein.
SECTION 3. Offering of Stock by the Underwriters.
Upon authorization by the Representatives of the release of the Firm Stock,
the several Underwriters propose to offer the Firm Stock for sale upon the terms
and conditions set forth in the Prospectus. The Underwriters may from time to
time change the public offering price after the closing of the initial public
offering and increase or decrease the concessions and discounts to dealers as
they may determine.
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The information set forth in the last paragraph on the front cover page and
under the [third, eighth, nineteenth and twentieth] paragraphs of the
"Underwriting" section contained in the Registration Statement, any Preliminary
Prospectus and the Prospectus relating to the Stock filed by the Company
(insofar as such information relates to the Underwriters) constitutes the only
information furnished by the Underwriters to the Company for inclusion in the
Registration Statement, any Preliminary Prospectus, and the Prospectus, and you
on behalf of the respective Underwriters represent and warrant to the Company
that the statements made therein are correct.
SECTION 4. Delivery of and Payment for the Stock. Delivery of and payment
for the Firm Stock shall be made at the offices of Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C., at 10:00 A.M., Xxx Xxxxxxxxx Xxxxxx, Xxxxxx, XX 00000,
Boston time, on the fourth full business day following the date of this
Agreement or at such other date or place as shall be determined by agreement
between the Representatives and the Company. This date and time (which may be
postponed as provided in Section 9 are sometimes referred to as the "FIRST
DELIVERY DATE." On the First Delivery Date, the Company shall deliver or cause
to be delivered certificates representing the Firm Stock to the Representatives
for the account of each Underwriter against payment to or upon the order of the
Company of the purchase price by wire transfer in immediately available funds.
Time shall be of the essence, and delivery at the time and place specified
pursuant to this Agreement is a further condition of the obligation of each
Underwriter hereunder. Upon delivery, the Firm Stock shall be registered in such
names and in such denominations as the Representatives shall request in writing
not less than two full business days prior to the First Delivery Date. For the
purpose of expediting the checking and packaging of the certificates for the
Firm Stock, the Company shall make the certificates representing the Firm Stock
available for inspection by the Representatives in New York, New York, not later
than 2:00 P.M., New York City time, on the business day prior to the First
Delivery Date.
The option granted in Section 2 will expire 30 days after the date of this
Agreement and may be exercised in whole or in part from time to time by written
notice being given to the Company by the Representatives. Such notice shall set
forth the aggregate number of shares of Option Stock as to which the option is
being exercised, the names in which the shares of Option Stock are to be
registered, the denominations in which the shares of Option Stock are to be
issued and the date and time, as determined by the Representatives, when the
shares of Option Stock are to be delivered; provided, however, that this date
and time shall not be earlier than the First Delivery Date nor earlier than the
second business day after the date on which the option shall have been exercised
nor later than the fifth business day after the date on which the option shall
have been exercised. The date and time the shares of Option Stock are delivered
are sometimes referred to as a "SECOND DELIVERY DATE" and the First Delivery
Date and any Second Delivery Date are sometimes each referred to as a "DELIVERY
DATE."
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Delivery of and payment for the Option Stock shall be made at the place
specified in the first sentence of the first paragraph of this Section 4 (or at
such other place as shall be determined by agreement between the Representatives
and the Company) at 9:00 A.M, Boston time, on such Second Delivery Date. On such
Second Delivery Date, the Company shall deliver or cause to be delivered the
certificates representing the Option Stock to the Representatives for the
account of each Underwriter against payment to or upon the order of the Company
of the purchase price by wire transfer in immediately available funds. Time
shall be of the essence, and delivery at the time and place specified pursuant
to this Agreement is a further condition of the obligation of each Underwriter
hereunder. Upon delivery, the Option Stock shall be registered in such names and
in such denominations as the Representatives shall request in the aforesaid
written notice. For the purpose of expediting the checking and packaging of the
certificates for the Option Stock, the Company shall make the certificates
representing the Option Stock available for inspection by the Representatives in
New York, New York, not later than 2:00 P.M., New York City time, on the
business day prior to such Second Delivery Date.
It is understood that Xxxxxx Brothers Inc., individually and not on behalf
of the Underwriters, may (but shall not be obligated to) make payment to the
Company for shares of Stock to be purchased by any Underwriter whose check shall
not have been received by Xxxxxx Brothers Inc. on the applicable Delivery Date
or any later date on which Option Stock is purchased for the account of such
Underwriter. Any such payment by Xxxxxx Brothers Inc. shall not relieve such
Underwriter from any of its obligations hereunder.
SECTION 5. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the Representatives
and to timely file such Prospectus pursuant to Rule 424(b) under the Securities
Act not later than Commission's close of business on the second business day
following the execution and delivery of this Agreement or, if applicable, such
earlier time as may be required by Rule 430A(a)(3) under the Securities Act; to
make no further amendment or any supplement to the Registration Statement or to
the Prospectus of which Xxxxxx Brothers Inc. shall not previously have been
advised and furnished with a copy or to which Xxxxxx Brothers Inc. shall have
reasonably objected in writing or which is not in compliance with the Securities
Act or the rules and regulations of the Commission; to advise the
Representatives, promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or becomes effective or
any supplement to the Prospectus or any amended Prospectus has been filed and to
furnish the Representatives with copies thereof; to advise the Representatives,
promptly after it receives notice thereof, of the issuance by the Commission of
any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, of the suspension of the qualification
of the Stock for offering or sale in any jurisdiction,
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of the initiation or threatening of any proceeding for any such purpose, or of
any request by the Commission for the amending or supplementing of the
Registration Statement or the Prospectus or for additional information. The
Company will make every effort to prevent the issuance of such a stop order;
and, in the event of the issuance of any such order or of any order preventing
or suspending the use of any Preliminary Prospectus or the Prospectus or
suspending any such qualification, to use promptly its best efforts to obtain
its withdrawal at the earliest possible moment;
(b) To furnish promptly to each of the Representatives and to counsel for
the Underwriters a signed copy of the Registration Statement as originally filed
with the Commission, and each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith;
(c) To (i) on or before the First Delivery Date, deliver to Xxxxxx
Brothers Inc. a signed copy of the Registration Statement as originally filed
and of each amendment thereto filed prior to the time the Registration Statement
becomes effective and, promptly upon the filing thereof, a signed copy of each
post-effective amendment, if any, to the Registration Statement (together with,
in each case, all exhibits thereto unless previously furnished to Xxxxxx
Brothers Inc.) and also deliver to Xxxxxx Brothers Inc., for distribution to the
Underwriters, a sufficient number of additional conformed copies of each of the
foregoing (but without exhibits) so that one copy of each may be distributed to
each Underwriter, (ii) as promptly as possible deliver to Xxxxxx Brothers Inc.
and send to the several Underwriters, at such office or offices as Xxxxxx
Brothers Inc. may designate, as many copies of the Prospectus as Xxxxxx Brothers
Inc. may reasonably request, and (iii) thereafter from time to time during the
period in which a prospectus is required by law to be delivered by an
Underwriter or dealer, likewise send to the Underwriters as many additional
copies of the Prospectus and as many copies of any supplement to the Prospectus
and of any amended prospectus, filed by the Company with the Commission, as
Xxxxxx Brothers Inc. may reasonably request for the purposes contemplated by the
Securities Act.
(d) That if at any time during the period in which a prospectus is
required by law to be delivered by an Underwriter or dealer any event relating
to or affecting the Company, or of which the Company shall be advised in writing
by Xxxxxx Brothers Inc., shall occur as a result of which it is necessary, in
the opinion of counsel for the Company or of counsel for the Underwriters, to
supplement or amend the Prospectus in order to make the Prospectus not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser of the Stock, the Company will forthwith prepare and
file with the Commission a supplement to the Prospectus or an amended prospectus
so that the Prospectus as so supplemented or amended will not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances existing
at the time such Prospectus is delivered to such purchaser, not misleading. If,
after the initial
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public offering of the Stock by the Underwriters and during such period, the
Underwriters shall propose to vary the terms of offering thereof by reason of
changes in general market conditions or otherwise, Xxxxxx Brothers Inc. will
advise the Company in writing of the proposed variation, and, if in the opinion
either of counsel for the Company or of counsel for the Underwriters such
proposed variation requires that the Prospectus be supplemented or amended, the
Company will forthwith prepare and file with the Commission a supplement to the
Prospectus or an amended prospectus setting forth such variation. The Company
authorizes the Underwriters and all dealers to whom any of the Stock may be sold
by the several Underwriters to use the Prospectus, as from time to time amended
or supplemented, in connection with the sale of the Stock in accordance with the
applicable provisions of the Securities Act and the applicable Rules and
Regulations for such period.
(c) Prior to filing with the Commission any amendment to the Registration
Statement or supplement to the Prospectus or any Prospectus pursuant to Rule 424
of the Rules and Regulations, to furnish a copy thereof to the Representatives
and counsel for the Underwriters and obtain the consent of the Representatives
to the filing;
(d) Not later than the 45th day following the end of the fiscal quarter
first occurring after the first anniversary of the Effective Date, to make
generally available to the Company's security holders and to deliver to the
Representatives an earnings statement of the Company (which need not be audited)
complying with Section 11(a) of the Securities Act and the Rules and Regulations
(including Rule 158);
(e) For a period of five years following the Effective Date, to furnish to
the Representatives copies of all materials furnished by the Company to its
stockholders and all public reports and all reports and financial statements
furnished by the Company to the principal national securities exchange upon
which the Common Stock may be listed pursuant to requirements of or agreements
with such exchange or to the Commission pursuant to the Exchange Act or any rule
or regulation of the Commission thereunder;
(f) The Company will cooperate, when and as requested by the
Representatives, in the qualification of the Stock for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Representatives may
designate and, during the period in which a prospectus is required by law to be
delivered by an Underwriter or dealer, in keeping such qualifications in good
standing under said securities or blue sky laws; provided, however, that the
Company shall not be obligated to file any general consent to service of process
or to qualify as a foreign corporation in any jurisdiction in which it is not so
qualified. The Company will, from time to time, prepare and file such
statements, reports, and other documents as are or may be required to continue
such
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qualifications in effect for so long a period as the Representatives may
reasonably request for distribution of the Stock;
(g) For a period of 180 days from the date of the Prospectus, not to,
directly or indirectly, (i) offer for sale, sell, pledge or otherwise dispose of
(or enter into any transaction or device which is designed to, or could be
expected to, result in the disposition by any person at any time in the future
of) any shares of Common Stock or securities convertible into or exchangeable
for Common Stock (other than the Stock and shares issued pursuant to employee
benefit plans, qualified stock option plans or other employee compensation plans
existing on the date hereof or pursuant to currently outstanding options,
warrants or rights), or sell or grant options, rights or warrants with respect
to any shares of Common Stock or securities convertible into or exchangeable for
Common Stock (other than the grant of options pursuant to option plans existing
on the date hereof), or (ii) enter into any swap or other derivatives
transaction that transfers to another, in whole or in part, any of the economic
benefits or risks of ownership of such shares of Common Stock, whether any such
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or other securities, in cash or otherwise, in each case without
the prior written consent of Xxxxxx Brothers Inc. on behalf of the Underwriters;
(h) To apply the net proceeds from the sale of the Stock as set forth in
the Prospectus;
(i) To take such steps as shall be necessary to ensure that the Company
shall not become an "investment company" as defined in the 1940 Act;
(j) In connection with the directed stock program, to ensure that the
directed Stock will be restricted to the extent required by the National
Association of Securities Dealers, Inc. or the rules of such association from
sale, transfer, assignment, pledge or hypothecation for a period of three months
following the date of the effectiveness of the Registration Statement, and
Xxxxxx Brothers Inc. will notify the Company as to which participants in such
plan will need to be so restricted. At the request of Xxxxxx Brothers Inc., the
Company will direct the transfer agent to place stop transfer restrictions upon
such securities for such period of time; and
(k) If at any time during the 25-day period after the Registration
Statement becomes effective any rumor, publication or event relating to or
affecting the Company shall occur as a result of which, in the opinion of Xxxxxx
Brothers Inc., the market price for the Stock has been or is likely to be
materially affected (regardless of whether such rumor, publication or event
necessitates a supplement to or amendment of the Prospectus), the Company will,
after written notice from Xxxxxx Brothers Inc. advising the Company to the
effect set forth above, forthwith prepare, consult with Xxxxxx Brothers Inc.
concerning the substance of, and disseminate a press release or other public
statement, reasonably
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satisfactory to Xxxxxx Brothers Inc., responding to or commenting on such rumor,
publication or event.
SECTION 6. Expenses. The Company agrees to pay (a) the costs incident to
the authorization, issuance, sale and delivery of the Stock and any taxes
payable in that connection; (b) the costs incident to the preparation, printing
and filing under the Securities Act of the Registration Statement and any
amendments and exhibits thereto; (c) the costs of distributing the Registration
Statement as originally filed and each amendment thereto and any post-effective
amendments thereof (including, in each case, exhibits), any Preliminary
Prospectus, the Prospectus and any amendment or supplement to the Prospectus,
all as provided in this Agreement; (d) the costs of producing and distributing
this Agreement, the Agreement Between Underwriters and International Managers,
any Supplemental Agreement Among Underwriters and any other related documents in
connection with the offering, purchase, sale and delivery of the stock; (e) the
filing fees incident to securing the review by the National Association of
Securities Dealers, Inc. of the terms of sale of the Stock; (f) any applicable
listing or other fees; (g) the fees and expenses of qualifying the Stock under
the securities laws of the several jurisdictions as provided in Section 5(h) and
of preparing, printing and distributing a Blue Sky Memorandum (including related
fees and all expenses of counsel to the Underwriters); (h) all costs and
expenses of the Underwriters, including the fees and disbursements of counsel
for the Underwriters, incident to the Directed Stock Program described in
Section 3; (i) 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 Stock, 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 (j) the
furnishing to the Representatives and the Underwriters of the reports and
information referred to in Section 5(e); and (k) all other costs and expenses
incident to the performance of the obligations of the Company under this
Agreement; provided that, except as provided in this Section 6 and in Section 11
the Underwriters shall pay their own costs and expenses, including the costs and
expenses of their counsel, any transfer taxes on the Stock which they may sell
and the expenses of advertising any offering of the Stock made by the
Underwriters.
SECTION 7. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on each Delivery Date, of the representations and warranties of the Company
contained herein, to the performance by the Company of its obligations
hereunder, and to each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in
accordance with Section 5(a); no stop order suspending the effectiveness of the
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Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for inclusion of additional
information in the Registration Statement or the Prospectus or otherwise shall
have been complied with.
(b) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Stock, the Registration
Statement and the Prospectus, and all other legal matters relating to this
Agreement, the transactions contemplated hereby shall be reasonably satisfactory
in all material respects to counsel for the Underwriters, and the Company shall
have furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(c) Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx Professional Corporation shall have
furnished to the Representatives their written opinion, as counsel to the
Company, addressed to the Underwriters and dated such Delivery Date, in form and
substance reasonably satisfactory to the Representatives, to the effect that:
(i) the Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of its jurisdiction of
incorporation, is duly qualified to do business and in good standing as
foreign corporation in each jurisdiction in which its ownership or lease of
property or the conduct of its business requires such qualification and has
all power and authority necessary to own or hold its properties and conduct
business in which it is engaged;
(ii) the Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the description thereof contained in the
Prospectus;
(iii) the shares of the Stock being delivered on such Delivery Date to
the Underwriters hereunder have been duly and validly authorized and, when
issued and delivered against payment therefor will be duly and validly
issued, fully paid and non-assessable;
(iv) except as fully and accurately described in the Prospectus, there
are no preemptive or other rights to subscribe for or to purchase, nor any
restriction upon the voting or transfer of, any shares of the Stock
pursuant to the Company's charter or by-laws or any agreement or other
instrument known to such counsel;
(v) to the best of such counsel's knowledge and other than as fully
and accurately described in the Prospectus, there are no legal or
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governmental proceedings pending to which the Company is a party or of
which any property or assets of the Company is the subject which, if
determined adversely to the Company, could reasonably be expected to have a
Material Adverse Effect on the financial position, stockholders' equity,
results of operations, business or prospects of the Company; and, to the
best of such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others;
(vi) the Registration Statement was declared effective under the
Securities Act as of the date and time specified in such opinion, the
Prospectus was filed with the Commission pursuant to the subparagraph of
Rule 424(b) of the Rules and Regulations specified in such opinion on the
date specified therein and no stop order suspending the effectiveness of
the Registration Statement has been issued and, to the best knowledge of
such counsel, no proceeding for that purpose is pending or threatened by
the Commission;
(vii) the Registration Statement and the Prospectus and any further
amendments or supplements thereto made by the Company prior to such
Delivery Date (except for the financial statements and financial schedules
and other financial and statistical data included therein, as to which such
counsel need express no opinion) comply as to form in all material respects
with the requirements of the Securities Act and the Rules and Regulations;
(viii) the statements contained in the Prospectus under the captions
"DESCRIPTION OF CAPITAL STOCK" and "UNITED STATES TAX CONSEQUENCES TO
NON-U.S. HOLDERS," insofar as they describe federal statutes, rules and
regulations, constitute a fair summary thereof and the opinion of such
counsel filed as Exhibit [5.1] to the Registration Statement is confirmed
and the Underwriters may rely upon such opinion as if it were addressed to
them;
(ix) to the best of such counsel's knowledge, there are no contracts
or other documents which are required to be described in the Prospectus or filed
as exhibits to the Registration Statement by the Securities Act or by the Rules
and Regulations which have not been fully and accurately described or filed as
exhibits to the Registration Statement;
(x) this Agreement has been duly authorized, executed and delivered
by the Company;
(xi) the issue and sale of the shares of Stock being delivered on such
Delivery Date by the Company pursuant to this Agreement, and the execution,
delivery and compliance by the Company with all of the
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provisions of this Agreement and the consummation of the transactions
contemplated hereby and thereby will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument known to such counsel to which the Company is
a party or by which the Company is bound or to which any of the property or
assets of the Company is subject, nor will such actions result in any
violation of the provisions of the charter or by-laws of the Company or any
statute or any order, rule or regulation known to such counsel of any court
or governmental agency or body having jurisdiction over the Company or any
of its properties or assets; and, except for the registration of the Stock
under the Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange Act
and applicable state securities laws in connection with the purchase and
distribution of the Stock by the Underwriters , no consent, approval,
authorization or order of, or filing or registration with, any such court
or governmental agency or body is required for the execution, delivery and
performance of this Agreement by the Company or the consummation of the
transactions contemplated hereby and thereby, except for such consents,
approvals, authorizations, orders, filings or registrations as have been
obtained or made;
(xii) except as fully and accurately described in the Prospectus, to
the best of such counsel's knowledge, 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 owned or to be
owned by such person or to require the Company to include such securities
in the securities registered pursuant to the Registration Statement or in
any securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act;
(xiii) the Company is in compliance in all material respects with all
presently applicable provisions of ERISA; no "REPORTABLE EVENT" (as defined
in ERISA) has occurred with respect to any "PENSION PLAN" (as defined in
ERISA) for which the Company would have any liability; the Company has not
incurred and does not expect to incur liability under (i) Title IV of ERISA
with respect to termination of, or withdrawal from, any "PENSION PLAN" or
(ii) Sections 412 or 4971 of the Code; and each "PENSION PLAN" for which
the Company would have any liability that is intended to be qualified under
Section 401(a) of the Code is so qualified in all material respects and
nothing has occurred, whether by action or by failure to act, which would
cause the loss of such qualification;
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(xiv) there has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of toxic wastes, medical
wastes, hazardous wastes or hazardous substances by the Company (or, to the
knowledge of the Company, any of its predecessors in interest) at, upon or
from any of the property now or previously owned or leased by the Company
in violation of any applicable law, ordinance, rule, regulation, order,
judgment, decree or permit or which would require remedial action under any
applicable law, ordinance, rule, regulation, order, judgment, decree or
permit, except for any violation or remedial action which would not have,
or could not be reasonably likely to have, singularly or in the aggregate
with all such violations and remedial actions, a Material Adverse Effect on
the general affairs, management, financial position, stockholders' equity
or results of operations of the Company; there has been no material spill,
discharge, leak, emission, injection, escape, dumping or release of any
kind onto such property or into the environment surrounding such property
of any toxic wastes, medical wastes, solid wastes, hazardous wastes or
hazardous substances due to or caused by the Company or with respect to
which the Company has knowledge, except for any such spill, discharge,
leak, emission, injection, escape, dumping or release which would not have
or would not be reasonably likely to have, singularly or in the aggregate
with all such spills, discharges, leaks, emissions, injections, escapes,
dumpings and releases, a Material Adverse Effect on the general affairs,
management, financial position, stockholders' equity or results of
operations of the Company; and
(xv) the Company is not an "INVESTMENT COMPANY" as defined in the 1940
Act.
In rendering such opinion, such counsel may state that their opinion is
limited to matters governed by the Federal laws of the United States of America,
the laws of the State of [California] and the General Corporation Law of the
State of Delaware. Such opinion shall also be to the effect that (x) such
counsel has acted as counsel to the Company in connection with the preparation
of the Registration Statement and (y) based on the foregoing, no facts have come
to the attention of such counsel which lead them to believe that the
Registration Statement (except for the financial statements and financial
schedules and other financial and statistical data included therein, as to which
such counsel need express no opinion) as of the Effective Date, contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements therein in
light of the circumstances under which they were made not misleading, or that
the Prospectus (except as stated above) contains any untrue statement of a
material fact or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. The foregoing opinion and statement
may be qualified by a statement
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to the effect that such counsel 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 set forth in clause
(viii) above).
(d) The Representatives shall have received from Mintz, Levin, Cohn,
Ferris, Glovsky and Popeo, P.C., counsel for the Underwriters, such opinion or
opinions, dated such Delivery Date, with respect to the issuance and sale of the
Stock, the Registration Statement, the Prospectus and other related matters as
the Representatives may reasonably require, and the Company shall have furnished
to such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(e) At the time of execution of this Agreement, the Representatives shall
have received from Ernst & Young LLP a letter or letters, in form and substance
satisfactory to the Representatives, addressed to the Underwriters and dated the
date hereof (i) confirming that they are independent public accountants within
the meaning of the Securities Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule 2-01 of
Regulation S-X of the Commission and (ii) stating, as of the date hereof (or,
with respect to matters involving changes or developments since the respective
dates as of which specified financial information is given in the Prospectus, as
of a date not more than five days prior to the date hereof), the conclusions and
findings of such firm with respect to the financial information and other
matters ordinarily covered by accountants' "comfort letters" to underwriters in
connection with registered public offerings.
(f) With respect to the letter or letters of Ernst & Young LLP referred to
in the preceding paragraph and delivered to the Representatives concurrently
with the execution of this Agreement (the "INITIAL LETTERS"), the Company shall
have furnished to the Representatives a letter (the "BRING-DOWN LETTER") of such
accountants, addressed to the Underwriters and dated such Delivery Date (i)
confirming that they are independent public accountants within the meaning of
the Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation S-X
of the Commission, (ii) stating, as of the date of the Bring-Down Letter (or,
with respect to matters involving changes or developments since the respective
dates as of which specified financial information is given in the Prospectus, as
of a date not more than five days prior to the date of the bring-down letter),
the conclusions and findings of such firm with respect to the financial
information and other matters covered by the Initial Letters and (iii)
confirming in all material respects the conclusions and findings set forth in
the Initial Letters.
(g) The Company shall have furnished to the Representatives a certificate,
dated such Delivery Date, of its Chairman of the Board, its President or a Vice
President and its Chief Financial Officer stating that:
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(i) the representations, warranties and agreements of the Company in
Section 1 are true and correct as of such Delivery Date; the Company has
complied with all its agreements contained herein; and the conditions set
forth in Sections [ 7(a), 7(i) and 7 (j)] have been fulfilled; and
(ii) they have carefully examined the Registration Statement and the
Prospectus and, in their opinion (A) as of the Effective Date, the
Registration Statement and Prospectus did not include any untrue statement
of a material fact and did not omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made not misleading, and (B) since the
Effective Date no event has occurred which should have been set forth in a
supplement or amendment to the Registration Statement or the Prospectus.
(h) The Company shall not have sustained since the date of the latest
audited financial statements included in the Prospectus (i) any loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus or (ii) since such date there shall not have been
any change in the capital stock or long-term debt of the Company or any change,
or any development involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company, otherwise than as fully and accurately described in
the Prospectus, the effect of which, in any such case described in clause (i) or
(ii), is, in the judgment of the Representatives, so material and adverse as to
make it impracticable or inadvisable to proceed with the public offering or the
delivery of the Stock being delivered on such Delivery Date on the terms and in
the manner contemplated in the Prospectus.
(i) Subsequent to the execution and delivery of this Agreement there shall
not have occurred any of the following: (i) trading in securities generally on
the New York Stock Exchange or the American Stock Exchange or in the
over-the-counter market, or trading in any securities of the Company on any
exchange or in the over-the-counter market, shall have been suspended or minimum
prices shall have been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or governmental
authority having jurisdiction, (ii) a banking moratorium shall have been
declared by Federal or state authorities, (iii) the United States shall have
become engaged in hostilities, there shall have been an escalation in
hostilities involving the United States or there shall have been a declaration
of a national emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the financial
markets in the United States shall be such) as to make
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it, in the judgment of the Representatives, impracticable or inadvisable to
proceed with the public offering or delivery of the Stock being delivered on
such Delivery Date on the terms and in the manner contemplated in the
Prospectus.
(j) The Nasdaq National Market shall have approved the Stock for
quotation, subject only to official notice of issuance.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
SECTION 8. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Underwriter, its
partners, officers and employees and each person, if any, who controls any
Underwriter within the meaning of Section 15 the Securities Act, from and
against any loss, claim, damage or liability, joint or several, or any action in
respect thereof (including, without limitation, any loss, claim, damage,
liability or action relating to purchases and sales of Stock), to which that
Underwriter, partner, officer, employee or controlling person may become
subject, under the Securities Act, the Exchange Act, common law or otherwise
(including, except as otherwise hereinafter provided, reasonable fees and
disbursements of counsel) insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or supplement
thereto, (ii) the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, any material fact required to be stated therein or necessary
to make the statements therein not misleading or (iii) 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 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 matters covered by clause (i)
or (ii) above (provided that the Company shall not be liable under this clause
(iii) to the extent that it is determined in a final judgment by a court of
competent jurisdiction 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 gross negligence or willful
misconduct), and shall reimburse each Underwriter and each such officer,
employee or controlling person promptly upon demand for any legal or other
expenses reasonably incurred by that Underwriter, officer, employee or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company shall not be liable
in any such case to the extent that any such loss,
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claim, damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement or the Prospectus, or in
any such amendment or supplement, in reliance upon and in conformity with
written information concerning such Underwriter furnished to the Company through
the Representatives by or on behalf of any Underwriter specifically for
inclusion therein which information consists solely of the information specified
in Section 8(e) of this Agreement. The foregoing indemnity agreement is in
addition to any liability which the Company may otherwise have to any
Underwriter or to any officer, employee or controlling person of that
Underwriter.
The Company agrees to indemnify and hold harmless Xxxxxx Brothers Inc.
(including its officers and employees) and each person, if any, who controls
Xxxxxx Brothers Inc. within the meaning of the Securities Act ("XXXXXX BROTHERS
ENTITIES"), from and against any loss, claim, damage or liability or any action
in respect thereof to which any of the Xxxxxx Brothers Entities may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon (i) the failure of
any participant in a directed stock program to pay for and accept delivery of
the directed stock sold pursuant to the directed stock program which,
immediately following the effectiveness of the Registration Statement, were
subject to a properly confirmed agreement to purchase or (ii) the directed stock
program, provided that, the Company shall not be responsible under this
subparagraph (ii) for any loss, claim, damage, liability or action that is
finally judicially determined to have resulted from the gross negligence or
willful misconduct of the Xxxxxx Brothers Entities. The Company shall reimburse
the Xxxxxx Brothers Entities promptly upon demand for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred.
(b) Each Underwriter, severally and not jointly, shall indemnify and hold
harmless the Company, its officers and employees, each of its directors, and
each person, if any, who controls the Company within the meaning of the
Securities Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company or any such
director, officer or controlling person may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of, or is based upon, (i) any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or supplement
thereto, or (ii) the omission or alleged omission to state in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any amendment or
supplement thereto, any material fact required to be stated therein or necessary
to make the statements therein not misleading, but in each case only to the
extent that the untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information concerning such
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Underwriter furnished to the Company through the Representatives by or on behalf
of that Underwriter specifically for inclusion therein, and shall reimburse the
Company and any such director, officer or controlling person for any legal or
other expenses reasonably incurred by the Company or any such director, officer
or controlling person in connection with investigating or defending or preparing
to defend against any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in addition to any
liability which any Underwriter may otherwise have to the Company or any such
director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of any claim or the commencement of any action, the indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of the
claim or the commencement of that action; provided, however, that the failure to
notify the indemnifying party shall not relieve it from any liability which it
may have under this Section 8 except to the extent it has been materially
prejudiced by such failure and, provided further, that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
an indemnified party otherwise than under this Section 8. If any such claim or
action shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it wishes, jointly with any other
similarly notified indemnifying party, to assume the defense thereof with
counsel reasonably satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Representatives shall have the right to employ counsel to represent jointly
the Representatives and those other Underwriters and their respective officers,
employees and controlling persons who may be subject to liability arising out of
any claim in respect of which indemnity may be sought by the Underwriters
against the Company under this Section 8 if, in the reasonable judgment of the
Representatives, it is advisable for the Representatives and those Underwriters,
officers, employees and controlling persons to be jointly represented by
separate counsel, and in that event the fees and expenses of such separate
counsel shall be paid by the Company. Notwithstanding anything contained herein
to the contrary, if indemnity may be sought pursuant to Section 8(a) hereof in
respect of such claim or action, then in addition to such separate firm for the
indemnified parties, the indemnifying party shall be liable for the fees and
expenses of not more than one separate firm (in addition to any local counsel)
for the Xxxxxx Brothers Entities for the defense of any loss, claim, damage,
liability or action arising out of the directed stock program. No indemnifying
party shall (i) without the prior written consent of the indemnified parties
(which consent shall not be unreasonably withheld or delayed), settle or
compromise or consent to the entry of
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any judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld or delayed), but if settled with the
consent of the indemnifying party or if there be a final judgment of the
plaintiff in any such action, the indemnifying party agrees to indemnify and
hold harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 shall for any
reason be unavailable to or insufficient to hold harmless an indemnified party
under Section 8(a) or 8(b) in respect of any loss, claim, damage or liability,
or any action in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability, or action in respect thereof, (i) in such proportion
as shall be appropriate to reflect the relative benefits received by the Company
on the one hand and the Underwriters on the other from the offering of the Stock
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Underwriters on the other with respect to
the statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other with respect to such offering shall be deemed
to be in the same proportion as the total net proceeds from the offering of the
Stock purchased under this Agreement (before deducting expenses) received by the
Company, on the one hand, and the total underwriting discounts and commissions
received by the Underwriters with respect to the shares of the Stock purchased
under this Agreement, on the other hand, bear to the total gross proceeds from
the offering of the shares of the Stock under this Agreement, in each case as
set forth in the table on the cover page of the Prospectus. The relative fault
shall be determined by reference to whether the untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the Underwriters, the
intent of the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section were to be 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 into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
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party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section shall be deemed to include, for
purposes of this Section 8(d), 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(d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Stock underwritten by it and distributed
to the public was offered to the public exceeds the amount of any damages which
such Underwriter has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters' obligations
to contribute as provided in this Section 8(d) are several in proportion to
their respective underwriting obligations and not joint.
(e) The Underwriters severally confirm and the Company acknowledges that
the statements with respect to the public offering of the Stock by the
Underwriters set forth on the cover page of, the disclosure concerning
over-allotments on the inside front cover page of and the concession and
reallowance figures appearing under the caption "Underwriting" in, the
Prospectus are true and correct and constitute the only information concerning
such Underwriters furnished in writing to the Company by or on behalf of the
Underwriters specifically for inclusion in the Registration Statement and the
Prospectus.
SECTION 9. Defaulting Underwriters.
If for any reason one or more of the Underwriters shall fail or refuse
(otherwise than for a reason sufficient to justify the termination of this
Agreement under the provisions of Section 7 or 10 hereof) to purchase and pay
for the number of shares of the Stock agreed to be purchased by such Underwriter
or Underwriters, the Company shall immediately give notice thereof to Xxxxxx
Brothers Inc., and the non-defaulting Underwriters shall have the right within
24 hours after the receipt by you of such notice to purchase, or procure one or
more other Underwriters to purchase, in such proportions as may be agreed upon
between you and such purchasing Underwriter or Underwriters and upon the terms
herein set forth, all or any part of the shares of the Stock which such
defaulting Underwriter or Underwriters agreed to purchase. If the non-defaulting
Underwriters fail so to make such arrangements with respect to all such shares
and portion, the number of shares of the Stock which each non-defaulting
Underwriter is otherwise obligated to purchase under this Agreement shall be
automatically increased on a pro rata basis to absorb the remaining shares and
portion which the defaulting Underwriter or Underwriters agreed to purchase;
provided, however, that the non-defaulting Underwriters shall have the right but
shall not be obligated to purchase the shares and portion which the defaulting
Underwriter or Underwriters agreed to purchase if the aggregate number of such
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29
shares of the Stock exceeds 9.09% of the total number of shares of the Stock
which all Underwriters agreed to purchase hereunder, and any remaining
non-defaulting Underwriter shall have the right but shall not be obligated to
purchase more than 110% of the number of shares of the Stock which it agreed to
purchase on such Delivery Date pursuant to the terms of Section 2. If the total
number of shares of the Stock which the defaulting Underwriter or Underwriters
agreed to purchase shall not be purchased or absorbed in accordance with the two
preceding sentences, the Company shall have the right, within 24 hours next
succeeding the 24-hour period referred to above, to make arrangements with other
underwriters or purchasers satisfactory to you for purchase of such shares and
portion on the terms herein set forth. In any such case, either Xxxxxx Brothers
Inc. or the Company shall have the right to postpone the applicable Delivery
Date determined as provided in Section 4 hereof for not more than seven (7)
business days after the date originally fixed as that Delivery Date pursuant to
said Section 4 in order that any necessary changes in the Registration
Statement, the Prospectus or any other documents or arrangements may be made. If
neither the non-defaulting Underwriters nor the Company shall make arrangements
within the 24-hour periods stated above for the purchase of all the shares of
the Stock which the defaulting Underwriter or Underwriters agreed to purchase
hereunder, this Agreement shall be terminated without further act or deed and
without any liability on the part of the Company to any non-defaulting
Underwriter and without any liability on the part of any non-defaulting
Underwriter to the Company except that the Company will continue to be liable
for the payment of expenses to the extent set forth in Sections 6 and 11.
Nothing in this paragraph, and no action taken hereunder, shall relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement. As used in this Agreement, the term
"UNDERWRITER" includes, for all purposes of this Agreement unless the context
requires otherwise, any party not listed in Schedule 1 hereto who, pursuant to
this Section 9, purchases Stock which a defaulting Underwriter agreed but failed
to purchase.
SECTION 10. Termination. The obligations of the Underwriters hereunder may
be terminated by the Representatives by notice given to and received by the
Company prior to delivery of and payment for the Firm Stock if, prior to that
time, any of the events described in Sections 7(h) or 7(i), shall have occurred
or if the Underwriters shall decline to purchase the Stock for any reason
permitted under this Agreement.
SECTION 11. Reimbursement of Underwriters' Expenses. If the Company shall
fail to tender the Stock for delivery to the Underwriters by reason of any
failure, refusal or inability on the part of the Company to perform any
agreement on its part to be performed, or because any other condition of the
Underwriters' obligations hereunder required to be fulfilled by the Company
(including, without limitation, with respect to the transactions) is not
fulfilled, the Company will reimburse the Underwriters for all reasonable
out-of-pocket expenses (including , without limitation, fees and disbursements
of counsel) incurred by the
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Underwriters in connection with this Agreement and the proposed purchase of the
Stock, and upon demand the Company shall pay the full amount thereof to the
Representatives. If this Agreement is terminated pursuant to Section 9 by reason
of the default of one or more Underwriters, the Company shall not be obligated
to reimburse any defaulting Underwriter on account of those expenses.
SECTION 12. Notices, Etc. All statements, requests, notices and agreements
hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail, telex or
facsimile transmission to Xxxxxx Brothers Inc., Three World Financial Center,
New York, New York 10285, Attention: Syndicate Department (Fax: 000-000-0000),
with a copy, in the case of any notice pursuant to Section 8(c), to the Director
of Litigation, Office of the General Counsel, Xxxxxx Brothers Inc., Three World
Financial Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, and a copy to Xxxxxx X.
Xxxxxxxx III, Esq., Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., Xxx
Xxxxxxxxx Xxxxxx, Xxxxxx, XX 00000;
(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: [Lans Fors, Ph.D., Chief Executive Officer
(Fax: 000-000-0000), and a copy to Xxxxx Xxxxxxxx, Esq., Wilson, Sonsini,
Xxxxxxxx & Xxxxxx, Professional Corporation, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx,XX
94304-1050]
provided, however, that any notice to an Underwriter pursuant to Section 8(c)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representatives, which address will be supplied to any other party hereto by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company shall
be entitled to act and rely upon any request, consent, notice or agreement given
or made on behalf of the Underwriters by Xxxxxx Brothers Inc. on behalf of the
Representatives.
SECTION 13. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the Underwriters, the Company, and
its respective successors. This Agreement and the terms and provisions hereof
are for the sole benefit of only those persons, except that (a) the
representations, warranties, indemnities and agreements of the Company contained
in this Agreement shall also be deemed to be for the benefit of the person or
persons, if any, who control any Underwriter within the meaning of Section 15 of
the Securities Act and (b) the indemnity agreement of the Underwriters contained
in Section 8(b) of this Agreement shall be deemed to be for the benefit of
directors of the Company, officers of the Company who have signed the
Registration Statement and any person controlling the Company within the meaning
of Section 15 of the Securities Act. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Section
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13, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
SECTION 14. Survival. The respective indemnities, representations,
warranties and agreements of the Company and the Underwriters contained in this
Agreement or made by or on behalf on them, respectively, pursuant to this
Agreement, shall survive the delivery of and payment for the Stock and shall
remain in full force and effect, regardless of any investigation made by or on
behalf of any of them or any person controlling any of them.
SECTION 15. Definition of the Terms "BUSINESS DAY" and "SUBSIDIARY." For
purposes of this Agreement, (a) "BUSINESS DAY" means each Monday, Tuesday,
Wednesday, Thursday or Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close and (b) "SUBSIDIARY" has the meaning set forth in Rule 405 of the Rules
and Regulations.
SECTION 16. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 17. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
SECTION 18. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
If the foregoing correctly sets forth the agreement between the Company and
the Underwriters, please indicate your acceptance in the space provided for that
purpose below.
Very truly yours,
THIRD WAVE TECHNOLOGIES, INC.
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
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Accepted:
XXXXXX BROTHERS INC.
CIBC WORLD MARKETS
XXXX XXXXXXXX XXXXXXX
XXXXXX X. XXXXX & CO.
FIDELITY CAPITAL MARKETS
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
By XXXXXX BROTHERS INC.
By:
------------------------------
Authorized Representative
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SCHEDULE 1
Number of Shares of Firm
Managing Underwriters Stock to be Purchased
--------------------- ---------------------
Xxxxxx Brothers Inc...........................................
CIBC World Markets............................................
Xxxx Xxxxxxxx Xxxxxxx.........................................
Xxxxxx X. Xxxxx & Co..........................................
Fidelity Capital Markets......................................
Total......................................................... 8,500,000
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