Exhibit 1.1
2,500,000 Shares
NANOGEN, INC.
Common Stock
($0.001 Par Value)
UNDERWRITING AGREEMENT
, 2000
-------- --
UNDERWRITING AGREEMENT
, 2000
-------- --
Warburg Dillon Read LLC
Xxxxxx Brothers Inc.
Pacific Growth Equities, Inc.
Xxxx Xxxxxxxx Incorporated
First Union Securities, Inc.
As Representatives of the several Underwriters
named in Schedule A hereto
c/o Warburg Dillon Read LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Nanogen, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to the underwriters named in Schedule A annexed
hereto (the "Underwriters") an aggregate of 2,500,000 shares (the "Firm Shares")
of its Common Stock, $0.001 par value (the "Common Stock"). In addition, solely
for the purpose of covering over-allotments, the Company proposes to grant to
the Underwriters the option to purchase from the Company up to an additional
145,355 shares of Common Stock (the "Company Option Shares") and the
stockholders of the Company named in Schedule B annexed hereto (collectively,
the "Selling Stockholders") propose to grant to the Underwriters an option to
purchase up to an additional 229,645 shares of Common Stock (the "Selling
Stockholder Option Shares" and , together with the Company Option Shares, the
"Additional Shares"), each Selling Stockholder selling up to the amount set
forth opposite such Selling Stockholder's name in Schedule B. The Firm Shares
and, if and to the extent such options are exercised, the Additional Shares are
collectively called the "Shares". The Shares are described in the Prospectus.
The use of the neuter in this Agreement shall include the feminine and masculine
wherever appropriate. Any reference herein to the Registration Statement, a
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Form S-3 which were
filed under the Exchange Act on or before the Effective Date of the Registration
Statement or the issue date of such Preliminary Prospectus or the Prospectus, as
the case may be; and any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the filing
of any document under the Exchange Act after the Effective Date of the
Registration Statement, or the issue date of any Preliminary Prospectus or the
Prospectus, as the case may be, deemed to be
incorporated therein by reference. Certain terms used herein are defined in
Section 16 hereof.
1. SALE AND PURCHASE. Upon the basis of the warranties and
representations and subject to the terms and conditions herein set forth, the
Company agrees to sell to the respective Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase from the Company the
aggregate number of Firm Shares set forth opposite the name of such Underwriter
in Schedule A attached hereto in each case at a purchase price of $ ____ per
Share. The Company is advised by you that the Underwriters intend (i) to make a
public offering of their respective portions of the Firm Shares as soon after
the Effective Date of the Registration Statement as in your judgment is
advisable and (ii) initially to offer the Firm Shares upon the terms set forth
in the Prospectus. You may from time to time increase or decrease the public
offering price after the initial public offering to such extent as you may
determine.
In addition, upon the basis of the warranties and
representations and subject to the terms and conditions herein set forth, (i)
the Selling Stockholders hereby grant an option (the "Selling Stockholders
Option") to the several Underwriters to purchase, severally and not jointly, up
to an aggregate of 145,355 Additional Shares from the Selling Stockholders and
(ii) the Company hereby grants an option (the "Company Option") to the several
Underwriters to purchase up to an aggregate of 229,645 Additional Shares from
the Company, in each case at the purchase price per share to be paid by the
Underwriters for the Firm Shares. The options granted hereunder are for use by
the Underwriters solely in covering any over-allotments in connection with the
sale and distribution of the Firm Shares. The options granted hereunder may be
exercised in whole or in part, at any time (but not more than once) upon notice
by the Representatives to the Company or, as applicable, the Selling
Stockholders (with a copy to the Company), which notice may be given at any time
within 30 days from the date of this Agreement, provided, however, that the
Selling Stockholders Option shall be exercised in full prior to, or concurrently
with, any exercise of the Company Option. Such notice shall set forth the
aggregate number of Additional Shares as to which the option is being exercised,
and the date and time when the Additional Shares are to be delivered (such date
and time being herein referred to as the "additional time of purchase");
PROVIDED, HOWEVER, that the additional time of purchase shall not be earlier
than the time of purchase (as defined below) nor earlier than the second
Business Day after the date on which the option shall have been exercised nor
later than the tenth business day after the date on which the option shall have
been exercised. If any Selling Stockholder Option Shares are to be purchased,
(i) each Underwriter agrees, severally and not jointly, to purchase the number
of Selling Stockholder Option Shares (subject to such adjustments to eliminate
fractional shares as you may determine) that bears the same proportion to the
total number of Selling Stockholder Option Shares to be purchased as the number
of Firm Shares set forth on Schedule A opposite the name of such Underwriter
bears to the total number of Firm Shares and (ii) each Selling Stockholder
agrees, severally and not jointly, to sell the number of Selling Stockholder
Option Shares (subject to such adjustments to eliminate fractional shares as you
may determine) that bears the same proportion to the total number of Selling
Stockholder Option Shares to be sold as the number of Selling
2
Stockholder Option Shares set forth in Schedule B opposite the name of such
Selling Stockholder bears to the total number of Selling Stockholder Option
Shares. If any Company Option Shares are to be purchased, (i) each Underwriter
agrees, severally and not jointly, to purchase the number of Company Option
Shares (subject to such adjustments to eliminate fractional shares as you may
determine) that bears the same proportion to the total number of Company Option
Shares to be purchased as the number of Firm Shares set forth on Schedule A
opposite the name of such Underwriter bears to the total number of Firms Shares
and (ii) the Company agrees to sell the Company Option Shares to the Underwrites
as aforesaid. You may cancel any of the options at any time prior to its
expiration by giving written notice of such cancellation to the Company or, as
applicable, the Selling Stockholders (with a copy to the Company).
2. PAYMENT AND DELIVERY. Payment of the purchase price for the
Firm Shares shall be made to the Company by Federal Funds wire transfer, against
delivery of the certificates for the Firm Shares to you through the facilities
of the Depository Trust Company for the respective accounts of the Underwriters.
Such payment and delivery shall be made at 10:00 A.M., New York City time, on
_____ __, 2000 (unless another time shall be agreed to by you and the Company or
unless postponed in accordance with the provisions of Section 8 hereof). The
time at which such payment and delivery are actually made is hereinafter
sometimes called the "time of purchase." Certificates for the Firm Shares shall
be delivered to you in definitive form in such names and in such denominations
as you shall specify on the second business day preceding the time of purchase.
For the purpose of expediting the checking of the certificates for the Firm
Shares by you, the Company agrees to make such certificates available to you for
such purpose at least one full business day preceding the time of purchase.
Payment of the purchase price for the Selling Stockholder
Option Shares shall be made at the additional time of purchase by wire transfer
of immediately available funds to the order of the Custodian (as defined below).
Payment of the purchase price for the Company Option Shares shall be made at the
additional time of purchase in the same manner and at the same office as the
payment for the Firm Shares. Certificates for the Additional Shares shall be
delivered to you in definitive form in such names and in such denominations as
you shall specify no later than the second business day preceding the additional
time of purchase. For the purpose of expediting the checking of the certificates
for the Additional Shares by you, the Selling Stockholders and the Company agree
to make such certificates available to you for such purpose at least one full
business day preceding the additional time of purchase.
Each Selling Stockholder hereby agrees that (i) it will pay
all stock transfer taxes, stamp duties and other similar taxes, if any, payable
upon the sale or delivery of the Selling Stockholder Option Shares to be sold by
such Selling Stockholder to the several Underwriters, or otherwise in connection
with the performance of such Selling Stockholder's obligations hereunder and
(ii) the Custodian (as defined below) is authorized to deduct for such payment
any such amounts from the proceeds to such Selling Stockholder hereunder and to
hold such amounts for the account of such Selling Stockholder with the Custodian
under the Custody Agreement (as defined below).
3
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE
SELLING STOCKHOLDERS.
(i) The Company represents, warrants and covenants to each of
the Underwriters that:
(a) The Company meets the requirements for use of Form S-3
under the Act and has prepared and filed with the Commission a
registration statement (file number 333-_____) on Form S-3, including a
related preliminary prospectus, for registration under the Act of the
offering and sale of the Shares. The Company may have filed one or more
amendments thereto, including a related preliminary prospectus, each of
which has previously been furnished to you. The Company will next file
with the Commission one of the following: either (1) prior to the
Effective Date of such registration statement a further amendment to
such registration statement, (including the form of final prospectus)
or (2) after the Effective Date of such registration statement, a final
prospectus in accordance with Rules 430A and 424(b). In the case of
clause (2), the Company has included in such registration statement, as
amended at the Effective Date, all information (other than Rule 430A
Information) required by the Act and the rules thereunder to be
included in such registration statement and the Prospectus. As filed,
such amendment and form of final prospectus, or such final prospectus,
shall contain all Rule 430A Information, together with all other such
required information, and, except to the extent the Underwriters shall
agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time or,
to the extent not completed at the Execution Time, shall contain only
such specific additional information and other changes (beyond that
contained in the latest Preliminary Prospectus) as the Company has
advised you, prior to the Execution Time, will be included or made
therein.
(b) On the Effective Date, the Registration Statement did or
will, and when the Prospectus is first filed (if required) in
accordance with Rule 424(b) and at the time of purchase and at any
additional time of purchase (a "settlement date"), the Prospectus (and
any supplements thereto) will, comply in all material respects with the
applicable requirements of the Act and the Exchange Act and the
respective rules thereunder; on the Effective Date and at the Execution
Time, the Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; and, on the Effective Date, the
Prospectus, if not filed pursuant to Rule 424(b), will not, and on the
date of any filing pursuant to Rule 424(b) and at the time of purchase
and any settlement date, the Prospectus (together with any supplement
thereto) will not, include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; PROVIDED, HOWEVER, that the Company makes no
representations or warranties as to the information contained in or
omitted from the Registration Statement or the Prospectus (or any
4
supplement thereto) in reliance upon and in conformity with information
furnished herein or in writing to the Company by or on behalf of any
Underwriter specifically for inclusion in the Registration Statement or
the Prospectus (or any supplement thereto).
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the State
of Delaware, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company.
(d) The Company does not own or control, directly or
indirectly, any interest in any other corporation, association, or
other business entity, other than Nanotronics, Inc., a California
corporation ("Nanotronics"), Nano Venture LLC, a Delaware limited
liability company, The Nanogen/Becton Xxxxxxxxx Partnership, a Delaware
general partnership, and instruments or interests in which the Company
invests its excess cash.
(e) 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 it which is material to the business of the Company
in each case free and clear of all liens, encumbrances and defects
except such as are described in the Prospectus or such as do not
materially affect the value of such property and do not interfere with
the use made and proposed to be made of such property by the Company;
and any real property and buildings held under lease by the Company are
held by it 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 described in or contemplated by the Prospectus.
(f) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus.
(g) The shares of Common Stock outstanding prior to the
issuance of the Shares to be sold by the Company have been duly
authorized and are validly issued, fully paid and non-assessable.
Except as set forth in the Prospectus, the Company does not have
outstanding any 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 other than non-material amounts of options
granted pursuant to the Company's stock plans described in the
Prospectus. All outstanding shares of capital stock and options and
other rights to acquire capital stock have been issued in compliance
5
with the registration and qualification provisions of all applicable
securities laws and were not issued in violation of any preemptive
rights, rights of first refusal or other similar rights.
(h) The Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be
validly issued, fully paid and non-assessable, and the issuance of such
Shares will not be subject to any preemptive rights, rights of first
refusal or similar rights.
(i) This Agreement has been duly authorized, executed and
delivered by the Company and is a legal, valid and binding agreement of
the Company enforceable in accordance with its terms, except as
enforcement of rights to indemnity and contribution hereunder may be
limited by federal or state securities laws or principles of public
policy and subject to the qualification that the enforceability of
obligations of the Company hereunder may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws relating to or
affecting creditors' rights generally and by general equitable
principles.
(j) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
will not contravene any provision of applicable law or the certificate
of incorporation or bylaws of the Company, or any agreement or other
instrument binding upon the Company that is material to the Company,
taken as a whole, or any judgment, order or decree of any governmental
body, agency or court having jurisdiction over the Company, and no
consent, approval, authorization or order of or qualification with any
governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, except such as may be
required by the securities or blue sky laws of the various states in
connection with the offer and sale of the Shares.
(k) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company from that set forth in the Prospectus.
(l) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, (i) the
Company has not incurred any material liability or obligation, direct
or contingent, nor entered into any material transaction not in the
ordinary course of business; (ii) the Company has not purchased any of
its outstanding capital stock, nor declared, paid or otherwise made any
dividend or distribution of any kind on its capital stock other than
ordinary and customary dividends; and (iii) there has not been any
material change in the capital stock, short-term debt or long-term debt
of the Company, except in each case as described in or contemplated by
the Prospectus.
6
(m) There are no legal or governmental proceedings pending or,
to the Company's knowledge, threatened to which the Company is a party
or to which any of the properties of the Company is subject that are
required to be described in the Registration Statement or the
Prospectus and are not so described or any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to
the Registration Statement that are not described or filed as required.
(n) The Company has all necessary consents, authorizations,
approvals, orders, certificates and permits of and from, and has made
all declarations and filings with, all federal, state, local and other
governmental authorities, all self-regulatory organizations and all
courts and other tribunals, to own, lease, license and use its
properties and assets and to conduct its business in the manner
described in the Prospectus, except to the extent that the failure to
obtain or file would not have a material adverse effect on the Company.
(o) The Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" or an entity "controlled" by an "investment company" as such
terms are defined in the Investment Company Act of 1940, as amended.
(p) No person has the right, contractual or otherwise, to
cause the Company to issue to it, or register pursuant to the Act, any
shares of capital stock of the Company in connection with the filing of
the Registration Statement or upon the issue and sale of the Shares to
the Underwriters hereunder, nor does any person have preemptive rights,
co-sale rights, rights of first refusal or other rights to purchase any
of the Shares or to underwrite the offer and sale of the Shares.
(q) Ernst & Young LLP, whose report on the consolidated
financial statements of the Company is filed with the Commission as
part of the Registration Statement and Prospectus, are independent
public accountants as required by the Act.
(r) the audited financial statements included in the
Registration Statement and the Prospectus present fairly the
consolidated financial position of the Company as of the dates
indicated and the consolidated results of operations and cash flows of
the Company for the periods specified; such financial statements have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis during the periods involved;
and there are no financial statements (historical or pro forma) that
are required to be included in the Registration Statement and the
Prospectus that are not so included as required.
(s) The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
prudent and customary in the businesses in which it is engaged; the
Company has not been
7
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 cost that would not materially and adversely affect
the condition, financial or otherwise, or the earnings, business or
operations of the Company, except as described in or contemplated by
the Prospectus.
(t) The Company (i) is in compliance with any and all
applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants
(collectively, "Environmental Laws"), (ii) has received all permits,
licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) is
in compliance with all terms and conditions of any such permit, license
or approval, except where such noncompliance with Environmental Laws,
failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits,
licenses or approvals would not, singly or in the aggregate, have a
material adverse effect on the Company.
(u) In the ordinary course of its business, the Company
conducts a periodic review of the effect of Environmental Laws on the
business, operations and properties of the Company, in the course of
which it identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating expenditures
required for clean-up, closure of properties or compliance with
Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to
third parties). On the basis of such review, the Company has reasonably
concluded that such associated costs and liabilities would not, singly
or in the aggregate, have a material adverse effect on the Company.
(v) The Company owns or possesses adequate licenses or other
rights to use all patents, copyrights, trademarks, service marks, trade
names, technology and know-how necessary (in any material respect) to
conduct its business in the manner described in the Prospectus, the
Company is not obligated to pay a royalty, grant a material license, or
provide other material consideration to any third party in connection
with its patents, copyrights, trademarks, service marks, trade names,
or technology other than as disclosed in the Prospectus, and, except as
disclosed in the Prospectus, the Company has not received any notice of
infringement or conflict with (and the Company knows of any
infringement or conflict with) asserted rights of others with respect
to any patents, copyrights, trademarks, service marks, trade names,
technology or know-how which could result in any material adverse
effect upon the Company and, except as disclosed in the Prospectus, the
discoveries, inventions, products or processes of the Company referred
to in the Prospectus do not, to the best knowledge of the Company,
infringe or conflict with any right or valid and enforceable patent of
any third
8
party, or any discovery, invention, product or process which is the
subject of a patent application filed by any third party, known to the
Company which could have a material adverse effect on the Company.
Except as described in the Prospectus or referenced in the opinion
provided pursuant to Section 6(c) hereof, no third party, including any
academic or governmental organization, possesses rights to the
Company's patents, copyrights, trademarks, service marks, trade names,
or technology which, if exercised, could enable such third party to
develop products competitive to those of the Company or could have a
material adverse effect on the ability of the Company to conduct its
business in the manner described in the Prospectus.
(w) The Company possesses all consents, approvals, orders,
certificates, authorizations and permits issued by and has made all
declarations and filings with, all appropriate federal, state or
foreign governmental or self-regulatory authorities and all courts and
other tribunals necessary to conduct its business and to own, lease,
license and use its properties in the manner described in the
Prospectus, and the Company has not received any notice of proceedings
related to the revocation or modification of any such certificate,
authorization or permit which, singly or in the aggregate, if the
subject of any unfavorable decision, ruling or finding, or failure to
obtain or file would result in a material adverse change in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company, except as described in or contemplated by
the Prospectus.
(x) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability;
(iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(y) No material labor dispute with the employees of the
Company exists, except as described in or contemplated by the
Prospectus, or, to the best knowledge of the Company, is imminent; and
the Company is not aware of any existing, threatened or imminent labor
disturbance by the employees of any of its principal suppliers,
manufacturers or contractors that could result in any material adverse
change in the condition, financial or otherwise, or in the earnings,
business or operations of the Company.
(z) Neither the Company nor any of its respective affiliates
has taken nor will take, directly or indirectly, any action designed to
or which has constituted or which might reasonably be expected to cause
or result, under the
9
Exchange Act or otherwise, in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale
of the Shares.
(aa) The outstanding Common Stock is, and the Shares as of the
date the Registration Statement becomes effective, the Common Stock
will be, authorized for quotation on the Nasdaq National Market.
(bb) The Company has complied with all provisions of Section
517.075, Florida Statutes (Chapter 92-198, Laws of Florida), relating
to issuers doing business with Cuba.
(cc) The execution and delivery of the Agreement and Plan of
Merger dated as of November 10, 1997 (the "Merger Agreement") between
Nanogen, Inc., a California corporation (the "California Corporation"),
and the Company, effecting the reincorporation of the California
Corporation under the laws of the State of Delaware, was duly
authorized by all necessary corporate action on the part of each of the
California Corporation and the Company. Each of the California
Corporation and the Company had all corporate power and authority to
execute and deliver the Merger Agreement, to file the Merger Agreement
with the Secretary of State of California and the Secretary of State of
Delaware and to consummate the reincorporation contemplated by the
Merger Agreement, and the Merger Agreement at the time of execution and
filing constituted a valid and binding obligation of each of the
California Corporation and the Company.
(dd) The Agreement and Plan of Merger among the Company,
Nanotronics and Nanogen Merger Subsidiary, Inc. ("Acquisition
Subsidiary"), dated as of December 18, 1997 (the "Plan of Merger"), was
duly authorized by all necessary corporate action on the part of each
of the Company and the Acquisition Subsidiary. Each of the Company and
Acquisition Subsidiary had the corporate power and authority to execute
and deliver the Plan of Merger and to consummate the transactions
contemplated thereby, and the Plan of Merger at the time of filing with
the California Secretary of State constituted a valid and binding
obligation on each of the Company, Nanotronics, and Acquisition
Subsidiary.
(ii) Each Selling Stockholder represents, warrants and
covenants to each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Stockholder and is a valid
and binding agreement of such Selling Stockholder, enforceable in
accordance with its terms, except as rights to indemnification and
contribution hereunder may be limited by applicable law and except as
the enforcement hereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting the rights and remedies of creditors or by general equitable
principles.
10
(b) The Custody Agreement signed by such Selling Stockholder
and {___}, as custodian (the "Custodian"), relating to the deposit of
the Shares to be sold by such Selling Stockholder (the "Custody
Agreement") has been duly authorized, executed and delivered by such
Selling Stockholder and is a valid and binding agreement of such
Selling Stockholder, enforceable in accordance with its terms, except
as rights to indemnification and contribution thereunder may be limited
by applicable law and except as the enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights and remedies of creditors or
by general equitable principles. Each Selling Stockholder agrees that
the Shares to be sold by such Selling Stockholder on deposit with the
Custodian is subject to the interests of the Underwriters, that the
arrangements made for such custody are to that extent irrevocable, and
that the obligations of such Selling Stockholder hereunder shall not be
terminated, except as provided in this Agreement or in the Custody
Agreement, by any act of the Selling Stockholder, by operation of law,
by death or incapacity of such Selling Stockholder or by the occurrence
of any other event. If such Selling Stockholder should die or become
incapacitated, or in any other event should occur, before the delivery
of the Shares to be sold by such Selling Stockholder hereunder, the
documents evidencing the Shares to be sold by such Selling Stockholder
then on deposit with the Custodian shall be delivered by the Custodian
in accordance with the terms and conditions of this Agreement as if
such death, incapacity or other event had not occurred, regardless of
whether or not the Custodian shall have received notice thereof.
(c) Such Selling Stockholder is the lawful owner of the Shares
to be sold by such Selling Stockholder hereunder and upon sale and
delivery of, and payment for, such Shares, as provided herein, such
Selling Stockholder will convey good and marketable title to such
Shares, free and clear of all liens, encumbrances, equities and claims
whatsoever.
(d) Such Selling Stockholder has, and at the additional time
of purchase will have, good and valid title to all of the Shares which
may be sold by such Selling Stockholder pursuant to this Agreement on
such date and the legal right and power, and all authorizations and
approvals required by law to enter into this Agreement and its Custody
Agreement to sell, transfer and deliver all of the Shares which may be
sold by such Selling Stockholder pursuant to this Agreement and to
comply with its other obligations hereunder and thereunder.
(e) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation by such
Selling Stockholder of the transactions contemplated herein, except
such as may have been obtained under the Act and such as may be
required under the blue sky laws or any jurisdiction in connection with
the purchase and distribution of the Shares by the Underwriters and
such other approvals as have been obtained.
11
(f) Neither the sale of the Shares being sold by such Selling
Stockholder nor the consummation of any other of the transactions
herein contemplated by such Selling Stockholder or the fulfillment of
the terms hereof by such Selling Stockholder will conflict with, result
in a breach or violation of, or constitute a default under any law or
the terms of any material indenture or other material agreement or
instrument to which such Selling Stockholder is party or bound, any
judgment, order or decree applicable to such Selling Stockholder or any
court or regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over such Selling Stockholder.
(g) Such Selling Stockholder does not have any registration or
other similar rights to have any equity or debt securities registered
for sale by the Company under the Registration Statement or included in
the offering contemplated by this Agreement.
(h) Such Selling Stockholder does not have, or has waived
prior to the date hereof, any preemptive right, co-sale right or right
of first refusal or other similar right to purchase any of the Shares
that are to be sold by the Company or any of the other Selling
Stockholders to the Underwriters pursuant to this Agreement; and such
Selling Stockholder does not own any warrants, options or similar
rights to acquire, and does not have any right or arrangement to
acquire, any capital stock, right, warrants, options or other
securities from the Company, other than those described in the
Registration Statement and the Prospectus.
(i) All information furnished by or on behalf of such Selling
Stockholder in writing expressly for use in the Registration Statement
and Prospectus is, and at the additional time of purchase will be,
true, correct, and complete in all material respects, and does not, and
at the additional time of purchase will not, contain any untrue
statement of a material fact or omit to state any material fact
necessary to make such information not misleading. Such Selling
Stockholder confirms as accurate the number of shares of Company Shares
set forth opposite such Selling Stockholder's name in the Prospectus
under the caption "Principal and selling stockholders" (both prior to
and after giving effect to the sale of the Shares).
(j) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action designed to or that might be
reasonably expected to cause or result in stabilization or manipulation
of the price of the Common Stock to facilitate the sale or resale of
the Shares.
(k) There are no transfer taxes or other similar fees or
charges under Federal law or the laws of any state, or any political
subdivision thereof, required to be paid in connection with the
execution and delivery of this Agreement or the sale by the Selling
Stockholders of the Shares to be sold by such Selling Stockholder.
12
(l) The Selling Stockholders have not distributed and will not
distribute, prior to the later of the additional time of purchase and
the completion of the Underwriters' distribution of the Shares, any
offering material in connection with the offering and sale of the
Shares by such Selling Stockholder other than a preliminary prospectus,
the Prospectus or the Registration Statement.
(m) Such Selling Stockholder has no reason to believe, without
having made any independent investigation except as may be described
herein, that the representations and warranties of the Company
contained in Section 3 hereof are not true and correct in any material
respect, is familiar with the Registration Statement and the Prospectus
and has no knowledge of any material fact, condition or information not
disclosed in the Registration Statement or the Prospectus which has had
or may result in a material adverse change on the condition, financial
or otherwise, or on the earnings, business, operation or prospects,
whether or not arising from transactions in the ordinary course of
business of the Company and its subsidiaries, considered as one entity,
and is not prompted to sell the Shares to be sold by such Selling
Stockholder by any information concerning the Company which is not set
forth in the Registration Statement and the Prospectus.
Any certificate signed by or on behalf of any Selling
Stockholder and delivered to the Representatives or to counsel for the
Underwriters shall be deemed to be a representation and warranty by such Selling
Stockholder to each Underwriter as to the matters covered thereby.
4. CERTAIN COVENANTS OF THE COMPANY AND THE SELLING
STOCKHOLDERS.
(i) The Company hereby further covenants and agrees with each
Underwriter as follows:
(a) To furnish such information as may be required and
otherwise to cooperate in qualifying the Shares for offering and sale
under the securities or blue sky laws of such states as you may
designate and to maintain such qualifications in effect so long as
required for the distribution of the Shares; PROVIDED that the
Company shall not be required to qualify as a foreign corporation or to
consent to the service of process under the laws of any such state
(except service of process with respect to the offering and sale of the
Shares); and to promptly advise you of the receipt by the Company of
any notification with respect to the suspension of the qualification of
the Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose.
(b) To make available to the Underwriters in New York City, as
soon as practicable after the Registration Statement becomes effective,
and thereafter from time to time to furnish to the Underwriters, as
many copies of the Prospectus (or of the Prospectus as amended or
supplemented if the Company shall have made any amendments or
supplements thereto after the Effective Date of the
13
Registration Statement) as the Underwriters may request for the
purposes contemplated by the Act; in case any Underwriter is required
to deliver a prospectus after the nine-month period referred to in
Section 10(a)(3) of the Act in connection with the sale of the Shares,
the Company will prepare promptly upon request, but at the expense of
such Underwriter, such amendment or amendments to the Registration
Statement and such prospectuses as may be necessary to permit
compliance with the requirements of Section 10(a)(3) of the Act.
(c) To advise you promptly and (if requested by you) to
confirm such advice in writing, (i) when the Registration Statement has
become effective and when any post-effective amendment thereto becomes
effective and (ii) if Rule 430A under the Act is used, when the
Prospectus is filed with the Commission pursuant to Rule 424(b) under
the Act (which the Company agrees to file in a timely manner under such
Rules).
(d) To advise you promptly, confirming such advice in writing
(if requested by you), of any request by the Commission for amendments
or supplements to the Registration Statement or Prospectus or for
additional information with respect thereto, or of notice of
institution of proceedings for, or the entry of a stop order suspending
the effectiveness of the Registration Statement and, if the Commission
should enter a stop order suspending the effectiveness of the
Registration Statement, to make every reasonable effort to obtain the
lifting or removal of such order as soon as possible; to advise you
promptly of any proposal to amend or supplement the Registration
Statement or Prospectus and to file no such amendment or supplement to
which you shall object in writing.
(e) To file promptly all reports and any definitive proxy or
information statement required to be filed by the Company with the
Commission in order to comply with the Exchange Act, subsequent to the
date of the Prospectus and for so long as the delivery of a prospectus
is required in connection with the offering or sale of the shares, and
to promptly notify you of such filing.
(f) If necessary or appropriate, to file a registration
statement pursuant to Rule 462(b) under the Act.
(g) To furnish to you and, upon request, to each of the other
Underwriters for a period of five years from the date of this Agreement
(i) copies of any reports or other communications which the Company
shall send to its stockholders or shall from time to time publish or
publicly disseminate, (ii) copies of all annual, quarterly and current
reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such
other similar form as may be designated by the Commission, (iii) copies
of documents or reports filed with any national securities exchange on
which any class of securities of the Company is listed, and (iv) such
other information as you may reasonably request regarding the Company
or the
14
Subsidiary, in each case as soon as reasonably practicable after such
reports, communications, documents or information become available.
(h) To advise the Underwriters promptly of the happening of
any event known to the Company within the time during which a
Prospectus relating to the Shares is required to be delivered under the
Act which, in the judgment of the Company, would require the making of
any change in the Prospectus then being used so that the Prospectus
would not include an untrue statement of material fact or omit to state
a material fact necessary to make the statements therein, in the light
of the circumstances under which they are made, not misleading, and,
during such time, to prepare and furnish, at the Company's expense, to
the Underwriters promptly such amendments or supplements to such
Prospectus as may be necessary to reflect any such change and to
furnish you a copy of such proposed amendment or supplement before
filing any such amendment or supplement with the Commission.
(i) To make generally available to its security holders, and
to deliver to you, an earnings statement of the Company (which will
satisfy the provisions of Section 11(a) of the Act) covering a period
of twelve months beginning after the Effective Date of the Registration
Statement (as defined in Rule 158(c) of the Act) as soon as is
reasonably practicable after the termination of such twelve-month
period but not later than _______ __, 2001.
(j) To furnish to its shareholders as soon as practicable
after the end of each fiscal year an annual report (including a balance
sheet and statements of income, shareholders' equity and of cash flow
of the Company for such fiscal year, accompanied by a copy of the
certificate or report thereon of nationally recognized independent
certified public accountants).
(k) To furnish to you three signed copies of the Registration
Statement, as initially filed with the Commission, and of all
amendments thereto (including all exhibits thereto) and sufficient
conformed copies of the foregoing (other than exhibits) for
distribution of a copy to each of the other Underwriters.
(l) To furnish to you as early as practicable prior to the
time of purchase and the additional time of purchase, as the case may
be, but not later than two business days prior thereto, a copy of the
latest available unaudited interim consolidated financial statements,
if any, of the Company and the Subsidiary which have been read by the
Company's independent certified public accountants, as stated in their
letter to be furnished pursuant to Section 6(e) hereof.
(m) To apply the net proceeds from the sale of the Shares in
the manner set forth under the caption "Use of Proceeds" in the
Prospectus.
15
(n) To pay all costs, expenses, fees and taxes (other than any
transfer taxes and fees and disbursements of counsel for the
Underwriters, except as set forth under Section 5 hereof and (iv) and
(vi) below) in connection with (i) the preparation and filing of the
Registration Statement, each Preliminary Prospectus, the Prospectus,
and any amendments or supplements thereto, and the printing and
furnishing of copies of each thereof to the Underwriters and to dealers
(including costs of mailing and shipment), (ii) the registration,
issue, sale and delivery of the Shares, (iii) the producing, word
processing and/or printing of this Agreement, any Agreement Among
Underwriters, any dealer agreements, any Powers of Attorney and any
closing documents (including compilations thereof) and the reproduction
and/or printing and furnishing of copies of each thereof to the
Underwriters and (except closing documents) to dealers (including costs
of mailing and shipment), (iv) the qualification of the Shares for
offering and sale under state laws and the determination of their
eligibility for investment under state law as aforesaid (including the
legal fees and filing fees and other disbursements of counsel for the
Underwriters) and the printing and furnishing of copies of any blue sky
surveys or legal investment surveys to the Underwriters and to dealers,
(v) any listing of the Shares on any securities exchange or
qualification of the Shares for quotation on Nasdaq and any
registration thereof under the Exchange Act, (vi) any filing for review
of the public offering of the Shares by NASDR and (vii) the performance
of the other obligations of the Company hereunder.
(o) To furnish to you, before filing with the Commission
subsequent to the Effective Date of the Registration Statement and
during the period referred to in paragraph (e) above, a copy of any
document proposed to be filed pursuant to Section 13, 14 or 15(d) of
the Exchange Act.
(p) Not to sell, offer or agree to sell, contract to sell,
grant any option to sell or otherwise dispose of, directly or
indirectly, any shares of Common Stock or securities convertible into
or exchangeable or exercisable for Common Stock or warrants or other
rights to purchase Common Stock or any other securities of the Company
that are substantially similar to Common Stock or permit the
registration under the Act of any shares of Common Stock, except for
the registration of the Shares and the sales to the Underwriters
pursuant to this Agreement or on Form S-8 and except for issuances of
Common Stock upon the exercise of outstanding options, warrants and
debentures, for a period of 90 days after the date hereof (the "Lock-up
Period"), without the prior written consent of Warburg Dillon Read LLC,
other than shares issued by the Company in connection with acquisitions
of complementary operations or assets, provided, that the recipients
thereof agree to the restrictions on transfer and disposal set forth in
this paragraph for the remainder of the Lock-up Period.
(q) To use its best efforts to cause the Common Stock to
be listed for quotation on the Nasdaq National Market.
16
(ii) Each Selling Stockholder hereby further covenants and
agrees with each Underwriter as follows:
(a) Such Selling Stockholder will not, during the Lock-Up
Period, make a disposition of shares of Common Stock now owned or
hereafter acquired directly by such person or with respect to which
such person has or hereafter acquires the power of disposition,
otherwise than (i) as a bona fide gift or gifts, provided the donee or
donees thereof agree in writing to be bound by this restriction, (ii)
as a distribution to partners or shareholders of such person, provided
that the distributees thereof agree in writing to be bound by the terms
of this restriction, (iii) with respect to dispositions of Common Stock
acquired on the open market or (iv) with the prior written consent of
Warburg Dillon Read LLC. The foregoing restriction has been expressly
agreed to preclude the holder of Common Stock from engaging in any
hedging or other transaction which is designed to or reasonably
expected to lead to or result in a disposition of Common Stock during
the Lock-Up Period, even if such Common Stock 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 Common Stock 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 Common Stock.
Furthermore, such person has also agreed and consented to the entry of
stop transfer instructions with the Company's transfer agent against
the transfer of the Common Stock held by such person except in
compliance with this restriction.
(b) To deliver to the Representatives prior to additional time
of purchase a properly completed and executed United States Treasury
Department Form W-8 (if the Selling Stockholder is a non-United States
person) or Form W-9 (if the Selling Stockholder is a United States
Person).
(c) If, at any time prior to the date on which the
distribution of the Shares as contemplated herein and in the Prospectus
has been completed, as determined by the Representatives, such Selling
Stockholder has knowledge of the occurrence of any event as a result of
which the Prospectus or the Registration Statement, in each case as
then amended or supplemented, would include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading, such Selling Stockholder will promptly notify the
Company and the Representatives.
(d) Such Selling Stockholder will not take any action designed
to or which has constituted or which might reasonably be expected to
cause or result, under the Exchange Act or otherwise, in stabilization
or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares.
17
5. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the
Shares provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 7 hereof or because of any
refusal, inability or failure on the part of the Company or the Selling
Stockholders to perform any agreement herein or comply with any provision hereof
other than by reason of a default by any of the Underwriters, the Company will
reimburse the Underwriters severally through Warburg Dillon Read LLC on demand
for all out-of-pocket expenses (including reasonable fees and expenses of
counsel) that shall have been incurred by them in connection with the proposed
purchase and sale of the Shares.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters hereunder are subject to the accuracy of the
representations and warranties on the part of the Company on the date hereof and
at the time of purchase (and the several obligations of the Underwriters at the
additional time of purchase are subject to the accuracy of the representations
and warranties on the part of the Company and the Selling Stockholders on the
date hereof and at the time of purchase (unless previously waived) and at the
additional time of purchase, as the case may be), the performance by the Company
and the Selling Stockholders of their respective obligations hereunder and to
the following additional conditions precedent:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Underwriters agree in writing
to a later time, the Registration Statement will become effective not
later than (i) 6:00 PM New York City time on the date of determination
of the public offering price, if such determination occurred at or
prior to 3:00 PM New York City time on such date or (ii) 9:30 AM on the
Business Day following the day on which the public offering price was
determined, if such determination occurred after 3:00 PM New York City
time on such date; if filing of the Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the Prospectus, and any
such supplement, will be filed in the manner and within the time period
required by Rule 424(b); and no stop order suspending the effectiveness
of the Registration Statement shall have been issued and no proceedings
for that purpose shall have been instituted or threatened.
(b) You shall have received, at the time of purchase and at
the additional time of purchase, as the case may be, an opinion of
Pillsbury, Madison & Sutro LLP, counsel for the Company, addressed to
the Underwriters, and dated the time of purchase or the additional time
of purchase, as the case may be, with reproduced copies for each of the
other Underwriters and in form reasonably satisfactory to Xxxxx
Xxxxxxxxxx LLP, counsel for the Underwriters, stating that:
(i) the Company has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the State of Delaware, has the corporate power and
authority to own its property and to conduct its business as
described in the Prospectus and is duly qualified to transact
18
business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company;
(ii) the authorized capital stock of the Company
conforms as to legal matters to the description thereof
contained in the Prospectus;
(iii) the shares of Common Stock outstanding prior to
the issuance of the Shares to be sold by the Company have been
duly authorized and are validly issued, non-assessable and to
such counsel's knowledge, fully paid;
(iv) the Shares have been duly authorized, and, when
issued and delivered in accordance with the terms of this
Agreement, will be validly issued non-assessable, and to such
counsel's knowledge, fully paid, and the issuance of such
Shares will not be subject to any preemptive rights, and to
such counsel's knowledge, rights of first refusal or similar
rights;
(v) the Company has corporate power and authority to
enter into this Agreement and to issue, sell and deliver to
the Underwriters the Shares to be issued and sold by the
Company. This Agreement has been duly authorized, executed and
delivered by the Company and is a legal, valid and binding
agreement of the Company enforceable in accordance with its
terms, except as enforcement of rights to indemnity and
contribution hereunder may be limited by federal or state
securities laws or principles of public policy and subject to
the qualification that the enforceability of obligations of
the Company hereunder may be limited by bankruptcy,
insolvency, reorganization, moratorium and other laws relating
to or affecting creditors' rights generally and by general
equitable principles;
(vi) the execution and delivery by the Company of,
and the performance the Company of its obligations under, this
Agreement will not contravene any provision of applicable law
or the certificate of incorporation or bylaws of the Company
or, to such counsel's knowledge, any agreement or other
instrument binding upon the Company that is material to the
Company, taken as a whole, or, to such counsel's knowledge,
any judgment, order or decree of any governmental body, agency
or court having jurisdiction over the Company, and no consent,
approval, authorization or order of or qualification with any
governmental body or agency is required for the performance by
the Company of its obligations under this Agreement, except
such as may be required by the securities or blue sky laws of
the various states and jurisdictions in connection with the
offer and sale of the Shares;
19
(vii) the statements (1) in the Prospectus under the
captions "Risk Factors - COMMERCIALIZATION OF SOME OF OUR
POTENTIAL PRODUCTS DEPENDS ON COLLABORATIONS WITH OTHERS. IF
OUR COLLABORATORS ARE NOT SUCCESSFUL OR IF WE ARE UNABLE TO
FIND COLLABORATORS IN THE FUTURE, WE MAY NOT BE ABLE TO
DEVELOP THESE PRODUCTS," "Risk Factors - WE MAY NEED
ADDITIONAL CAPITAL IN THE FUTURE. IF ADDITIONAL CAPITAL IS NOT
AVAILABLE, WE MAY HAVE TO CURTAIL OR CEASE OPERATIONS," "Risk
Factors - WE MAY HAVE SIGNIFICANT PRODUCT LIABILITY EXPOSURE,"
"Risk Factors - OUR ANTI-TAKEOVER PROVISIONS COULD DISCOURAGE
POTENTIAL TAKEOVER ATTEMPTS AND MAKE ATTEMPTS BY STOCKHOLDERS
TO CHANGE MANAGEMENT MORE DIFFICULT," "Business --
Collaborations," "Business - Collaborative Alliances,"
"Business -- Manufacturing," and (2) in the Registration
Statement in Item 15, in each case insofar as such statements
constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present the
information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters
referred to therein;
(viii) after due inquiry, such counsel does not know
of any legal, regulatory or governmental proceeding pending or
threatened to which the Company or any of its subsidiaries is
a party or to which any of the properties of the Company is
subject that is required to be described in the Registration
Statement or the Prospectus and is not so described or of any
contracts or other documents that are required to be described
in the Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement that are not
described or filed as required;
(ix) the Company is not an "investment company" as
such term is defined in the Investment Company Act of 1940, as
amended;
(x) to the knowledge of such counsel, there is no
legal or beneficial owner of any securities of the Company who
has any rights, not effectively satisfied or waived, to
require registration of any shares of capital stock of the
Company in connection with the filing of the Registration
Statement;
(xi) the execution and delivery of the Merger
Agreement, effecting the reincorporation of the California
Corporation under the laws of the State of Delaware, was duly
authorized by all necessary corporate action on the part of
each of the California Corporation and the Company; and
(xii) each of the California Corporation and the
Company had all corporate power and authority to execute and
deliver the Merger Agreement, to file the Merger Agreement
with the Secretary of State of California and the Secretary of
State of Delaware and to consummate the reincorporation
contemplated by the Merger Agreement, and the Merger
20
Agreement at the time of execution and filing constituted a
valid and binding obligation of each of the California
Corporation and the Company.
(xiii) each of the Company and Acquisition Subsidiary
had all corporate power and authority to execute and deliver
the Plan of Merger, and to consummate the transactions
contemplated by the Plan of Merger, and the Plan of Merger at
the time of execution constituted a valid and binding
obligation of each of the Company and Acquisition Subsidiary.
(xiv) to the knowledge of such counsel: (1) the
Registration Statement has become effective under the Act, no
stop order proceedings with respect thereto have been
instituted or are pending or threatened under the Act and
nothing has come to such counsel's attention to lead it to
believe that such proceedings are contemplated; and (2) any
required filing of the Prospectus and any supplement thereto
pursuant to Rule 424(b) under the Act has been made in the
manner and within the time period required by such Rule
424(b);
(xv) the Shares to be sold under this Agreement to
the Underwriters are duly authorized for quotation on the
Nasdaq National Market; and
(xvi) such counsel shall also state that (i) they
believe that the Registration Statement and the Prospectus
(except for financial statements and schedules and other
financial data therein, as to which they need express no
belief) complied as to form in all material respects with the
requirements of the Act and the rules and regulations of the
Commission thereunder and (ii) they confirm that they have no
reason to believe that (except for financial statements and
schedules and other financial data therein, and except for the
matters covered in the opinion provided pursuant to paragraph
(e) below, as to which they need express no belief) the
Registration Statement (and the prospectus included therein)
as of its Effective Date, contained any untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading or that (except for financial statements and
schedules and other financial data therein, and except for the
matters covered in the opinion provided pursuant to paragraph
(e) below, as to which they need express no belief) the
Prospectus, as of the date of the Prospectus and such date or
dates as such opinion is delivered, contains any untrue
statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(c) You shall have received, at the time of purchase and at
the additional time of purchase, as the case may be, an opinion of Lyon
& Lyon, LLP, intellectual property counsel for the Company, addressed
to the Underwriters, and
21
dated the time of purchase or the additional time of purchase, as the
case may be, with reproduced copies for each of the other Underwriters
and in form reasonably satisfactory to Xxxxx Xxxxxxxxxx LLP, counsel
for the Underwriters, stating that:
(i) such counsel represents the Company in certain
matters relating to intellectual property, including patents,
specifically counsel has served as principal outside patent
counsel to the Company since at least June 1993 and has been
the exclusive counsel regarding new patent application filings
and patent prosecution since March 1994;
(ii) such counsel is familiar with the technology
used by the Company in its business and the manner of its use
as described in the Company's patents and patent applications
and invention disclosures provided to counsel, and as further
disclosed by the Company to counsel and has read the portions
of the Registration Statement and the Prospectus entitled
"Risk Factors - THE UNCERTAINTY OF PATENT AND PROPRIETARY
TECHNOLOGY PROTECTION AND OUR POTENTIAL INABILITY TO LICENSE
TECHNOLOGY FROM THIRD PARTIES MAY ADVERSELY AFFECT US" and
"Business - Our platform technology," "Business - Proprietary
technology and patents" (collectively the "Intellectual
Property Portion");
(iii) the Intellectual Property Portion contains
accurate descriptions of the Company's issued patents, patent
applications and patents and patent applications licensed to
the Company and fairly summarizes the material legal matters,
documents and proceedings relating thereto;
(iv) based upon a review of the third party rights
made known to counsel, including those patents listed on
EXHIBIT A hereto, and discussions with Company scientific
personnel, except as disclosed in the Registration Statement,
such counsel is not aware of any valid enforceable United
States or foreign patent that is or would, in counsel's
opinion, be infringed by the activities of the Company in
the manufacture, use, sale, offer for sale or importation of
any presently proposed product, the technologies employed by
the Company in any presently proposed product or the method
of their use in any presently proposed product, each as
described in the Prospectus;
(v) such counsel has reviewed the patent applications
filed by the Company in the United States and outside the
United States (the "Applications") and in the opinion of such
counsel the Applications have been properly prepared and filed
on behalf of the Company, and are being diligently pursued in
accordance with good practice by the Company; the inventions
described in the Applications are assigned or licensed to the
Company; to the best of such counsel's knowledge, subject to
the Schedule of Exceptions appended to the opinion, no other
entity or individual has
22
any right or claim in any of the inventions, Applications, or
any patent to be issued therefrom, and in such counsel's
opinion each of the Applications discloses patentable subject
matter;
(vi) such counsel is aware of no pending or
threatened judicial or governmental proceedings relating to
patents or proprietary information to which the Company is a
party or of which any property of the Company is subject and
such counsel is not aware of any pending or threatened action,
suit or claim by others that the Company is infringing or
otherwise violating any patent rights of others, based upon
review of the Applications such counsel is not aware of any
rights of third parties to any of the Company's inventions
described in the Applications, issued, approved or licensed
patents which could reasonably be expected to materially
affect the ability of the Company to conduct its business as
described in the Prospectus, including the commercialization
of its products currently under development; and
(vii) such counsel has no reason to believe that the
information contained in the Intellectual Property Portion of
the Registration Statement or the Prospectus at the time it
became effective contained any untrue statement of a material
fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that, at the time of purchase or the additional
time of purchase, as the case may be, the information
contained in the Intellectual Property Portion of the
Prospectus or any amendment or supplement to the Intellectual
Property Portion of the Prospectus contains any untrue
statement of a material fact or omits to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
(d) You shall have received, at the additional time of
purchase, an opinion of _______________, special counsel for the
Selling Stockholders, addressed to the Underwriters, and dated the
additional time of purchase, with reproduced copies for each of the
other Underwriters and in form reasonably satisfactory to Xxxxx
Xxxxxxxxxx LLP, counsel for the Underwriters, stating that:
(i) this Agreement and the Custody Agreement and
Power of Attorney have been duly authorized, executed and
delivered by each of the Selling Stockholders; the Custody
Agreement is valid and binding on the Selling Stockholders;
and the Selling Stockholders have full legal right and
authority to sell, transfer and deliver in the manner provided
in this Agreement and the Custody Agreement the Shares being
sold by the Selling Stockholders hereunder;
(ii) the delivery by the Selling Stockholders to the
several Underwriters of certificates for the Shares being sold
hereunder by the
23
Selling Stockholders, against payment therefor as provided
herein, will pass good and marketable title to such Shares to
the several Underwriters, free and clear of all liens,
encumbrances, equities and claims whatsoever;
(iii) no consent, approval, authorization or order of
any court or governmental agency or body is required for the
consummation by the Selling Stockholders of the transactions
contemplated herein, except such as may have been obtained
under the Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and
distribution of the Shares by the Underwriters and such other
approvals (specified in such opinion) as have been obtained;
and
(iv) neither the sale of the Shares being sold by the
Selling Stockholder nor the consummation of any other of the
transactions herein contemplated by the Selling Stockholders
or the fulfillment of the terms hereof by the Selling
Stockholders will conflict with, result in a breach or
violation of, or constitute a default under any law or the
charter or bylaws of any Selling Stockholder or the terms of
any indenture or other agreement or instrument known to such
counsel and to which any Selling Stockholder, or any judgment,
order or decree known to such counsel to be applicable to any
Selling Stockholder of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over any Selling Stockholder.
(e) You shall have received from Ernst & Young LLP letters
dated, respectively, the date of this Agreement and the time of
purchase and additional time of purchase, as the case may be, and
addressed to the Underwriters (with reproduced copies for each of the
Underwriters) in the forms heretofore approved by Warburg Dillon Read
LLC.
(f) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the opinion of Xxxxx
Xxxxxxxxxx LLP, counsel for the Underwriters, dated the time of
purchase or the additional time of purchase, as the case may be, with
respect to the issuance and sale of the Shares by the Company, the
Registration Statement, the Prospectus (together with any supplement
thereto) and other related matters as the Underwriters may require.
(g) No amendment or supplement to the Registration Statement
or Prospectus shall at any time have been filed to which you have
objected or shall object in writing.
(h) The Registration Statement shall have become effective, or
if Rule 430A under the Act is used, the Prospectus shall have been
filed with the Commission pursuant to Rule 424(b) under the Act, at or
before 5:00 P.M., New York City time, on the date of this Agreement,
unless a later time (but not later
24
than 5:00 P.M., New York City time, on the second full business day
after the date of this Agreement) shall be agreed to by the Company
and you in writing or by telephone, confirmed in writing; provided,
however, that the Company and you and any group of Underwriters,
including you, who have agreed hereunder to purchase in the aggregate
at least 50% of the Firm Shares may from time to time agree on a later
date.
(i) Prior to the time of purchase or the additional time of
purchase, as the case may be, (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued
under the Act or proceedings initiated under Section 8(d) or 8(e) of
the Act; (ii) the Registration Statement and all amendments thereto, or
modifications thereof, if any, shall not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and
(iii) the Prospectus and all amendments or supplements thereto, or
modifications thereof, if any, shall not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they are made, not misleading.
(j) Between the time of execution of this Agreement and the
time of purchase or the additional time of purchase, as the case may
be, (i) no material and adverse change, financial or otherwise (other
than as referred to in the Registration Statement and Prospectus), in
the operations, business, condition or prospects of the Company and the
Subsidiary taken as a whole shall occur or become known and (ii) no
transaction which is material and unfavorable to the Company shall have
been entered into by the Company or the Subsidiary.
(k) The Company will, at the time of purchase or additional
time of purchase, as the case may be, deliver to you a certificate of
two of its executive officers to the effect that the representations
and warranties of the Company as set forth in this Agreement are true
and correct as of each such date, that the Company or the Parent, as
the case may be, has performed such of its obligations under this
Agreement as are to be performed at or before the time of purchase and
at or before the additional time of purchase, as the case may be, and
the conditions set forth in paragraphs (i) and (j) of this Section 6
have been met.
(l) You shall have received, at the additional time of
purchase, a certificate, signed by each Selling Stockholder or
responsible officers thereof, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Prospectus, any supplement to the Prospectus and this Agreement and
that the respective representations and warranties of Principal Mutual
and the Selling Stockholder in this Agreement are true and correct in
all material respects on and as of additional time of purchase to the
same effect as if made at the additional time of purchase.
25
(m) The Company shall have furnished to you such other
documents and certificates as to the accuracy and completeness of any
statement in the Registration Statement and the Prospectus as of the
time of purchase and the additional time of purchase, as the case may
be, as you may reasonably request.
(n) The Shares shall have been listed and admitted and
authorized for trading on the Nasdaq National Market, and satisfactory
evidence of such actions shall have been provided to the Underwriters.
(o) At the Execution Time, the Company shall have furnished to
the Underwriters a letter substantially in the form of Exhibit B hereto
from each Selling Stockholder, officer, director and five percent (or
more) stockholder of the Company addressed to the Underwriters.
7. EFFECTIVE DATE OF AGREEMENT; TERMINATION. This Agreement
shall become effective (i) if Rule 430A under the Act is not used, when you
shall have received notification of the effectiveness of the Registration
Statement, or (ii) if Rule 430A under the Act is used, when the parties hereto
have executed and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be
subject to termination in the absolute discretion of you or any group of
Underwriters (which may include you) which has agreed to purchase in the
aggregate at least 50% of the Firm Shares, (i) if, since the time of execution
of this Agreement or the respective dates as of which information is given in
the Registration Statement and Prospectus, there has been any material adverse
and unfavorable change, financial or otherwise (other than as referred to in the
Registration Statement and Prospectus), in the operations, business, condition
or prospects of the Company and the Subsidiary taken as a whole, which would, in
your judgment or in the judgment of such group of Underwriters, make it
impracticable to market the Shares, (ii) if, at any time prior to the time of
purchase or, with respect to the purchase of any Additional Shares, the
additional time of purchase, as the case may be, trading in securities on the
New York Stock Exchange, the American Stock Exchange or the Nasdaq National
Market shall have been suspended or limitations or minimum prices shall have
been established on the New York Stock Exchange, the American Stock Exchange or
the Nasdaq National Market, or if a banking moratorium shall have been declared
either by the United States or New York State authorities, or if the United
States shall have declared war in accordance with its constitutional processes
or there shall have occurred any material outbreak or escalation of hostilities
or other national or international calamity or crisis of such magnitude in its
effect on the financial markets of the United States as, in your judgment or in
the judgment of such group of Underwriters, to make it impracticable to market
the Shares.
If any Underwriter elects to terminate this Agreement as
provided in this Section 7, the Company and each other Underwriter shall be
notified promptly by letter or telegram from such terminating Underwriter.
26
If the sale to the Underwriters of the Shares, as contemplated
by this Agreement, is not carried out by the Underwriters for any reason
permitted under this Agreement or if such sale is not carried out because the
Company shall be unable to comply with any of the terms of this Agreement, the
Company shall not be under any obligation or liability under this Agreement
(except to the extent provided in Sections 4(n), 5 and 9 hereof), and the
Underwriters shall be under no obligation or liability to the Company under this
Agreement (except to the extent provided in Section 9 hereof) or to one another
hereunder.
8. INCREASE IN UNDERWRITERS' COMMITMENTS. Subject to Sections
6 and 7, if any Underwriter shall default in its obligation to take up and pay
for the Firm Shares to be purchased by it hereunder (otherwise than for a reason
sufficient to justify the termination of this Agreement under the provisions of
Section 7 hereof) and if the number of Firm Shares which all Underwriters so
defaulting shall have agreed but failed to take up and pay for does not exceed
10% of the total number of Firm Shares, the non-defaulting Underwriters shall
take up and pay for (in addition to the aggregate number of Firm Shares they are
obligated to purchase pursuant to Section 1 hereof) the number of Firm Shares
agreed to be purchased by all such defaulting Underwriters, as hereinafter
provided. Such Shares shall be taken up and paid for by such non-defaulting
Underwriter or Underwriters in such amount or amounts as you may designate with
the consent of each Underwriter so designated or, in the event no such
designation is made, such Shares shall be purchased and paid for by all
non-defaulting Underwriters pro rata in proportion to the aggregate number of
Firm Shares set opposite the names of such non-defaulting Underwriters in
Schedule A.
Without relieving any defaulting Underwriter from its
obligations hereunder, the Company agrees with the non-defaulting Underwriters
that it will not sell any Firm Shares hereunder unless all of the Firm Shares
are purchased by the Underwriters (or by substituted Underwriters selected by
you with the approval of the Company or selected by the Company with your
approval).
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provision, the Company or you shall have the right
to postpone the time of purchase for a period not exceeding five business days
in order that any necessary changes in the Registration Statement and Prospectus
and other documents may be effected.
The term Underwriter as used in this Agreement shall refer to
and include any Underwriter substituted under this Section 8 with like effect as
if such substituted Underwriter had originally been named in Schedule A.
If the aggregate number of Shares which the defaulting
Underwriter or Underwriters agreed to purchase exceeds 10% of the total number
of Shares which all Underwriters agreed to purchase hereunder, and if neither
the non-defaulting Underwriters nor the Company shall make arrangements within
the five business day
27
period stated above for the purchase of all the Shares 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. 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.
9. INDEMNITY AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the
meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act or
other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in
the registration statement for the registration of the Shares as
originally filed or in any amendment thereof, or in any Preliminary
Prospectus or the Prospectus, or in any amendment thereof or supplement
thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and agrees
to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company will not be liable in any
such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter specifically for
inclusion therein. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Selling Stockholder agrees to indemnify and hold
harmless each Underwriter, the directors, officers, employees and
agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act to the same
extent as the foregoing indemnity from the Company to each Underwriter,
but only with reference to written information furnished to the Company
by or on behalf of such Selling Stockholder specifically for inclusion
in the documents referred to in the foregoing indemnity. This indemnity
agreement will be in addition to any liability which a Selling
Stockholder may otherwise have.
(c) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of
its officers who signs
28
the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act and each
Selling Stockholder, to the same extent as the foregoing indemnity from
the Company and the Selling Stockholders to each Underwriter, but only
with reference to written information relating to such Underwriter
furnished to the Company by or on behalf of such Underwriter
specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to
any liability which any Underwriter may otherwise have. The Company and
the Selling Stockholders acknowledge that the statements set forth in
the last paragraph of the cover page regarding delivery of the Shares
and, under the heading "Underwriting," (i) the sentences related to
concessions and reallowances and (ii) the paragraph related to
stabilization, syndicate covering transactions and penalty bids in any
Preliminary Prospectus and the Prospectus, constitute the only
information furnished in writing by or on behalf of the several
Underwriters for inclusion in any Preliminary Prospectus or the
Prospectus.
(d) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 9, notify the indemnifying party
in writing of the commencement thereof; but the failure so to notify
the indemnifying party (i) will not relieve it from liability under
paragraph (a), (b) or (c) above unless and to the extent it did not
otherwise learn of such action and such failure results in the
forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from
any obligations to any indemnified party other than the indemnification
obligation provided in paragraph (a), (b) or (c) above. The
indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to
represent the indemnified party in any action for which indemnification
is sought (in which case the indemnifying party shall not thereafter be
responsible for the fees and expenses of any separate counsel retained
by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel if (i) the
use of counsel chosen by the indemnifying party to represent the
indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of,
any such action include both the indemnified party and the indemnifying
party and the indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to
the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the
29
institution of such action or (iv) the indemnifying party shall
authorize the indemnified party to employ separate counsel at the
expense of the indemnifying party. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of 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.
(e) In the event that the indemnity provided in paragraph (a),
(b) or (c) of this Section 9 is unavailable to or insufficient to hold
harmless an indemnified party for any reason, the Company and the
Selling Stockholders, jointly and severally, and the Underwriters
severally agree to contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) (collectively
"Losses") to which the Company, the Selling Stockholders and one or
more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company
and the Selling Stockholders on the one hand and by the Underwriters on
the other from the offering of the Shares; provided, however, that in
no case shall any Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the Shares) be
responsible for any amount in excess of the underwriting discount or
commission applicable to the Shares purchased by such Underwriter
hereunder. If the allocation provided by the immediately preceding
sentence is unavailable for any reason, the Company and the Selling
Stockholders, jointly and severally, and the Underwriters severally
shall contribute in such proportion as is appropriate to reflect not
only such relative benefits but also the relative fault of the Company
and the Selling Stockholders on the one hand and of the Underwriters on
the other in connection with the statements or omissions which resulted
in such Losses as well as any other relevant equitable considerations.
Benefits received by the Company and the Selling Stockholders shall be
deemed to be equal to the total net proceeds from the offering (before
deducting expenses) received by the Company and the Selling
Stockholders, and benefits received by the Underwriters shall be deemed
to be equal to the total underwriting discounts and commissions as set
forth on the cover page of the Prospectus. Relative fault shall be
determined by reference to, among other things, whether any untrue or
any alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
provided by the Company or the Selling Stockholders on the one hand or
the Underwriters on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company, the Selling
Stockholders and the Underwriters agree that it would not be just and
equitable if contribution were determined by pro rata allocation or any
other method of allocation which does
30
not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (e), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. For purposes of this
Section 9, each person who controls an Underwriter within the meaning
of either the Act or the Exchange Act and each director, officer,
employee and agent of an Underwriter shall have the same rights to
contribution as such Underwriter, and each person who controls the
Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement
and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable
terms and conditions of this paragraph (e).
(f) The liability of any Selling Stockholder under its
respective representations and warranties contained in Section 3 hereof
and under the indemnity and contribution agreements contained in this
Section 9 shall each be limited to an amount equal to the initial
public offering price of the Shares sold by such Selling Stockholder to
the Underwriters. The Company and the Selling Stockholders may agree,
as between themselves and without limiting the rights of the
Underwriters under this Agreement, as to the respective amounts of such
liability for which they each shall be responsible.
10. NOTICES. Except as otherwise herein provided, all
statements, requests, notices and agreements shall be in writing or by telegram
and, if to the Underwriters, shall be sufficient in all respects if delivered or
sent to Warburg Dillon Read LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000,
Attention: Syndicate Department; if to the Company, shall be sufficient in all
respects if delivered or sent to the Company at the offices of the Company at;
its principal executive offices at 00000 Xxxxxxx Xxxxxx Xxxxx, Xxx Xxxxx,
Xxxxxxxxxx 00000, Attention: General Counsel.
11. GOVERNING LAW; CONSTRUCTION. This Agreement and any claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement ("Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of New
York. The Section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
12. SUBMISSION TO JURISDICTION. Except as set forth below, no
Claim may be commenced, prosecuted or continued in any court other than the
courts of the State of New York located in the City and County of New York or in
the United States District Court for the Southern District of New York, which
courts shall have jurisdiction over the adjudication of such matters, and you,
the Company consent to the jurisdiction of such courts and personal service with
respect thereto. The Company hereby consents to personal jurisdiction, service
and venue in any court in which any Claim arising out of or in any way relating
to this Agreement is brought by any third party against an Underwriter
31
or any indemnified party. Each Underwriter and the Company (on its behalf and,
to the extent permitted by applicable law, on behalf of its stockholders and
affiliates), waives all right to trial by jury in any action, proceeding or
counterclaim (whether based upon contract, tort or otherwise) in any way arising
out of or relating to this Agreement. The Company agrees that a final judgment
in any such action, proceeding or counterclaim brought in any such court shall
be conclusive and binding upon the Company and may be enforced in any other
courts in the jurisdiction of which the Company is or may be subject, by suit
upon such judgment.
13. PARTIES AT INTEREST. The Agreement herein set forth has
been and is made solely for the benefit of the Underwriters, the Selling
Stockholders and the Company and, to the extent provided in Section 9 hereof,
the controlling persons, directors and officers referred to in such section, and
their respective successors, assigns, heirs, personal representatives and
executors and administrators. No other person, partnership, association or
corporation (including a purchaser, as such purchaser, from any of the
Underwriters) shall acquire or have any right under or by virtue of this
Agreement.
14. COUNTERPARTS. This Agreement may be signed by the parties
in one or more counterparts which together shall constitute one and the same
agreement among the parties.
15. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon the Underwriters, the Selling Stockholders and the Company and their
successors and assigns and any successor or assign of any substantial portion of
their respective businesses and/or assets.
16. DEFINITIONS. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New York
City or the State of Maryland.
"Commission" shall mean the Securities and Exchange
Commission.
"Effective Date" shall mean each date and time that the
Registration Statement, any post-effective amendment or amendments
thereto and any Rule 462(b) Registration Statement became or become
effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission promulgated
thereunder.
32
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in paragraph 1(i)(a) above and any preliminary prospectus
included in the Registration Statement at the Effective Date that omits
Rule 430A Information.
"Prospectus" shall mean the prospectus relating to the
Securities that is first filed pursuant to Rule 424(b) after the
Execution Time or, if no filing pursuant to Rule 424(b) is required,
shall mean the form of final prospectus relating to the Securities
included in the Registration Statement at the Effective Date.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(i)(a) above, including exhibits and
financial statements, as amended at the Execution Time (or, if not
effective at the Execution Time, in the form in which it shall become
effective) and, in the event any post-effective amendment thereto or
any Rule 462(b) Registration Statement becomes effective prior to the
time of purchase, shall also mean such registration statement as so
amended or such Rule 462(b) Registration Statement, as the case may be.
Such term shall include any Rule 430A Information deemed to be included
therein at the Effective Date as provided by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to
the Securities and the offering thereof permitted to be omitted from
the Registration Statement when it becomes effective pursuant to Rule
430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred
to in Section 1(a) hereof.
17. MISCELLANEOUS. Warburg Dillon Read LLC, an indirect,
wholly owned subsidiary of UBS AG, is not a bank and is separate from any
affiliated bank, including any U.S. branch or agency of Warburg Dillon Read LLC.
Because Warburg Dillon Read LLC is a separately incorporated entity, it is
solely responsible for its own contractual obligations and commitments,
including obligations with respect to sales and purchases of securities.
Securities sold, offered or recommended by Warburg Dillon Read LLC are not
deposits, are not insured by the Federal Deposit Insurance Corporation, are not
guaranteed by a branch or agency, and are not otherwise an obligation or
responsibility of a branch or agency.
A lending affiliate of Warburg Dillon Read LLC may have
lending relationships with issuers of securities underwritten or privately
placed by Warburg Dillon Read LLC. To the extent required under the securities
laws, prospectuses and
33
other disclosure documents for securities underwritten or privately placed by
Warburg Dillon Read LLC will disclose the existence of any such lending
relationships and whether the proceeds of the issue will be used to repay debts
owed to affiliates of Warburg Dillon Read LLC.
34
If the foregoing correctly sets forth the understanding among
the Company, the Selling Stockholders and the Underwriters, please so indicate
in the space provided below for the purpose, whereupon this letter and your
acceptance shall constitute a binding agreement among the Company, the Selling
Stockholders and the several Underwriters.
Very truly yours,
NANOGEN, INC.
By:
------------------------------------------
Name:
Title:
Each of the Selling Stockholders Listed on
Schedule B Hereto
By:
------------------------------------------
Name:
Title: Attorney-in-Fact
Accepted and agreed to as of the
date first above written
WARBURG DILLON READ LLC
XXXXXX BROTHERS INC.
PACIFIC GROWTH EQUITIES, INC.
XXXX XXXXXXXX XXXXXXX
FIRST UNION SECURITIES, INC.
As Representatives of the Several Underwriters
Named in Schedule A hereto
By: WARBURG DILLON READ LLC
By:
--------------------------------
Name:
Title:
35
By:
--------------------------------
Name:
Title:
SCHEDULE A
Number of
Underwriter Firm Shares
----------- -----------
WARBURG DILLON READ LLC
XXXXXX BROTHERS INC.
PACIFIC GROWTH EQUITIES, INC.
XXXX XXXXXXXX XXXXXXX
FIRST UNION SECURITIES, INC.
Total..........................
-----------------
-----------------
SCHEDULE B
Number of
Selling Stockholder Additional Shares
------------------- -----------------
Total..........................
-----------------
-----------------
EXHIBIT A
5,532,129
5,565,322
5,605,662
5,632,957
5,787,032
5,835,404
5,849,486
5,849,489
5,929,208
5,965,452
6,013,166
6,017,696
275962 (New Zealand)
292791 (New Zealand)
667497 (Australia)
692800 (Australia)
702773 (Australia)
EXHIBIT B
[Form of Lock-Up Agreement]
