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EXHIBIT 1.1
7,200,000 Shares
OCULAR SCIENCES, INC.
COMMON STOCK (PAR VALUE $0.001 PER SHARE)
UNDERWRITING AGREEMENT
________________, 1997
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____________, 1997
Xxxxxx Xxxxxxx & Co. Incorporated
Bear, Xxxxxxx & Co. Inc.
Xxxxx & Company
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Ocular Sciences, Inc., a Delaware corporation (the "Company"), proposes
to issue and sell to the several Underwriters named in Schedule II hereto (the
"Underwriters"), and certain stockholders of the Company (the "Selling
Stockholders") named in Schedule I hereto severally propose to sell to the
several Underwriters, an aggregate of 7,200,000 shares of the Common Stock (par
value $0.001 per share) of the Company (the "Firm Shares"), of which 3,600,000
shares are to be issued and sold by the Company and 3,600,000 shares are to be
sold by the Selling Stockholders, each Selling Stockholder selling the amount
set forth opposite such Selling Stockholder's name in Schedule I hereto. The
Company is successor by merger to O.S.I. Corporation, a California corporation
(the "Predecessor"), as a result of a reincorporation transaction that became
effective on ____________, 1997 (the "Reincorporation"). For the purposes of
Section 1 hereof, all references to "Company" shall also refer to the
Predecessor prior to the Reincorporation.
Certain of the Selling Stockholders also propose to sell to the several
Underwriters not more than an additional 1,080,000 shares of its Common Stock
(par value $0.001 per share) (the "Additional Shares") if and to the extent that
you, as Managers of the offering, shall have determined to exercise, on behalf
of the Underwriters, the right to purchase such shares of Common Stock granted
to the Underwriters in Section 3 hereof. The Firm Shares and the Additional
Shares are hereinafter collectively referred to as the "Shares." The shares of
Common Stock (par value $0.001 per share) of the Company to be outstanding after
giving effect to the sales contemplated hereby are hereinafter referred to as
the "Common Stock." The Company and the Selling Stockholders are hereinafter
sometimes collectively referred to as the "Sellers."
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to the
Shares. The registration statement as amended at the time it becomes effective,
including the information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430A under the
Securities Act of 1933, as amended (the "Securities Act"), is hereinafter
referred to as the "Registration Statement;" the prospectus in the form first
used to confirm sales of Shares is hereinafter referred to as the "Prospectus."
If the Company has filed an abbreviated registration statement to register
additional shares of Common Stock pursuant to Rule 462(b) under the Securities
Act (the "Rule 462 Registration Statement"), then any reference herein to the
term "Registration Statement" shall be deemed to include such Rule 462
Registration Statement.
As part of the offering contemplated by this Agreement, Xxxxxx Xxxxxxx
& Co. Incorporated ("Xxxxxx Xxxxxxx") has agreed to reserve out of the Shares
set forth opposite its name on Schedule II to this Agreement, up to ____________
shares, for sale to the Company's employees, officers, and directors and other
parties associated with the Company (collectively, "Participants"), as set forth
in the Prospectus under the heading "Underwriting" (the "Directed Share
Program"). The Shares to be sold by Xxxxxx Xxxxxxx pursuant to the Directed
Share Program (the "Directed Shares") will be sold by Xxxxxx Xxxxxxx pursuant to
this Agreement at the public offering price. Any Directed Shares not orally
confirmed for purchase by any Participants by the end of the first business day
after the date on which this Agreement is executed will be offered to the public
by Xxxxxx Xxxxxxx as set forth in the Prospectus.
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1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect, and
no proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) The Registration Statement, when it became effective, did
not contain and, as amended or supplemented, if applicable, will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, (ii) the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all material
respects with the Securities Act and the applicable rules and regulations of
the Commission thereunder and, (iii) the Prospectus does not contain and, as
amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, except that the representations and
warranties set forth in this Section l(b) do not apply to statements or
omissions in the Registration Statement or the Prospectus based upon
information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to 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 and its Subsidiaries (as defined below), taken as a whole.
(d) Other than O.S.I. Puerto Rico Corporation, a Delaware corporation
("OSI Puerto Rico"), O.S.I. Canada Corporation, a New Brunswick corporation
("OSI Canada"), Ocular Sciences Limited, a company organized in the United
Kingdom ("OSL"), and Ocular Sciences Hungary, a Hungarian corporation
("OSH") (each of OSH, OSI Puerto Rico, OSI Canada and OSL being referred to
herein as a "Subsidiary" and collectively as the "Subsidiaries"), the
Company has no subsidiaries. Each Subsidiary of the Company has been duly
incorporated or organized, as the case may be, is validly existing and in
good standing under the laws of the jurisdiction of its incorporation or
organization, as the case may be, 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 and its Subsidiaries, taken as a
whole. All of the issued shares of capital stock of each Subsidiary have
been duly and validly authorized and issued, are fully paid and
non-assessable, and are beneficially owned directly by the Company, free and
clear of all liens, encumbrances, equities or claims.
(e) The Company and each of its Subsidiaries have good and marketable
title to all personal and real property owned by them that is material to
the business of the Company and its Subsidiaries, taken as a whole, 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 each of its Subsidiaries; and
any real property and buildings held under lease by the Company and each of
its Subsidiaries are held by them under valid, subsisting and enforceable
leases except with such exceptions as are not material to the Company and do
not interfere with the current and proposed use of such property and
buildings by the Company and each of its Subsidiaries, in each case except
as described in or contemplated by the Prospectus.
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(f) This Agreement has been duly authorized, executed and delivered by
the Company.
(g) The authorized capital stock of the Company conforms as to legal
matters in all material respects to the description thereof contained in the
Prospectus.
(h) The shares of Common Stock (including the Shares to be sold by the
Selling Stockholders) 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 and other
than options to purchase 3,079,694 shares of the Company's Common Stock
granted to employees pursuant to the Company's 1989 Stock Option Plan (the
"1989 Plan") and the Company's 1992 Officers and Directors Stock Option Plan
(the "1992 Plan") as described in the Prospectus, neither the Company nor
any of its Subsidiaries has 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. All outstanding shares of capital
stock and options and other rights to acquire capital stock have been issued
in compliance with the registration and qualification provisions of all
applicable securities laws (or applicable exemptions thereof) and were not
issued in violation of any preemptive rights, rights of first refusal and
other similar rights.
(i) The Shares to be sold by the Company have been duly authorized, and
when issued and delivered in accordance with the terms of this Agreement,
will be validly issued, fully paid and non-assessable, and the issuance of
such Shares will not be subject to any preemptive or similar rights.
(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 of its Subsidiaries or any agreement or other instrument
binding upon the Company or any of its Subsidiaries that is material to the
Company and its Subsidiaries, taken as a whole, or any judgment, order or
decree of any governmental body, agency or court having jurisdiction over
the Company or any of its Subsidiaries, and no consent, approval,
authorization or order of, or qualification with, any governmental body or
governmental 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 or international
jurisdictions 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 and Subsidiaries, taken as a whole, 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 and its
Subsidiaries have 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; and (iii) there has not
been any material change in the capital stock, short-term debt or long-term
debt of the Company and its consolidated Subsidiaries, taken as a whole,
except in each case as described or specifically contemplated in the
Prospectus.
(m) There are no legal or governmental proceedings pending or, to the
best of the Company's knowledge, threatened to which the Company or any of
its Subsidiaries is a party or to which any of the properties of the Company
or any of its Subsidiaries is subject that are required to be described in
the Registration Statement or the Prospectus and are not so described or any
statutes, regulations, contracts or other documents that are required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described or filed as
required.
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(n) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 or Rule 462 under the Securities Act, complied when so
filed in all material respects with the Securities Act and the applicable
rules and regulations of the Commission thereunder.
(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) There is no owner of any securities of the Company who has any
right, 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 or the sale of any shares thereunder. There are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the
Company or to require the Company to include such securities with the Shares
registered pursuant to the Registration Statement, except in each case as
described in the Prospectus.
(q) The Company and each of its Subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which they
are engaged; neither the Company nor any of its Subsidiaries has been
refused any material insurance coverage sought or applied for since May 1,
1993; and neither the Company nor any of its Subsidiaries has any 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 and its Subsidiaries,
taken as a whole, except as described in or contemplated by the Prospectus.
(r) The Company and each of its Subsidiaries (i) are in compliance with
any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) have received all permits,
licenses or other approvals required of them under applicable Environmental
Laws to conduct their respective businesses and (iii) are in compliance with
all terms and conditions of any such permit, license or approval, except
where such noncompliance with Environmental Laws, failure to receive
required permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals would not,
singly or in the aggregate, have a material adverse effect on the Company
and its Subsidiaries, taken as a whole.
(s) The Company has complied with all provisions of Section 517.075,
Florida Statutes relating to doing business with the Government of Cuba or
with any person or affiliate located in Cuba.
(t) Except as specifically disclosed in the Prospectus, (i) the Company
and its Subsidiaries own or possess adequate licenses or other rights to use
all patents, copyrights, trademarks, service marks, trade names, technology
and know-how necessary to conduct their respective businesses in the manner
described in the Prospectus , (ii) neither the Company nor any of its
Subsidiaries has received any notice of infringement or conflict with
asserted rights of others with respect to any patents, copyrights,
trademarks, service marks, trade names, technology or know-how that could
reasonably be expected to result in any material adverse effect upon the
Company and its Subsidiaries, taken as a whole, and (iii) the discoveries,
inventions, products or processes of the Company and its Subsidiaries
referred to in the Prospectus do not, to the best knowledge of the Company,
infringe or conflict with any right or patent of any third party, or any
discovery, invention, product or process that could reasonably be expected
to have a material adverse effect on the Company and its Subsidiaries, taken
as a whole.
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(u) The Company and its Subsidiaries possess 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 and self-regulatory authorities and all courts and other
tribunals necessary to conduct their respective businesses and to own,
lease, license and use their properties 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 and its Subsidiaries,
taken as a whole, and neither the Company nor its Subsidiaries has received
any notice of proceedings related to the revocation or modification of any
such consent, approval, order, certificate, authorization or permit that,
singly or in the aggregate, could reasonably be expected to result in a
material adverse change in the condition, financial or otherwise, or in the
earnings, business or operations of the Company and its Subsidiaries, taken
as a whole.
(v) The Company and its Subsidiaries maintain 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 principals of the United States 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.
(w) No material labor dispute with employees of the Company or any of
its Subsidiaries exists or to the knowledge of the Company is imminent, and,
without conducting any independent investigation, the Company is not aware
of any written communication 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, the earnings, the business
or operations of the Company and its Subsidiaries, taken as a whole.
(x) __________ and ________ outstanding shares of the Common Stock and
securities convertible into or exercisable or exchangeable for Common Stock,
respectively, are subject to valid, binding and enforceable agreements
(collectively, the "Lock-Up Agreements") that restrict the holders thereof
from selling, making any short sale of, granting any option for the purchase
of, or otherwise transferring or disposing of, any of such shares of Common
Stock, or any such securities convertible or exercisable or exchangeable for
Common Stock, for a period of 180 days, respectively, after the date of the
Prospectus without the prior written consent of Xxxxxx Xxxxxxx.
(y) The Company has notified each holder of a currently outstanding
option issued under the 1989 Plan and 1992 Plan and each person who has
acquired shares of Common Stock pursuant to the exercise of any option
granted under the 1989 Plan and 1992 Plan, that none of such options or
shares may be sold or otherwise transferred or disposed of for a period of
180 days after the date of the initial public offering of the Shares and has
imposed a stop-transfer instruction with the Company's transfer agent in
order to enforce the foregoing lock-up provision imposed pursuant to the
1989 Plan and 1992 Plan.
(z) As of the date the Registration Statement became effective, the
Common Stock was authorized for quotation on The Nasdaq National Market upon
official notice of issuance.
(aa) The Company has not taken and will not take, directly or
indirectly, any action designed to cause or result in, or which constitutes
or which might reasonably be expected to constitute, the stabilization or
manipulation of the price of the shares of Common Stock to facilitate the
sale or resale of the Shares.
(bb) The financial statements, including the notes thereto, included in
the Registration Statement and the Prospectus fairly present, in all
material respects, the financial position of the Company as of the dates
indicated and the results of its operations for the periods specified; said
financial statements
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have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis.
(cc) The Company has not offered, or caused the Underwriters to offer,
Shares to any person pursuant to the Directed Share Program with the
specific intent to unlawfully influence (i) a customer or supplier of the
Company to alter the customer's or supplier's level or type of business with
the Company, or (ii) a trade journalist or publication to write or publish
favorable information about the Company or its products.
(dd) The Shares to be sold by the Selling Stockholders pursuant to this
Agreement have been duly authorized and are validly issued, fully paid and
non-assessable.
(ee) The Company does not own any equity or capital interests in any
corporation, partnership, joint venture, association or other entity, other
than the Subsidiaries.
Furthermore, the Company represents and warrants to Xxxxxx Xxxxxxx that
(i) the Registration Statement, the Prospectus and any preliminary prospectus
comply, and any further amendments or supplements thereto will comply, with any
applicable laws or regulations of foreign jurisdictions in which the Prospectus
or any preliminary prospectus, as amended or supplemented, if applicable, are
distributed in connection with the Directed Share Program, and that (ii) no
authorization, approval, consent, license, order, registration or qualification
of or with any government, governmental instrumentality or court, other than
such as have been obtained, is necessary under the securities laws and
regulations of foreign jurisdictions in which the Directed Shares are offered
outside the United States.
2. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS. Each of
the Selling Stockholders, severally and not jointly, represents and warrants to
and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and delivered by
or on behalf of such Selling Stockholder and constitutes a valid and binding
obligation upon such Selling Stockholder.
(b) The execution and delivery by such Selling Stockholder of, and the
performance by such Selling Stockholder of its obligations under, this
Agreement, the Custody Agreement signed by such Selling Stockholder and the
Company, as Custodian, relating to the deposit of the Shares to be sold by
such Selling Stockholder (the "Custody Agreement") and the Power of Attorney
appointing certain individuals as such Selling Stockholder's
attorneys-in-fact to the extent set forth therein (the "Power of Attorney")
does not contravene any provision of applicable law, or the certificate of
incorporation or bylaws of such Selling Stockholder (if such Selling
Stockholder is a corporation), or any material agreement or other material
instrument binding upon such Selling Stockholder or any judgment, order or
decree of any governmental body, agency or court having jurisdiction over
such Selling Stockholder, and no consent, approval, authorization or order
of, or qualification with, any governmental body or agency is required for
the performance by such Selling Stockholder of its obligations under this
Agreement or the Custody Agreement or Power of Attorney of such Selling
Stockholder, except such as may be required under the Securities Act or by
the state securities or Blue Sky laws of the various states in connection
with the offer and sale of the Shares.
(c) Such Selling Stockholder has, and on the Closing Date will have,
valid title to the Shares to be sold by such Selling Stockholder and the
legal right and power, and all authorization and approval required by law,
to enter into this Agreement, the Custody Agreement and the Power of
Attorney and to sell, transfer and deliver the Shares to be sold by such
Selling Stockholder.
(d) The Custody Agreement and the Power of Attorney have been duly
authorized, executed and delivered by such Selling Stockholder and are valid
and binding agreements of such Selling Stockholder.
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(e) Upon delivery of and payment for the stock to be sold by such
Selling Stockholder as provided in this Agreement and upon registration of
the Shares in the names of the Underwriters (or their nominees) in the stock
records of the Company, the Underwriters will be the owners of the Shares,
free and clear of any adverse claim, security interests, liens, equities and
other encumbrances, provided that the Underwriters are purchasing the Shares
in good faith and without notice of any adverse claim.
(f) All information furnished in writing by or on behalf of such Selling
Stockholder for use in the Registration Statement is, and on the Closing
Date will be, true, correct and complete, and does not, and on the Closing
Date will not, contain any untrue statement of a material fact or omit to
state any material fact necessary to make such information not misleading,
and all information furnished in writing by or on behalf of such Selling
Stockholder for use in the Prospectus is, and on the Closing Date will be,
true, correct and complete, and does not, and on the Closing Date will not,
contain any untrue statement of a material fact or omit to state any
material fact necessary to make such information not misleading in the light
of the circumstances under which they were made.
3. AGREEMENTS TO SELL AND PURCHASE. Each Seller, severally and not
jointly, hereby agrees to sell to the several Underwriters, and each
Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees, severally
and not jointly, to purchase from such Seller at $______ a share (the "Purchase
Price") the number of Firm Shares (subject to such adjustments to eliminate
fractional shares as you may determine) that bears the same proportion to the
number of Firm Shares to be sold by such Seller as the number of Firm Shares set
forth in Schedule II hereto opposite the name of such Underwriter bears to the
total number of Firm Shares.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, each of the Selling
Stockholders agree to sell to the Underwriters, severally and not jointly, and
the Underwriters shall have a one-time right to purchase, at the Purchase Price,
such number of Additional shares as is set forth with respect to such Selling
Stockholder on Schedule I hereto. If you, on behalf of the Underwriters, elect
to exercise such option, you shall so notify the Selling Stockholders in writing
not later than 30 days after the date of this Agreement, which notice shall
specify the number of Additional Shares to be purchased by the Underwriters and
the date on which such shares are to be purchased. Such date may be the same as
the Closing Date (as defined below) but not earlier than the Closing Date nor
later than ten business days after the date of such notice. Additional Shares
may be purchased as provided in Section 5 hereof solely for the purpose of
covering over-allotments made in connection with the offering of the Firm
Shares. If any Additional Shares are to be purchased, each Underwriter agrees,
severally and not jointly, to purchase the number of Additional Shares (subject
to such adjustments to eliminate fractional shares as you may determine) that
bears the same proportion to the total number of Additional Shares to be
purchased as the number of Firm Shares set forth in Schedule II hereto opposite
the name of such Underwriter bears to the total number of Firm Shares.
Each Seller hereby agrees that, without the prior written consent of
Xxxxxx Xxxxxxx on behalf of the Underwriters, it will not, during the period
ending 180 days after the date of the Prospectus, (i) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase or otherwise
transfer or dispose of, directly or indirectly, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock
or (ii) enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of the Common
Stock, whether any such transaction described in clause (i) or (ii) above is to
be settled by delivery of Common Stock or such other securities, in cash or
otherwise (the "Market Stand-Off"). The foregoing sentence shall not apply to
(A) the Shares to be sold hereunder, (B) the issuance by the Company of shares
of Common Stock upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof, (C) options issued under the 1989 Plan,
1992 Plan, the 1997 Equity Incentive Plan, the 1997 Directors Stock Option Plan,
and the shares issuable upon exercise thereof, (D) shares issued under the 1997
Employee Stock Purchase Plan and the shares issuable upon exercise thereof;
provided, however, that any receiver of securities issued under (B), (C) or (D)
above agrees to the Market Stand-Off. In addition, each Selling Stockholder
agrees that, without the prior written consent of Xxxxxx Xxxxxxx on behalf of
the Underwriters, it will not, during the period ending 180 days after the
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date of the Prospectus, make any demand for, or exercise any right with respect
to, the registration of any shares of Common Stock or any security convertible
into or exercisable or exchangeable for Common Stock.
4. TERMS OF PUBLIC OFFERING. The Sellers are advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Sellers are further
advised by you that the Shares are to be offered to the public initially at
$_____ a share (the "Public Offering Price") and to certain dealers selected by
you at a price that represents a concession not in excess of $0.___ a share
under the Public Offering Price, and that any Underwriter may allow, and such
dealers may reallow, a concession, not in excess of $___ a share, to any
Underwriter or to certain other dealers.
5. PAYMENT AND DELIVERY. Payment for the Firm Shares to be sold by each
Seller shall be made in federal or immediately available funds at the office of
Fenwick & West LLP at 10:00 A.M., New York time, on _____________, 1997 or at
such other time on the same or such other date, not later than ______________,
1997, as shall be designated in writing by you. The time and date of such
payment are hereinafter referred to as the "Closing Date."
Payment for any Additional Shares shall be made by certified or
official bank check or checks payable to the order of the Company in same day
funds at the office of Fenwick & West LLP at 10:00 A.M., New York time, on the
date specified in the notice described in Section 3 or on such other date as
shall be designated in writing by you. The time and date of such payment are
hereinafter referred to as the "Option Closing Date."
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
6. CONDITIONS TO THE UNDERWRITER'S OBLIGATIONS. The obligations of the
Sellers to sell the Shares to the Underwriters and the several obligations of
the Underwriters to purchase and pay for the Shares on the Closing Date are
subject to the condition that the Registration Statement shall have become
effective not later than 5:30 p.m. (New York time) on the date hereof.
The several obligations of the Underwriters are subject to the
following further conditions:
(a) Subsequent to the execution and delivery of this Agreement and
prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's securities
by any "nationally recognized statistical rating organization," as such
term is defined for purposes of Rule 436(g)(2) under the Securities Act;
and
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or otherwise,
or in the earnings, business or operations of the Company and its
Subsidiaries, taken as a whole, from that set forth in the Prospectus
(exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement) that, in your judgment, is material and adverse
and that makes it, in your judgment, impracticable to market the Shares
on the terms and in the manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer of
the Company on behalf of the Company, to the effect set forth
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in clause (a) above and to the effect that the representations and
warranties of the Company contained in this Agreement are true and correct
as of the Closing Date and that the Company has complied with all of the
agreements and satisfied all of the conditions on its part to be performed
or satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon his
or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an
opinion of Fenwick & West LLP, outside counsel for the Company, dated the
Closing Date, to the effect that:
(i) the Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
corporate 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 Company
maintains employees or leased or owned real property;
(ii) OSI Puerto Rico has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation and has the corporate power and
corporate authority to own its property and to conduct its business as
described in the Prospectus;
(iii) to such counsel's knowledge, other than director
qualifying shares, the Company is the sole holder of all outstanding
stock of the Subsidiaries;
(iv) the authorized capital stock of the Company conforms as
to legal matters in all material respects to the description thereof
contained in the Prospectus;
(v) the shares of Common Stock (including the Shares to be
sold by the Selling Stockholders) outstanding prior to the issuance of
the Shares to be sold by the Company have been duly authorized and are
validly issued and non-assessable and, to such counsel's knowledge,
fully paid;
(vi) the Shares to be sold by the Company 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, to such counsel's knowledge, the issuance of such
Shares will not be subject to any preemptive or similar rights;
(vii) to the knowledge of such counsel, there is no 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;
(viii) the Company has corporate power and corporate 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;
(ix) this Agreement has been duly authorized, executed and
delivered by the Company;
(x) 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, to such counsel's
knowledge, any agreement or other instrument binding upon the Company
or any of its Subsidiaries that is material to the Company and its
Subsidiaries, taken as a whole (where such agreements and
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instruments have been identified to such counsel by the Company as all
of the material agreements and instruments binding upon the Company or
its Subsidiaries) (the "Material Agreements"), or, to such counsel's
knowledge, any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or its
Subsidiaries, and no consent, approval, authorization or order of, or
qualification with, any governmental body or governmental 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 or international jurisdictions in
connection with the offer and sale of the Shares (as to which such
counsel need not opine);
(xi) to such counsel's knowledge based solely upon oral advice
from the Staff of the Commission: (I) the Registration Statement has
become effective under the Securities Act, no stop order proceedings
with respect thereto have been instituted or are pending or threatened
under the Securities Act, and (II) any required filing of the
Prospectus and any supplement thereto pursuant to Rule 424(b) under the
Securities Act has been made in the manner and within the time period
required by such Rule 424(b);
(xii) the Shares to be sold under this Agreement to the
Underwriters by the Company and the Selling Stockholders are duly
authorized for quotation on the Nasdaq National Market;
(xiii) the statements (A) in the Prospectus under the captions
"Management--Director Compensation," "Management--Indemnification of
Directors and Executive Officers and Limitation of Liability,"
"Management--Employee Benefit Plans," "Certain Transactions" (except
the third, fourth and fifth paragraphs of "OSL Acquisition and Related
Litigation" thereunder), "Description of Capital Stock," and "Shares
Eligible for Future Sale" and "Underwriters" (to the extent of the
description of this Agreement) and (B) in the Registration Statement in
Items 14 and 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;
(xiv) such counsel does not know of any legal or governmental
proceedings pending or threatened to which the Company or any of its
Subsidiaries is a party or to which any of the properties of the
Company or any of its Subsidiaries is subject that are required to be
described in the Registration Statement or the Prospectus and are not
so described or of any statutes, regulations, or to such counsel's
knowledge, 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;
(xv) the Company is not and, after giving effect to the
offering and sale of the Shares and the application of the net proceeds
therefrom as described in the Prospectus, will not be an "investment
company" as such term is defined in the Investment Company Act of 1940,
as amended;
(xvi) the Agreement and Plan of Merger (the "Plan of Merger")
by and between the Company and the Predecessor has been duly authorized
by all necessary Board of Directors and stockholder action on the part
of the Company and the Predecessor and has been duly executed and
delivered by each of the parties thereto;
(xvii) the execution and delivery of the Plan of Merger and
the consummation of the merger contemplated thereby do not contravene
any provision of applicable law or the certificate of incorporation or
bylaws of the Company or the articles of incorporation or bylaws of the
Predecessor or, to such counsel's knowledge, any judgment or decree of
any governmental body, agency or court having jurisdiction over the
Predecessor or any of the Subsidiaries, and, to such counsel's
knowledge, no consent, approval, authorization or order of or
qualification with any
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governmental body or agency is required for the performance by the
Company and the Predecessor of their respective obligations under the
Plan of Merger except such as have been obtained or are not material to
the Company; the consummation of the Reincorporation does not
contravene, or result in any breach of, or constitute a default under
(or constitute any event which with notice, lapse of time or both would
constitute a breach of or default under), any provision of any Material
Agreement;
(xviii) the merger contemplated by the Plan of Merger is
effective under the laws of the State of California and the State of
Delaware; the Company has succeeded to all of the rights, privileges,
powers and franchises, and is subject to all of the restrictions,
disabilities and duties, of the Predecessor as provided under Section
259 of the Delaware General Corporation Law; to the knowledge of such
counsel, the Company has succeeded to all of the rights of the
Predecessor with respect to each Material Agreement of the Predecessor,
and all required material consents to the merger and assignments with
respect to such Material Agreements have been obtained; all of the
shares of capital stock of the Company have the same rights,
preferences and privileges (except for differences resulting from
applicable law) as described in the Prospectus; all of the outstanding
options of the Predecessor outstanding as of the date set forth in the
Prospectus are outstanding for that number of shares of Common Stock of
the Company as described in the Prospectus, other than options which
have terminated or expired by their terms and not as a result of the
Reincorporation; the issuance of capital stock by the Company in the
Reincorporation was in compliance with all applicable registration and
qualification provisions of state securities or blue sky laws as are
identified therein and was exempt from registration under the
Securities Act; and
(xix) The statements in the Prospectus under the captions
"Risk Factors--Regulatory Approvals Uncertain" and
"Business--Government Regulation," insofar as such statements purport
to summarize applicable provisions of the Federal Food, Drug and
Cosmetic Act and the regulations promulgated thereunder, are accurate
summaries in all material respects of the provisions purported to be
summarized under such captions in the Prospectus.
In addition, such counsel shall state that in addition to rendering
legal advice and assistance to the Company in the course of the preparation of
the Registration Statement and the Prospectus, involving, among other things,
discussions and inquiries concerning various legal matters and the review of
certain corporate records, documents and proceedings, such counsel also
participated in conferences with certain officers and other representatives of
the Company, including its independent certified public accountants and with the
Underwriters and their counsel, at which the contents of the Registration
Statement and the Prospectus and related matters were discussed; provided, such
counsel may state that they have not independently verified the accuracy,
completeness or fairness of the information contained in the Registration
Statement and Prospectus.
In addition to the matters set forth above, counsel rendering the
foregoing opinion shall also include a statement to the effect that nothing has
come to the attention of such counsel that causes it to believe that (i) the
registration statement (except as to the financial statements, the notes
thereto, the schedules and the other financial and statistical data contained
therein, as to which such counsel need not express any opinion or belief) at the
date the Registration Statement became effective 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, (ii) the
Prospectus (except as to the financial statements, the notes thereto, the
schedules and the other financial and statistical data contained therein, as to
which such counsel need not express an opinion or belief) as of its date
contained or contains any untrue statement of a material fact or omitted 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 and (iii) the Registration Statement or the Prospectus (except as to
the financial statements, the notes thereto, the schedules and the other
financial and statistical data contained therein, as to which such counsel need
not express any opinion or belief) did not comply as to form in all material
respects with the Securities Act and the applicable rules and regulations
thereunder.
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(d) The Underwriters shall have received on the Closing Date
an opinion or opinions of counsel for the Selling Stockholders (who may
also be counsel for the Company) to the effect that with respect to the
Selling Stockholder that such counsel represents:
(i) this Agreement has been duly authorized, executed
and delivered by or on behalf of such Selling Stockholder;
(ii) the execution and delivery by such Selling
Stockholder of, and the performance by such Selling
Stockholder of its obligations under, this Agreement and the
Custody Agreement and Power of Attorney of such Selling
Stockholder does not contravene any provision of applicable
law, or the certificate of incorporation or bylaws of such
Selling Stockholder (if such Selling Stockholder is a
corporation) or, to such counsel's knowledge, any agreement or
other instrument binding upon such Selling Stockholder (where
such agreements and instruments have been identified to such
counsel by such Selling Stockholder as all of the material
agreements and instruments binding upon such Selling
Stockholder) or, to such counsel's knowledge, any judgment,
order or decree of any governmental body, agency or court
having jurisdiction over such Selling Stockholder, and, to
such counsel's knowledge, no consent, approval, authorization
or order of, or qualification with, any governmental body or
governmental agency is required for the performance by such
Selling Stockholder of its obligations under this Agreement or
the Custody Agreement or Power of Attorney of such Selling
Stockholder, except such as may be required under the
Securities Act or by the securities or Blue Sky laws of the
various states or international jurisdiction in connection
with the offer and sale of the Shares (as to which such
counsel need not opine);
(iii) to such counsel's knowledge, such Selling
Stockholder has the legal right and power, and all
authorization and approval required by law, to enter into this
Agreement and the Custody Agreement and Power of Attorney of
such Selling Stockholder and to sell, transfer and deliver the
Shares to be sold by such Selling Stockholder;
(iv) the Custody Agreement and the Power of Attorney
of such Selling Stockholder have been duly authorized,
executed and delivered by such Selling Stockholder and are
valid and binding agreements of such Selling Stockholder; and
(v) upon delivery of and payment for the stock to be
sold by such Selling Stockholder as provided in this Agreement
and upon registration of the Shares in the names of the
Underwriters (or their nominees) in the stock records of the
Company (but without having conducted a search of the records
of any governmental authority or any third person), the
Underwriters will be the owners of the Shares, free and clear
of any adverse claim, security interests, liens, equities and
other encumbrances, provided that the Underwriters are
purchasing the Shares in good faith and without notice of any
adverse claim.
The opinions of Fenwick & West LLP described in paragraphs (c)
and (d) above (and any opinions of counsel for any Selling Stockholder referred
to in the immediately preceding paragraph) shall be rendered to the Underwriters
at the request of the Company or one or more of the Selling Stockholders, as the
case may be, and shall so state therein.
(e) The Underwriters shall have received on the Closing Date
an opinion of Xxxxx & Xxxxxx, counsel for OSL, dated the Closing Date,
to the effect that:
(i) OSL has been duly incorporated, is validly
existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has the corporate power
and authority to 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 the United
Kingdom;
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(ii) all of the issued shares of capital stock of OSL
have been duly validly authorized and issued, are fully paid
and non-assessable, and owned directly by the Company, free
and clear of all liens and encumbrances;
(iii) 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 English
law or the Memorandum of Articles of Association of OSL;
(f) The Underwriters shall have received on the Closing Date
an opinion of Bird, Bird and Huestres, counsel for OSI Puerto Rico,
dated as of the Closing Date, that OSI Puerto Rico 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 OSI Puerto Rico.
(g) The Underwriters shall have received on the Closing Date
an opinion of Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx,
LLP, counsel for the Underwriters, dated the Closing Date, covering the
matters referred to in the first clause of subparagraph (c)(i), in
subparagraphs (c)(vi), (c)(viii), (c)(ix), (c)(xi) (but only as to the
opinion in clause (I) thereof) and (c)(xiii) (but only as to the
statements in the Prospectus under "Description of Capital Stock" and
"Underwriters") and the second paragraph following the enumerated
opinions in paragraph (c) above. Such opinion shall also cover the
matters referred to in subparagraph (d)(i).
(h) The Underwriters shall have received, on each of the date
hereof and the Closing Date, a letter dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory to
the Underwriters, from KPMG Peat Marwick LLP, independent certified
public accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus;
provided that the letter delivered on the Closing Date shall use a
"cut-off date" not earlier than the date hereof.
(i) The "lock-up" agreements between you and certain
stockholders, officers and directors of the Company relating to sales
and certain other dispositions of shares of Common Stock or certain
other securities, delivered to you on or before the date hereof, shall
be in full force and effect on the Closing Date.
The several obligations of the Underwriters to purchase Additional
Shares hereunder are subject to the delivery to you on the Option Closing Date
of such documents as you may reasonably request with respect to the good
standing of the Company, the due authorization and issuance of the Additional
Shares and other matters related to the Additional Shares.
7. COVENANTS OF THE COMPANY. In further consideration of the agreements
of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, four (4) signed copies
of the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and to furnish to you in New York
City, without charge, prior to 5:00 P.M. local time on the business day
next succeeding the date of this Agreement and during the period
mentioned in paragraph (c) below, as many copies of the Prospectus and
any supplements and amendments thereto or to the Registration Statement
as you may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to you a copy of each such
proposed amendment or supplement and not to file any such proposed
amendment or supplement to which you reasonably object, and to file
with the Commission within the
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applicable period specified in Rule 424(b) under the Securities Act any
prospectus required to be filed pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to
the dealers (whose names and addresses you will furnish to the Company)
to which Shares may have been sold by you on behalf of the Underwriters
and to any other dealers upon request, either amendments or supplements
to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances
when the Prospectus is delivered to a purchaser, be misleading or so
that the Prospectus, as amended or supplemented, will comply with law.
(d) To endeavor to qualify the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request.
(e) To make generally available to the Company's security
holders and to you as soon as practicable an earnings statement
covering the twelve-month period ending September 30, 1998 that
satisfies the provisions of Section 11(a) of the Securities Act and the
rules and regulations of the Commission thereunder.
(f) To pay or cause to be paid all expenses incident to the
performance of its obligations under this Agreement, including: (i) the
fees, disbursements and expenses of the Company's counsel and the
Company's accountants in connection with the registration and delivery
of the Shares under the Securities Act and all other fees or expenses
in connection with the preparation and filing of the Registration
Statement, any preliminary prospectus, the Prospectus and amendments
and supplements to any of the foregoing, including all printing costs
associated therewith, and the mailing and delivering of copies thereof
to the Underwriters and dealers, in the quantities hereinabove
specified, (ii) all costs and expenses related to the transfer and
delivery of the Shares to the Underwriters, including any transfer or
other taxes payable thereon, (iii) the cost of printing or producing
any Blue Sky memorandum in connection with the offer and sale of the
Shares under state securities laws, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in
connection with the Blue Sky memorandum, (iv) all filing fees and
reasonable disbursements of counsel to the Underwriters incurred in
connection with the review and qualification of the offering of the
Shares by the National Association of Securities Dealers, Inc., (v) all
fees and expenses in connection with the preparation and filing of the
registration statement on Form 8-A relating to the Common Stock and all
costs and expenses incident to listing the Shares on the Nasdaq
National Market, (vi) the cost of printing certificates representing
the Shares, (vii) the costs and charges of any transfer agent,
registrar or depositary, (viii) the costs and expenses of the Company
relating to investor presentations on any "road show" undertaken in
connection with the marketing of the offering of the Shares, including,
without limitation, expenses associated with the production of road
show slides and graphics, fees and expenses of any consultants engaged
in connection with the road show presentations with the prior approval
of the Company, travel and lodging expenses of the representatives and
officers of the Company and any such consultants and, if approved by
the Company, the cost of any aircraft chartered in connection with the
road show, and (ix) all other costs and expenses incident to the
performance of the obligations of the Company hereunder for which
provision is not otherwise made in this Section. It is understood,
however, that except as provided in this Section, Section 9 entitled
"Indemnity and Contribution", and the last paragraph of Section 11
below, the Underwriters will pay all of their costs and expenses,
including fees and disbursements of their counsel, stock transfer taxes
payable on resale of any of the Shares by them, and any advertising
expenses connected with any offers they may make.
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(g) To not release any shares of Common Stock from any
restrictions imposed upon such shares by the Lock-Up Agreements without
the prior written consent of Xxxxxx Xxxxxxx.
(h) That in connection with the Directed Share Program, the
Company will ensure that the Directed Shares will be restricted to the
extent required by the NASD or the NASD rules from sale, transfer,
assignment, pledge or hypothecation for a period of three months
following the date of the effectiveness of the Registration Statement.
Xxxxxx Xxxxxxx will notify the Company as to which Participants will
need to be so restricted. The Company will direct the transfer agent to
place stop-transfer restrictions upon such securities for such period
of time.
(i) To pay all reasonable fees and disbursements of counsel
incurred by the Underwriters in connection with the Directed Share
Program and stamp duties, similar taxes or duties or other taxes, if
any, incurred by the Underwriters in connection with the Directed Share
Program; provided such fees and disbursements would not otherwise have
been incurred by the Underwriters in connection with the sale of the
Shares.
Furthermore, the Company covenants with Xxxxxx Xxxxxxx that the Company
will comply with all applicable securities and other applicable laws, rules and
regulations in each foreign jurisdiction in which the Directed Shares are
offered in connection with the Directed Share Program.
8. EXPENSES OF SELLING STOCKHOLDERS. The Underwriters shall not be
liable for any expenses of any Selling Stockholders in connection with the sale
of their Shares in the offering. Subject to any agreements between the Company
and Selling Stockholders providing that the Company shall pay Selling
Stockholder expenses, each Selling Stockholder, severally and not jointly,
agrees to pay or cause to be paid (i) all taxes, if any, on the transfer and
sale of the Shares being sold by such Selling Stockholder and (ii) such Selling
Stockholder's pro rata share of expenses of counsel for the Selling
Stockholders.
9. INDEMNITY AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), from and against any
and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection
with defending or investigating any such action or claim) caused by any
untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto) or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by
any such untrue statement or omission or alleged untrue statement or
omission based upon information relating to any Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use
therein; provided, however, that the foregoing indemnity agreement with
respect to any preliminary prospectus shall not inure to the benefit of any
Underwriter, or any person controlling such Underwriter, from whom the
person asserting any such losses, claims, damages or liabilities purchased
Shares, if a copy of the Prospectus (as then amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) was not
sent or given by or on behalf of such Underwriter to such person, if
required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Shares to such person, and if the Prospectus
(as so amended or supplemented) would have cured the defect giving rise to
such loss, claim, damage or liability.
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(b) The Company agrees to indemnify and hold harmless Xxxxxx Xxxxxxx and
each person, if any, who controls Xxxxxx Xxxxxxx within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act
("Xxxxxx Xxxxxxx Entities"), from and against any and all losses, claims,
damages and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or investigating
any such action or claim) (i) caused by any untrue statement or alleged
untrue statement of a material fact contained in the prospectus wrapper
material prepared by or with the consent of the Company for distribution in
foreign jurisdictions in connection with the Directed Share Program attached
to the Prospectus or any preliminary prospectus, or caused by any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statement therein, when considered in
conjunction with the Prospectus or any applicable preliminary prospectus,
not misleading; (ii) caused by the failure of any Participant to pay for and
accept delivery of the shares which, immediately following the effectiveness
of the Registration Statement, were subject to a properly confirmed
agreement to purchase; or (iii) related to, arising out of, or in connection
with the Directed Share Program, provided that, the Company shall not be
responsible under this subparagraph (iii) for any losses, claim, damages or
liabilities (or expenses relating thereto) that are finally judicially
determined to have resulted from the bad faith or gross negligence of Xxxxxx
Xxxxxxx Entities.
(c) Each Selling Stockholder agrees, severally and not jointly, to
indemnify and hold harmless each Underwriter, the Company, its directors,
its officers who sign the Registration Statement and each person, if any,
who controls any Underwriter or the Company within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim) caused
by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any amendment thereof, any
preliminary prospectus or the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto), or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein
not misleading, but only with reference to information relating to such
Selling Stockholder furnished in writing by or on behalf of such Selling
Stockholder expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto;
provided, however, that the foregoing indemnity agreement with respect to
any preliminary prospectus shall not inure to the benefit of any
Underwriter, or any person controlling such Underwriter, from whom the
person asserting any such losses, claims, damages or liabilities purchased
Shares, if a copy of the Prospectus (as then amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) was not
sent or given by or on behalf of such Underwriter to such person, if
required by law so to have been delivered, at or prior to the written
confirmation of the sale of the Shares to such person, and if the Prospectus
(as so amended or supplemented) would have cured the defect giving rise to
such loss, claim, damage or liability.
(d) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, the Selling Stockholders, the directors of the
Company, the officers of the Company who sign the Registration Statement and
each person, if any, who controls the Company or any Selling Stockholder
within the meaning of either Section 15 of the Securities Act or Section 20
of the Exchange Act from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred in connection with defending or investigating any such
action or claim) caused by any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, but only with reference to
information relating to such Underwriter furnished to the Company in writing
by or on behalf of such Underwriter through you expressly for use in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendments or supplements thereto.
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(e) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may
be sought pursuant to paragraph (a), (b), (c) or (d) of this Section 9, such
person (the "indemnified party") shall promptly notify the person against
whom such indemnity may be sought (the "indemnifying party") in writing and
the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may reasonably
designate in such proceeding and shall pay the fees and disbursements of
such counsel related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel, but the
fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii)
the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is
understood that the indemnifying party shall not, in respect of the legal
expenses of any indemnified party in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel)
for (i) all Underwriters and all persons, if any, who control any
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, (ii) the Company, its directors, its
officers who sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either such Section and (iii) all
Selling Stockholders and all persons, if any, who control any Selling
Stockholder within the meaning of either such Section, and that all such
fees and expenses shall be reimbursed as they are incurred. In the case of
any such separate firm for the Underwriters and such control persons of the
Underwriters, such firm shall be designated in writing by Xxxxxx Xxxxxxx. In
the case of any such separate firm for the Company, and such directors,
officers and control persons of the Company, such firm shall be designated
in writing by the Company. In the case of any such separate firm for the
Selling Stockholders and such controlling persons of the Selling
Stockholders, such firm shall be designated in writing by the persons named
as attorneys-in-fact for the Selling Stockholders under the Powers of
Attorney. The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by the second and
third sentences of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days
after receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter
of such proceeding. Notwithstanding anything contained herein to the
contrary, if indemnity may be sought pursuant to Section 9(b) hereof in
respect of such action or proceeding, then in addition to such separate firm
for the indemnified parties, the indemnifying party shall be liable for the
reasonable fees and expenses of not more than one separate firm (in addition
to any local counsel) for Xxxxxx Xxxxxxx for the defense of any losses,
claims, damages and liabilities arising out of the Directed Share Program,
and all persons, if any, who control Xxxxxx Xxxxxxx within the meaning of
either Section 15 of the Act or Section 20 of the Exchange Act.
(f) To the extent the indemnification provided for in paragraph (a),
(b), (c) or (d) of this Section 9 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities
referred to therein, then each indemnifying party under such paragraph, in
lieu of indemnifying such indemnified party thereunder, shall contribute to
the amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying
party or parties on the one hand and the
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indemnified party or parties on the other hand from the offering of the
Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the indemnifying party or parties on the one hand and of
the indemnified party or parties on the other hand in connection with the
statements or omissions that resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company and the Selling Stockholders on
the one hand and the Underwriters on the other hand in connection with the
offering of the Shares shall be deemed to be in the same respective
proportions as the net proceeds from the offering of the Shares (before
deducting expenses) received by each Seller and the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover of the Prospectus, bear to the aggregate
Public Offering Price of the Shares. The relative fault of each Seller and
the Underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such Seller or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Underwriters' respective obligations
to contribute pursuant to this Section 9 are several in proportion to the
respective number of Shares they have purchased hereunder, and not joint.
(g) The Sellers and the Underwriters agree that it would not be just or
equitable if contribution pursuant to this Section 9 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (f) of this
Section 9. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 9, no
Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of
any damages that such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section 9 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(h) The indemnity and contribution provisions contained in this Section
9 and the representations, warranties and other statements of the Company
and the Selling Stockholders contained in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination of
this Agreement, (ii) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter, any Selling
Stockholder or any person controlling any Selling Stockholder, or the
Company, its officers or directors or any person controlling the Company and
(iii) acceptance of and payment for any of the Shares. The aggregate
liability of each Selling Stockholder under the indemnity and contribution
agreements contained in this Section 9 and under the representations and
warrants contained in paragraph (f) of Section 2 hereof shall be limited to
an amount equal to the net proceeds received by such Selling Stockholder
(before deducting expenses) from the offering of the Shares sold by such
Selling Stockholder.
10. TERMINATION. This Agreement shall be subject to termination by
notice given by you to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the National Association
of Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial
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markets or any calamity or crisis that, in your judgment, is material and
adverse and (b) in the case of any of the events specified in clauses (a)(i)
through (iv), such event, singly or together with any other such event, makes
it, in your judgment, impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus.
11. EFFECTIVENESS: DEFAULTING UNDERWRITERS. This Agreement shall become
effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase Shares that
it has or they have agreed to purchase hereunder on such date, and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of the Shares to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm Shares set forth
opposite their respective names in Schedule II bears to the aggregate number of
Firm Shares set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as you may specify, to purchase the
Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; provided that in no event shall the number of
Shares that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 11 by an amount in excess of one-ninth of
such number of Shares without the written consent of such Underwriter. If, on
the Closing Date, any Underwriter or Underwriters shall fail or refuse to
purchase Firm Shares and the aggregate number of Firm Shares with respect to
which such default occurs is more than one-tenth of the aggregate number of Firm
Shares to be purchased, and arrangements satisfactory to you, the Company and
the Selling Stockholders for the purchase of such Firm Shares are not made
within 36 hours after such default, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter, the Company or the
Selling Stockholders. In any such case either you or the relevant Sellers shall
have the right to postpone the Closing Date, but in no event for longer than
seven days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements may be
effected. If, on the Option Closing Date, any Underwriter or Underwriters shall
fail or refuse to purchase Additional Shares and the aggregate number of
Additional Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Additional Shares to be purchased, the
non-defaulting Underwriters shall have the option to (i) terminate their
obligation hereunder to purchase Additional Shares or (ii) purchase not less
than the number of Additional Shares that such non-defaulting Underwriters would
have been obligated to purchase in the absence of such default. Any action taken
under this paragraph shall not relieve any defaulting Underwriter from liability
in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of any Seller to comply with
the terms or to fulfill any of the conditions placed upon it in this Agreement,
or if for any reason any Seller shall be unable to perform its obligations under
this Agreement that are within its control, the Sellers will reimburse the
Underwriters or such Underwriters as have so terminated this Agreement with
respect to themselves, severally, for all out-of-pocket expenses (including the
fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering contemplated
hereunder.
12. COUNTERPARTS. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
14. HEADINGS. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
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Very truly yours,
OCULAR SCIENCES, INC.
By:
--------------------------------
Name:
Title:
THE SELLING STOCKHOLDERS NAMED IN
SCHEDULE I HERETO, ACTING SEVERALLY
By:
--------------------------------
Attorney-in-Fact
Accepted as of the date hereof:
XXXXXX XXXXXXX & CO. INCORPORATED
BEAR, XXXXXXX & CO. INC.
XXXXX & COMPANY
Acting severally on behalf of themselves
and the several Underwriters named in
Schedule II hereto.
By: Xxxxxx Xxxxxxx & Co. Incorporated
By:
--------------------------------
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SCHEDULE I
Number of Number of
Firm Shares Additional Shares
Selling Stockholder To Be Sold To Be Sold
------------------- ----------- -----------------
Xxxxx Partners, L.P. 317,333 413,503
Xxxxx Partners International, L.P. 32,667 42,566
Allergan, Inc. 475,201 330,868
Xxxx Xxxxx 741,591 258,409
Xxxxxxxx X. Xxxxxx 1,225,744 0
Xxxxxxx Xxxxxx 550,880 0
Xxxxxx Xxxxxxx 86,400 0
Xxxxxx Xxxxx 86,400 0
Xxxx Xxxxxxxx 43,200 0
Xxxxxx Xxxxxxx 36,894 31,505
Xxxxx Xxxx 3,690 3,149
------- ---------
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SCHEDULE II
Number of
Firm Shares
Underwriter To Be Purchased
----------- ---------------
Xxxxxx Xxxxxxx & Co. Incorporated
Bear, Xxxxxxx & Co. Inc.
Xxxxx & Company
Total: 7,200,000
