Exhibit 1.1
SHARES
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NOMOS CORPORATION
SHARES OF COMMON STOCK
($.0001 PAR VALUE)
UNDERWRITING AGREEMENT
, 2002
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XX XXXXX SECURITIES CORPORATION
CIBC WORLD MARKETS CORP.
As Representatives of the several Underwriters
c/o XX Xxxxx Securities Corporation
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
1. INTRODUCTORY. NOMOS Corporation, a Delaware corporation (the "COMPANY"),
proposes to sell, pursuant to the terms of this Agreement, to the several
underwriters named in Schedule A hereto (the "UNDERWRITERS," or, each, an
"UNDERWRITER"), an aggregate of _______ shares of Common Stock, $.0001 par value
(the "COMMON STOCK"), of the Company. The aggregate of ________ shares so
proposed to be sold is hereinafter referred to as the "FIRM STOCK". The Company
also proposes to sell to the Underwriters, upon the terms and conditions set
forth in Section 3 hereof, up to an additional _______ shares of Common Stock
(the "OPTIONAL STOCK"). The Firm Stock and the Optional Stock are hereinafter
collectively referred to as the "STOCK". XX Xxxxx Securities Corporation ("XX
XXXXX") and CIBC World Markets Corp. are acting as representatives of the
several Underwriters and in such capacity are hereinafter referred to as the
"REPRESENTATIVES." Certain terms used herein are defined in Section 14 hereof.
As part of the offering contemplated by this Agreement, each of the
Underwriters has agreed to reserve out of the Stock set forth opposite its name
on Schedule B 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 (as defined
herein) under the heading "UNDERWRITING" (the "DIRECTED SHARE PROGRAM"). The
Stock to be sold pursuant to the Directed Share Program (the "DIRECTED SHARES")
will be sold by the Underwriters pursuant to this Agreement at the public
offering price. The number of shares of Stock available for sale to the general
public will be reduced to the extent the Directed Shares are purchased and any
Directed Shares not purchased by the Participants will be offered by the
Underwriters to the general public as set forth in the Prospectus.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents and
warrants to, and agrees with, the several Underwriters that:
(a) A Registration Statement on Form S-1 (File No. 333-___) (the "INITIAL
REGISTRATION STATEMENT") in respect of the Stock has been filed with the
Securities and Exchange Commission (the "COMMISSION"); the Initial
Registration Statement and any post-effective amendment thereto, each in
the form heretofore delivered to you, and, excluding exhibits thereto, to
you for each of the other Underwriters, have been declared effective by the
Commission in such form; other than a registration statement, if any,
increasing the size of the offering (a "RULE 462(b) REGISTRATION
STATEMENT"), filed pursuant to Rule 462(b) under the Securities Act of
1933, as amended (the "SECURITIES ACT") and the rules and regulations (the
"RULES AND REGULATIONS") of the Commission promulgated thereunder, which
became effective upon filing, no other document with respect to the Initial
Registration Statement has heretofore been filed with the Commission; and
no stop order suspending the effectiveness of the Initial Registration
Statement, any post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued and no proceeding for that
purpose has been initiated or threatened by the Commission (any preliminary
prospectus included in the Initial Registration Statement or filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations, is
hereinafter called a "PRELIMINARY PROSPECTUS"); the various parts of the
Initial Registration Statement and the Rule 462(b) Registration Statement,
if any, including all exhibits thereto and including the information
contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Securities Act and deemed by virtue of
Rule 430A under the Securities Act to be part of the Initial Registration
Statement at the time it was declared effective, each as amended at the
time such part of the Initial Registration Statement became effective or
such part of the Rule 462(b) Registration Statement, if any, became or
hereafter becomes effective, are hereinafter collectively called the
"REGISTRATION STATEMENTS"; such final prospectus, in the form first filed
pursuant to Rule 424(b) under the Securities Act, is hereinafter called the
"PROSPECTUS". No document has been or will be prepared or distributed in
reliance on Rule 434 under the Securities Act. No order preventing or
suspending the use of any Preliminary Prospectus has been issued by the
Commission.
(b) The Initial Registration Statement conforms (and the Rule 462(b)
Registration Statement, if any, the Prospectus and any amendments or
supplements to either of the Registration Statements or the Prospectus,
when they become effective or are filed with the Commission, as the case
may be, will conform) in all material respects to the requirements of the
Securities Act and the Rules and Regulations and do not and will not, as of
the applicable effective date (as to the Registration Statements and any
amendment thereto) and as of the applicable filing date (as to the
Prospectus and any amendment or supplement thereto) contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, however, that the foregoing representations and
warranties shall not apply to information contained in or omitted from the
Registration Statements or the Prospectus or any such amendment or
supplement thereto in reliance upon, and in conformity with, written
information furnished to the Company through the Representatives by or on
behalf of any Underwriter specifically for inclusion therein.
(c) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware with
full corporate power and authority to own or lease, as the case may be, and
to operate its properties and conduct its business as described in the
Prospectus, and is duly qualified to do business as a foreign corporation
and is in good standing under the laws of each jurisdiction which requires
such qualification, except where the failure to be so qualified and in good
standing would not have a material adverse effect on the condition
(financial or otherwise), earnings, business, properties or prospects of
the Company (a "MATERIAL ADVERSE EFFECT").
(d) The Company does not have any subsidiaries other than inactive
subsidiaries with de minimis assets.
(e) The Company's authorized capitalization is as set forth in the
Prospectus; the capital stock of the Company conforms in all material
respects to the description thereof contained in
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the Prospectus; all the outstanding shares of Common Stock have been duly
and validly authorized and issued and are fully paid and nonassessable; the
Stock has been duly and validly authorized, and, when issued and delivered
to and paid for by the Underwriters pursuant to this Agreement, will be
fully paid and nonassessable; the Stock is duly listed, and admitted and
authorized for trading, subject to official notice of issuance and evidence
of satisfactory distribution, on the Nasdaq National Market; the
certificates for the Stock are in valid and sufficient form; the holders of
outstanding shares of capital stock of the Company are not entitled to
preemptive or other rights to subscribe for the Stock; and, except as set
forth in the Prospectus, no options, warrants or other rights to purchase,
agreements or other obligations to issue, or rights to convert any
obligations into or exchange any securities for, shares of capital stock of
or ownership interests in the Company are outstanding.
(f) There is no franchise, contract, lease, instrument or other document of
a character required to be described in the Registration Statements or
Prospectus, or to be filed as an exhibit thereto, which is not described or
filed as required and all statements summarizing any such franchises,
contracts, leases, instruments or other documents or legal matters
contained in the Registration Statements are accurate and fair summaries of
such franchises, contracts, leases, instruments or other documents or legal
matters.
(g) The minute books of the Company have been made available to the
Underwriters and counsel for the Underwriters, and such books (i) contain
an accurate summary in all material respects of all meetings and actions of
the directors and stockholders of the Company since the time of its
incorporation through the date of the latest meeting and action, and (ii)
accurately in all material respects reflect all transactions referred to in
such minutes.
(h) This Agreement has been duly authorized, executed and delivered by the
Company and constitutes a valid and binding obligation of the Company
enforceable in accordance with its terms.
(i) The Company is not and, after giving effect to the offering and sale of
the Stock and the application of the proceeds thereof as described in the
Prospectus, will not be an "INVESTMENT COMPANY" as defined in the
Investment Company Act of 1940, as amended.
(j) No consent, approval, authorization, filing with or order of any court
or governmental agency or body is required in connection with the
transactions contemplated herein, except such as have been obtained under
the Securities Act and such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and distribution of the
Stock by the Underwriters in the manner contemplated herein and in the
Prospectus.
(k) Neither the issue and sale of the Stock nor the consummation of any
other of the transactions herein contemplated nor the fulfillment of the
terms hereof will conflict with, result in a breach or violation of or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company pursuant to (i) the charter or by-laws of the Company, (ii)
the terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which the Company is a party or bound or to which
its or their property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or any
of its properties.
(l) No holders of securities of the Company have rights to the registration
of such securities under the Registration Statements.
(m) The consolidated historical financial statements and schedules of the
Company included in the Prospectus and the Registration Statements present
fairly in all material respects the financial condition, results of
operations and cash flows of the Company as of the dates and for the
periods indicated, comply as to form with the applicable accounting
requirements of the Securities Act and have been prepared in conformity
with generally accepted accounting principles applied on a consistent basis
throughout the periods involved (except as otherwise noted therein). The
selected financial data set forth under the caption,
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"Selected Consolidated Financial Data" in the Prospectus and the
Registration Statements fairly present, on the basis stated in the
Prospectus and the Registration Statements, the information included
therein.
(n) No action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company or
property is pending or, to the knowledge of the Company, threatened that
(i) could reasonably be expected to have a Material Adverse Effect on the
performance of this Agreement or the consummation of any of the
transactions contemplated hereby or (ii) could reasonably be expected to
have a Material Adverse Effect, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated by
the Prospectus (exclusive of any supplement thereto).
(o) The Company owns or leases all such properties as are necessary to the
conduct of its operations as presently conducted.
(p) The Company is not in violation or default of (i) any provision of its
charter or bylaws, (ii) the terms of any indenture, contract, lease,
mortgage, deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which it is a party or
bound or to which its property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or any of its properties, as
applicable (including, without limitation, those administered by the Food
and Drug Administration of the U.S. Department of Health and Human Services
(the "FDA") or by any foreign, federal, state or local governmental or
regulatory authority performing functions similar to those performed by the
FDA), except, with respect to clauses (ii) and (iii), any violations or
defaults which, singularly or in the aggregate, would not have a Material
Adverse Effect.
(q) Ernst & Young LLP, who have certified certain financial statements of
the Company and delivered their report with respect to the audited
consolidated financial statements and schedules included in the Prospectus,
are independent public accountants with respect to the Company within the
meaning of the Securities Act and the applicable published rules and
regulations thereunder.
(r) 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 issuance by the Company or sale by the Company of the
Stock.
(s) The Company has filed all foreign, federal, state and local tax returns
that are required to be filed or has requested extensions thereof (except
in any case in which the failure so to file would not have a Material
Adverse Effect, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated by the
Prospectus (exclusive of any supplement thereto)) and has paid all taxes
required to be paid by it and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and payable,
except for any such assessment, fine or penalty that is currently being
contested in good faith or as would not have a Material Adverse Effect
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated by the Prospectus
(exclusive of any supplement thereto).
(t) No labor problem or dispute with the employees of the Company exists
or, to the Company's knowledge, is threatened or imminent, and the Company
is not aware of any existing or imminent labor disturbance by the employees
of any of its principal suppliers, contractors or customers, that could
have a Material Adverse Effect, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated by
the Prospectus (exclusive of any supplement thereto).
(u) 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; all
policies of insurance and fidelity or surety bonds insuring the
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Company or its businesses, assets, employees, officers and directors are in
full force and effect; the Company is in compliance with the terms of such
policies and instruments in all material respects; and there are no claims
by the Company under any such policy or instrument as to which any
insurance company is denying liability or defending under a reservation of
rights clause; the Company has not been refused any insurance coverage
sought or applied for; and the Company has no reason to believe that it
will not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as may
be necessary to continue its business at a cost that would not have a
Material Adverse Effect, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated by the
Prospectus (exclusive of any supplement thereto).
(v) The Company possesses all approvals, licenses, certificates,
certifications (including, without limitation, ISO9001/EN46001
certifications by the European Union under the Medical Devices Directive),
clearances, consents, exemptions, marks (including, without limitation, the
CE xxxx by the European Union under the Medical Devices Directive),
notifications, orders, permits and other authorizations issued by the
appropriate federal, state or foreign regulatory authorities (including,
without limitation, the FDA, and any other foreign, federal, state or local
government or regulatory authorities performing functions similar to those
performed by the FDA) necessary to conduct its businesses (collectively,
"PERMITS"), except for such Permits which the failure to obtain would not
have a Material Adverse Effect, and is in compliance with the terms and
conditions of all such Permits; all of such Permits held by the Company are
valid and in full force and effect; there is no pending or threatened
action, suit, claim or proceeding which may cause any such Permit to be
limited, revoked, cancelled, suspended, modified or not renewed and the
Company has not received any notice of proceedings relating to the
limitation, revocation, cancellation, suspension, modification or
non-renewal of any such Permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a
Material Adverse Effect, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated by the
Prospectus (exclusive of any supplement thereto).
(w) 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.
(x) Neither the Company nor any of its officers, directors or affiliates
has taken or will take, directly or indirectly, any action designed or
intended to stabilize or manipulate the price of any security of the
Company, or which caused or resulted in, or which might in the future
reasonably be expected to cause or result in, stabilization or manipulation
of the price of any security of the Company.
(y) The Company is (i) in compliance in all material respects 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 and are in compliance with all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) have
not received notice of any actual or potential liability for the
investigation or remediation of any disposal or release of hazardous or
toxic substances or wastes, pollutants or contaminants, except where such
non-compliance with Environmental Laws, failure to receive required
permits, licenses or other approvals, or liability would not, individually
or in the aggregate, have a Material Adverse Effect, whether or not arising
from transactions in the ordinary course of business, except as set forth
in or contemplated by the Prospectus (exclusive of any supplement thereto).
Except as set forth in the Prospectus, the Company has not been named as a
"potentially responsible party" under
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the Comprehensive Environmental Response, Compensation, and Liability Act
of 1980, as amended.
(z) In the ordinary course of its business, the Company periodically
reviews 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, whether or not
arising from transactions in the ordinary course of business, except as set
forth in or contemplated by the Prospectus (exclusive of any supplement
thereto).
(aa) The Company has fulfilled its obligations, if any, under the minimum
funding standards of Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Employee Retirement
Income Security Act of 1974 ("ERISA") and the regulations and published
interpretations thereunder with respect to each "PLAN" (as defined in
Section 3(3) of ERISA and such regulations and published interpretations)
in which employees of the Company are eligible to participate and each such
plan is in compliance in all material respects with the presently
applicable provisions of ERISA and such regulations and published
interpretations. The Company has not incurred any unpaid liability to the
Pension Benefit Guaranty Corporation (other than for the payment of
premiums in the ordinary course) or to any such plan under Title IV of
ERISA.
(bb) The Company owns, possesses, licenses or has other rights to use all
foreign and domestic patents, patent applications, trade and service marks,
trade and service xxxx registrations, trade names, copyrights, licenses,
inventions, trade secrets, technology, Internet domain names, know-how and
other intellectual property (collectively, the "INTELLECTUAL PROPERTY")
necessary for the conduct of the Company's business as now conducted or as
proposed in the Prospectus to be conducted. Except as set forth in the
Prospectus under the captions (i) "Risk Factors - We could be unable to
protect our patents and other proprietary rights. If we fail to protect our
intellectual property rights or if our intellectual property rights do not
adequately cover the technologies we employ or were declared to be invalid,
other companies could sell products with features similar to ours or we
might be forced to discontinue selling our products", (ii) "Risk Factors -
The medical device industry is characterized by competing intellectual
property, and we may be sued for violating the intellectual property rights
of others", (iii) "Business - Our Technology and Products", (iv) "Business
- Patents and Proprietary Technology", (v) "Business - Third-Party License
Agreements" and (vi) "Business - Legal Proceedings", (a) there are no
rights of third parties to any such Intellectual Property; (b) to the best
of the Company's knowledge, there is no infringement by third parties of
any such Intellectual Property; (c) there is no pending or, to the best of
the Company's knowledge, threatened action, suit, proceeding or claim by
others challenging the Company's rights in or to any such Intellectual
Property, and the Company is unaware of any facts which would form a
reasonable basis for any such claim; (d) there is no pending or, to the
best of the Company's knowledge, threatened action, suit, proceeding or
claim by others challenging the validity or scope of any such Intellectual
Property, and the Company is unaware of any facts which would form a
reasonable basis for any such claim; (e) there is no pending or, to the
best of the Company's knowledge, threatened action, suit, proceeding or
claim by others that the Company infringes or otherwise violates any
patent, trademark, copyright, trade secret or other proprietary rights of
others, and the Company is unaware of any other fact which would form a
reasonable basis for any such claim; (f) to the Company's Knowledge, there
is no third-party U.S. patent or published U.S. patent application which
contains claims for which an Interference Proceeding could be commenced
against any patent or patent application described in the Prospectus as
being owned by or licensed to the Company; (g) to the Company's Knowledge,
there is no prior art that may render any U.S. patent held by the Company
invalid or any U.S. patent application held by the Company unpatentable
which has not been disclosed to the U.S. Patent and Trademark Office; and
(h) the Company has taken all steps necessary to perfect its ownership of
the Intellectual Property.
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(cc) In connection with the filing of all patent applications filed or
caused to be filed by the Company with the United States Patent and
Trademark Office (herein called the "PTO"), the Company has complied with
the PTO's duty of candor and disclosure for each of its patents and patent
applications; has made no misrepresentation in any such application or in
any application filed with any applicable foreign patent authorities; is
unaware of any facts material to a determination of patentability regarding
the Company's patent applications not called to the attention of the PTO;
and is unaware of any facts not called to the attention of the PTO which
would preclude the grant of a patent for such applications and has no
knowledge of any facts which would conflict with the Company's ownership
rights to its patent applications and patents.
(dd) Neither the Company nor any director or officer associated with or
acting on behalf of the Company has used any corporate funds for any
unlawful gift, entertainment or other unlawful expense relating to
political activity; made any direct or indirect or unlawful payment to any
foreign or domestic government official or employee from corporate funds;
violated or is in violation of any provision of the Foreign Corrupt
Practices Act of 1977 or any analogous foreign law; or made any bribe,
rebate, payoff, influence payment, kickback or other unlawful payment.
(ee) The clinical, pre-clinical and other studies and tests conducted by or
on behalf of or sponsored by the Company were and, if still pending, are
being conducted in accordance with all statutes, laws, rules and
regulations, as applicable (including, without limitation, those
administered by the FDA or by any foreign, federal, state or local
governmental or regulatory authority performing functions similar to those
performed by the FDA). The descriptions of the results of such studies and
tests are accurate and complete in all material respects and fairly present
the published data derived from such studies and tests, and the Company has
no knowledge, after due inquiry, of other studies or tests the results of
which are inconsistent with or otherwise call into question the results
described or referred to in the Prospectus, except as described in the
Prospectus. The Company has not received any notices or other
correspondence from the FDA or any other foreign, federal, state or local
governmental or regulatory authority performing functions similar to those
performed by the FDA with respect to any ongoing clinical or pre-clinical
studies or tests requiring the termination, suspension or modification of
such studies or tests.
(ff) The Company has established and administers a compliance program
(including a written compliance policy) applicable to the Company, to
assist the Company and the directors, officers and employees of the Company
in complying with applicable regulatory guidelines (including, without
limitation, those administered by the FDA and any other foreign, federal,
state or local governmental or regulatory authority performing functions
similar to those performed by the FDA) and to provide compliance policies
governing applicable areas for medical device companies (including, without
limitation, pre-clinical and clinical testing, product design and
development, product testing, product manufacturing, product labeling,
product storage, premarket clearance and approval, advertising and
promotion, product sales and distribution, medical device reporting
regulations, and record keeping).
(gg) The Company has not failed to file with the applicable regulatory
authorities (including, without limitation, the FDA or any foreign,
federal, state or local governmental or regulatory authority performing
functions similar to those performed by the FDA) any filing, declaration,
listing, registration, report or submission, all such filings,
declarations, listings, registrations, reports or submissions were in
compliance with applicable laws when filed and no deficiencies have been
asserted by any applicable regulatory authority (including, without
limitation, the FDA or any foreign, federal, state or local governmental or
regulatory authority performing functions similar to those performed by the
FDA) with respect to any such filings, declarations, listings,
registrations, reports or submissions.
(hh) The Company has not offered, or caused the Underwriters to offer,
Stock 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
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business with the Company, or (ii) a trade journalist or publication to
write or publish favorable information about the Company or its products.
(ii) The Registration Statements, 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 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.
(jj) No relationship, direct or indirect, exists between or among the
Company on the one hand and the directors, officers, stockholders,
customers or suppliers of the Company on the other hand which is required
to be described in the Prospectus and which is not described.
(kk) No forward-looking statement (within the meaning of Section 27A of the
Securities Act and Section 21E of the Exchange Act) contained in the
Prospectus has been made or reaffirmed without a reasonable basis or has
been disclosed other than in good faith.
(ll) The Company is not a party to any contract, agreement or understanding
with any person that would give rise to a valid claim against the Company
or the Underwriters for a brokerage commission, finder's fee or like
payment in connection with the offering and sale of the Stock.
(mm) The Company has not sustained, since the date of the latest audited
financial statements included in the Prospectus, any material loss or
interference with its business from fire, explosion, flood, terrorist act
or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as
set forth in or contemplated by the Prospectus; and, since such date, there
has not been any change in the capital stock or long-term debt of the
Company or any material adverse change, or any development involving a
prospective material adverse change, in or affecting the business, general
affairs, management, financial position, stockholders' equity or results of
operations of the Company, otherwise than as set forth or contemplated by
the Prospectus.
Any certificate signed by any officer of the Company and delivered to the
Representatives or counsel for the Underwriters in connection with the offering
of the Stock shall be deemed a representation and warranty by the Company, as to
matters covered thereby, to each Underwriter.
3. PURCHASE SALE AND DELIVERY OF OFFERED STOCK. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees, to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Company that number of shares of Firm Stock (rounded up or down, as
determined by XX Xxxxx in its discretion, in order to avoid fractions) obtained
by multiplying ______ shares of Firm Stock by a fraction the numerator of which
is the number of shares of Firm Stock set forth opposite the name of such
Underwriter in Schedule A hereto and the denominator of which is the total
number of shares of Firm Stock.
The purchase price per share to be paid by the Underwriters to the Company
for the Stock will be $_____ per share (the "PURCHASE PRICE").
The Company will deliver the Firm Stock to the Representatives for the
respective accounts of the several Underwriters (in the form of definitive
certificates, issued in such names and in such denominations as the
Representatives may direct by notice in writing to the Company given at or prior
to 12:00 Noon, New York time, on the second full business day preceding the
First Closing Date (as defined below) against payment of the aggregate Purchase
Price therefore by wire transfer to an account at a bank acceptable to XX Xxxxx,
payable to the order of the Company all at the offices of XX Xxxxx. Time shall
be of the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligations of each Underwriter
hereunder. The time and date of the delivery and closing shall be at 10:00 A.M.,
New York time, on _______, 2002, in accordance
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with Rule 15c6-1 of the Exchange Act. The time and date of such payment and
delivery are herein referred to as the "FIRST CLOSING DATE". The First Closing
Date and the location of delivery of, and the form of payment for, the Firm
Stock may be varied by agreement between the Company and XX Xxxxx.
The Company shall make the certificates for the Stock available to the
Representatives for examination on behalf of the Underwriters in New York, New
York at least twenty-four hours prior to the First Closing Date.
For the purpose of covering any over-allotments in connection with the
distribution and sale of the Firm Stock as contemplated by the Prospectus, the
Underwriters may purchase all or less than all of the Optional Stock. The price
per share to be paid for the Optional Stock shall be the Purchase Price. The
Company agrees to sell to the Underwriters the number of shares of Optional
Stock specified in the written notice by XX Xxxxx described below and the
Underwriters agree, severally and not jointly, to purchase such shares of
Optional Stock. Such shares of Optional Stock shall be purchased from the
Company for the account of each Underwriter in the same proportion as the number
of shares of Firm Stock set forth opposite such Underwriter's name bears to the
total number of shares of Firm Stock (subject to adjustment by XX Xxxxx to
eliminate fractions). The option granted hereby may be exercised as to all or
any part of the Optional Stock at any time, and from time to time, not more than
thirty (30) days subsequent to the date of this Agreement. No Optional Stock
shall be sold and delivered unless the Firm Stock previously has been, or
simultaneously is, sold and delivered. The right to purchase the Optional Stock
or any portion thereof may be surrendered and terminated at any time upon notice
by XX Xxxxx to the Company.
The option granted hereby may be exercised by written notice being given to
the Company by XX Xxxxx setting forth the number of shares of the Optional Stock
to be purchased by the Underwriters and the date and time for delivery of and
payment for the Optional Stock. Each date and time for delivery of and payment
for the Optional Stock (which may be the First Closing Date, but not earlier) is
herein called the "OPTION CLOSING DATE" and shall in no event be earlier than
two (2) business days nor later than five (5) business days after written notice
is given. (The Option Closing Date and the First Closing Date are herein called
the "CLOSING DATES".)
The Company will deliver the Optional Stock to the Underwriters (in the
form of definitive certificates, issued in such names and in such denominations
as the Representatives may direct by notice in writing to the Company given at
or prior to 12:00 Noon, New York time, on the second full business day preceding
the Option Closing Date against payment of the aggregate Purchase Price therefor
in federal (same day) funds by certified or official bank check or checks or
wire transfer to an account at a bank acceptable to XX Xxxxx payable to the
order of the Company all at the offices of XX Xxxxx. Time shall be of the
essence, and delivery at the time and place specified pursuant to this Agreement
is a further condition of the obligations of each Underwriter hereunder. The
Company shall make the certificates for the Optional Stock available to the
Representatives for examination on behalf of the Underwriters in New York, New
York not later than 10:00 A.M., New York Time, on the business day preceding the
Option Closing Date. The Option Closing Date and the location of delivery of,
and the form of payment for, the Optional Stock may be varied by agreement
between the Company and XX Xxxxx.
The several Underwriters propose to offer the Stock for sale upon the terms
and conditions set forth in the Prospectus.
4. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees with the several
Underwriters that:
(a) The Company will prepare the Rule 462(b) Registration Statement, if
necessary, in a form approved by the Representatives and file such Rule
462(b) Registration Statement with the Commission on the date hereof;
prepare the Prospectus in a form approved by the Representatives and file
such Prospectus pursuant to Rule 424(b) under the Securities Act not later
than the second business day following the execution and delivery of this
Agreement; make no further amendment or any supplement to the Registration
Statements or to the Prospectus to which the Representatives shall
reasonably object by notice to the Company after a reasonable period to
review; advise the Representatives, promptly after it receives
9
notice thereof, of the time when any amendment to either of the
Registration Statements has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and
to furnish the Representatives with copies thereof; advise the
Representatives, promptly after it receives notice thereof, of the issuance
by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus, of the
suspension of the qualification of the Stock for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statements or the Prospectus or for
additional information; and, in the event of the issuance of any stop order
or of any order preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or suspending any such qualification, use
promptly its best efforts to obtain its withdrawal.
(b) If at any time prior to the expiration of nine months after the
effective date of the Initial Registration Statement when a prospectus
relating to the Stock is required to be delivered any event occurs as a
result of which the Prospectus as then amended or supplemented would
include any 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, or if it is
necessary at any time to amend the Prospectus to comply with the Securities
Act or the Exchange Act, the Company will promptly notify the
Representatives thereof and upon their request will prepare an amended or
supplemented Prospectus which will correct such statement or omission or
effect such compliance. The Company will furnish without charge to each
Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of such amended or
supplemented Prospectus; and in case any Underwriter is required to deliver
a prospectus relating to the Stock nine months or more after the effective
date of the Initial Registration Statement, the Company upon the request of
the Representatives and at the expense of such Underwriter will prepare
promptly an amended or supplemented Prospectus as may be necessary to
permit compliance with the requirements of Section 10(a)(3) of the
Securities Act.
(c) To furnish promptly to each of the Representatives and to counsel for
the Underwriters a signed copy of each of the Registration Statements as
originally filed with the Commission, and each amendment thereto filed with
the Commission, including all consents and exhibits filed therewith.
(d) To deliver promptly to the Representatives in New York City such number
of the following documents as the Representatives shall reasonably request:
(i) conformed copies of the Registration Statements as originally filed
with the Commission and each amendment thereto (in each case excluding
exhibits), (ii) each Preliminary Prospectus, (iii) the Prospectus (not
later than 10:00 A.M., New York time, of the business day following the
execution and delivery of this Agreement) and any amended or supplemented
Prospectus (not later than 10:00 A.M., New York City time, on the business
day following the date of such amendment or supplement).
(e) To make generally available to its stockholders as soon as practicable,
but in any event not later than eighteen months after the effective date of
the Registration Statements (as defined in Rule 158(c) under the Securities
Act), an earnings statement of the Company (which need not be audited)
complying with Section 11(a) of the Securities Act and the Rules and
Regulations (including, at the option of the Company, Rule 158).
(f) The Company will promptly take from time to time such actions as the
Representatives may reasonably request to qualify the Stock for offering
and sale under the securities or Blue Sky laws of such jurisdictions as the
Representatives may designate and to continue such qualifications in effect
for so long as required for the distribution of the Stock; provided that
the Company shall not be obligated to qualify as a foreign corporation in
any jurisdiction in which it is not so qualified or to file a general
consent to service of process in any jurisdiction.
10
(g) During the period of five years from the date hereof, the Company will
deliver to the Representatives and, upon request, to each of the other
Underwriters, (i) as soon as they are available, copies of all reports or
other communications furnished to stockholders and (ii) as soon as they are
available, copies of any reports and financial statements furnished or
filed with the Commission pursuant to the Exchange Act or any national
securities exchange or automatic quotation system on which the Stock is
listed or quoted.
(h) The Company will not directly or indirectly offer, sell, assign,
transfer, pledge, contract to sell, or otherwise dispose of any shares of
Common Stock or securities convertible into or exercisable or exchangeable
for Common Stock for a period of 180 days from the date of the Prospectus
without the prior written consent of XX Xxxxx other than the Company's sale
of the Stock hereunder and the issuance of shares pursuant to qualified
stock option plans, currently outstanding options, warrants or rights. The
Company will cause each officer, director and stockholder listed in
Schedule C to furnish to the Representatives, prior to the First Closing
Date, a letter, substantially in the form of Exhibit I hereto, pursuant to
which each such person shall agree not to directly or indirectly offer,
sell, assign, transfer, pledge, contract to sell, or otherwise dispose of
any shares of Common Stock or securities convertible into or exercisable or
exchangeable for Common Stock for a period of 180 days from the date of the
Prospectus, without the prior written consent of XX Xxxxx.
(i) The Company will supply the Representatives with copies of all
correspondence to and from, and all documents issued to and by, the
Commission in connection with the registration of the Stock under the
Securities Act.
(j) Prior to each of the Closing Dates the Company will furnish to the
Representatives, as soon as they have been prepared, copies of any
unaudited interim consolidated financial statements of the Company for any
periods subsequent to the periods covered by the financial statements
appearing in the Registration Statements and the Prospectus.
(k) Prior to each of the Closing Dates, the Company will not issue any
press release or other communication directly or indirectly or hold any
press conference with respect to the Company, its condition, financial or
otherwise, or earnings, business affairs or business prospects (except for
routine oral marketing communications in the ordinary course of business
and consistent with the past practices of the Company and of which the
Representatives are notified), without the prior written consent of the
Representatives, unless in the judgment of the Company and its counsel, and
after notification to the Representatives, such press release or
communication is required by law.
(l) In connection with the offering of the Stock, until XX Xxxxx shall have
notified the Company of the completion of the resale of the Stock, the
Company will not, and will cause its affiliated purchasers (as defined in
Regulation M under the Exchange Act) not to, either alone or with one or
more other persons, bid for or purchase, for any account in which it or any
of its affiliated purchasers has a beneficial interest, any Stock, or
attempt to induce any person to purchase any Stock; and not to, and to
cause its affiliated purchasers not to, make bids or purchase for the
purpose of creating actual, or apparent, active trading in or of raising
the price of the Stock.
(m) The Company will not take any action prior to the Option Closing Date
which would require the Prospectus to be amended or supplemented pursuant
to Section 4(b);
(n) The Company will apply the net proceeds from the sale of the Stock as
set forth in the Prospectus under the heading "Use of Proceeds".
(o) In connection with the Directed Share Program, the Company will ensure
that the Directed Shares will be restricted to the extent required by the
National Association of Securities Dealers, Inc. ("NASD") or the NASD rules
from the sale, transfer, assignment, pledge or hypothecation for a period
of three months following the date of the effectiveness of the Registration
Statements. XX Xxxxx will notify the Company as to which Participants will
need to be so restricted. The Company will direct the removal of such
transfer restrictions upon the expiration of such period of time.
11
(p) The Company will pay all fees and disbursements of counsel incurred by
the Underwriters in connection with the Directed Share Program (including
the printing (or reproduction) and delivery (including postage, air freight
charges and charges for counting and packaging) of such copies of the
Directed Share Program materials) and stamp duties, similar taxes or duties
or other taxes, if any, incurred by the Underwriters in connection with the
Directed Share Program.
(q) The Company covenants with XX Xxxxx 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.
5. PAYMENT OF EXPENSES. The Company agrees with the Underwriters to pay (a)
the costs incident to the authorization, issuance, sale, preparation and
delivery of the Stock and any taxes payable in that connection; (b) the costs
incident to the Registration of the Stock under the Securities Act; (c) the
costs incident to the preparation, printing and distribution of the Registration
Statement, Preliminary Prospectus, Prospectus any amendments and exhibits
thereto, the costs of printing, reproducing and distributing, the "Agreement
Among Underwriters" between the Representatives and the Underwriters, the Master
Selected Dealers' Agreement, the Underwriters' Questionnaire and this Agreement
by mail, telex or other means of communication; (d) the fees and expenses
(including related fees and expenses of counsel for the Underwriters) incurred
in connection with filings made with the National Association of Securities
Dealers; (e) any applicable listing or other fees; (f) the fees and expenses of
qualifying the Stock under the securities laws of the several jurisdictions as
provided in Section 4(f) and of preparing, printing and distributing Blue Sky
Memoranda and Legal Investment Surveys (including related fees and expenses of
counsel to the Underwriters); (g) all fees and expenses of the registrar and
transfer agent of the Stock; and (h) all other costs and expenses incident to
the performance of the obligations of the Company under this Agreement
(including, without limitation, the fees and expenses of the Company's counsel
and the Company's independent accountants); provided that, except as otherwise
provided in this Section 5 and in Section 10, the Underwriters shall pay their
own costs and expenses, including the fees and expenses of their counsel.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations of the
Underwriters to purchase the Firm Stock and the Optional Stock, as the case may
be, shall be subject to the accuracy of the representations and warranties on
the part of the Company contained herein as of the Execution Time, the Closing
Date and any settlement date pursuant to Section 3 hereof, to the accuracy of
the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statements have not become effective prior to the
Execution Time, unless the Representatives agree in writing to a later
time, the Registration Statements 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 Statements shall
have been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) None of the Underwriters shall have discovered and disclosed to the
Company on or prior to the Closing Date that the Registration Statements or
the Prospectus or any amendment or supplement thereto contains an untrue
statement of a fact which, in the opinion of counsel for the Underwriters,
is material or omits to state any fact which, in the opinion of such
counsel, is material and is required to be stated therein or is necessary
to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of each of this Agreement, the Stock, the
Registration Statements and the Prospectus and all other legal matters
relating to this Agreement and the transactions
12
contemplated hereby shall be reasonably satisfactory in all material
respects to counsel for the Underwriters, and the Company shall have
furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) The Company shall have requested and caused Xxxxx & Xxxxxxx, P.C.,
counsel for the Company, to have furnished to the Representatives their
opinion, dated the Closing Date and addressed to the Representatives, to
the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with full corporate power and authority to own or lease,
as the case may be, and to operate its properties and conduct its
business as described in the Prospectus; is in good standing under the
laws of the Commonwealth of Pennsylvania; and is not required to
qualify to do business as a foreign corporation in any other
jurisdiction;
(ii) the Company's authorized capitalization is as set forth in
the Prospectus; the capital stock of the Company conforms in all
material respects to the description thereof contained in the
Prospectus; the outstanding shares of Common Stock have been duly and
validly authorized and issued and are fully paid and nonassessable;
the Stock has been duly and validly authorized, and, when issued and
delivered to and paid for by the Underwriters pursuant to this
Agreement, will be fully paid and nonassessable; the Stock is duly
listed, and admitted and authorized for trading, subject to official
notice of issuance and evidence of satisfactory distribution, on the
Nasdaq National Market, the certificates for the Stock are in valid
and sufficient form; the holders of outstanding shares of capital
stock of the Company are not entitled to preemptive or other rights to
subscribe for the Stock under the charter or the by-laws of the
Company or any instrument, agreement or document known to counsel for
the Company; and, except as set forth in the Prospectus, to such
counsel's knowledge after due inquiry, no options, warrants or other
rights to purchase, agreements or other obligations to issue, or
rights to convert any obligations into or exchange any securities for,
shares of capital stock of or ownership interests in the Company are
outstanding;
(iii) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property of a
character required to be disclosed in the Registration Statements
which is not disclosed in the Prospectus or would prevent or adversely
affect the ability of the Company to perform its obligations under
this Agreement; and there is no franchise, contract or other document
of a character required to be described in the Registration Statements
or Prospectus, or to be filed as an exhibit thereto, which is not
described or filed as required;
(iv) the Registration Statements have become effective under the
Securities Act; any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) or Rule 462(b) has been
made in the manner and within the time period required by such rules;
to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statements have been issued, no
proceedings for that purpose have been instituted or threatened, and
the Registration Statements and the Prospectus (other than the
financial statements and schedules and other financial information
contained therein, as to which such counsel need express no opinion)
comply as to form in all material respects with the applicable
requirements of the Securities Act and the rules thereunder;
(v) this Agreement has been duly authorized, executed and
delivered by the Company;
(vi) the Company is not and, after giving effect to the offering
and sale of the Stock and the application of the proceeds thereof as
described in the Prospectus,
13
will not be, an "investment company" as defined in the Investment
Company Act of 1940, as amended;
(vii) no consent, approval, authorization, filing with or order
of any court or governmental agency or body is required in connection
with the transactions contemplated herein, except such as have been
obtained under the Securities Act and such as may be required under
the Blue Sky laws of any jurisdiction in connection with the purchase
and distribution of the Stock by the Underwriters in the manner
contemplated by this Agreement and in the Prospectus and such other
approvals (specified in such opinion) as have been obtained;
(viii) neither the issue and sale of the Stock, nor the
execution, delivery and performance of any other of the transactions
herein contemplated nor the fulfillment of the terms hereof will
conflict with, result in a breach or violation of or imposition of any
lien, charge or encumbrance upon any property or assets of the Company
pursuant to, (a) the charter or by-laws of the Company, (b) the terms
of any material indenture, contract, lease, mortgage, deed of trust,
note agreement, loan agreement or other agreement, obligation,
condition, covenant or instrument to which the Company is a party or
bound or to which its property is subject, or (c) any applicable
provision of federal or Pennsylvania statutes or regulation or the
Delaware General Corporation Law or, to such counsel's knowledge, any
other applicable statute, law, rule, regulation, judgment, order or
decree applicable to the Company of any court, regulatory body,
administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or any of its
properties;
(ix) to the best knowledge of such counsel after due inquiry, no
holders of securities of the Company have rights to the registration
of such securities under the Registration Statements, except as
described in the Prospectus, and all of such rights have been
satisfied or waived in all material respects.
(x) The statements in the Prospectus under the heading "Certain
Federal Income Tax Considerations" and "____________", to the extent
that they constitute summaries of matters of law or regulation or
legal conclusions, have been reviewed by such counsel and fairly
summarize the matters described therein in all material respects;
(xi) The description in the Registration Statements and
Prospectus of statutes, legal or governmental proceedings and
contracts, instruments and other documents are accurate and fairly
summarize the matters described therein in all material respects; and
to the best of such counsel's knowledge, there are no statutes, legal
or governmental proceedings, contracts or other documents of a
character required to be described in the Registration Statements or
Prospectus or to be filed as exhibits to the Registration Statements
which are not described or filed as required; and (xii) To the best of
such counsel's knowledge, the Company is not (i) in violation of its
charter or by-laws, (ii) in default, and no event has occurred, which,
with notice or lapse of time or both, would constitute a default, in
the due performance or observance of any term, covenant or condition
contained in any material agreement or instrument known to such
counsel after due inquiry to which it is a party or by which it is
bound or to which any of its properties or assets is subject or (iii)
in violation of any law, ordinance, governmental rule, regulation or
court decree to which it or its property or assets may be subject or
has failed to obtain any license, permit, certificate, franchise or
other governmental authorization or permit necessary to the ownership
of its property or to the conduct of its business except, in the case
of clauses (ii) and (iii), for those defaults, violations or failures
which, either individually or in the aggregate, would not have a
Material Adverse Effect.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
Commonwealth of Pennsylvania, the General
14
Corporation Law of the State of Delaware or the Federal laws of the United
States, to the extent they deem proper and specified in such opinion, upon
the opinion of other counsel of good standing whom they believe to be
reliable and who are satisfactory to counsel for the Underwriters and (B)
as to matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Company and public officials and (C) as to
certain regulatory matters on the opinions of the other special counsel
identified herein References to the Prospectus in this paragraph (d)
include any supplements thereto at the Closing Date.
Such counsel shall also have furnished to the Representatives a
written statement, addressed to the Underwriters and dated the Closing
Date, in form and substance satisfactory to the Representatives, to the
effect that (x) such counsel has acted as counsel to the Company in
connection with the preparation of the Registration Statements, (y) based
on such counsel's examination of the Registration Statements and such
counsel's investigations made in connection with the preparation of the
Registration Statements and conferences with certain officers and employees
of and with auditors for and counsel to the Company, such counsel has no
reason to believe that the Registration Statements, as of the respective
effective dates, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading, or that
the Prospectus contains any untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which
they were made, not misleading; it being understood that such counsel need
express no opinion as to the financial statements or other financial data
contained in the Registration Statements or the Prospectus.
(e) The Company shall have requested and caused XxXxxxxxx, Will & Xxxxx,
regulatory counsel for the Company, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to the
Representatives to the effect that:
(i) The Company has obtained all Permits required by the FDA or
by any federal or state governmental or regulatory authority
performing functions similar to those performed by the FDA necessary
to conduct its business in the manner described in the Registration
Statements and the Prospectus and, to such counsel's knowledge, is in
compliance with the terms and conditions of all such Permits, except
for such Permits which the failure to obtain would not have a Material
Adverse Effect.
(ii) The Company has made all filings, applications and
submissions required by the FDA necessary to conduct its business in
the manner described in the Registration Statements and the
Prospectus.
(iii) The statements made in the Prospectus and the Registration
Statements under the captions (i) "Risk Factors - If governmental or
private third-party payors do not reimburse health care providers at
favorable rates for use of our products, our revenues will decline",
(ii) "Risk Factors - Because our products are used in connection with
the delivery of intense radiation, product defects or misuse, or any
detrimental side-effects that result from the use of our products,
could require costly recalls or subject us to costly and
time-consuming product liability claims that could harm future sales
and require us to pay substantial damages", (iii) "Risk Factors -
Complying with the FDA and other domestic and foreign regulations is
an expensive and time-consuming process, which can result in delay or
cancellation of product introductions or modifications. Any failure to
comply with these regulations could result in substantial penalties
and prevent us from marketing our products", (iv) "Business - Our
Technology and Products", (vi) "Business - Third-Party Reimbursement",
(vii) "Business - Manufacturing" and (viii) "Business - Government
Regulation" (collectively, the "REGULATORY STATEMENTS") (a) insofar as
such statements summarize the terms of statutes, rules and regulations
administered by the FDA with respect to the regulation of medical
devices by FDA, and the Center for Medicare and Medicaid Services
("CMS") with respect to reimbursement of the Company's products by
Medicare and/or Medicaid are fair and accurate summaries of the terms
of such statutes and regulations in all material respects; and (b) the
15
statutes and regulations of the FDA and CMS summarized therein are the
statutes and regulations of the FDA and CMS that are material to the
Company's business as described in the Prospectus and Registration
Statements as of the Effective Date.
(iv) to the knowledge of such regulatory counsel, there is no
pending or threatened action, suit or proceeding by or before any
court or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries or its or their
property of a character required to be disclosed in the Registration
Statements which is not adequately disclosed in the Prospectus, and
there is no franchise, contract or other document relating to
regulation of the Company's business of a character required to be
described in the Registration Statement or Prospectus, or to be filed
as an exhibit thereto, which is not described or filed as required.
Such counsel shall also have furnished to the Representatives a
written statement, addressed to the Underwriters and dated the Closing
Date, in form and substance satisfactory to the Representatives, to the
effect that (x) such counsel has acted as counsel to the Company in
connection with the preparation of the Regulatory Statements, (y) based on
such counsel's examination of the Regulatory Statements and such counsel's
investigations made in connection with the preparation of the Registration
Statements and conferences with certain officers and employees of and with
auditors for and counsel to the Company, such counsel has no reason to
believe that the Regulatory Statements, as of the respective effective
dates, contained any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary in order
to make the statements therein not misleading, or that the Prospectus
contains any untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading; it being understood that such counsel need express no
opinion as to the financial statements or other financial data contained in
the Registration Statements or the Prospectus.
(f) The Company shall have requested and caused XxXxxxxxxx Xxxxxxxx,
intellectual property counsel for the Company, and other intellectual
property counsel for the Company, to have furnished to the Representatives
their opinion, dated the Closing Date and addressed to the Representatives,
to the effect that:
(i) except as otherwise set forth in the Registration Statements
and Prospectus, such intellectual property counsel is not aware, after
due inquiry, of any facts that would preclude the Company and its
subsidiaries from having clear title to or a valid license under the
Intellectual Property referred to in the Registration Statements and
Prospectus;
(ii) The statements made in the Prospectus and the Registration
Statements under the captions (a) "Risk Factors - We could be unable
to protect our patents and other proprietary rights. If we fail to
protect our intellectual property rights or if our intellectual
property rights do not adequately cover the technologies we employ or
were declared to be invalid, other companies could sell products with
features similar to ours, or we might be forced to discontinue selling
our products", (b) "Risk Factors - The medical device industry is
characterized by competing intellectual property, and we may be sued
for violating the intellectual property rights of others", (c)
"Business - Our Technology and Products", (d) "Business - Patents and
Proprietary Technology" and (e) "Business - Legal Proceedings"
(collectively, the "INTELLECTUAL PROPERTY STATEMENTS"), insofar as
such statements summarize the terms and statutes, rules and
regulations and legal and governmental proceedings and other
documents, are fair and accurate summaries of the terms of such
statutes, rules and regulations and legal and governmental proceedings
and other documents in all material respects.
(iii) Except as described in the Registration Statements and
Prospectus, to such counsel's knowledge, (A) there are no rights of
third parties to any Intellectual Property referred to in the
Registration Statements and Prospectus or any other Intellectual
Property not disclosed in the Registration Statements and Prospectus
that
16
are necessary for the conduct of the Company's business; (B) there is
no infringement by third parties of any such Intellectual Property;
(C) there is no pending or threatened action, suit, proceeding or
claim by others challenging the rights of the Company in or to such
Intellectual Property, and there are no facts which would form a
reasonable basis for any such claim; (D) there is no pending or
threatened action, suit, proceeding or claim by others challenging the
validity, enforceability or scope of such Intellectual Property, and
there are no facts which would form a reasonable basis for any such
claim; (E) there is no pending or threatened action, suit, proceeding
or claim by others that the Company infringe or otherwise violate any
patent, trademark, copyright, service marks, trade secret or other
intellectual property or proprietary right of others, and there are no
facts which would form a reasonable basis for any such claim; (F)
there is no third-party patent or patent application which contains
claims for which an Interference Proceeding could be commenced against
any patent or patent application owned by or licensed to the Company
as referred to in the Registration Statements and Prospectus or that
is necessary for the conduct of the Company's business; and (G) there
is no prior art that is material to any patent or patent application
of the Company that has not been disclosed to the PTO; (H) no security
agreements or any other liens or encumbrances have been filed
encumbering the Company's ownership of all US and foreign trademarks
described in the Registration Statements and Prospectus as owned by or
licensed to the Company; and (I) the Company has taken all steps
necessary to perfect its ownership of the Intellectual Property.
In addition, intellectual property counsel for the Company shall
furnish an opinion to the effect that: each of the patent applications
set forth in Schedule D is pending in the PTO or other comparable patent
and trademark office (including, without limitation, foreign patent
offices) as set forth in Schedule D, and to the best of such counsel's
knowledge there are no defects in the prosecution of any such application
that would irrevocably foreclose pursuit of the patent rights thereunder.
Such counsel shall also have furnished to the Representatives a
written statement, addressed to the Underwriters and dated the Closing
Date, in form and substance satisfactory to the Representatives, to the
effect that (x) such counsel has acted as counsel to the Company in
connection with the preparation of the Intellectual Property Statements,
(y) based on such counsel's examination of the Intellectual Property
Statements and such counsel's investigations made in connection with the
preparation of the Registration Statements and conferences with certain
officers and employees of and with auditors for and counsel to the Company,
such counsel has no reason to believe that the Intellectual Property
Statements, as of the respective effective dates, contained any untrue
statement of a material fact or omitted to state any material fact required
to be stated therein or necessary in order to make the statements therein
not misleading, or that the Prospectus contains any untrue statement of a
material fact or omits to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading; it being
understood that such counsel need express no opinion as to the financial
statements or other financial data contained in the Registration Statements
or the Prospectus.
(g) The Representatives shall have received from Xxxxx Raysman Xxxxxxxxx
Xxxxxx & Xxxxxxx LLP, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date and addressed to the Representatives, with
respect to the issuance and sale of the Stock, the Registration Statements,
the Prospectus (together with any supplement thereto) and other related
matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(h) The Company shall have furnished to the Representatives a certificate,
dated the Closing Date, of its Chairman of the Board, its President or a
Vice President and its Chief Financial Officer stating that (i) such
officers have carefully examined the Registration Statements and the
Prospectus and, in their opinion, the Registration Statements as of their
respective effective dates and the Prospectus, as of each such effective
date, did not include
17
any untrue statement of a material fact and did not omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, (ii) since the effective date of the
Initial Registration Statement no event has occurred which should have been
set forth in a supplement or amendment to the Registration Statements or
the Prospectus, (iii) to the best of their knowledge after reasonable
investigation, as of the Closing Date, the representations and warranties
of the Company in this Agreement are true and correct and the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date, and (iv)
subsequent to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change in the financial
position or results of operation of the Company, or any change, or any
development including a prospective change, in or affecting the condition
(financial or otherwise), results of operations, business or prospects of
the Company, except as set forth in the Prospectus.
(i) At the time of the execution of this Agreement, the Representatives
shall have received from Ernst & Young a letter, addressed to the
Underwriters and dated such date, in form and substance satisfactory to the
Representatives (i) confirming that they are independent certified public
accountants with respect to the Company within the meaning of the
Securities Act and the Rules and Regulations and (ii) stating the
conclusions and findings of such firm with respect to the financial
statements and certain financial information contained or incorporated by
reference in the Prospectus.
(j) On the Closing Date, the Representatives shall have received a letter
(the "BRING-DOWN LETTER") from Ernst & Young addressed to the Underwriters
and dated the Closing Date confirming, as of the date of the bring-down
letter (or, with respect to matters involving changes or developments since
the respective dates as of which specified financial information is given
in the Prospectus as of a date not more than three business days prior to
the date of the bring-down letter), the conclusions and findings of such
firm with respect to the financial information and other matters covered by
its letter delivered to the Representatives concurrently with the execution
of this Agreement pursuant to Section 6(i).
(k) The Company shall not have sustained since the date of the latest
audited financial statements included in the Prospectus any loss or
interference with its business from fire, explosion, flood, terrorist act
or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as
set forth or contemplated by the Prospectus (ii) since such date there
shall not have been any change in the capital stock or long-term debt of
the Company or any change, or any development involving a prospective
change, in or affecting the business, general affairs, management,
financial position, stockholders' equity or results of operations of the
Company, otherwise than as set forth or contemplated by the Prospectus, the
effect of which, in any such case described in clause (i) or (ii), is, in
the judgment of the Representatives, so material and adverse as to make it
impracticable or inadvisable to proceed with the sale or delivery of the
Stock on the terms and in the manner contemplated by the Prospectus.
(l) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
(m) The Stock 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 Representatives.
(n) At the Execution Time, the Company shall have furnished to the
Representatives a letter substantially in the form of Exhibit I hereto from
each officer and director of the Company, each person who purchases shares
pursuant to the Directed Share Program and each other stockholder of the
Company addressed to the Representatives.
(o) Subsequent to the execution and delivery of this Agreement, there shall
not have occurred any of the following: (i) trading in securities generally
on the New York Stock Exchange, the Nasdaq National Market or the American
Stock Exchange or in the over-the-
18
counter market, or trading in any securities of the Company on any exchange
or in the over-the-counter market, shall have been suspended or minimum or
maximum prices or maximum ranges for prices shall have been established on
any such exchange or such market by the Commission, by such exchange or by
any other regulatory body or governmental authority having jurisdiction,
(ii) a banking moratorium shall have been declared by Federal or state
authorities or a material disruption has occurred in commercial banking or
securities settlement or clearance services in the United States, (iii) the
United States shall have become engaged in hostilities, or the subject of
an act of terrorism, there shall have been an escalation in hostilities
involving the United States or there shall have been a declaration of a
national emergency or war by the United States or (iv) there shall have
occurred such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the
financial markets in the United States shall be such) as to make it, in the
sole judgment of the Representatives, impracticable or inadvisable to
proceed with the sale or delivery of the Stock on the terms and in the
manner contemplated by the Prospectus.
(p) No action shall have been taken and no statute, rule, regulation or
order shall have been enacted, adopted or issued by any governmental agency
or body which would, as of the Closing Date, prevent the issuance or sale
of the Stock; and no injunction, restraining order or order of any other
nature by any federal or state court of competent jurisdiction shall have
been issued as of the Closing Date which would prevent the issuance or sale
of the Stock.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in forms and substance reasonably
satisfactory to counsel for the Underwriters.
The documents required to be delivered by this Section 6 shall be delivered
at the office of Xxxxx Raysman Xxxxxxxxx Xxxxxx & Xxxxxxx LLP, counsel for the
Underwriters, at 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Closing Date.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company shall indemnify and hold harmless each Underwriter, its
officers, employees, representatives and agents and each person, if any,
who controls any Underwriter within the meaning of the Securities Act
(collectively the "UNDERWRITER INDEMNIFIED PARTIES" and each an
"UNDERWRITER INDEMNIFIED PARTY") against any loss, claim, damage or
liability, joint or several, or any action in respect thereof, to which
that Underwriter Indemnified Party may become subject, under the Securities
Act or otherwise, insofar as such loss, claim, damage, liability or action
arises out of or is based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in the Preliminary Prospectus,
either of the Registration Statements or the Prospectus or in any amendment
or supplement thereto (ii) the omission or alleged omission to state in any
Preliminary Prospectus, either of the Registration Statements or the
Prospectus or in any amendment or supplement thereto a material fact
required to be stated therein or necessary to make the statements therein
not misleading or (iii) any act or failure to act, or any alleged act or
failure to act, by any Underwriter in connection with, or relating in any
manner to, the Stock or the offering contemplated hereby, and which is
included as part of or referred to in any loss, claim, damage, liability or
action arising out of or based upon matters covered by clause (i) or (ii)
above, (provided that the Company shall not be liable in the case of any
matter covered by this clause (iii) to the extent that it is determined in
a final judgement by a court of competent jurisdiction that such loss,
claim, damage, liability or action resulted directly from any such act or
failure to act undertaken or omitted to be taken by such Underwriter
through its gross negligence or willful misconduct) and shall reimburse
each Underwriter Indemnified Party promptly upon demand for any legal or
other expenses reasonably incurred by that Underwriter Indemnified Party in
connection with investigating or preparing to defend or defending against
or appearing as a third party witness in connection with any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or action arises out of
or is based upon (i) an untrue statement or alleged untrue statement in or
omission or alleged omission from the Preliminary Prospectus, either of the
19
Registration Statements or the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company through the Representatives by or on behalf of any
Underwriter specifically for use therein, which information the parties
hereto agree is limited to the Underwriter's Information (as defined in
Section 16); provided, further however, that the foregoing indemnification
agreement with respect to the Preliminary Prospectus shall not inure to the
benefit of any Underwriter from whom the person asserting any such loss,
claim, damage or liability purchased Securities, or any officers,
employees, representatives, agents or controlling persons of such
Underwriter, if (i) a copy of the Prospectus (as then amended or
supplemented) was required by law to be delivered to such person at or
prior to the written confirmation of the sale of Securities to such person,
(ii) a copy of the Prospectus (as then amended or supplemented) was not
sent or given to such person by or on behalf of such Underwriter and such
failure was not due to non-compliance by the Company with Section 4(d), and
(iii) the Prospectus (as so amended or supplemented) would have cured the
defect giving rise to such loss, claim, damage or liability. This indemnity
agreement is not exclusive and will be in addition to any liability which
the Company might otherwise have and shall not limit any rights or remedies
which may otherwise be available at law or in equity to each Underwriter
Indemnified Party.
(b) Each Underwriter, severally and not jointly, shall indemnify and hold
harmless the Company its officers, employees, representatives and agents,
each of its directors and each person, if any, who controls the Company
within the meaning of the Securities Act (collectively the "COMPANY
INDEMNIFIED PARTIES" and each a "COMPANY INDEMNIFIED PARTY") against any
loss, claim, damage or liability, joint or several, or any action in
respect thereof, to which the Company Indemnified Parties may become
subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of or is based upon (i) any
untrue statement or alleged untrue statement of a material fact contained
in the Preliminary Prospectus, either of the Registration Statements or the
Prospectus or in any amendment or supplement thereto or (ii) 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, but in
each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company through the
Representatives by or on behalf of that Underwriter specifically for use
therein, and shall reimburse the Company Indemnified Parties for any legal
or other expenses reasonably incurred by such parties in connection with
investigating or preparing to defend or defending against or appearing as
third party witness in connection with any such loss, claim, damage,
liability or action as such expenses are incurred; provided that the
parties hereto hereby agree that such written information provided by the
Underwriters consists solely of the Underwriter's Information. This
indemnity agreement is not exclusive and will be in addition to any
liability which the Underwriters might otherwise have and shall not limit
any rights or remedies which may otherwise be available at law or in equity
to the Company Indemnified Parties.
(c) Promptly after receipt by an indemnified party under this Section 7 of
notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 7, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have under this Section 7 except to the extent
it has been materially prejudiced by such failure; and, provided, further,
that the failure to notify the indemnifying party shall not relieve it from
any liability which it may have to an indemnified party otherwise than
under this Section 7. If any such claim or action shall be brought against
an indemnified party, and it shall notify the indemnifying party thereof,
the indemnifying party shall be entitled to participate therein and, to the
extent that it wishes, jointly with any other similarly notified
indemnifying party, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the indemnifying
party to the indemnified party of its election to assume the defense of
such claim or action, the indemnifying party shall not be liable to the
indemnified party under this Section 7 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided,
however, that any indemnified party shall have the right to employ separate
counsel in any such action and to
20
participate in the defense thereof but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
employment thereof has been specifically authorized by the indemnifying
party in writing, (ii) such indemnified party shall have been advised by
such counsel that there may be one or more legal defenses available to it
which are different from or additional to those available to the
indemnifying party and in the reasonable judgment of such counsel it is
advisable for such indemnified party to employ separate counsel or (iii)
the indemnifying party has failed to assume the defense of such action and
employ counsel reasonably satisfactory to the indemnified party, in which
case, if such indemnified party notifies the indemnifying party in writing
that it elects to employ separate counsel at the expense of the
indemnifying party, the indemnifying party shall not have the right to
assume the defense of such action on behalf of such indemnified party, it
being understood, however, that the indemnifying party shall not, in
connection with any one such action or separate but substantially similar
or related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys at any time for all
such indemnified parties, which firm shall be designated in writing by XX
Xxxxx, if the indemnified parties under this Section 7 consist of any
Underwriter Indemnified Party, or by the Company if the indemnified parties
under this Section 7 consist of any Company Indemnified Parties. Each
indemnified party, as a condition of the indemnity agreements contained in
Sections 7(a) and 7(b) shall use all reasonable efforts to cooperate with
the indemnifying party in the defense of any such action or claim. Subject
to the provisions of Section 7(d) below, no indemnifying party shall be
liable for any settlement of any such action effected without its written
consent (which consent shall not be unreasonably withheld), but if settled
with its written consent or if there be a final judgment for the plaintiff
in any such action, the indemnifying party agrees to indemnify and hold
harmless any indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(d) If at any time an indemnified party shall have requested that an
indemnifying party reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by this Section 7 effected without
its written consent if (i) such settlement is entered into more than 45
days after receipt by such indemnifying party of the request for
reimbursement, (ii) such indemnifying party shall have received notice of
the terms of such settlement at least 30 days prior to such settlement
being entered into and (iii) such indemnifying party shall not have
reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
(e) If the indemnification provided for in this Section 7 is unavailable or
insufficient to hold harmless an indemnified party under Section 7(a) or
7(b), then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, (i) in such proportion as shall be appropriate
to reflect the relative benefits received by the Company on the one hand
and the Underwriters on the other from the offering of the Stock or (ii) if
the allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company on the one hand and the Underwriters on the other with respect to
the statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and the Underwriters on the other with respect to such
offering shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Stock purchased under this Agreement
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters with
respect to the Stock purchased under this Agreement, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company 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; provided that the
parties hereto agree that the written information furnished to the Company
21
through the Representatives by or on behalf of the Underwriters for use in
any Preliminary Prospectus, either of the Registration Statements or the
Prospectus consists solely of the Underwriter's Information. The Company
and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 7(e) were to be determined by pro
rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section
7(e) shall be deemed to include, for purposes of this Section 7(e), 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 7(e), no Underwriter shall
be required to contribute any amount in excess of the amount by which the
total price at which the Stock underwritten by it and distributed to the
public were offered to the public less the amount of any damages which such
Underwriter has otherwise paid or become liable to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
The Underwriters' obligations to contribute as provided in this Section
7(e) are several in proportion to their respective underwriting obligations and
not joint.
8. TERMINATION. The obligations of the Underwriters hereunder may be
terminated by XX Xxxxx, in its absolute discretion by notice given to and
received by the Company prior to delivery of and payment for the Firm Stock if,
prior to that time, any of the events described in Sections 6(k) or 6(o) have
occurred or if the Underwriters shall decline to purchase the Stock for any
reason permitted under this Agreement.
9. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If (a) this Agreement shall have
been terminated pursuant to Section 8, (b) the Company shall fail to tender the
Stock for delivery to the Underwriters for any reason permitted under this
Agreement, or (c) the Underwriters shall decline to purchase the Stock for any
reason permitted under this Agreement the Company shall reimburse the
Underwriters for the fees and expenses of their counsel and for such other
out-of-pocket expenses as shall have been reasonably incurred by them in
connection with this Agreement and the proposed purchase of the Stock and, upon
demand, the Company shall pay the full amount thereof to XX Xxxxx. If this
Agreement is terminated pursuant to Section 10 by reason of the default of one
or more Underwriters, the Company shall not be obligated to reimburse any
Underwriter on account of those expenses.
10. SUBSTITUTION OF UNDERWRITERS. If any Underwriter or Underwriters shall
default in its or their obligations to purchase shares of Stock hereunder and
the aggregate number of shares which such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed ten percent (10%) of the total
number of shares underwritten, the other Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase
the shares which such defaulting Underwriter or Underwriters agreed but failed
to purchase. If any Underwriter or Underwriters shall so default and the
aggregate number of shares with respect to which such default or defaults occur
is more than ten percent (10%) of the total number of shares underwritten and
arrangements satisfactory to the Representatives and the Company for the
purchase of such shares by other persons are not made within forty-eight (48)
hours after such default, this Agreement shall terminate.
If the remaining Underwriters or substituted Underwriters are required
hereby or agree to take up all or part of the shares of Stock of a defaulting
Underwriter or Underwriters as provided in this Section 10, (i) the Company
shall have the right to postpone the Closing Dates for a period of not more than
five (5) full business days in order that the Company may effect whatever
changes may thereby be made necessary in the Registration Statements or the
Prospectus, or in any other documents or arrangements, and the Company agrees
promptly to file any amendments to the Registration Statements or supplements to
the Prospectus which may thereby be made necessary, and (ii) the respective
numbers of shares to be purchased by the remaining Underwriters or substituted
Underwriters shall be taken as the basis of their underwriting obligation for
all purposes of this Agreement. Nothing herein contained shall relieve any
defaulting Underwriter of its liability to the Company or the other
22
Underwriters for damages occasioned by its default hereunder. Any termination of
this Agreement pursuant to this Section 10 shall be without liability on the
part of any non-defaulting Underwriter or the Company, except expenses to be
paid or reimbursed pursuant to Sections 5 and 10 and except the provisions of
Section 7 shall not terminate and shall remain in effect.
11. SUCCESSORS; PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the several Underwriters, the
Company and their respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person other than the
persons mentioned in the preceding sentence any legal or equitable right, remedy
or claim under or in respect of this Agreement, or any provisions herein
contained, this Agreement and all conditions and provisions hereof being
intended to be and being for the sole and exclusive benefit of such persons and
for the benefit of no other person; except that the representations, warranties,
covenants, agreements and indemnities of the Company contained in this Agreement
shall also be for the benefit of the Underwriter Indemnified Parties, and the
indemnities of the several Underwriters shall also be for the benefit of the
Company Indemnified Parties. It is understood that the Underwriter's
responsibility to the Company is solely contractual in nature and the
Underwriters do not owe the Company, or any other party, any fiduciary duty as a
result of this Agreement.
12. SURVIVAL OF INDEMNITIES, REPRESENTATIONS, WARRANTIES, ETC. The respective
indemnities, covenants, agreements, representations, warranties and other
statements of the Company and the several Underwriters, as set forth in this
Agreement or made by them respectively, pursuant to this Agreement, shall remain
in full force and effect, regardless of any investigation made by or on behalf
of any Underwriter, the Company or any person controlling any of them and shall
survive delivery of and payment for the Stock.
13. NOTICES. All statements, requests, notices and agreements hereunder shall
be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail, telex or
facsimile transmission to SG Securities Corporation Attention: [ ]
(Fax:212-[ ]).
(b) if to the Company shall be delivered or sent by mail, telex or
facsimile transmission to Nomos Corporation Attention: [__________]
(Fax: __________).
14. DEFINITIONS OF CERTAIN TERMS. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Business Day" shall mean any day other than a Saturday, a Sunday, a
legal holiday, a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City or any day on
which the New York Stock Exchange, Inc. is not open for trading.
"Effective Date" shall mean each date and time that the Registration
Statements, 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.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Interference Proceeding" shall have the meaning set forth in 35
U.S.C.ss.135.
"Knowledge" shall mean, with respect to Intellectual Property matters,
that which the Company knows or should have known using the exercise of
reasonable due diligence.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the
Securities Act.
23
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statements when they become effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean Registration
Statements and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the Registration Statements referred to
in Section 1(a) hereof.
15. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
16. UNDERWRITERS' INFORMATION. The parties hereto acknowledge and agree that,
for all purposes of this Agreement, the Underwriters' Information consists
solely of the following information in the Prospectus: (i) the last paragraph on
the front cover page concerning the terms of the offering by the Underwriters;
and (ii) the statements concerning the Underwriters contained in the third and
eighth paragraph under the heading "Underwriting".
17. AUTHORITY OF THE REPRESENTATIVES. In connection with this Agreement, you
will act for and on behalf of the several Underwriters, and any action taken
under this Agreement by the Representatives, will be binding on all the
Underwriters.
18. PARTIAL UNENFORCEABILITY. The invalidity or unenforceability of any
Section, paragraph or provision of this Agreement shall not affect the validity
or enforceability of any other Section, paragraph or provision hereof. If any
Section, paragraph or provision of this Agreement is for any reason determined
to be invalid or unenforceable, there shall be deemed to be made such minor
changes (and only such minor changes) as are necessary to make it valid and
enforceable.
19. GENERAL. This Agreement constitutes the entire agreement of the parties to
this Agreement and supersedes all prior written or oral and all contemporaneous
oral agreements, understandings and negotiations with respects to the subject
matter hereof. In this Agreement, the masculine, feminine and neuter genders and
the singular and the plural include one another. The section headings in this
Agreement are for the convenience of the parties only and will not affect the
construction or interpretation of this Agreement. This Agreement may be amended
or modified, and the observance of any term of this Agreement may be waived,
only by a writing signed by the Company and the Representatives.
20. COUNTERPARTS. This Agreement may be signed in any number of counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
24
If the foregoing is in accordance with your understanding of the agreement
between the Company, and the several Underwriters, kindly indicate your
acceptance in the space provided for that purpose below.
Very truly yours,
NOMOS CORPORATION
By:
----------------------------------
Name:
Title:
Accepted as of
the date first above written:
XX XXXXX SECURITIES CORPORATION
CIBC WORLD MARKETS CORP.
Acting on their own behalf
and as Representatives of several
Underwriters referred to in the
foregoing Agreement.
By: XX XXXXX SECURITIES CORPORATION
By:
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx, Xx.
Title: Head of Equity Capital Markets
SCHEDULE A
Number Number of
of Firm Optional
Shares Shares
to be to be
Purchased Purchased
--------- ---------
XX Xxxxx Securities Corporation
--------- ---------
CIBC World Markets Corp.
--------- ---------
Total
========= =========
SCHEDULE B
[Shares to be sold pursuant to Directed Share Program]
SCHEDULE C
[list of stockholders subject to Section 4(h)]
SCHEDULE D
EXHIBIT I
[Form of Lock-Up Agreement]
[Date]
