EXHIBIT 1
DRAFT: 02/27/97
MARQUETTE MEDICAL SYSTEMS, INC.
COMMON STOCK
($0.10 PAR VALUE)
UNDERWRITING AGREEMENT
_____________ __, 1997
1.
UNDERWRITING AGREEMENT
___________, 1997
Xxxxxx, Read & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Xxxxxx X. Xxxxx & Co. Incorporated
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000-0000
as Managing Underwriters
Dear Sirs:
Marquette Medical Systems, Inc., a Wisconsin corporation (the "Company"),
proposes to issue and sell and the persons named in Schedule B (the "Selling
Shareholders") propose to sell to the underwriters named in Schedule A (the
"Underwriters") an aggregate of 2,750,000 shares (the "Firm Shares") of Class A
Common Stock, par value $0.10 per share (the "Common Stock"), of the Company, of
which 1,000,000 shares are to be issued and sold by the Company and an aggregate
of 1,750,000 shares are to be sold by the Selling Shareholders in the respective
amounts set forth opposite their names in Schedule B. In addition, solely for
the purpose of covering overallotments, the Company and The Xxxxxxx X. Xxxxxx
Charitable Foundation propose to issue and sell, at the Underwriters' option, up
to 412,500 additional shares of the Common Stock (the "Additional Shares") in
the respective amounts set forth opposite their names in Schedule C. The
Additional Shares and the Firm Shares are collectively referred to as the
"Shares." The Shares are described in the Prospectus which is referred to
below.
The Company has filed, in accordance with the provisions of the Securities
Act of 1933, as amended, and the rules and regulations thereunder (collectively,
the "Act"), with the Securities and Exchange Commission (the "Commission") a
registration statement on Form S-3, including a prospectus, relating to the
Shares, which incorporates by reference documents that the Company has filed in
accordance with the provisions of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (collectively, the "Exchange
Act"). The Company has furnished to you, for use by the Underwriters and by
dealers, copies of one or more preliminary prospectuses and all documents
incorporated by reference therein (collectively, the "Preliminary Prospectus")
relating to the Shares. Except where the context otherwise
2.
requires, the registration statement as in effect at the time of execution of
this Agreement or, if the registration statement is not yet effective, as
amended when it becomes effective, including all documents filed as a part
thereof or incorporated by reference therein, and including any registration
statement filed pursuant to Rule 462(b) under the Act and deemed to be part of
the registration statement at the time of effectiveness pursuant to Rule 430A
under the Act, is herein called the "Registration Statement", and the
prospectus, including all documents incorporated therein by reference, in the
form filed by the Company with the Commission pursuant to Rule 424(b) under the
Act or, if no such filing is required, in the form of final prospectus included
in the Registration Statement at the time it became effective, is herein called
the "Prospectus."
The Company, the Selling Shareholders and the Underwriters agree as
follows:
1. SALE AND PURCHASE. On the basis of the representations and warranties
and the other terms and conditions herein set forth, the Company and each
Selling Shareholder, severally and not jointly, agrees to sell to the respective
Underwriters and each of the Underwriters, severally and not jointly, agrees to
purchase from the Company and each Selling Shareholder the respective number of
Firm Shares (subject to such adjustment as you may determine to avoid fractional
shares) which bears the same proportion to the number of Firm Shares to be sold
by the Company or by that Selling Shareholder, as the case may be, as the number
of Firm Shares set forth opposite the name of such Underwriter on Schedule A
bears to the total number of Firm Shares to be sold by the Company and the
Selling Shareholders, in each case at a purchase price of $______ per Share.
You may release the Firm Shares for public sale promptly after this Agreement
becomes effective. You may from time to time increase or decrease the public
offering price after the initial public offering to such extent as you may
determine.
In addition, on the basis of the representations and warranties and the
other terms and conditions herein set forth, the Company and the Xxxxxxx X.
Xxxxxx Charitable Foundation hereby grant to the several Underwriters an option
to purchase, and the Underwriters shall have the right to purchase, severally
and not jointly, from the Company and the Xxxxxxx X. Xxxxxx Charitable
Foundation all or a portion of the Additional Shares as may be necessary to
cover overallotments made in connection with the offering of the Firm Shares, at
the same purchase price per share to be paid by the several Underwriters to the
Company and the Selling Shareholders for the Firm Shares. This option may be
exercised in whole or in part from time to time on or before the thirtieth day
following the date hereof, by written notice to the Company and The Xxxxxxx X.
Xxxxxx Charitable Foundation. Any such notice shall set forth the aggregate
number of Additional Shares as to which the option is being exercised, and the
date and time when the Additional Shares are to be delivered (any such date and
time being herein referred to as an "additional time of purchase"); provided,
however, that no additional time of purchase shall occur earlier than the time
of purchase (as defined below) nor earlier than the second business day/*/ after
the date on which the option shall have been exercised nor later than the eighth
business day after the date on which the option
--------------------------
/*/As used herein, "business day" shall mean a day on which the New York Stock
Exchange is open for trading.
3.
shall have been exercised. The number of Additional Shares to be sold to each
Underwriter at an additional time of purchase shall be the number which bears
the same proportion to the aggregate number of Additional Shares being purchased
at such additional time of purchase as the number of Firm Shares set forth
opposite the name of such Underwriter on Schedule A bears to the total number of
Firm Shares (subject, in each case, to such adjustment as you may determine to
eliminate fractional shares). The number of Additional Shares to be sold by the
Company and the Xxxxxxx X. Xxxxxx Charitable Foundation upon exercise of the
Underwriters' option shall be 64% and 36%, respectively, of the total number of
Additional Shares being purchased.
2. PAYMENT AND DELIVERY. Payment of the purchase price for the Firm
Shares shall be made to the Company and to the Attorney-in-fact referred to in
Section 4(d) on behalf of the Selling Shareholders by certified or official bank
checks, in immediately available funds, at the office of Xxxxxx, Read & Co. Inc.
in New York City, against delivery of the certificates for the Firm Shares to
you for the respective accounts of the Underwriters. Such payment and delivery
shall be made at 9:30 A.M., New York City time, on ___________, 1997 (unless
another time shall be agreed to by you, the Company and the Selling Shareholders
or unless postponed in accordance with the provisions of Section 10). The time
at which such payment and delivery are actually made is called the "time of
purchase." Certificates for the Firm Shares shall be delivered to you in
definitive form in such names and in such denominations as you shall specify on
the second business day preceding the time of purchase. For the purpose of
expediting the checking of the certificates for the Firm Shares by you, the
Company and the Selling Shareholders agree to make such certificates available
to you for such purpose at least one full business day preceding the time of
purchase.
Payment of the purchase price for the Additional Shares shall be made at
the additional time of purchase in the same manner and at the same office as the
payment for the Firm Shares. Certificates for the Additional Shares shall be
delivered to you in definitive form in such names and in such denominations as
you shall specify on the second business day preceding the additional time of
purchase. For the purpose of expediting the checking of the certificates for
the Additional Shares by you, the Company and the Selling Shareholders agree to
make such certificates available to you for such purpose at least one full
business day preceding the additional time of purchase.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to each of the Underwriters that:
(A) Each Preliminary Prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Act, complied when so filed in all material
respects with the Act; when the Registration Statement becomes or became
effective and at all times subsequent thereto up to the time of purchase and the
additional time of purchase, the Registration Statement and the Prospectus, and
any supplements or amendments thereto, complied and will comply in all material
respects with the provisions of the Act; and the Registration Statement at all
such times did not and will not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and the Prospectus at
4.
all such times did not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading provided, however, that the Company makes no
representation or warranty with respect to any statement contained in the
Registration Statement or the Prospectus in reliance upon and in conformity with
information concerning the Underwriters and furnished in writing by or on behalf
of any Underwriter through you to the Company expressly for use in the
Registration Statement or the Prospectus and set forth in the section of the
Registration Statement and the Prospectus entitled "Underwriting"; the documents
incorporated by reference in the Prospectus, at the time they were filed with
the Commission, complied in all material respects with the requirements of the
Exchange Act, and (except for statements modified or superceded in a Preliminary
Prospectus or the Registration Statement) do not contain an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(B) As of the date of this Agreement, the Company has an authorized
capitalization as set forth under the column entitled "October 31, 1996 Actual"
in the section of the Registration Statement and the Prospectus entitled
"Capitalization" and, as of the time of purchase, the capitalization of the
Company will be as set forth under the column entitled "October 31, 1996 As
Adjusted" in the section of the Registration Statement and the Prospectus
entitled "Capitalization" except to the extent the number of shares of Common
Stock has increased as a result of issuances of stock in connection with the
exercise of stock options issued under currently existing stock option plans of
the Company and any other changes that are disclosed in the Prospectus; all of
the issued and outstanding shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and nonassessable (except with
respect to wage claims of employees as provided in Section 180.0622 (2)(b) of
the Wisconsin Business Corporation Law) and are free of statutory and
contractual preemptive rights pursuant to contracts to which the Company is a
party or otherwise bound.
(C) The Company has been duly organized and is validly existing as a
corporation in current status under the laws of the State of Wisconsin with full
power and authority to (i) own its properties and conduct its business as
described in the Registration Statement and the Prospectus and (ii) execute and
deliver this Agreement and to issue, sell and deliver the Shares to be issued
and sold as herein contemplated.
(D) All of the issued and outstanding shares of capital stock of each
of the subsidiaries of the Company (the "Subsidiaries") are owned directly by
the Company except such qualifying shares not exceeding 1% of the outstanding
capital stock of each Subsidiary as may be owned by third parties; all of such
shares have been duly authorized and validly issued and are fully paid and
nonassessable and, except as described in the Prospectus, are owned free and
clear of any pledge, lien, encumbrance, security interest or other claim; there
are no outstanding rights, subscriptions, warrants, calls, preemptive rights,
options or other agreements of any kind with respect to the capital stock of any
of the Subsidiaries.
5.
(e) Each of the Subsidiaries has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its respective
jurisdiction of incorporation, with full corporate power and authority to own
its respective properties and to conduct its respective businesses.
(f) Each of the Company and each of the Subsidiaries is duly qualified
or licensed by and is in good standing in each jurisdiction in which it owns or
leases property or conducts its business and in which the failure, individually
or in the aggregate, to be so qualified or licensed could have a material
adverse effect on the properties, assets, operations, business, business
prospects or condition (financial or other) of the Company and the Subsidiaries
taken as a whole; each of the Company and each of the Subsidiaries is in
compliance in all material respects with the laws, orders, rules, regulations
and directives issued or administered by each such jurisdiction except where the
failure to be in compliance would not have a material adverse effect on the
properties, assets, operations, business, business prospects or condition
(financial or other) of the Company and the Subsidiaries taken as a whole.
(g) Neither the Company nor any of the Subsidiaries is in breach of,
or in default under (nor has any event occurred which with notice, lapse of time
or both would constitute a breach of, or default under), its charter or bylaws,
or in the performance or observance of any obligation, agreement, covenant or
condition contained in any license, indenture, lease, mortgage, deed of trust,
bank loan or credit agreement, material supply agreement or other material
agreement or instrument to which the Company or any of the Subsidiaries is a
party or by which any of them may be bound or affected where such breach or
default is likely to have a material adverse effect on the business of the
Company and the Subsidiaries, taken as a whole. The execution, delivery and
performance of this Agreement, the issuance and sale of the Shares, the
application of the net proceeds thereof as described in the Prospectus and the
consummation of the transactions contemplated hereby will not conflict with, or
result in any breach of or constitute a default under (nor constitute any event
which with notice, lapse of time or both would constitute a breach of, or
default under), the charter or bylaws of the Company or any of the Subsidiaries
or under any provision of any license, indenture, lease, mortgage, deed of
trust, bank loan or credit agreement, material supply agreement or other
material agreement or instrument to which the Company or any of the Subsidiaries
is a party or by which any of them or their properties may be bound or affected,
or under any federal, state, local or foreign law, regulation or rule or any
decree, judgment or order applicable to the Company or any of the Subsidiaries.
(h) The Firm Shares and the Additional Shares, when issued and
delivered to and paid for by the Underwriters as contemplated hereby, will be
duly authorized and validly issued and fully paid and nonassessable, and as for
the shares to be issued and sold by the Company, free and clear of any pledge,
lien, encumbrance, security interest, preemptive right or other claim (except
with respect to wage claims of employees as provided in Section 180.0622 (2)(b)
of the Wisconsin Business Corporation Law).
(i) This Agreement has been duly authorized, executed and delivered by
the Company.
6.
(j) The capital stock of the Company, including the Shares, conforms
in all material respects to the description thereof contained in the
Registration Statement and the Prospectus; and the certificates for the Shares
are in due and proper form and the holders of the Shares after making payment
therefor will not be subject to personal liability by reason of being such
holders, except with respect to wage claims of employees pursuant to Section
180.0622 (2)(b) of the Wisconsin Business Corporation Law.
(k) No approval, authorization, consent or order of or filing with any
federal, state, local or foreign governmental or regulatory commission, board,
body, authority or agency is required in connection with the issuance and sale
of the Shares as contemplated hereby, other than registration of the Shares
under the Act, clearance of the offering of the Shares with the National
Association of Securities Dealers, Inc. (the "NASD") and any necessary
qualification under the securities or blue sky laws of the various jurisdictions
in which the Shares are being offered by the Underwriters.
(l) Each person who has the right, contractual or otherwise, to cause
the Company to register pursuant to the Act any securities of the Company in
consequence of the issue and sale of the Shares to the Underwriters hereunder
either included such securities in the Registration Statement or duly waived
such right and each person who has the right, contractual or otherwise, to cause
the Company to issue to it any securities of the Company in consequence of the
issue and sale of the Shares to the Underwriters hereunder has duly waived such
right.
(m) Xxxxxx Xxxxxxxx LLP, whose reports on the consolidated financial
statements of the Company and the Subsidiaries are included or incorporated by
reference in the Registration Statement and the Prospectus, are independent
public accountants with respect to the Company as required by the Act and the
applicable published rules and regulations thereunder.
(n) All legal or governmental proceedings, contracts or documents of a
character required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement have been
so described or filed as required.
(o) There is no action, suit or proceeding pending or threatened
against the Company or any of the Subsidiaries or any of their properties, at
law or in equity, or before or by any federal, state, local or foreign
governmental or regulatory commission, board, body, authority or agency that
could reasonably be expected to result in a judgment, decree or order having a
material adverse effect on the properties, assets, operations, business,
business prospects or condition (financial or other) of the Company and the
Subsidiaries taken as a whole.
(p) The audited and unaudited financial statements included in the
Registration Statement and the Prospectus present fairly the consolidated
financial condition of the Company and the Subsidiaries as of the dates
indicated and the consolidated results of operations and cash flows of the
Company and the Subsidiaries for the periods specified; such financial
statements have been prepared in conformity with generally accepted accounting
principles applied on a
7.
consistent basis during the periods involved. The unaudited financial
statements reflect all adjustments (which include any non-recurring adjustments)
necessary to present fairly the information presented for such periods.
(q) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, and except as may be
otherwise stated in the Registration Statement or the Prospectus, there has not
been: (A) any material adverse change in the properties, assets, operations,
business, business prospects or condition (financial or other), of the Company
and the Subsidiaries taken as a whole; (B) any transaction, that is material to
the Company and the Subsidiaries taken as a whole, entered into by the Company
or any of the Subsidiaries that requires an amendment to the Registration
Statement; or (c) any obligation, contingent or otherwise, directly or
indirectly incurred by the Company or any of the Subsidiaries that is material
to the Company and the Subsidiaries taken as a whole that requires an amendment
to the Registration Statement.
(r) The Company has obtained the agreement of the persons listed on
Schedule B not to, subject to certain exceptions, sell, contract to sell, grant
any option to sell, transfer or otherwise dispose of, directly or indirectly,
any shares of Common Stock, or securities convertible into or exchangeable for
Common Stock or warrants or other rights to purchase Common Stock for a period
of 90 days from the date of the Prospectus without the prior written consent of
Xxxxxx, Read & Co. Inc.
(s) Neither the Company nor any of the Subsidiaries has violated any
foreign, federal, state or local law or regulation relating to the protection of
human health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), nor any federal or
state law relating to discrimination in the hiring, promotion or pay of
employees nor any applicable federal or state wages and hours laws, nor any
provisions of the Employee Retirement Income Security Act or the rules and
regulations promulgated thereunder, which in each case could reasonably be
expected to result in any material adverse effect on the properties, assets,
operations, business, business prospects or condition (financial or other) of
the Company and the Subsidiaries taken as a whole.
(t) Each of the Company and each of the Subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("permits"), including without limitation under any applicable
Environmental Laws, as are necessary to own, lease and operate its respective
properties and to conduct its business except where the failure to obtain a
permit could not have a material adverse effect on the business of the Company
and the Subsidiaries, taken as a whole; each of the Company and each of the
Subsidiaries has fulfilled and performed all of its material obligations with
respect to such permits and no event has occurred which allows, or after notice
or lapse of time would allow, revocation or termination thereof or results in
any other material impairment of the rights of the holder of any such permit.
8.
(u) In the ordinary course of its business, the Company conducts a
periodic review of the effect of Environmental Laws on the business, operations
and properties of the Company and the Subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities (including without
limitation any capital or operating expenditure 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
reasonably has concluded that such associated costs and liabilities, singly or
in the aggregate, would not have a material adverse effect on the properties,
assets, operations, business, business prospects or condition (financial or
other) of the Company and the Subsidiaries taken as a whole.
(v) To the best of the Company's management's knowledge neither the
Company nor any of the Subsidiaries, nor any employee of the Company or any of
the Subsidiaries, has made any payment of funds of the Company or any of the
Subsidiaries prohibited by law, and no funds of the Company or any of the
Subsidiaries have been set aside to be used for any payment prohibited by law.
(w) The Company and the Subsidiaries have filed all federal or state
income or franchise tax returns required to be filed and have paid all taxes
shown thereon as due, and there is no material tax deficiency which has been or
might be asserted against the Company or any of the Subsidiaries; all material
tax liabilities are adequately provided for on the books of the Company and the
Subsidiaries.
(x) The Company has not incurred any liability for any finder's fees
or similar payments in connection with the transactions herein contemplated.
(y) The Company and the Subsidiaries have good title to all properties
and assets owned, and valid leasehold interests in all property and assets
leased by them, in each case free and clear of all material liens, security
interests, pledges, charges, encumbrances, mortgages and defects (except such as
are described or referred to in the Prospectus and the financial statements and
the notes thereto contained therein or such as do not interfere with the use
made and proposed to be made of such property by the Company and the
Subsidiaries).
(z) Neither the Company nor any of the Subsidiaries is an "investment
company" within the meaning of the Investment Company Act of 1940, as amended,
or is subject to regulation under such Act.
(aa) Each of the Company and each of the Subsidiaries owns or
possesses sufficient licenses or other rights to use all patents, patent
applications, trademarks, copyrights, trade names, trade secrets, technology and
know-how necessary to conduct the Company's and the Subsidiaries' business as
described in the Registration Statement and Prospectus.
(ab) The Company is not aware of any pending or threatened action,
suit, proceeding or claim by others that the Company or any of the Subsidiaries
is infringing or otherwise violating any patents or patent applications of
others and is not aware of any rights
9.
of third parties to any of the patents or patent applications owned by or
licensed to the Company or any of the Subsidiaries which could have a material
adverse effect on the use thereof by the Company or any of the Subsidiaries; and
the Company is not aware of any pending or threatened action, suit, proceeding
or claim by others challenging the validity or scope of any patents or patent
applications owned by or licensed to the Company or any of the Subsidiaries.
(ac) Each of the Company and each of the Subsidiaries has filed with
the United States Food and Drug Administration (the "FDA"), and all applicable
state and local regulatory bodies, for and received approval of all material
registrations, applications, licenses, requests for exemptions, permits and
other regulatory authorizations necessary to conduct the Company's, and the
Subsidiaries' business as it is described in the Registration Statement and
Prospectus. The Company is in compliance with all such registrations,
applications, licenses, requests for exemptions, permits and other regulatory
authorizations, and all applicable FDA, state and local rules, regulations,
guidelines and policies, including, but not limited to, applicable FDA, state
and local rules, regulations and policies relating to current good manufacturing
practices, except where the failure so to file or comply would not have a
material adverse effect on the properties, assets, operations, business,
business prospects or condition (financial or other) of the Company and the
Subsidiaries taken as a whole; and the Company has no reason to believe that any
party granting any such registration, application, license, request for
exemption, permit or other authorization intends to limit, suspend or revoke the
same and knows of no basis for any such limitation, suspension or revocation.
(ad) Each of the Company and each of the Subsidiaries is insured by
insurers of recognized financial responsibility against such losses and risks in
such amounts as are prudent and customary in the businesses in which they are
engaged; within the last two fiscal years neither the Company nor any Subsidiary
has been refused any insurance coverage sought or applied for; and neither the
Company nor any Subsidiary has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to continue
its business at a cost that would not materially and adversely affect the
properties, assets, operations, business, business prospects or condition
(financial or other) of the Company and the Subsidiaries taken as a whole.
4. REPRESENTATIONS AND WARRANTIES OF THE SELLING SHAREHOLDERS. Each
Selling Shareholder, severally and not jointly, represents and warrants to each
Underwriter that:
(a) Such Selling Shareholder is and at the time of delivery of the
Shares to be sold by such Selling Shareholder will be the lawful owner of the
number of Shares or securities convertible into or warrants exercisable for the
number of Shares to be sold by such Selling Shareholder pursuant to this
Agreement and, at the time of delivery thereof, will have valid and marketable
title to such Shares, and upon delivery of and payment for such Shares the
Underwriters will acquire valid and marketable title to such Shares free and
clear of any claim, lien, encumbrance, security interest, marital or community
property right, restriction on transfer
10.
or other defect in title, assuming each of the Underwriters has purchased the
Shares purchased by it in good faith and without notice of any adverse claim.
(b) Such Selling Shareholder has and at the time of delivery of such
Shares will have full legal right, power and capacity, and any approval required
by law to sell, assign, transfer and deliver such Shares in the manner provided
in this Agreement.
(c) This Agreement has been duly authorized, executed and delivered by
or on behalf of such Selling Shareholder. The Power of Attorney executed by the
Selling Shareholders (the "Power of Attorney") and the Custody Agreement among
the Selling Shareholders and Firstar Trust Company (the "Custody Agreement")
have been duly executed and delivered by or on behalf of such Selling
Shareholder and are legal, valid and binding agreements of such Selling
Shareholder, enforceable in accordance with their terms, except as the
enforceability thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally and general
principles of equity.
(d) Such Selling Shareholder has duly and irrevocably authorized the
Attorney-in-Fact (as defined in the Power of Attorney), on behalf of such
Selling Shareholder, to execute and deliver this Agreement and any other
document necessary or desirable in connection with the transactions contemplated
hereby and to deliver the Shares to be sold by such Selling Shareholder and
receive payment therefor pursuant hereto.
(e) The sale of the Shares by such Selling Shareholder pursuant hereto
is not prompted by any material adverse information concerning the Company not
disclosed in the Registration Statement; and all information furnished in
writing by or on behalf of such Selling Shareholder concerning the Selling
Shareholder specifically for use in the Registration Statement and the
Prospectus, and any supplement or amendment thereto, is and will be when the
Registration Statement became effective and at all times subsequent thereto up
to the time of purchase and the additional time of purchase, true and correct
and complete and at all such times did not and will not contain any untrue
statement of material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(f) The consummation of the transactions contemplated hereby and by
the Power of Attorney and by the Custody Agreement and the fulfillment of the
terms hereof and thereof will not constitute a breach or violation of or default
under any trust, indenture, agreement or other instrument to which such Selling
Shareholder is a party or by which such Selling Shareholder is bound.
(g) To the best of the knowledge of each Selling Shareholder, the
representations and warranties of the Company set forth in Section 3 hereof are
true and correct.
5. CERTAIN COVENANTS OF THE COMPANY. The Company hereby agrees:
11.
(a) to furnish such information as may be required and otherwise to
cooperate in qualifying the Shares for offering and sale under the securities or
blue sky laws of such states as you may designate and to maintain such
qualifications in effect as long as required for the distribution of the Shares,
provided that the Company shall not be required to qualify as a foreign
corporation or to consent to the service of process under the laws of any such
state (except service of process with respect to the offering and sale of the
Shares); promptly to advise you of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Shares
for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose; and to use its best efforts to obtain the withdrawal of any
order of suspension at the earliest practicable moment;
(b) to make available to you in New York City, as soon as practicable
after the Registration Statement becomes effective, and thereafter from time to
time to furnish to the Underwriters, as many copies of the Prospectus (or of the
Prospectus as amended or supplemented if the Company shall have made any
amendment or supplement thereto after the effective date of the Registration
Statement) as the Underwriters may request for the purposes contemplated by the
Act;
(c) to advise you promptly and if requested by you to confirm such
advice in writing, (i) when the Registration Statement has become effective and
when any post-effective amendment thereto becomes effective and (ii) when the
Prospectus is filed with the Commission pursuant to Rule 424(b) under the Act,
if required under the Act (which the Company agrees to file in a timely manner
under such Rule);
(d) to advise you promptly, confirming such advice in writing, of any
request by the Commission for amendments or supplements to the Registration
Statement or the Prospectus or for additional information with respect thereto,
or of notice of institution of proceedings for or the entry of a stop order
suspending the effectiveness of the Registration Statement and, if the
Commission should enter a stop order suspending the effectiveness of the
Registration Statement, to use its best efforts to obtain the lifting or removal
of such order as soon as possible; to advise you promptly of any proposal to
amend or supplement the Registration Statement or the Prospectus, including by
filing any document that would be incorporated therein by reference, and, prior
to the completion of the distribution of the Shares, to file no such amendment
or supplement to which you shall object in writing unless required by the
Exchange Act;
(e) to furnish to you and, upon request to each of the other
Underwriters, for a period of five years from the date of this Agreement (i)
copies of all reports or other communications that the Company shall send to its
shareholders or from time to time shall publish or publicly disseminate and (ii)
copies of all annual, quarterly and current reports filed with the Commission on
Forms 10-K, 10-Q and 8-K, or such other similar form as may be designated by the
Commission, and any other document filed by the Company pursuant to Section 12,
13, 14 or 15(d) of the Exchange Act;
(f) to advise the Underwriters promptly of the happening of any event
known to the Company within the time during which a prospectus relating to the
Shares is required to
12.
be delivered under the Act that, in the reasonable judgment of the Company,
would require the making of any change in the Prospectus then being used, or in
the information incorporated therein by reference, so that the Prospectus, as
then supplemented, would not include an untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they are made, not misleading and, during
such time, promptly to prepare and furnish, at the Company's expense, to the
Underwriters such amendments or supplements to such Prospectus as may be
necessary to reflect any such change in such quantities as requested by the
Underwriters, and to furnish to you a copy of such proposed amendment or
supplement before filing any such amendment or supplement with the Commission;
(G) to make generally available to its security holders, and to
deliver to you, an earnings statement of the Company (which need not be audited
and which will satisfy the provisions of Section 11(a) of the Act including, at
the option of the Company, Rule 158)
covering a period of 12 months beginning after the effective date of the
Registration Statement but ending not later than 15 months after the date of the
Registration Statement, as soon as is reasonably practicable after the
termination of such 12-month period;
(H) to furnish to you four signed copies of the Registration
Statement, as initially filed with the Commission, and of all amendments thereto
(including all exhibits thereto and documents incorporated by reference therein)
and sufficient conformed copies of the foregoing (other than exhibits) for
distribution of a copy to each of the other Underwriters;
(I) to furnish to you as early as practicable prior to the time of
purchase and the additional time of purchase, as the case may be, but not later
than two business days prior thereto, a copy of the latest available unaudited
interim consolidated financial statements, if any, of the Company and the
Subsidiaries that have been read by the Company's independent certified public
accountants as stated in their letter to be furnished pursuant to Section 8(b);
(J) to apply the net proceeds from the sale of the Shares sold by the
Company in the manner set forth under the caption "Use of Proceeds" in the
Registration Statement and the Prospectus;
(K) to use its best efforts to cause the Shares to be included in the
Nasdaq National Market;
(L) whether or not the transactions contemplated in this Agreement
are consummated or this Agreement otherwise becomes effective or is terminated,
to pay its pro rata share with the Selling Shareholders of all expenses, fees
and taxes (other than (x) any transfer taxes and (y) fees and disbursements of
your counsel except as set forth under Section 7 and clauses (iv) and (vi)
below) in connection with (i) the preparation and filing of the Registration
Statement, each Preliminary Prospectus, the Prospectus and any amendment or
supplement thereto, and the printing and furnishing of copies of each thereof to
you and to dealers (including costs of mailing and shipment), (ii) the issuance,
sale and delivery of the Shares, (iii) the printing of this Agreement and any
dealer agreements, and
13.
the reproduction or printing and furnishing of copies of each thereof to you and
to dealers (including costs of mailing and shipment), (iv) the qualification of
the Shares for offering and sale under state laws as aforesaid (including legal
fees and filing fees and other disbursements of your counsel) and the printing
and furnishing of copies of any blue sky surveys to you and to dealers, (v) any
listing of the Shares on any securities exchange or qualification of the Shares
for inclusion in the Nasdaq National Market and any registration thereof under
the Exchange Act, (vi) any filing for review of the public offering of the
Shares by the NASD and (vii) the performance of the Company's and the Selling
Shareholders' other obligations hereunder;
(m) not to sell, contract to sell, grant any option to sell, transfer
or otherwise dispose of, directly or indirectly, any shares of Common Stock or
securities convertible into or exchangeable for Common Stock or warrants or
other rights to purchase Common Stock or permit the registration under the Act
of any shares of Common Stock, except for (i) the registration of the Shares and
the sales to you pursuant to this Agreement for a period commencing on the date
hereof and continuing for 90 days after the date of the Prospectus; (ii) grants
of stock options under the Company's existing employee stock option plan; or
(iii) issuances of shares upon exercise of employee stock options, without the
prior written consent of Xxxxxx, Read & Co. Inc.; and
(n) to refrain from investing the proceeds from the sale of the Shares
in a manner to cause the Company or any of the Subsidiaries to become an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended.
6. CERTAIN COVENANTS OF THE SELLING SHAREHOLDERS. Each Selling
Shareholder agrees with each Underwriter that:
(a) such Selling Shareholder will not, subject to certain exceptions,
sell, contract to sell, grant any option to sell, transfer or otherwise dispose
of, directly or indirectly, any shares of Common Stock or securities convertible
into or exchangeable for Common Stock or warrants or other rights to purchase
Common Stock, except for the sales to you pursuant to this Agreement, for a
period commencing on the date hereof and continuing for 90 days after the date
of the Prospectus, without the prior written consent of Xxxxxx, Read & Co. Inc.;
and
(b) whether or not the transactions contemplated in this Agreement are
consummated or this Agreement otherwise becomes effective or is terminated, to
pay its pro rata share with the Company of all expenses, fees and taxes (other
than (x) any transfer taxes and (y) fees and disbursements of your counsel
except as set forth under Section 7 and clauses (iv) and (vi) below) in
connection with (i) the preparation and filing of the Registration Statement,
each Preliminary Prospectus, the Prospectus and any amendment or supplement
thereto, and the printing and furnishing of copies of each thereof to you and to
dealers (including costs of mailing and shipment), (ii) the issuance, sale and
delivery of the Shares, (iii) the printing of this Agreement and any dealer
agreements, and the reproduction or printing and furnishing of copies of each
thereof to you and to dealers (including costs of mailing and shipment), (iv)
the qualification of the Shares for offering and sale under state laws as
aforesaid (including legal fees and filing fees and other disbursements of your
counsel) and the printing and furnishing of copies of any blue sky surveys to
you and to dealers, (v) any listing of the Shares on any securities
14.
exchange or qualification of the Shares for inclusion in the Nasdaq National
Market and any registration thereof under the Exchange Act, (vi) any filing for
review of the public offering of the Shares by the NASD and (vii) the
performance of the Company's and the Selling Shareholders' other obligations
hereunder;
7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the Firm Shares are not
delivered for any reason, other than the failure of the Underwriters to purchase
the Firm Shares as provided herein (unless such failure is permitted under the
provisions of Section 8 of this Agreement), the Company will reimburse the
Underwriters for all of their out-of-pocket expenses, including the fees and
disbursements of their counsel. If the Additional Shares are not delivered for
any reason, other than the failure of the Underwriters to purchase the
Additional Shares as provided herein (unless such failure is permitted under the
provisions of Section 8 of this Agreement), the Company will reimburse the
Underwriters for a percentage of the Underwriters' out-of-pocket expenses,
including the fees and disbursements of their counsel, equal to the percentage
of the Shares represented by the Additional Shares as to which the Underwriters
exercised their option pursuant to Section 1 of this Agreement.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations of
the Underwriters hereunder are subject to the accuracy of the representations
and warranties on the part of the Company and the Selling Shareholders on the
date hereof and at the time of purchase (and the several obligations of the
Underwriters at any additional time of purchase are subject to the accuracy of
the representations and warranties on the part of the Company and the Selling
Shareholders on the date hereof and at the time of purchase and at such
additional time of purchase, as the case may be), the performance by each of the
Company and the Selling Shareholders of their obligations hereunder and to the
following conditions:
(a) The Company shall furnish to you at the time of purchase and at
such additional time of purchase, as the case may be, the opinions of
Xxxxxxxxxx, Xxxxxx & Xxxxxx, Ltd., counsel for the Company and the Selling
Shareholders (except for GE Fund), and _________________, counsel for GE Fund
(and whose opinion shall be delivered only with respect to items (xiii), (xiv),
(xv), (xvi), and (xvii) below as they relate to GE Fund) addressed to the
Underwriters and dated the time of purchase or such additional time of purchase,
as the case may be, with reproduced copies for each of the other Underwriters
and in form satisfactory to Xxxxxx Godward LLP, counsel for the Underwriters,
stating that:
(i) the Company has been duly incorporated and is validly existing as
a corporation in current status under the laws of the State of Wisconsin, with
full corporate power and authority (A) to own its properties and conduct its
business as described in the Registration Statement and the Prospectus and (B)
to execute and deliver this Agreement and to issue, sell and deliver the Shares
as herein contemplated;
(ii) each of Corometrics Medical Systems, Inc., E for M Corporation,
Xxxxxxx GmbH and Vari-X Corporation (each a "Material Subsidiary" and
collectively, the "Material Subsidiaries") has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the state
in which such Subsidiary is incorporated, with full corporate power and
authority to own its properties and to conduct its business as described in the
Registration Statement and the Prospectus;
15.
(III) each of the Company and each of the Material Subsidiaries is
duly qualified or licensed to do business by and is in good standing as a
foreign corporation in each jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification and where any
statutory fines or penalties or any corporate disability imposed for failure to
qualify would have a material adverse effect on the properties, assets,
operations, business, business prospects or condition (financial or other) of
the Company and the Subsidiaries taken as a whole;
(IV) all of the issued and outstanding shares of capital stock of
each Material Subsidiary have been duly authorized and validly issued and are
fully paid and nonassessable and, except as set forth in the Prospectus, are
owned, directly or indirectly, by the Company free and clear of any pledge,
lien, encumbrance, security interest, preemptive right or other claim, and, to
such counsel's knowledge, there are no rights, warrants, options or other
agreements to acquire or instruments convertible into or exchangeable for any
shares of capital stock or other equity interest of any Subsidiary, except as
set forth in the Prospectus;
(V) this Agreement has been duly authorized, executed and delivered
by the Company;
(VI) (a) the Shares, when delivered to and paid for by the
Underwriters, will be duly authorized, validly issued, fully paid and
nonassessable, and will be free of any pledge, lien, encumbrance, claim or
preemptive right (except with respect to wage claims of employees as provided
in Section 180.0622 (2)(b) of the Wisconsin Business Corporation Law); and (b)
the certificates for the Shares are in due and proper form and the holders of
the Shares will not be subject to personal liability by reason of being such
holders;
(VII) (a) the Company has an authorized capital as set forth under the
heading "Capitalization" in the Registration Statement and the Prospectus, and
(b) the outstanding shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid, nonassessable and free of
statutory and, to such counsel's knowledge, preemptive rights (except with
respect to wage claims of employees as provided in Section 180.0622 (2)(b) of
the Wisconsin Business Corporation Law);
16.
(VIII) the execution, delivery and performance of this Agreement by
the Company, the issuance and sale of the Shares, the application of the net
proceeds thereof as described in the Prospectus and the consummation by the
Company of the transactions contemplated hereby do not and will not conflict
with, or result in any breach of, or constitute a default under (nor constitute
any event which with notice, lapse of time or both would constitute a breach of
or default under), the charter or bylaws of the Company or any of the Material
Subsidiaries; or any provision of any material license, indenture, lease,
mortgage, deed of trust, bank loan or credit agreement or other agreement or
instrument known to such counsel to which the Company or any of the Subsidiaries
is a party or by which the Company or any of the Subsidiaries or their
properties are bound or affected; or under any federal, state, local or foreign
law, regulation or rule or any decree, judgment or order applicable to the
Company or any of the Subsidiaries except where such conflict would not have a
material adverse effect on the business of the Company and the Subsidiaries,
taken as a whole (such counsel need express no opinion as to any necessary
qualification under the securities or blue sky laws of the various jurisdictions
in which the Shares are being offered by the Underwriters).
(IX) to such counsel's knowledge, neither the Company nor any of the
Subsidiaries is in breach of or in default under (nor has any event occurred
which with notice, lapse of time or both would constitute a breach of or default
under) any license, indenture, lease, mortgage, deed of trust, bank loan or
credit agreement or any other agreement or instrument to which the Company or
any of the Subsidiaries is a party or by which the Company or any of the
Subsidiaries or their properties are bound or affected or under any law,
regulation or rule or any decree, judgment or order applicable to the Company or
any of the Subsidiaries, except for such matters as could not, individually or
in the aggregate, have a material adverse effect on the properties, assets,
operations, business, business prospects or condition (financial or other) of
the Company and the Subsidiaries taken as a whole.
17.
(X) except as described in the Registration Statement and the
Prospectus, there are no actions, suits or proceedings of which such counsel has
knowledge pending or threatened against the Company or any of the Subsidiaries,
or any of their respective properties, at law or in equity, or before or by any
federal, state, local or foreign governmental or regulatory commission, board,
body, authority or agency that individually or in the aggregate could result in
a judgment, decree or order having a material adverse effect on the properties,
assets, operations, business, business prospects or condition (financial or
other) of the Company and the Subsidiaries taken as a whole.
(XI) the documents incorporated by reference in the Registration
Statement and Prospectus, when they were filed (or, if an amendment with respect
to any such document was filed, when such amendment was filed), complied as to
form in all material respects with the Exchange Act (except as to the financial
statements and schedules contained or incorporated by reference therein, as to
which such-counsel need express no opinion);
(XII) to such counsel's knowledge, each person who has the right,
contractual or otherwise, to cause the Company to register pursuant to the Act
any securities of the Company in consequence of the issue and sale of the Shares
to the Underwriters hereunder either included such securities in the
Registration Statement or duly waived such right and each person who has the
right, contractual or otherwise, to cause the Company to issue to it any
securities of the company in consequence of the issue and sale of the Shares to
the Underwriters hereunder has duly waived such right;
(XIII) this Agreement, the Power of Attorney and the Custody Agreement
have been duly executed and delivered by each of the Selling Shareholders; the
Power of Attorney and the Custody Agreement are legal, valid and binding
agreements of each of the Selling Shareholders enforceable in accordance with
their respective terms, except as the
18.
enforceability thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting creditors' rights generally and general
principles of equity;
(XIV) each of the Selling Shareholders has full legal right and
power, and has obtained any authorization or approval required by law (other
than those imposed by the Act and the securities or blue sky laws of certain
jurisdictions), to sell, assign, transfer and deliver the Shares to be sold by
such Selling Shareholder in the manner provided in this Agreement;
(XV) delivery of certificates for the Shares to be sold by the
Selling Shareholders pursuant hereto will pass title thereto to the Underwriters
severally, free and clear of any claim, lien, encumbrance, security interest,
community property right, restriction on transfer or other defect in title
assuming that the several Underwriters are good faith purchasers for value and
without notice of any adverse claim;
(XVI) to such counsel's knowledge, the consummation of the
transactions contemplated hereby and by the Power of Attorney and the Custody
Agreement and the fulfillment of the terms hereof and thereof will not
constitute a breach or violation of or default under any trust, indenture,
agreement or other instrument to which any of the Selling Shareholders is a
party or by which any of the Selling Shareholders is bound.
(XVII) the Attorney-in-Fact has been duly authorized by each Selling
Shareholder to execute and deliver on behalf of each Selling Shareholder this
Agreement and any other document necessary or desirable in connection with the
transactions contemplated hereby and to deliver the Shares to be sold by the
Selling Shareholders and receive payment therefor pursuant hereto;
In addition, such counsel's opinion shall state that nothing has come
to the attention of such counsel that causes them to believe that the
Registration Statement or any amendment thereto at the time such Registration
Statement or amendment became effective contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
Prospectus or any supplement thereto at the date of such Prospectus or such
supplement, and at all times up to and including the time of purchase contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading (it being
understood that such counsel need express no opinion with respect to the
financial statements, schedules, financial data and statistical information
included in the Registration Statement or Prospectus).
(b) The Company shall furnish to you at the time of purchase and at
such additional time of purchase, as the case may be, an opinion of Xxxxx &
Lardner, counsel for the Company, addressed to the Underwriters and dated the
time of purchase or such additional time of purchase, as the case may be, with
reproduced copies for each of the other Underwriters and in form satisfactory to
Xxxxxx Godward LLP, counsel for the Underwriters, stating that:
19.
(I) the capital stock of the Company, including the Shares, conforms
in all material respects to the description thereof contained in the
Registration Statement and the Prospectus;
(II) the Registration Statement and the Prospectus (except as to the
financial statements and schedules contained or incorporated by reference
therein as to which such counsel need express no opinion) comply as to form in
all material respects with the requirements of the Act;
(III) the Registration Statement has become effective under the Act
and, to such counsel's knowledge, no stop order proceedings with respect thereto
are pending or threatened under the Act;
(IV) no approval, authorization, consent or order of or filing with
any federal, state, local or foreign governmental or regulatory commission,
board, body, authority or agency is required in connection with the issuance or
sale of the Shares as contemplated hereby other than registration of the Shares
under the Act (except such counsel need express no opinion as to any necessary
qualification under the state securities or blue sky laws of the various
jurisdictions in which the Shares are being offered by the Underwriters);
(V) the statements in the Registration Statement and the Prospectus
under the captions "Risk Factors -- Product Liability," Risk Factors --
Government Regulation," "Risk Factors -- Anti-takeover Provisions," Business --
Product Liability and Insurance" "Business -- Government Regulations" and Item
15 of the Registration Statement, insofar as they are descriptions of laws,
regulations and rules, of legal and governmental proceedings or of contracts,
agreements, leases and other legal documents, or refer to statements of law or
legal conclusions, have been reviewed by such counsel and fairly summarize such
matters in all material respects;
(VI) neither the Company nor any of the Subsidiaries is an "investment
company" or a person "controlled" by an "investment company" within the meaning
of the Investment Company Act off 1940, as amended;
(VII) no approval, authorization, consent or order of or filing with
any federal, state, local or foreign governmental or regulatory commission,
board, body, authority or agency is required in connection with the sale of the
Shares to be sold by the Selling Shareholders as contemplated hereby other than
registration of the Shares under the Act (except such counsel need express no
opinion as to any necessary qualification under the state securities or blue sky
laws of the various jurisdictions in which the Shares are being offered by the
Underwriters); and
(VIII) all contracts or documents of a character required to be
described in the Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement have been so described or filed.
20.
In addition, such counsel's opinion shall state that nothing has come
to the attention of such counsel that causes them to believe that the
Registration Statement or any amendment thereto at the time such Registration
Statement or amendment became effective contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
Prospectus or any supplement thereto at the date of such Prospectus or such
supplement, and at all times up to and including the time of purchase contained
an untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading (it being
understood that such counsel need express no opinion with respect to the
financial statements, schedules, financial data and statistical information
included in the Registration Statement or Prospectus).
(C) You shall have received from Xxxxxx Xxxxxxxx LLP letters dated,
respectively, the date of this Agreement and the time of purchase and additional
time of purchase, as the case may be, and addressed to the Underwriters (with
reproduced copies for each of the Underwriters) in form and substance
satisfactory to you.
(D) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, opinions from Xxxxxx Godward
LLP in form and substance satisfactory to you.
(E) No amendment or supplement to the Registration Statement or the
Prospectus, including documents deemed to be incorporated by reference therein,
shall be filed prior to the time the Registration Statement becomes effective to
which you shall have objected in writing.
(F) The Registration Statement shall become effective at or before
5:00 P.M., New York City time, on the date of this Agreement and, if Rule 430A
under the Act is used, the Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) under the Act at or before 5:00 P.M., New York City
time, on the second full business day after the date of this Agreement;
provided, however, that the Company, the Selling Shareholders and you and any
group of Underwriters, including you, who have agreed hereunder to purchase in
the aggregate at least 50% of the Firm Shares from time to time may agree in
writing or by telephone, confirmed in writing, on a later date.
(G) Prior to the time of purchase or the additional time of purchase,
as the case may be: (i) no stop order with respect to the effectiveness of the
Registration Statement shall have been issued under the Act or proceedings
initiated under Section 8(d) or 8(e) of the Act; (ii) the Registration Statement
and all amendments thereto, or modifications thereof, if any, shall not contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading;
and (iii) the Prospectus and all amendments or supplements thereto, or
modifications thereof, if any, shall not contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
21.
(H) Between the time of execution of this Agreement and the time of
purchase or the additional time of purchase, as the case may be, there has not
been: (i) any material and adverse change in the properties, assets, operations,
business, business prospects or condition (financial or other) of the Company
and the Subsidiaries taken as a whole, other than as described in the
Registration Statement and the Prospectus; (ii) any transaction that is material
to the Company and the Subsidiaries taken as a whole entered into by the Company
or any of the Subsidiaries, other than as described in the Registration
Statement and the Prospectus; or (iii) any obligation, contingent or otherwise,
directly or indirectly, incurred by the Company or any of the Subsidiaries that
is material to the Company and the Subsidiaries taken as a whole, other than as
described in the Registration Statement and the Prospectus.
(I) The Company, at the time of purchase or additional time of
purchase, as the case may be, will deliver to you a certificate of two of its
executive officers to the effect that the representations and warranties of the
Company as set forth in this Agreement are true and correct as of each such date
and the conditions set forth in Section 8(f) and Section 8(g) have been met.
(J) You shall have received a signed letter, dated the date of this
Agreement, from each of the shareholders listed in Schedule B to the effect that
such persons shall not, subject to certain exceptions, sell, contract to sell,
grant any option to sell, transfer or otherwise dispose of, directly or
indirectly, any shares of Common Stock or securities convertible into or
exchangeable for Common Stock or warrants or other rights to purchase Common
Stock for a period of 90 days from the date of the Prospectus without the prior
written consent of Xxxxxx, Read & Co. Inc.
(K) The Company and the Selling Shareholders shall have furnished to
you such other documents and certificates as to the accuracy and completeness of
any statement in the Registration Statement or the Prospectus as of the time of
purchase and the additional time of purchase, as the case may be, as you
reasonably may request.
(L) The Company and the Selling Shareholders shall have performed such
of their respective obligations under this Agreement as are to be performed by
the terms hereof at or before the time of purchase and at or before the
additional time of purchase, as the case may be.
(M) The Shares shall have been approved for quotation through the
Nasdaq National Market.
(N) Each of the Selling Shareholders, at the time of purchase or
additional time of purchase, as the case may be, shall have delivered to you a
certificate (which may be signed by the Attorney-in-Fact) to the effect that
such Selling Shareholder is not aware that any of the representations and
warranties of the Selling Shareholders as set forth in this Agreement are not
true and correct as of such date.
22.
9. EFFECTIVE DATE OF AGREEMENT; TERMINATION.
(A) This Agreement shall become effective (i) if Rule 430A under the
Act is not used, when you shall have received notification of the effectiveness
of the Registration Statement, or (ii) if Rule 430A under the Act is used, when
the parties hereto have executed and delivered this Agreement.
(B) The obligations of the several Underwriters hereunder shall be
subject to termination in the absolute discretion of you or any group of
Underwriters (which may include you) which has agreed to purchase in the
aggregate at least 50% of the Firm Shares if, at any time prior to the time of
purchase or, with respect to the purchase of any Additional Shares, the
additional time of purchase, as the case may be, trading in securities on the
New York Stock Exchange shall have been suspended or minimum prices shall have
been established on the New York Stock Exchange or if a banking moratorium shall
have been declared either by the United States or New York State authorities, or
if the United States shall have declared war in accordance with its
constitutional processes or there shall have occurred any material outbreak or
escalation of hostilities or other national or international calamity or crisis
of such magnitude in its effect on, or any material adverse change in, any
financial market which, in each case, in your judgment or in the judgment of
such group of Underwriters, makes it impracticable to market the Shares. If you
or any group of Underwriters elect to terminate this Agreement as provided in
this Section 9(b), the Company and each other Underwriter shall be notified
promptly by letter or telegram.
(C) If any Underwriter shall default in its obligation to take up and
pay for the Firm Shares to be purchased by it hereunder and if the number of
Firm Shares which all Underwriters so defaulting shall have agreed but failed to
take up and pay for does not exceed 10% of the total number of Firm Shares, the
non-defaulting Underwriters shall take up and pay for (in addition to the
aggregate principal amount of Firm Shares they are obligated to purchase
pursuant to Section 1) the number of Firm Shares agreed to be purchased by all
such defaulting Underwriters as hereinafter provided. Such Shares shall be
taken up and paid for by such non-defaulting Underwriter or Underwriters in such
amount or amounts as you may designate with the consent of each Underwriter so
designated or, in the event no such designation is made, such Shares shall be
taken up and paid for by all non-defaulting Underwriters pro rata in proportion
to the aggregate number of Firm Shares set opposite the names of such non-
defaulting Underwriters in Schedule A.
(D) If any Underwriter shall default in its obligation to take up and
pay for the Firm Shares to be purchased by it hereunder and if the number of
Firm Shares which all Underwriters so defaulting shall have agreed but failed to
take up and pay for exceeds 10% of the total number of Firm Shares, and
arrangements satisfactory to you and the Company are not made within 48 hours
after such default, this Agreement will terminate without liability on the part
of the Company, any Selling Shareholder or any non-defaulting Underwriter.
(E) Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any
23.
Firm Shares hereunder unless all of the Firm Shares are purchased by the
Underwriters (or by substituted underwriters selected by you with the approval
of the Company or selected by the Company with your approval pursuant to Section
9(c)). If a new Underwriter or Underwriters are substituted for a defaulting
Underwriter or Underwriters in accordance with Section 9(d), the Company or you
shall have the right to postpone the time of purchase for a period, not
exceeding five business days in order that any necessary change in the
Registration Statement and the Prospectus and other documents may be effected.
The term Underwriter as used in this Agreement shall refer to and include any
Underwriter substituted under this Section 9 with like effect as if such
substituted Underwriter had originally been named in Schedule A.
(F) If the purchase of the Shares by the Underwriters, as contemplated
by this Agreement, is not consummated for any reason permitted under this
Agreement or if such purchase is not consummated because the Company shall be
unable to comply with any of the terms of this Agreement, the Company shall not
be under any obligation or liability under this Agreement (except to the extent
provided in Sections 5(l), 7 and 10), and the Underwriters shall be under no
obligation or liability to the Company under this Agreement (except to the
extent provided in Section 10).
10. INDEMNITY BY THE COMPANY, THE SELLING SHAREHOLDERS AND THE
UNDERWRITERS.
(A) The Company and each of Xxxxxxx X. Xxxxxx and Xxxxxxxxx X. Xxxxx
(the "Indemnifying Selling Shareholders"), jointly and severally, agree to
indemnify, defend and hold harmless each Underwriter, each person that controls
any Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, and each Underwriter's agents, employees, officers and directors
and the agents, employees, officers and directors of any such controlling person
(collectively, the "Underwriter indemnified parties") from and against any and
all losses, claims, damages, judgments, liabilities and expenses (including the
fees and expenses of counsel and other expenses in connection with
investigating, defending or settling any such action or claim) which, jointly or
severally, any Underwriter indemnified party may incur as they are incurred (and
regardless of whether such Underwriter indemnified party is a party to the
litigation, if any) arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in the registration statement
relating to the Shares or the Prospectus or any Preliminary Prospectus, or
arising out of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages,
judgments, liabilities or expenses arise out of, or are based upon, any such
untrue statement or omission or alleged untrue statement or omission based upon
and in conformity with information with respect to any Underwriter furnished in
writing by any Underwriter through you to the Company expressly for use therein
with reference to such Underwriter; provided, however, that no Selling
Shareholder shall be liable under this Section 10 in an amount exceeding the
total price at which the Shares sold by such Selling Shareholder were offered to
the public. This indemnity agreement will be in addition to any liability the
Company or the Selling Shareholders otherwise may have. The indemnity agreement
contained in this subsection (a) with respect to any Preliminary Prospectus or
amended Preliminary Prospectus shall not inure to the benefit of any Underwriter
(or to the benefit of any person controlling such Underwriter)
24.
from whom the person asserting any such loss, expense, liability or claim
purchased the Shares which is the subject thereof if the Prospectus corrected
any such alleged untrue statement or omission and if such Underwriter failed to
send or give a copy of the Prospectus to such person at or prior to the written
confirmation of the sale of such Shares to such person.
(B) Each Selling Shareholder agrees to indemnify and hold harmless the
Company, each of its directors and each of its officers who signs the
Registration Statement, and each person, if any, controlling the Company within
the meaning of the Act or the Exchange Act to the same extent as the foregoing
indemnity from the Company and the Indemnifying Selling Shareholders to each
Underwriter set forth in paragraph (a) of this Section, but only with respect to
information relating to such Selling Shareholder furnished in writing by such
Selling Shareholder for use in connection with the Registration Statement or the
Prospectus. In case any claim shall be brought or asserted against the Company,
its directors, such officers or any such controlling person, in respect of which
indemnity may be sought against any Selling Shareholder, such Selling
Shareholder shall have the rights and duties given to the Company, and the
Company, such directors or officers and any such controlling person shall have
the rights and duties given to the Underwriters by paragraph (a) of this
Section.
(C) If any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought or asserted against any
Underwriter indemnified party, with respect to which indemnity may be sought
against the Company or any Selling Shareholder pursuant to this Section 10, such
Underwriter indemnified party shall promptly notify the Company and each Selling
Shareholder in writing, and the Company and the Selling Shareholders shall
assume the defense thereof, including the employment of counsel reasonably
satisfactory to the Underwriter indemnified party and payment of all fees and
expenses; provided that the omission so to notify the Company and the Selling
Shareholders shall not relieve them from any liability that they may have to any
Underwriter indemnified party. An Underwriter indemnified party shall have the
right to employ separate counsel in any such action or proceeding and to assume
the defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Underwriter indemnified party unless (i) the employment of such
counsel has been authorized in writing by the Company or the Selling
Shareholders, (ii) the Company and the Selling Shareholders have failed promptly
to assume the defense and employ Counsel satisfactory to the Underwriter
indemnified party; or (iii) the named parties to any such action or proceeding
(including any impleaded parties) include both the Underwriter indemnified party
and the Company or the Selling Shareholders and such Underwriter indemnified
party shall have reasonably concluded that there may be one or more legal
defenses available to it that are different from or additional to those
available to the Company and the Selling Shareholders (in which case the Company
and the Selling Shareholders shall not have the right to assume the defense of
such action on behalf of such Underwriter indemnified party), in any of which
events such fees and expenses shall be borne by the Company and the Selling
Shareholders and reimbursed as they are incurred. It is understood, however,
that the Company and the Selling Shareholders 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
25.
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (in addition to any local counsel) at any time for all such
Underwriter indemnified parties, which firm shall be designated in writing by
Xxxxxx, Read & Co. Inc., and that all such fees and expenses shall be reimbursed
as they are incurred. The Company and the Selling Shareholders shall not be
liable for any settlement of any such action effected without the written
consent of the Company or the Selling Shareholders (which consent shall not be
unreasonably withheld or delayed), but if settled with the written consent of
the Company or the Selling Shareholders, or if there is a final judgment with
respect thereto, the Company and the Selling Shareholders agree to indemnify and
hold harmless each Underwriter indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(D) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, its officers who sign the Registration Statement,
and any person that controls the Company within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act (collectively, the "Company indemnified
parties") and each Selling Shareholder to the same extent as the foregoing
indemnity from the Company and the Selling Shareholders to the Underwriter
indemnified parties, but only with respect to information concerning such
Underwriter furnished in writing by or on behalf of such Underwriter through you
to the Company expressly for use with respect to such Underwriter in the
Registration Statement, any Preliminary Prospectus or the Prospectus. In case
any action shall be brought against any Company indemnified party or any Selling
Shareholder based on the Registration Statement, any Preliminary Prospectus or
the Prospectus and in respect of which indemnity may be sought against any
Underwriter pursuant to this Section 10(d), such Underwriter shall have the
rights and duties given to the Company and the Selling Shareholders by Section
10(c) (except that if the Company and the Selling Shareholders shall have
assumed the defense thereof such Underwriter shall not be required to do so, but
may employ separate counsel therein and participate in the defense thereof,
provided that the fees and expenses of such separate counsel shall be at the
expense of such Underwriter), and the Company indemnified parties and the
Selling Shareholders shall have the rights and duties given to the Underwriter
indemnified parties by Section 10(c).
(E) If the indemnification provided for in this Section 10 is
unavailable to or insufficient to hold harmless any Underwriter indemnified
party or any Company indemnified party or any Selling Shareholder, then the
party required to indemnify such indemnified party under this Section 10, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, judgments, liabilities and expenses (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Shareholders on the one hand and the Underwriters on the other hand from
the offering of the Shares, or (ii) if the allocation provided by clause (i)
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 and the Selling Shareholders on the one
hand and the Underwriters on the other hand in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Selling Shareholders on the one hand
and the
26.
Underwriters on the other hand shall be deemed to be in the same proportion as
the total proceeds from the offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Company and the
Selling Shareholders bear to the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the Company and the Selling
Shareholders on the one hand and the Underwriters on the other hand shall be
determined by reference to, among other things, whether the untrue statement 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, by the
Selling Shareholders or by the Underwriters, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, claims, damages, judgments, liabilities and expenses referred to above
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending any claim
or action.
The Company, the Selling Shareholders and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 10(e)
were determined by pro rata allocation or by any other method of allocation
(even if the Underwriters were treated as one entity for such purpose) that does
not take account of the equitable considerations referred to in this Section
10(e). Notwithstanding the provisions of this Section 10(e), no Underwriter
indemnified party shall be required to contribute any amount in excess of the
amount by which the total price at which the Shares underwritten by such
Underwriter indemnified party and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter indemnified
party otherwise has been required to pay by reason of such untrue statement or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 10 are several in proportion to their respective
underwriting commitments and are not joint.
The statements under the caption "Underwriting" in the Prospectus (to the
extent such statements relate to an Underwriter) constitute the only information
furnished to the Company in writing by such Underwriter expressly for use in the
Registration Statement, any Preliminary Prospectus or the Prospectus.
(F) The indemnity and contribution agreements contained in this
Section 10 and the representations, warranties and covenants of the Company and
the Selling Shareholders contained in this Agreement shall remain in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter indemnified party or by or on behalf of any Company indemnified
party or any Selling Shareholder, and shall survive any termination of this
Agreement or the issuance and delivery of the Shares. Subject to the provisions
of Section 10(c) and Section 10(d), the Company, each Selling Shareholder and
each Underwriter agree promptly to notify the other of the commencement of any
litigation or proceeding against it in connection with the issuance and sale of
the Shares or in connection with the Registration Statement or the Prospectus.
27.
11. NOTICES. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or sent to
Xxxxxx, Read & Co. Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Syndicate Department; if to the Company, shall be sufficient in all
respects if delivered or sent to the Company at the offices of the Company at
0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, Attention: Chief Financial
Officer; and if to the Selling Shareholders, shall be sufficient in all
respects, if delivered or sent to Xxxxxxx X. Xxxxxx at the offices of the
Company at 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000.
12. CONSTRUCTION. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAW. THE SECTION HEADINGS IN THIS AGREEMENT HAVE BEEN INSERTED
AS A MATTER OF CONVENIENCE OF REFERENCE AND ARE NOT A PART OF THIS AGREEMENT.
13. PARTIES AT INTEREST. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters, the Company, the Selling
Shareholders, the Underwriter indemnified parties and the Company indemnified
parties, and their respective successors, assigns, executors and administrators.
No other person, partnership, association or corporation (including a purchaser,
as such purchaser, from any of the Underwriters) shall acquire or have any right
under or by virtue of this Agreement.
14. COUNTERPARTS. This Agreement may be signed by the parties in
counterparts which together shall constitute one and the same agreement among
the parties.
28.
If the foregoing correctly sets forth the understanding among the Company,
the Selling Shareholders and the Underwriters, please so indicate in the space
provided below for such purpose, whereupon this letter and your acceptance shall
constitute a binding agreement among the Company, the Selling Shareholders and
the Underwriters, severally.
Very truly yours,
MARQUETTE MEDICAL SYSTEMS, INC.
By:__________________________________
Name:________________________________
Title:_______________________________
THE SELLING SHAREHOLDERS NAMED IN SCHEDULE B
ATTACHED HERETO
By:_________________________________
Attorney-in-fact
Accepted and agreed to as of the date
first above written, on behalf of
themselves, Bear, Xxxxxxx & Co. Inc.
and Xxxxxx X. Xxxxx & Co. Incorporated
and the other several Underwriters named
in Schedule A
XXXXXX, READ & CO. INC., as
Managing Underwriter
By:________________________________
Name:______________________________
Title:_____________________________
29.
SCHEDULE A
NUMBER OF
UNDERWRITER FIRM SHARES
------------------------------------ -------------
Xxxxxx, Read & Co. Inc..............
Bear, Xxxxxxx & Co. Inc.............
Xxxxxx X. Xxxxx & Co. Incorporated..
----------
Total 2,750,000
==========
30.
SCHEDULE B
NUMBER OF
FIRM SHARES
NAME TO BE SOLD
----------------------------- -------------
Xxxxxxx X. Xxxxxx 1,000,000
GE Fund 489,485
Xxxxxxxxx X. Xxxxx 100,000
Xxxxxxxxx X. Xxxxxxxxx 23,001
R. Xxxxxx Xxxxxx 80,000
Xxxxxx Xxxx 57,514
--------------
Total 1,750,000
==============
31.
SCHEDULE C
NUMBER OF
ADDITIONAL
SHARES TO BE
NAME SOLD
----------------------------------------------- ------------
Marquette Medical Systems, Inc. 262,500
Xxxxxxx X. Xxxxxx Charitable Foundation 150,000
------------
Total 412,500
============
32.
