1
2,000,000 Shares*
BIOSITE DIAGNOSTICS INCORPORATED
COMMON STOCK
UNDERWRITING AGREEMENT
_____________, 1996
XXXXX & COMPANY
ALEX. XXXXX & SONS INCORPORATED
As Representatives of the several Underwriters
x/x Xxxxx & Xxxxxxx
Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
1. INTRODUCTORY. Biosite Diagnostics Incorporated, 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 2,000,000 shares of
Common Stock $0.01 par value (the "Common Stock") of the Company. The aggregate
of 2,000,000 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 300,000
shares of Common Stock (the "Optional Stock"). The Firm Stock and the Optional
Stock are hereinafter collectively referred to as the "Stock." Xxxxx & Company
("Cowen") and Alex. Xxxxx & Sons Incorporated are acting as representatives of
the several Underwriters and in such capacity are hereinafter referred to as the
"Representatives."
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-___________)
in the form in which it became or becomes effective and also in such form as it
may be when any post-effective amendment thereto shall become
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* Plus 300,000 shares of Common Stock subject to the over-allotment option
granted to the Representatives pursuant to Section 3.
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effective with respect to the Stock, including any preeffective prospectuses
included as part of the registration statement as originally filed or as part of
any amendment or supplement thereto, or filed pursuant to Rule 424 under the
Securities Act of 1933, as amended (the "Securities Act"), and the rules and
regulations (the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") thereunder, copies of which have heretofore been
delivered to you, has been carefully prepared by the Company in conformity with
the requirements of the Securities Act and has been filed with the Commission
under the Securities Act; one or more amendments to such registration statement,
including in each case an amended preeffective prospectus, copies of which
amendments have heretofore been delivered to you, have been so prepared and
filed. If it is contemplated, at the time this Agreement is executed, that a
post-effective amendment to the registration statement will be filed and must be
declared effective before the offering of the Stock may commence, the term
"Registration Statement" as used in this Agreement means the registration
statement as amended by said post-effective amendment. The term "Registration
Statement" as used in this Agreement shall also include any registration
statement relating to the Stock that is filed and declared effective pursuant to
Rule 462(b) under the Securities Act. The term "Prospectus" as used in this
Agreement means the prospectus in the form included in the Registration
Statement, or, (A) if the prospectus included in the Registration Statement
omits information in reliance on Rule 430A under the Securities Act and such
information is included in a prospectus filed with the Commission pursuant to
Rule 424(b) under the Securities Act, the term "Prospectus" as used in this
Agreement means the prospectus in the form included in the Registration
Statement as supplemented by the addition of the Rule 430A information contained
in the prospectus filed with the Commission pursuant to Rule 424(b) and (B) if
prospectuses that meet the requirements of Section 10(a) of the Securities Act
are delivered pursuant to Rule 434 under the Securities Act, then (i) the term
"Prospectus" as used in this Agreement means the "prospectus subject to
completion" (as such term is defined in Rule 434(g) under the Securities Act) as
supplemented by (a) the addition of Rule 430A information or other information
contained in the form of prospectus delivered pursuant to Rule 434(b)(2) under
the Securities Act or (b) the information contained in the term sheets described
in Rule 434(b)(3) under the Securities Act, and (ii) the date of such
prospectuses shall be deemed to be the date of the term sheets. The term
"Preeffective Prospectus" as used in this Agreement means the prospectus subject
to completion in the form included in the Registration Statement at the time of
the initial filing of the Registration Statement with the Commission, and as
such prospectus shall have been amended from time to time prior to the date of
the Prospectus.
(b) The Commission has not issued or, to the Company's
knowledge threatened to issue any order preventing or suspending the use of any
Preeffective Prospectus, and, at its date of issue, each Preeffective Prospectus
conformed in all material respects with the requirements of the Securities Act
and did not include any 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
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which they were made, not misleading other than any such nonconformance or
untrue statement or omission in a Preeffective Prospectus which has been
corrected in the Prospectus; and, when the Registration Statement becomes
effective and at all times subsequent thereto up to and including the Closing
Dates, the Registration Statement and the Prospectus and any amendments or
supplements thereto contained and will contain all material statements and
information required to be included therein by the Securities Act and conformed
and will conform in all material respects to the requirements of the Securities
Act and neither the Registration Statement nor the Prospectus, nor any amendment
or supplement thereto, included or will include 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, in light of the circumstances under
which they were made, not misleading; provided, however, that the foregoing
representations, warranties and agreements shall not apply to information
contained in or omitted from any Preeffective Prospectus or the Registration
Statement or the Prospectus or any such amendment or supplement thereto in
reliance upon, and in conformity with, written information furnished to the
Company by or on behalf of any Underwriter, directly or through you,
specifically for use in the preparation thereof; there is no franchise, lease,
contract, agreement or document required to be described in the Registration
Statement or Prospectus or to be filed as an exhibit to the Registration
Statement which is not described or filed therein as required; and all
descriptions of any such franchises, leases, contracts, agreements or documents
contained in the Registration Statement are accurate and complete descriptions
of such documents in all material respects.
(c) Subsequent to the respective dates as of which information
is given in the Registration Statement and Prospectus, and except as set forth
or contemplated in the Prospectus, the Company has not incurred any liabilities
or obligations, direct or contingent, nor entered into any transactions not in
the ordinary course of business, and there has not been any material adverse
change in the condition (financial or otherwise), properties, business,
management, prospects, net worth or results of operations of the Company or any
change in the capital stock, short-term or long-term debt of the Company.
(d) The financial statements, together with the related notes
and schedules, set forth in the Prospectus and elsewhere in the Registration
Statement fairly present, on the basis stated in the Registration Statement, the
financial position and the results of operations and changes in financial
position of the Company at the respective dates or for the respective periods
therein specified. Such statements and related notes and schedules have been
prepared in accordance with generally accepted accounting principles applied on
a consistent basis except as may be set forth in the Prospectus. The selected
financial and statistical data set forth in the Prospectus under the caption
"Selected Financial Data" fairly present, on the basis stated in the
Registration Statement, the information set forth therein.
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(e) Ernst & Young LLP, who have expressed their opinions on
the audited financial statements and related schedules included in the
Registration Statement and the Prospectus are independent public accountants as
required by the Securities Act and the Rules and Regulations.
(f) The Company has been duly organized and is validly
existing and in good standing as a corporation under the laws of the State of
Delaware, with power and authority (corporate and other) to own or lease its
properties and to conduct its business as described in the Prospectus; the
Company is in possession of and operating in compliance with all franchises,
grants, authorizations, licenses, permits, easements, consents, certificates and
orders required for the conduct of its business, all of which are valid and in
full force and effect or the absence of which would not have a material adverse
effect in the business or financial condition of the Company; and the Company is
duly qualified to do business and in good standing as a foreign corporation in
all other jurisdictions where its ownership or leasing of properties or the
conduct of its business requires such qualification except where the failure to
so qualify would not have a material adverse effect on the business or financial
condition of the Company. Except as described in the Registration Statement, the
Company has all requisite power and authority, and all necessary consents,
approvals, authorizations, orders, registrations, qualifications, licenses and
permits of and from all public regulatory or governmental agencies and bodies to
own, lease and operate its properties and conduct its business as now being
conducted and as described in the Registration Statement and the Prospectus, and
no such consent, approval, authorization, order, registration, qualification,
license or permit contains a materially burdensome restriction not adequately
disclosed in the Registration Statement and the Prospectus.
(g) The Company's authorized and outstanding capital stock as
of ______, 1996 is as set forth under the heading "Capitalization" in the
Prospectus; the outstanding shares of common stock of the Company conform to the
description thereof in the Prospectus and have been duly authorized and validly
issued and are fully paid and nonassessable and have been issued in compliance
with all federal and state securities laws and were not issued in violation of
or subject to any preemptive rights or similar rights to subscribe for or
purchase securities and conform to the description thereof contained in the
Prospectus. Except as disclosed in and or contemplated by the Prospectus and the
financial statements of the Company and related notes thereto included in the
Prospectus, the Company does not have outstanding any options or warrants to
purchase, or any preemptive rights or other rights to subscribe for or to
purchase any securities or obligations convertible into, or any contracts or
commitments to issue or sell, shares of its capital stock or any such options,
rights, convertible securities or obligations, except for options granted
subsequent to the date of information provided in the Prospectus pursuant to the
Company's employee and stock option plans as disclosed in the Prospectus. The
description of the Company's stock option and other stock plans or arrangements,
and the options or other rights granted or exercised
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thereunder, as set forth in the Prospectus, accurately and fairly presents the
information required to be shown with respect to such plans, arrangements,
options and rights.
(h) The Stock to be issued and sold by the Company to the
Underwriters hereunder has been duly and validly authorized and, when issued and
delivered against payment therefor as provided herein, will be duly and validly
issued, fully paid and nonassessable and free of any preemptive or similar
rights and will conform to the description thereof in the Prospectus.
(i) Except as set forth in the Prospectus, there are no legal
or governmental proceedings pending to which the Company is a party, which, if
determined adversely to the Company, might individually or in the aggregate (i)
prevent or adversely affect the transactions contemplated by this Agreement,
(ii) suspend the effectiveness of the Registration Statement, (iii) prevent or
suspend the use of the Preeffective Prospectus in any jurisdiction or (iv)
result in a material adverse change in the condition (financial or otherwise),
properties, business, management prospects, net worth or results of operations
of the Company; and to the best of the Company's knowledge no such proceedings
are threatened or contemplated against the Company by governmental authorities
or others. The Company is not a party nor subject to the provisions of any
material injunction, judgment, decree or order of any court, regulatory body or
other governmental agency or body. The description of the Company's litigation
under the heading "Legal Proceedings" in the Prospectus is true and correct and
complies with the Rules and Regulations.
(j) The execution, delivery and performance of this Agreement
and the consummation of the transactions herein contemplated will not result in
a breach or violation of any of the terms or provisions of or constitute a
default under any indenture, mortgage, deed of trust, note agreement or other
agreement or instrument to which the Company is a party or by which it or any of
its properties is or may be bound, the Certificate of Incorporation, Bylaws or
other organizational documents of the Company, or any law, order, rule or
regulation of any court or governmental agency or body having jurisdiction over
the Company or any of its properties or will result in the creation of a lien.
(k) No consent, approval, authorization or order of any court
or governmental agency or body is required for the consummation by the Company
of the transactions contemplated by this Agreement, except such as may be
required by the National Association of Securities Dealers, Inc. (the "NASD") or
under the Securities Act or the securities or "Blue Sky" laws of any
jurisdiction in connection with the purchase and distribution of the Stock by
the Underwriters.
(l) The Company has the full corporate power and authority to
enter into this Agreement and to perform its obligations hereunder (including
to issue, sell and
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deliver the Stock), and this Agreement has been duly and validly authorized,
executed and delivered by the Company and is a valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms,
except to the extent that rights to indemnity and contribution hereunder may be
limited by federal or state securities laws or the public policy underlying such
laws.
(m) The Company is in all material respects in compliance
with, and conducts its businesses in conformity with, all applicable federal,
state, local and foreign laws, rules and regulations or any court or
governmental agency or body including, without limitation, those of the United
States Food and Drug Administration (the "FDA"), except where the failure to be
so in compliance would not materially adversely affect the financial position,
business or operations of the Company; to the knowledge of the Company,
otherwise than as set forth in the Registration Statement and the Prospectus, no
prospective change in any of such federal, state, local or foreign laws, rules
or regulations has been adopted which, when made effective, would have a
material adverse effect on the operations of the Company. In the ordinary course
of business, employees of the Company conduct periodic reviews of the effect of
Environmental Laws (as defined below) on the business operations and properties
of the Company, in the ordinary course of which they seek to identify and
evaluate associated costs and liabilities. Except as disclosed in the
Registration Statement, the Company is in compliance with all applicable
existing federal, state, local and foreign laws and regulations relating to the
protection of human health or the environment or imposing liability or requiring
standards of conduct concerning any Hazardous Materials ("Environmental Laws"),
except for such instances of noncompliance which, either singly or in the
aggregate, would not have a material adverse effect. The term "Hazardous
Material" means (i) any "hazardous substance" as defined by the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, (ii)
any "hazardous waste" as defined by the Resource Conservation and Recovery Act,
as amended, (iii) any petroleum or petroleum product, (iv) any polychlorinated
biphenyl and (v) any pollutant or contaminant or hazardous, dangerous or toxic
chemical, material, waste or substance regulated under or within the meaning of
any other Environmental Law.
(n) The Company has filed all necessary federal, state, local
and foreign income, payroll, franchise and other tax returns and has paid all
taxes shown as due thereon or with respect to any of its properties, and there
is no tax deficiency that has been, or to the knowledge of the Company is likely
to be, asserted against the Company or any of its properties or assets that
would adversely affect the financial position, business or operations of the
Company.
(o) Except as set forth in the Registration Statement, no
person or entity has the right to require registration of shares of Common
Stock or other securities of the Company because of the filing or effectiveness
of the Registration Statement or otherwise, except for persons and entities who
have expressly waived such right or who
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have been given proper notice and have failed to exercise such right within the
time or times required under the terms and conditions of such right.
(p) The Company has not taken and will not 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.
(q) The Company has provided you with all financial statements
since [_______, 1996] to the date hereof that are available to the officers of
the Company, including financial statements for the months of [______ and
_______ of 1996].
(r) The Company owns or possesses all patents, trademarks,
trademark registrations, service marks, service xxxx registrations, tradenames,
copyrights, licenses, inventions, trade secrets and rights described in the
Prospectus as being owned by it or necessary for the conduct of its business,
and except as disclosed in the Registration Statement, the Company is not aware
of any claim to the contrary or any challenge by any other person to the rights
of the Company with respect to the foregoing. Except as disclosed in the
Registration Statement, the Company's business as now conducted and as proposed
to be conducted does not and will not infringe or conflict with in any material
respect patents, trademarks, service marks, trade names, copyrights, trade
secrets, licenses or other intellectual property or franchise right of any
person. Except as described in the Prospectus, no claim has been made against
the Company alleging the infringement by the Company of any patent, trademark,
service xxxx, tradename, copyright, trade secret, license in or other
intellectual property right or franchise right of any person and the Company has
no knowledge of such infringement. To the best of the Company's knowledge, no
U.S. patent issued to date is or would be infringed by the activities of the
Company in the manufacture, use or sale of any product as described in the
Registration Statement and Prospectus.
(s) The Company has performed all material obligations
required to be performed by it under all contracts required by Item 601(b)(10)
of Regulation S-K under the Securities Act to be filed as exhibits to the
Registration Statement, and neither the Company nor to the Company's knowledge,
any other party to such contract is in default under or in breach of any such
obligations. The Company has not received any notice of such default or breach.
(t) The Company is not involved in any labor dispute nor,
to the Company's knowledge, is any such dispute threatened. The Company is not
aware that (A) any executive, key employee or significant group of employees of
the Company plans to terminate employment with the Company or (B) any such
executive or key employee is subject to any noncompete, nondisclosure,
confidentiality, employment, consulting or
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similar agreement that would be violated by the present or proposed business
activities of the Company. The Company does not have or expect to have any
liability for any prohibited transaction or funding deficiency or any complete
or partial withdrawal liability with respect to any pension, profit sharing or
other plan which is subject to the Employee Retirement Income Security Act of
1974, as amended ("ERISA"), to which the Company makes or ever has made a
contribution and in which any employee of the Company is or has ever been a
participant. With respect to such plans, the Company is in compliance in all
material respects with all applicable provisions of ERISA.
(u) The Company has obtained the written agreement described
in Section 8(m) of this Agreement from each of its officers, directors and
holders of Common Stock listed on Schedule B hereto.
(v) The Company has, and the Company as of the Closing Dates
will have, good and marketable title to all real property and good and
marketable title to all personal property owned or proposed to be owned by it
which is material to the business of the Company, in each case free and clear of
all liens, encumbrances and defects except such as are described the Prospectus
or such as would not have a material adverse effect on the Company; and any real
property and buildings held under lease by the Company or proposed to be held
after giving effect to the transactions described in the Prospectus are, or will
be as of the Closing Dates, held by it under valid, subsisting and enforceable
leases with such exceptions as would not have a material adverse effect on the
Company, in each case except as described in or contemplated by the Prospectus.
(w) The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
customary in the businesses in which it is engaged or proposes to engage after
giving effect to the transactions described in the Prospectus; and the Company
does not have any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not materially and adversely affect the condition,
financial or otherwise, or the earnings, business or operations of the Company,
except as described in or contemplated by the Prospectus.
(x) Other than as contemplated by this Agreement, there
is no broker, finder or other party that is entitled to receive from the
Company any brokerage or finder's fee or other fee or commission as a result of
any of the transactions contemplated by this Agreement.
(y) The Company has complied with all provisions of Section
517.075 Florida Statutes (Chapter 92-198; Laws of Florida).
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(z) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (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 existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(aa) To the Company's knowledge, neither the Company nor any
employee or agent of the Company has made any payment of funds of the Company or
received or retained any funds in violation of any law, rule or regulation,
which payment, receipt or retention of funds is of a character required to be
disclosed in the Prospectus.
(bb) The Company is not an "investment company" or an entity
"controlled" by an "investment company" as such terms are defined in the
Investment Company Act of 1940, as amended and the Company intends in the future
to conduct its business in a manner that will not result in either such
classification under such Act.
(cc) Each certificate signed by any officer of the Company and
delivered to the Underwriters or counsel for the Underwriters shall be deemed to
be a representation and warranty by the Company as to the matters covered
thereby.
3. PURCHASE BY, AND SALE AND DELIVERY TO, UNDERWRITERS; CLOSING DATES.
On the basis of the representations, warranties, covenants and agreements herein
contained, but subject to the terms and conditions herein set forth, the Company
agrees to sell to the Underwriters and the Underwriters agree, severally and not
jointly, to purchase the Firm Stock, the number of shares of Firm Stock to be
purchased by each Underwriter being set opposite its name in Schedule A, subject
to adjustment in accordance with Section 12 hereof.
The purchase price per share to be paid by the Underwriters to the
Company 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) or, if no such direction is received, in
the names of the respective Underwriters or in such other names as Cowen may
designate (solely for the purpose of administrative convenience and in such
denominations as Cowen may determine), against payment of the aggregate Purchase
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Price therefor wire transfer to such account as the Company shall designate. The
time and date of the delivery and closing shall be at 10:00 A.M., New York Time,
on [ , 1996], in accordance 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 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 Cowen. The Closing Date may be postponed pursuant to the provisions of
Section 12.
The Company shall make the certificates for the Stock available to the
Representatives for examination on behalf of the Underwriters not later than
10:00 A.M., New York Time, on the business day preceding the First Closing Date
at the offices of Cowen, Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
It is understood that Cowen or Xxxx. Xxxxx & Sons Incorporated,
individually and not as Representatives of the several Underwriters, may (but
shall not be obligated to) make payment to the Company on behalf of any
Underwriter or Underwriters, for the Stock to be purchased by such Underwriter
or Underwriters. Any such payment by Cowen or Alex. Xxxxx & Sons Incorporated
shall not relieve such Underwriter or Underwriters from any of its or their
other obligations hereunder.
The several Underwriters agree to make an initial public offering of
the Firm Stock at the initial public offering price as soon after the
effectiveness of the Registration Statement as in their judgment is advisable.
The Representatives shall promptly advise the Company of the making of the
initial public offering.
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
Company hereby grants to the Underwriters an option to purchase, severally and
not jointly, up to [______] shares of Optional Stock. The price per share to be
paid for the Optional Stock shall be the Purchase Price. 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
effective 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 the Underwriters to the
Company.
The option granted hereby may be exercised by the Underwriters by
giving written notice from Cowen to the Company setting forth the number of
shares of the Optional Stock to be purchased by them 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 ten (10) business days after
written notice is given. (The Option Closing Date and the
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First Closing Date are herein called the "Closing Dates".) All purchases of
Optional Stock from the Company shall be made on a pro rata basis. Optional
Stock shall be purchased 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 in Schedule A hereto bears to the total number of shares of
Firm Stock (subject to adjustment by the Underwriters to eliminate odd lots).
Upon exercise of the option by the Underwriters, the Company agrees to sell to
the Underwriters the number of shares of Optional Stock set forth in the written
notice of exercise and the Underwriters agree, severally and not jointly, and
subject to the terms and conditions herein set forth, to purchase the number of
such shares determined as aforesaid.
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 or, if no such direction is received, in the names of
the respective Underwriters or in such other names as Cowen may designate
(solely for the purpose of administrative convenience) and in such denominations
as Cowen may determine, against payment of the aggregate Purchase Price therefor
wire transfer to such account as the Company shall designate. The Company shall
make the certificates for the Optional Stock available to the Underwriters for
examination not later than 10:00 A.M., New York Time, on the business day
preceding the Option Closing Date at the offices of Cowen, Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000. The Option Closing Date and the location of delivery of,
and the form of payment for, the Option Stock may be varied by agreement between
the Company and Cowen. The Option Closing Date may be postponed pursuant to the
provisions of Section 12.
4. COVENANTS AND AGREEMENTS OF THE COMPANY. The Company covenants and
agrees with the several Underwriters that:
(a) The Company will (i) if the Company and the Representatives
have determined not to proceed pursuant to Rule 430A, use its best efforts to
cause the Registration Statement to become effective, (ii) if the Company and
the Representatives have determined to proceed pursuant to Rule 430A, use its
best efforts to comply with the provisions of and make all requisite filings
with the Commission pursuant to Rule 430A and Rule 424 of the Rules and
Regulations and (iii) if the Company and the Representatives have determined to
deliver Prospectuses pursuant to Rule 434 of the Rules and Regulations, to use
its best efforts to comply with all the applicable provisions thereof. The
Company will advise the Representatives promptly as to the time at which the
Registration Statement becomes effective, will advise the Representatives
promptly of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the institution of any
proceedings for that purpose, and will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as
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possible the lifting thereof, if issued. The Company will advise the
Representatives promptly of the receipt of any comments of the Commission or any
request by the Commission for any amendment of or supplement to the Registration
Statement or the Prospectus or for additional information and will not at any
time file any amendment to the Registration Statement or supplement to the
Prospectus which shall not previously have been submitted to the Representatives
a reasonable time prior to the proposed filing thereof or to which the
Representatives shall reasonably object in writing or which is not in compliance
with the Securities Act and the Rules and Regulations.
(b) The Company will prepare and file with the Commission,
promptly upon the request of the Representatives, any amendments or supplements
to the Registration Statement or the Prospectus which in the opinion of the
Representatives may be necessary to enable the several Underwriters to continue
the distribution of the Stock and will use its best efforts to cause the same to
become effective as promptly as possible.
(c) If at any time after the effective date of the
Registration Statement when a prospectus relating to the Stock is required to be
delivered under the Securities Act any event relating to or affecting the
Company occurs as a result of which the Prospectus or any other prospectus as
then in effect would include an untrue statement of a material fact, or omit to
state any material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Securities Act,
the Company will promptly notify the Representatives thereof and will prepare an
amended or supplemented prospectus which will correct such statement or
omission; and in case any Underwriter is required to deliver a prospectus
relating to the Stock nine (9) months or more after the effective date of the
Registration Statement, the Company upon the request of the Representatives and
at the expense of such Underwriter will prepare promptly such prospectus or
prospectuses as may be necessary to permit compliance with the requirements of
Section 10(a)(3) of the Securities Act.
(d) The Company will deliver to the Representatives, at or
before the Closing Dates, signed copies of the Registration Statement, as
originally filed with the Commission, and all amendments thereto including all
financial statements and exhibits thereto, and will deliver to the
Representatives such number of copies of the Registration Statement, including
such financial statements but without exhibits, and all amendments thereto, as
the Representatives may reasonably request. The Company will deliver or mail to
or upon the order of the Representatives, from time to time until the effective
date of the Registration Statement, as many copies of the Preeffective
Prospectus as the Representatives may reasonably request. The Company will
deliver or mail to or upon the order of the Representatives on the date of the
initial public offering, and thereafter from time to time during the period when
delivery of a prospectus relating to the Stock is required under the Securities
Act, as many copies of the Prospectus, in final form or as thereafter amended or
supplemented as the Representatives may reasonably request;
12.
13
provided, however, that the expense of the preparation and delivery of any
prospectus required for use nine (9) months or more after the effective date of
the Registration Statement shall be borne by the Underwriters required to
deliver such prospectus.
(e) The Company will make generally available to its
shareholders as soon as practicable, but not later than fifteen (15) months
after the effective date of the Registration Statement, an earnings statement
which will be in reasonable detail (but which need not be audited) and which
will comply with Section 11(a) of the Securities Act, covering a period of at
least twelve (12) months beginning after the "effective date" (as defined in
Rule 158 under the Securities Act) of the Registration Statement.
(f) The Company will cooperate with the Representatives to
enable the Stock to be registered or qualified for offering and sale by the
Underwriters and by dealers under the securities laws of such jurisdictions as
the Representatives may designate and at the request of the Representatives will
make such applications and furnish such consents to service of process or other
documents as may be required of it as the issuer of the Stock for that purpose;
provided, however, that the Company shall not be required to qualify to do
business or to file a general consent (other than that arising out of the
offering or sale of the Stock) to service of process in any such jurisdiction
where it is not now so subject. The Company will, from time to time, prepare and
file such statements and reports as are or may be required of it as the issuer
of the Stock to continue such qualifications in effect for so long a period as
the Representatives may reasonably request for the distribution of the Stock.
The Company will advise the Representatives promptly after the Company becomes
aware of the suspension of the qualifications or registration of (or any such
exception relating to) the Common Stock of the Company for offering, sale or
trading in any jurisdiction or of any initiation or threat of any proceeding for
any such purpose, and in the event of the issuance of any orders suspending such
qualifications, registration or exception, the Company will, with the
cooperation of the Representatives use its best efforts to obtain the withdrawal
thereof.
(g) The Company will furnish to its shareholders annual
reports containing financial statements certified by independent public
accountants and with quarterly summary financial information in reasonable
detail which may be unaudited. During the period of five (5) years from the date
hereof, the Company will deliver to the Representatives and, upon request, to
each of the other Underwriters, as soon as they are available, copies of each
annual report of the Company and each other report furnished by the Company to
its shareholders and will deliver to the Representatives, (i) as soon as they
are available, copies of any other reports (financial or other) which the
Company shall publish or otherwise make available to any of its shareholders as
such, (ii) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national securities
exchange and (iii) from time to time such other information concerning the
Company as you may request.
13.
14
(h) The Company will use its best efforts to list, subject to
official notice of issuance, on the Nasdaq National Market, the Stock to be
issued and sold by the Company.
(i) The Company will maintain a transfer agent and registrar
for its Common Stock.
(j) For a period of one year after the date hereof, prior to
filing its quarterly statements on Form 10-Q, the Company will have its
independent auditors perform a limited quarterly review of its quarterly
numbers.
(k) The Company will not offer, sell, assign, transfer,
encumber, contract to sell, grant an option to purchase or otherwise dispose of
any shares of Common Stock or securities convertible into or exercisable or
exchangeable for Common Stock (including, without limitation, Common Stock of
the Company which may be deemed to be beneficially owned by the undersigned in
accordance with the Rules and Regulations) during the one hundred eighty (180)
days following the date on which the price of the Common Stock to be purchased
by the Underwriters is set, other than the Company's sale of Common Stock
hereunder and the Company's issuance of Common Stock upon the exercise of
warrants and stock options which are presently outstanding and described in the
Prospectus or pursuant to the Company's stock plans which are described in the
Prospectus.
(l) The Company will apply the net proceeds from the sale of
the Stock as set forth in the description under "Use of Proceeds" in the
Prospectus, which description complies in all respects with the requirements of
Item 504 of Regulation S-K.
(m) The Company will supply you 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, and
the NASD in connection with the listing of the stock on the Nasdaq National
Market.
(n) Prior to the Closing Dates the Company will furnish to
you, 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
Statement and the Prospectus.
(o) Prior to the Closing Dates the Company will issue no press
release or other communications directly or indirectly and hold no press
conference with respect to the Company, the financial condition, results of
operation, business, prospects, assets or liabilities of the Company, or the
offering of the Stock, without your prior written consent, which shall not be
unreasonably withheld. If at any time during the 30-day period after the
Registration Statement becomes effective, any rumor, publication or event
relating to or affecting the Company shall occur as a result of which in your
14.
15
opinion the market price of the Common Shares has been or is likely to be
affected materially (regardless of whether such rumor, publication or event
necessitates a supplement to or amendment of the Prospectus), the Company will,
after notice from you, which is subsequently confirmed in writing, advising the
Company to the effect set forth above, forthwith, if appropriate, prepare,
consult with you concerning the substance and, subject to its obligations under
applicable law, disseminate a press release or other public statement,
reasonably satisfactory to you and the Company's counsel, responding to or
commenting on such rumor, publications or event.
(p) During the period of five (5) years hereafter, the Company
will furnish to the Representatives, and upon request of the Representatives, to
each of the Underwriters: (i) as soon as practicable after the end of each
fiscal year, copies of the Annual Report of the Company containing the balance
sheet of the Company as of the close of such fiscal year and statements of
income, stockholder's equity and cash flows for the year then ended and the
opinion thereon of the Company's independent public accountants; (ii) as soon as
practicable after the filing thereof, copies of each proxy statement, Annual
Report on Form 10-K, Quarterly Report on Form 10-Q, Report on Form 8-K or other
report filed by the Company with the Commission, or the NASD or any securities
exchange; and (iii) as soon as available, copies of any report or communication
of the Company mailed generally to holders of its Common Stock.
5. PAYMENT OF EXPENSES. (a) The Company will pay (directly or by
reimbursement) all costs, fees and expenses incurred in connection with expenses
incident to the performance of its obligations under this Agreement and in
connection with the transactions contemplated hereby, including but not limited
to (i) all expenses and taxes incident to the issuance and delivery of the Stock
to the Representatives; (ii) all expenses incident to the registration of the
Stock under the Securities Act; (iii) the costs of preparing stock certificates
(including printing and engraving costs); (iv) all fees and expenses of the
registrar and transfer agent of the Stock; (v) all necessary issue, transfer and
other stamp taxes in connection with the issuance and sale of the Stock to the
Underwriters; (vi) fees and expenses of the Company's counsel and the Company's
independent accountants; (vii) all costs and expenses incurred in connection
with the preparation, printing filing, shipping and distribution of the
Registration Statement, each Preeffective Prospectus and the Prospectus
(including all exhibits and financial statements) and all amendments and
supplements provided for herein, the "Agreement Among Underwriters" between the
Representatives and the Underwriters, the Master Selected Dealers' Agreement,
the Underwriters' Questionnaire and the Blue Sky memoranda and this Agreement;
(viii) all filing fees, attorneys' fees and expenses incurred by the Company or
the Underwriters in connection with exemptions from the qualifying or
registering (or obtaining qualification or registration of) all or any part of
the Stock for offer and sale and determination of its eligibility for investment
under the Blue Sky or other securities laws of such jurisdictions as the
Representatives may designate; (ix) all fees and expenses paid or incurred in
connection with filings made with
15.
16
the NASD; and (x) all other costs and expenses incident to the performance of
its obligations hereunder which are not otherwise specifically provided for in
this Section.
(b) In addition to its other obligations under Section 6(a)
hereof, the Company agrees that, as an interim measure during the pendency of
any claim, action, investigation, inquiry or other proceeding arising out of or
based upon (i) any statement or omission or any alleged statement or omission or
(ii) any breach or inaccuracy in its representations and warranties, it will
reimburse each Underwriter (and, to the extent applicable, each other
Underwriter Indemnified Party (as defined in Section 6(a) below)) on a quarterly
basis for all reasonable legal or other expenses incurred in connection with
investigating or defending any such claim, action, investigation, inquiry or
other proceeding, notwithstanding the absence of a judicial determination as to
the propriety and enforceability of the Company's obligation to reimburse each
Underwriter (and, to the extent applicable, each other Underwriter Indemnified
Party) for such expenses and the possibility that such payments might later be
held to have been improper by a court of competent jurisdiction. To the extent
that any such interim reimbursement payment is so held to have been improper,
each Underwriter (and, to the extent applicable, each other Underwriter
Indemnified Party) shall promptly return it to the Company together with
interest, compounded daily, determined on the basis of the prime rate (or other
commercial lending rate for borrowers of the highest credit standing) announced
from time to time by Chemical Bank, New York, New York (the "Prime Rate"). Any
such interim reimbursement payments that are not made to an Underwriter (and, to
the extent applicable, each other Underwriter Indemnified Party) in a timely
manner as provided below shall bear interest at the Prime Rate from the due date
for such reimbursement. This expense reimbursement agreement will be in addition
to any other liability that the Company may otherwise have.
(c) In addition to its other obligations under Section 6(b)
hereof, each Underwriter severally agrees that, as an interim measure during the
pendency of any claim, action, investigation, inquiry or other proceeding
arising out of or based upon any statement or omission, or any alleged statement
or omission, described in Section 6(b) hereof which relates to information
furnished by any of the Underwriters to the Company for use in connection with
the preparation of the Registration Statement and the Prospectus, it will
reimburse the Company (and, to the extent applicable, each other Company
Indemnified Party (as defined in Section 6(b) below)) on a quarterly basis for
all reasonable legal or other expenses incurred in connection with investigating
or defending any such claim, action, investigation, inquiry or other proceeding,
notwithstanding the absence of a judicial determination as to the propriety and
enforceability of the Underwriters' obligation to reimburse the Company (and, to
the extent applicable, each other Company Indemnified Party) for such expenses
and the possibility that such payments might later be held to have been improper
by a court of competent jurisdiction. To the extent that any such interim
reimbursement payment is so held to have been improper, the Company (and, to the
extent applicable, each other
16.
17
Company Indemnified Party) shall promptly return it to the Underwriters together
with interest, compounded daily, determined on the basis of the Prime Rate. Any
such interim reimbursement payments which are not made to the Company within
thirty (30) days of a request for reimbursement shall bear interest at the Prime
Rate from the date of such request. This indemnity agreement will be in addition
to any liability which such Underwriter may otherwise have.
(d) It is agreed that any controversy arising out of the
operation of the interim reimbursement arrangements set forth in paragraph (b)
and/or (c) of this Section 5, including the amounts of any requested
reimbursement payments and the method of determining such amounts, shall be
settled by arbitration conducted under the provisions of the Constitution and
Rules of the Board of Governors of the New York Stock Exchange, Inc. or pursuant
to the Code of Arbitration Procedure of the NASD. Any such arbitration must be
commenced by service of a written demand for arbitration or written notice of
intention to arbitrate, therein electing the arbitration tribunal. In the event
the party demanding arbitration does not make such designation of an arbitration
tribunal in such demand or notice, then the party responding to said demand or
notice is authorized to do so. Such an arbitration would be limited to the
operation of the interim reimbursement provisions contained in paragraph (b)
and/or (c) of this Section 5 and would not resolve the ultimate propriety or
enforceability of the obligation to reimburse expenses which is created by the
provisions of Section 6.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls such Underwriter within the
meaning of the Securities Act and the respective officers, directors, partners,
employees, representatives and agents of each of such Underwriter (collectively,
the "Underwriter Indemnified Parties" and, each, an "Underwriter Indemnified
Party"), against any losses, claims, damages, liabilities or expenses
(including, unless the Company elects to assume the defense, the reasonable cost
of investigating and defending against any claims therefor and counsel fees
incurred in connection therewith), joint or several, which arise out of or are
based in whole or in part upon the Securities Act, or any other federal, state,
local or foreign statute or regulation or at common law, on the ground or
alleged ground that any Preeffective Prospectus, the Registration Statement or
the Prospectus (or any Preeffective Prospectus, the Registration Statement or
the Prospectus as from time to time amended or supplemented) includes an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances in which they were made, not misleading, unless such statement
or omission was made in reliance upon, and in conformity with, written
information furnished to the Company by any Underwriter, directly or through the
Representatives, specifically for use in the preparation thereof; provided that,
with respect to any untrue statement or omission or alleged untrue statement or
omission made in any
17.
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Preeffective Prospectus, the indemnity agreement contained in this subsection
(a) shall not inure to the benefit of any Underwriter Indemnified Party from
whom the person asserting any such losses, claims, damages or liabilities
purchased the shares of Stock concerned to the extent that any such loss, claim,
damage or liability of such Underwriter Indemnified Party results from the fact
that a copy of the Prospectus was not sent or given to such person at or prior
to the written confirmation of the sale of such shares of Stock to such person
as required by the Securities Act and if the untrue statement or omission
concerned has been corrected in the Prospectus. The Company will be entitled to
participate at its own expense in the defense or, if it so elects, to assume the
defense of any suit brought to enforce any such liability, but if the Company
elects to assume the defense, such defense shall be conducted by counsel chosen
by it. In the event the Company elects to assume the defense of any such suit
and retain such counsel, any Underwriter Indemnified Parties, defendant or
defendants in the suit, may retain additional counsel but shall bear the fees
and expenses of such counsel unless (i) the Company shall have specifically
authorized the retaining of such counsel or (ii) the parties to such suit
include any such Underwriter Indemnified Parties, and the Company and such
Underwriter Indemnified Parties at law or in equity have been advised by counsel
to the Underwriters that one or more legal defenses may be available to it or
them which may not be available to the Company, in which case the Company shall
not be entitled to assume the defense of such suit notwithstanding its
obligation to bear the fees and expenses of such counsel. 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 agrees to indemnify and hold
harmless the Company, each of its directors, each of its officers who have
signed the Registration Statement and each person, if any, who controls the
Company within the meaning of the Securities Act (collectively, the "Company
Indemnified Parties") against any losses, claims, damages, liabilities or
expenses (including, unless the Underwriter or Underwriters elect to assume the
defense, the reasonable cost of investigating and defending against any claims
therefor and counsel fees incurred in connection therewith), joint or several,
which arise out of or are based in whole or in part upon the Securities Act or
any other federal, state, local or foreign statute or regulation, or at common
law, on the ground or alleged ground that any Preeffective Prospectus, the
Registration Statement or the Prospectus (or any Preeffective Prospectus, the
Registration Statement or the Prospectus, as from time to time amended or
supplemented) includes an untrue statement of a material fact or omits to state
a material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances in which they were made, not
misleading, but only insofar as any such statement or omission was made in
reliance upon, and in conformity with, written information furnished to the
Company by such Underwriter, directly or through the Representatives,
specifically for use in the preparation thereof; provided, however, that in no
case is such Underwriter to
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be liable with respect to any claims made against any Company Indemnified Party
against whom the action is brought unless such Company Indemnified Party shall
have notified such Underwriter in writing within a reasonable time after the
summons or other first legal process giving information of the nature of the
claim shall have been served upon the Company Indemnified Party, but failure to
notify such Underwriter of such claim shall not relieve it from any liability
which it may have to any Company Indemnified Party otherwise than on account of
its indemnity agreement contained in this paragraph. Such Underwriter shall be
entitled to participate at its own expense in the defense, or, if it so elects,
to assume the defense of any suit brought to enforce any such liability, but, if
such Underwriter elects to assume the defense, such defense shall be conducted
by counsel chosen by it. In the event that any Underwriter elects to assume the
defense of any such suit and retain such counsel, the Company Indemnified
Parties and any other Underwriter or Underwriters or controlling person or
persons, defendant or defendants in the suit, shall bear the fees and expenses
of any additional counsel retained by them, respectively. The Underwriter
against whom indemnity may be sought shall not be liable to indemnify any person
for any settlement of any such claim effected without such Underwriter's
consent. This indemnity agreement is not exclusive and will be in addition to
any liability which such Underwriter might otherwise have and shall not limit
any rights or remedies which may otherwise be available at law or in equity to
any Company Indemnified Party.
(c) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages,
liabilities or expenses (or actions in respect thereof) referred to herein, then
each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) in such proportion as is 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. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law, then each indemnifying party shall contribute to such amount
paid or payable by such indemnified party in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of the
Company on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses (or actions 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 shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bears 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 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
19.
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Company or the Underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contribution were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities or expenses (or actions in respect thereof)
referred to above shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating,
defending, settling or compromising any such claim. Notwithstanding the
provisions of this subsection (c), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the shares of the Stock underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. The Underwriters' obligations to
contribute are several in proportion to their respective underwriting
obligations and not joint. 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.
7. 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 of its officers or directors or
any controlling person, and shall survive delivery of and payment for the Stock.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective obligations
of the several Underwriters hereunder shall be subject to the accuracy, at and
(except as otherwise stated herein) as of the date hereof and at and as of the
Closing Dates, of the representations and warranties made herein by the Company,
to compliance at and as of the Closing Dates by the Company with its covenants
and agreements herein contained and other provisions hereof to be satisfied at
or prior to the Closing Dates, and to the following additional conditions:
(a) The Registration Statement shall have become effective and no
stop order suspending the effectiveness thereof shall have been issued and no
proceedings for that purpose shall have been initiated or, to the knowledge of
the Company or the Representatives, shall be threatened by the Commission, and
any request for additional information on the part of the Commission (to be
included in the Registration Statement or the Prospectus or otherwise) shall
have been complied with to the reasonable satisfaction of the Representatives.
Any filings of the Prospectus, or any supplement
20.
21
thereto, required pursuant to Rule 424(b) or Rule 434 of the Rules and
Regulations, shall have been made in the manner and within the time period
required by Rule 424(b) and Rule 434 of the Rules and Regulations, as the case
may be.
(b) The Representatives shall have been satisfied that there shall
not have occurred any change prior to the Closing Dates in the condition
(financial or otherwise), properties, business, management, prospects, net worth
or results of operations of the Company, or any change in the capital stock,
short-term or long-term debt of the Company, such that (i) the Registration
Statement or the Prospectus, or any amendment or supplement thereto, contains an
untrue statement of fact which, in the opinion of the Representatives, is
material, or omits to state a fact which, in the opinion of the Representatives,
is required to be stated therein or is necessary to make the statements therein
not misleading, or (ii) it is unpracticable in the reasonable judgment of the
Representatives to proceed with the public offering or purchase the Stock as
contemplated hereby.
(c) The Representatives shall be satisfied that no legal or
governmental action, suit or proceeding affecting the Company which is material
and adverse to the Company or which affects or may affect the Company's ability
to perform its obligations under this Agreement shall have been instituted or
threatened and there shall have occurred no material adverse development in any
existing such action, suit or proceeding.
(d) At the time of execution of this Agreement, the
Representatives shall have received from Ernst & Young LLP, independent
certified public accountants, a letter, dated the date hereof, in form and
substance satisfactory to the Underwriters.
(e) The Representatives shall have received from Ernst & Young
LLP, independent certified public accountants, letters, dated the Closing Dates,
to the effect that such accountants reaffirm, as of the Closing Dates, and as
though made on the Closing Dates, the statements made in the letter furnished by
such accountants pursuant to paragraph (d) of this Section 8. In addition, the
Representatives shall have received from Ernst & Young LLP a letter addressed to
the Company and made available to the Representatives for use by the
Underwriters stating that their review of the Company's system of internal
accounting controls, to the extent that they deemed necessary in establishing
the scope of their examination of the Company's financial statements as of
December 31, 1995, did not disclose any weaknesses in internal controls that
they considered to be material weaknesses.
(f) The Representatives shall have received from Pillsbury Madison
& Sutro LLP, counsel for the Company, an opinion, dated as of each of the
Closing Dates, to the effect set forth in Exhibit I hereto.
21.
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(g) The Representatives shall have received from Kaye, Scholer,
Fierman & Xxxx, patent counsel for the Company, an opinion, dated as of each of
the Closing Dates, to the effect set forth in Exhibit II hereto.
(h) The Representatives shall have received from Xxxxxxxx &
Xxxxxxxx, patent counsel for the Company, an opinion, dated as of each of the
Closing Dates, to the effect set forth in Exhibit III hereto.
(i) The Representatives shall have received from Lyon & Lyon,
patent counsel for the Company, an opinion, dated as of each of the Closing
Dates, to the effect set forth in Exhibit IV hereto.
(j) The Representatives shall have received from Xxxxxxxx &
Xxxxxx, patent counsel for the Company, an opinion, dated as of each of the
Closing Dates, to the effect set forth in Exhibit V hereto.
(k) The Representatives shall have received from Xxxxx & Xxxxxxx
LLP, regulatory counsel for the Company, an opinion, dated as of each of the
Closing Dates, to the effect set forth in Exhibit VI hereto.
(l) The Representatives shall have received from Xxxxxx Godward
LLP, counsel for the Underwriters, their opinion or opinions dated as of each of
the Closing Dates with respect to the incorporation of the Company, the validity
of the Stock, the Registration Statement and the Prospectus and such other
related matters as it may reasonably request, and the Company shall have
furnished to such counsel such documents as they may request for the purpose of
enabling them to pass upon such matters.
(m) The Representatives shall have received a certificate, dated
as of each of Closing Dates, of the chief executive officer or the President and
the chief financial or accounting officer of the Company to the effect that:
(i) No stop order suspending the effectiveness of the
Registration Statement has been issued, and, to the best of the knowledge of the
signers, no proceedings for that purpose have been instituted or are pending or
contemplated under the Securities Act;
(ii) Neither any Preeffective Prospectus, as of its date,
nor the Registration Statement nor the Prospectus, nor any amendment or
supplement thereto, as of the time when the Registration Statement became
effective and at all times subsequent thereto up to the delivery of such
certificate, included any untrue statement of a material fact or omitted to
state any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading;
22.
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(iii) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, and
except as set forth or contemplated in the Prospectus, the Company has not
incurred any material liabilities or obligations, direct or contingent, nor
entered into any material transactions not in the ordinary course of business
and there has not been any material adverse change in the condition (financial
or otherwise), properties, business, management, prospects, net worth or results
of operations of the Company, or any change in the capital stock, short-term or
long-term debt of the Company;
(iv) The representations and warranties of the Company in
this Agreement are true and correct at and as of the Closing Dates, and the
Company has complied with all the agreements and performed or satisfied all the
conditions on its part to be performed or satisfied at or prior to the Closing
Dates; and
(v) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, and except as disclosed
in or contemplated by the Prospectus, (i) there has not been any material
adverse change or a development involving a material adverse change in the
condition (financial or otherwise), properties, business, management, prospects,
net worth or results of operations of the Company; (ii) the business and
operations conducted by the Company have not sustained a loss by strike, fire,
flood, accident or other calamity (whether or not insured) of such a character
as to interfere materially with the conduct of the business and operations of
the Company; (iii) no legal or governmental action, suit or proceeding is
pending or threatened against the Company which is material to the Company,
whether or not arising from transactions in the ordinary course of business, or
which may materially and adversely affect the transactions contemplated by this
Agreement; (iv) since such dates and except as so disclosed, the Company has not
incurred any material liability or obligation, direct, contingent or indirect,
nor entered into any material transaction not in the ordinary course of
business, made any change in its capital stock (except pursuant to its stock
plans), made any material change in its short-term or funded debt or repurchased
or otherwise acquired any of the Company's capital stock; and (v) the Company
has not declared or paid any dividend, or made any other distribution, upon its
outstanding capital stock payable to stockholders of record on a date prior to
the Closing Date.
(n) The Company shall have furnished to the Representatives such
additional certificates as the Representatives may have reasonably requested as
to the accuracy, at and as of the Closing Dates, of the representations and
warranties made herein by it and as to compliance at and as of the Closing Dates
by it with its covenants and agreements herein contained and other provisions
hereof to be satisfied at or prior to the Closing Dates, and as to satisfaction
of the other conditions to the obligations of the Underwriters hereunder.
23.
24
(o) Cowen shall have received the written agreements of each
officer, director and holder of Common Stock of the Company listed in Schedule
___ that each will not offer, sell, assign, transfer, encumber, contract to
sell, grant an option to purchase or otherwise dispose of, other than by
operation of law, gifts, pledges or dispositions by estate representatives, any
shares of Common Stock (including, without limitation, Common Stock of the
Company which may be deemed to be beneficially owned by such person or entity in
accordance with the Rules and Regulations) during the one hundred eighty (180)
days following the date of the final Prospectus.
All opinions, certificates, letters and other documents will be in
compliance with the provisions hereunder only if they are satisfactory in form
and substance to the Representatives. The Company will furnish to the
Representatives conformed copies of such opinions, certificates, letters and
other documents as the Representatives shall reasonably request. If any of the
conditions hereinabove provided for in this Section shall not have been
satisfied when and as required by this Agreement, this Agreement may be
terminated by the Representatives by notifying the Company of such termination
in writing or by telegram at or prior to the Closing Dates, but Cowen shall be
entitled to waive any of such conditions.
9. EFFECTIVE DATE. This Agreement shall become effective immediately
as to Sections 5, 6, 7, 9, 10, 11, 13, 14, 15, 16 and 17 and, as to all other
provisions, at 11:00 a.m. New York City time on the first full business day
following the effectiveness of the Registration Statement or at such earlier
time after the Registration Statement becomes effective as the Representatives
may determine on and by notice to the Company or by release of any of the Stock
for sale to the public. For the purposes of this Section 9, the Stock shall be
deemed to have been so released upon the release for publication of any
newspaper advertisement relating to the Stock or upon the release by you of
telegrams (i) advising Underwriters that the shares of Stock are released for
public offering or (ii) offering the Stock for sale to securities dealers,
whichever may occur first.
10. TERMINATION. This Agreement (except for the provisions of Section
5) may be terminated by the Company at any time before it becomes effective in
accordance with Section 9 by notice to the Representatives and may be terminated
by the Representatives at any time before it becomes effective in accordance
with Section 9 by notice to the Company. In the event of any termination of this
Agreement under this or any other provision of this Agreement, there shall be no
liability of any party to this Agreement to any other party, other than as
provided in Sections 5, 6 and 11 and other than as provided in Section 12 as to
the liability of defaulting Underwriters.
This Agreement may be terminated after it becomes effective by the
Representatives by notice to the Company (i) if at or prior to the First Closing
Date or the Option Closing Date trading in securities on any of the New York
Stock Exchange, American Stock Exchange, Nasdaq National Market, Chicago Board
of Options
24.
25
Exchange, Chicago Mercantile Exchange or Chicago Board of Trade shall have been
suspended or minimum or maximum prices shall have been established on any such
exchange or market, or a banking moratorium shall have been declared by New York
or United States authorities; (ii) trading of any securities of the Company
shall have been suspended on any exchange or in any over-the-counter market;
(iii) if at or prior to the First Closing Date or the Option Closing Date there
shall have been (A) an outbreak or escalation of hostilities between the United
States and any foreign power or of any other insurrection or armed conflict
involving the United States or (B) any change in financial markets or any
calamity or crisis which, in the judgment of the Representatives, makes it
impractical or inadvisable to offer or sell the Firm Stock or Optional Stock, as
applicable on the terms contemplated by the Prospectus; (iv) if there shall have
been any development or prospective development involving particularly the
business or properties or securities of the Company or the transactions
contemplated by this Agreement, which, in the judgment of the Representatives,
makes it impracticable or inadvisable to offer or deliver the Firm Stock or the
Optional Stock, as applicable on the terms contemplated by the Prospectus; (v)
if there shall be any litigation or proceeding, pending or threatened, which, in
the judgment of the Representatives, makes it impracticable or inadvisable to
offer or deliver the Firm Stock or Optional Stock, as applicable, on the terms
contemplated by the Prospectus; or (vi) if there shall have occurred any of the
events specified in the immediately preceding clauses (i) - (v) together with
any other such event that makes it, in the judgment of the Representatives,
impractical or inadvisable to offer or deliver the Firm Stock or Optional Stock,
as applicable, on the terms contemplated by the Prospectus.
11. REIMBURSEMENT OF UNDERWRITERS. Notwithstanding any other
provisions hereof, if this Agreement shall not become effective by reason of any
election of the Company pursuant to the first paragraph of Section 10 or shall
be terminated by the Representatives under Section 8 or Section 10, the Company
will bear and pay the expenses specified in Section 5 hereof and, in addition to
its obligations pursuant to Section 6 hereof, the Company will reimburse the
reasonable out-of-pocket expenses of the several Underwriters (including
reasonable fees and disbursements of counsel for the Underwriters) incurred in
connection with this Agreement and the proposed purchase of the Stock, and
promptly upon demand the Company will pay such amounts to you as
Representatives.
12. 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
25.
26
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 12, (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 Statement or the
Prospectus, or in any other documents or arrangements, and the Company agrees
promptly to file any amendments to the Registration Statement 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 Underwriters
for damages occasioned by its default hereunder. Any termination of this
Agreement pursuant to this Section 12 shall be without liability on the part of
any non-defaulting Underwriter or the Company, except for expenses to be paid or
reimbursed pursuant to Section 5 and except for the provisions of Section 6.
13. NOTICES. All communications hereunder shall be in writing and, if
sent to the Underwriters shall be mailed, delivered or telegraphed and confirmed
to you, as their Representatives x/x Xxxxx xx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 except that notices given to an Underwriter pursuant to Section 6
hereof shall be sent to such Underwriter at the address furnished by the
Representatives or, if sent to the Company, shall be mailed, delivered or
telegraphed and confirmed c/o Xxx X. Xxxxxxxxxxxx, President and Chief Executive
Officer, Biosite Diagnostics Incorporated, 00000 Xxxxxxx Xxxxxx, Xxx Xxxxx,
Xxxxxxxxxx 00000.
14. SUCCESSORS. This Agreement shall inure to the benefit of and be
binding upon the several Underwriters, the Company and their respective
successors and legal representatives. 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 person or persons, if any, who control any
Underwriter or Underwriters within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, and the indemnities of the several
Underwriters shall
26.
27
also be for the benefit of each director of the Company, each of its officers
who has signed the Registration Statement and the person or persons, if any, who
control the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act.
15. APPLICABLE LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York.
16. 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 Cowen, as Representative, will be binding
on all the Underwriters.
17. 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.
18. 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 respect 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.
19. COUNTERPARTS. This Agreement may be signed in two (2) or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
27.
28
If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter and your acceptance shall constitute a binding agreement
between us.
Very truly yours,
BIOSITE DIAGNOSTICS INCORPORATED
By:______________________________________
Xxx X. Xxxxxxxxxxxx, President and
Chief Executive Officer
Accepted and delivered in
San Diego, California as of
the date first above written.
XXXXX & COMPANY
XXXX XXXXX & SONS INCORPORATED
Acting on their own behalf
and as Representatives of several
Underwriters referred to in the
foregoing Agreement.
By: Cowen Incorporated,
its general partner
By:________________________________
Title:_____________________________
28.
29
SCHEDULE A
Number Number of
of Firm Optional
Shares Shares
to be to be
Name Purchased Purchased
----------------------------------------- --------- ---------
Xxxxx & Company..........................
Alex. Xxxxx & Sons Incorporated..........
Total....................................
========= =========
1.
30
EXHIBIT I
MATTERS TO BE COVERED IN THE OPINION OF
PILLSBURY MADISON & SUTRO LLP,
COUNSEL FOR THE COMPANY
1. The Company is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware, to the knowledge of
such counsel, is duly qualified to do business and is in good standing as a
foreign corporation in each jurisdiction in the United States in which the
nature of the activities conducted by it or the character of the assets owned or
leased by it makes such qualification necessary, except to the extent that the
failure to so qualify would not have a material adverse effect on the Company or
its business and has full corporate power and authority to conduct all the
activities conducted by it, to own or lease all the assets owned or leased by it
and to conduct its business as described in the Registration Statement and the
Prospectus. To the best of such counsel's knowledge, the Company does not own or
control, directly or indirectly, any corporation, association or other entity.
2. The issued and outstanding shares of capital stock of the Company
have been, and the Shares will be, when issued and sold to and paid for by the
Underwriters in accordance with the terms of the Underwriting Agreement, duly
authorized validly issued, fully paid and nonassessable and were not and will
not be issued in violation of any preemptive or to the knowledge of such counsel
similar right. All outstanding shares of capital stock of the Company were
issued in compliance with the registration and qualification provisions of all
applicable securities laws. The certificate evidencing the common stock of the
Company filed as an exhibit to the Registration Statement is in due and proper
form under Delaware law.
3. No consent, approval, authorization or order of, or any or filing
or declaration with, any court or governmental agency or body is required in
connection with the execution, delivery and performance of the Underwriting
Agreement by the Company, the authorization, issuance, transfer, sale or
delivery of the Shares or the taking by the Company of any action provided for
in the Underwriting Agreement, except such as have been obtained under the
Securities Act and the Rules and Regulations and such as may be required under
applicable state securities or Blue Sky laws and by the By-laws and rules of the
NASD in connection with the purchase and distribution by the Underwriters of the
Shares.
4. The authorized and outstanding capital stock of the Company as of
_________________, 1996 was set forth in the Registration Statement and the
Prospectus. The capital stock of the Company conforms as to legal matters in all
material respects to the description thereof contained in the Prospectus under
the caption "Description of Capital Stock." Except as disclosed in or
specifically provided for in the Prospectus, there are, to the
1.
31
knowledge of such counsel, no outstanding options, warrants or other rights
requiring the issuance of, and no commitments to issue, any shares of capital
stock of the Company or security convertible into or exercisable for capital
stock of the Company.
5. The Registration Statement and the Prospectus comply as to form in
all material respects with the requirements of the Securities Act and the Rules
and Regulations (except that such counsel need express no opinion as to
financial statements and related notes, schedules and other financial and
statistical data contained in the Registration Statement and the Prospectus).
6. The Registration Statement is effective under the Securities Act
and, to the best knowledge of such counsel, no order suspending the
effectiveness of the Registration Statement has been issued and no proceeding
for that purpose has been instituted or is threatened or pending.
7. Such counsel reviewed all contracts or other documents filed as
exhibits to the Registration Statement and such contracts or other documents are
fairly summarized or disclosed in the Registration Statement to the extent
required under the Securities Act and the Rules and Regulations, and such
counsel does not know of any contract or other document required to be so
summarized or disclosed or filed which has not been so summarized or disclosed
or filed.
8. The Company has full corporate power and authority to enter into
the Underwriting Agreement, and such agreement has been duly authorized,
executed and delivered by the Company, and is a valid and binding agreement of
the Company, enforceable in accordance with its terms, except for the
indemnification and contribution provisions of the Underwriting Agreement, as to
which such counsel need express no opinion, and except as enforcement may be
limited by bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium or other laws relating to or affecting creditors' rights generally or
by general principles of equity and limitations on availability of equitable
remedies.
9. The execution and delivery of the Underwriting Agreement by the
Company, the consummation by the Company of the transactions contemplated
therein (other than the indemnification and contribution obligations of the
Company thereunder) do not conflict with, or result in a breach or violation of
any terms or provisions of, or constitute a material default under, or result in
the creation or imposition of any lien, charge or encumbrance upon, any property
or assets of the Company pursuant to (A) the terms of the Amended and Restated
Certificate of Incorporation or Bylaws of the Company, (B) any agreement or
instrument of the Company that is filed as an exhibit to the Registration
Statement, (C) any statute, rule or regulation of any regulatory body or
administrative agency or other governmental agency or body having jurisdiction
over the Company or its activities or properties or (D) to the best of such
counsel's knowledge, any judgment, decree or order of any government,
arbitrator, court, regulatory body or administrative agency or other
governmental agency or body having
2.
32
jurisdiction over the Company or any of its activities or properties, and no
consent, approval, authorization or order of any court, regulatory body or
administrative agency or other governmental agency or body is required for the
Company's performance of the Underwriting Agreement or the consummation by the
Company of the transactions contemplated thereby, except such as have been
obtained under the Securities Act and except as may be required under the rules
of the NASD and applicable Blue Sky laws, as to which such counsel need express
no opinion.
10. Upon delivery of and payment for the Shares as provided in the
Underwriting Agreement and upon registration of such Shares in the names of the
Underwriters (or their nominees) in the stock records of the Company, good and
marketable title will have been transferred to the Underwriters free and clear
of any adverse claim, provided that the Underwriters are purchasing such shares
in good faith and without notice of any adverse claim.
11. Such counsel knows of no action, suit or proceeding pending or
threatened against the Company or any of its officers in their capacities as
such, before or by any federal or state court, commission, regulatory body,
administrative agency or other governmental body of a character required to be
disclosed in the Registration Statement or Prospectus by the Securities Act or
the applicable Rules and Regulations, other than those described therein.
12. To the knowledge of such counsel, the Company (A) is not presently
in material violation of its Amended and Restated Certificate of Incorporation
or Bylaws, (B) is not in material default (nor has an event occurred which with
notice or lapse of time or both would constitute a default or acceleration) in
the performance of any obligation, agreement or condition contained in any
material indenture, mortgage, deed of trust, voting trust agreement, loan
agreement, bond, debenture, note agreement or other evidence of indebtedness,
lease, contract or other agreement or instrument known to such counsel to which
the Company is a party or by which it or its properties is bound or affected,
(C) has not received any claims from governmental agencies or bodies having
jurisdiction over the Company that it is in material breach of any applicable
statute, rule or regulation or (D) is not in material breach of any order, writ
or decree of any court or governmental agency or body having jurisdiction over
the Company or over any of its properties or operations.
13. To such counsel's knowledge, except as set forth in the
Registration Statement and Prospectus, no holders of Common Stock or other
securities of the Company have registration rights with respect to securities of
the Company, and, except as set forth in the Registration Statement and
Prospectus, all holders of securities of the Company having rights known to us
to registration of such shares of Common Stock or other securities because of
the filing of the Registration Statement by the Company have, with respect to
the offering contemplated thereby, waived such rights or such rights have been
complied with or have expired by reason of lapse of time following notification
of the Company's intent to file the Registration Statement.
3.
33
14. The Company is not an "investment company" or a "promoter" or
"principal underwriter" for an "investment company," as such terms are defined
in the Investment Company Act of 1940, as amended.
15. The Shares have been duly included for quotation on the Nasdaq
National Market.
16. To the knowledge of such counsel, no person or entity has the
right to require registration of shares of Common Stock or other securities of
the Company because of the filing or effectiveness of the Registration Statement
or otherwise, except for persons and entities who have expressly waived such
right or who have been given proper notice and have failed to exercise such
right within the time or times required under the terms and conditions of such
right.
Counsel rendering the foregoing opinion may rely as to questions of law
not involving the laws of the United States or of the State of California, upon
opinions of local counsel satisfactory in form and scope to counsel for the
Underwriters. Copies of any opinion so relied upon shall be delivered to the
Representatives and to counsel for the Underwriters and the foregoing opinion
shall also state that counsel knows of no reason the Underwriters are not
entitled to rely upon the opinions of such local counsel.
In addition to the matters set forth above, counsel rendering the
foregoing opinion shall also include a statement to the effect that nothing has
come to the attention of such counsel that leads them to believe that the
Registration Statement (except as to the financial statements and schedules and
other financial data contained therein, as to which such counsel need not
express any statement or belief) at the Effective Date contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein no misleading, that
the Prospectus (except as to the financial statements and schedules and other
financial data contained therein, as to which such counsel need not express any
statement or belief) as of its date or at the Closing Date (or any later date on
which Optional Stock is purchased), contained or contains any untrue statement
of a material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading.
4.
34
EXHIBIT II
MATTERS TO BE COVERED IN THE OPINION OF
KAYE, SCHOLER, XXXXXXX & XXXX,
PATENT COUNSEL FOR THE COMPANY
1. Such counsel represents the Company in certain matters relating to
intellectual property and the Company's diagnostics assays, including patents
and trade secrets.
2. Such counsel is familiar with the technology used by the Company
in its business and the manner of its use and has read the portions of the
Registration Statement and the Prospectus entitled "Risk Factors -- Uncertainty
of Patent and Proprietary Technology Protection; License of Technology of Third
Parties" and "Business -- Proprietary Technology and Patents" (collectively, the
"Intellectual Property Portion").
3. Such counsel has no knowledge of any facts that the Company lacks
or will be unable to obtain rights to all Intellectual Property necessary to
conduct its business as now or proposed to be conducted by the Company as
described in the Prospectus. Such counsel is not aware of any facts that (i)
would preclude the Company from having clear title to the Patents and
Applications, or (ii) would lead such counsel to conclude that any of the
Patents are invalid or unenforceable or that any patent issued from an
Application would be invalid or unenforceable.
4. Such counsel knows of no notification, pending or threatened
action, suit, proceeding or claim by others or governmental authorities that the
Company is infringing or otherwise violating any patents, copyrights,
trademarks, trade secrets or intellectual property not owned or licensed by the
Company.
5. Such counsel is not aware of any pending or threatened actions,
suits, proceedings or claim by governmental authorities or others challenging
the validity, unenforceability or scope of the Applications or the Patents,
other than the patent application proceedings themselves.
6. Such counsel is not aware of any infringement on the part of
others of the Patents, Applications, Trademarks or trade secrets, know-how or
other proprietary rights of the Company.
7. Such counsel has no knowledge of any patent rights of others which
are or would be infringed by the Company's products or applications of the
Company's products referred to in the Prospectus.
1.
35
8. Nothing has come to the attention of such counsel which causes
such counsel to believe that the information contained in the statements under
the captions "Risk Factors -- Uncertainty of Patent and Proprietary Technology
protection; License of Technology to Third Parties," "Business -- Technology"
and "Business -- Proprietary Technology and Patents" in (a) the Registration
Statement, or any amendments thereof, contained or contains an untrue statement
of a material fact, or omitted or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
(b) the Prospectus, or any amendments thereof, contained or contains an untrue
statement of a material fact or omitted or omits to state any 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.
2.
36
EXHIBIT III
MATTERS TO BE COVERED IN THE OPINION OF
XXXXXXXX & XXXXXXXX,
PATENT COUNSEL FOR THE COMPANY
1. Such counsel represents the Company in certain matters relating to
intellectual property and antibody technology, including patents and trade
secrets.
2. Such counsel is familiar with the technology used by the Company
in its business and the manner of its use and has read the portions of the
Registration Statement and the Prospectus entitled "Risk Factors -- Uncertainty
of Patent and Proprietary Technology Protection; License of Technology of Third
Parties" and "Business -- Proprietary Technology and Patents" (collectively, the
"Intellectual Property Portion").
3. The Company is either assignee of record at the PTO or the
exclusive licensee of each of the patents listed under the heading "U.S. Patents
of the Company" on Schedule B hereof (the "U.S. Patents") and each of the patent
applications listed under the heading "U.S. Patent Applications of the Company"
on Schedule B hereof (the "U.S. Applications"). To the best of knowledge of such
counsel, the Company owns ____ issued U.S. Patents, ____ allowed U.S.
Applications and ____ pending U.S. Applications. Such counsel knows of no claims
by others to any ownership interest or lien with respect to any of the U.S.
Patents or U.S. Applications. To such counsel's knowledge, none of the U.S.
Patents are subject to an interference, reexamination, reissue examination or
declaration action. To such counsel's knowledge, none of the U.S. Applications
has been appealed, finally rejected or subject to an interference.
4. The Company is either the assignee of record at the appropriate
foreign patent office or the exclusive licensee of each of the foreign patents
listed under the heading "Non-U.S. Patents of the Company" on Schedule C hereof
(the "Non-U.S. Patents") (collectively, the U.S. Patents and Non-U.S. Patents
are referred to herein as the "Patents") and each of the foreign patent
applications listed under the heading "Non-U.S. Patent Applications of they
Company" on Schedule C hereof (the "Non-U.S. Applications") (collectively, the
U.S. Applications and the Non-U.S. Applications are referred to herein as the
"Applications"). Such counsel knows of no claims by others to any of such
Non-U.S. Patents or Non-U.S. Applications. To such counsel's knowledge, none of
the Non-U.S. Patents are subject to an opposition, national invalidation
proceeding or national court proceeding. To such counsel's knowledge, none of
the Non-U.S. Applications has been finally rejected or appealed.
5. Such counsel has no knowledge of any facts that the Company lacks
or will be unable to obtain rights to all Intellectual Property necessary to
conduct its business as now or proposed to be conducted by the Company as
described in the Prospectus. Such counsel is
1.
37
not aware of any facts that (i) would preclude the Company from having clear
title to the Patents and Applications, or (ii) would lead such counsel to
conclude that any of the Patents are invalid or unenforceable or that any patent
issued from an Application would be invalid or unenforceable.
6. Such counsel is not aware of any material defects of form in the
preparation, filing or prosecution of the Application on behalf of the Company
or Licensors of the Applications. To the best of such counsel's knowledge, the
Company, Company's Patent Counsel and Patent Counsel of the Licensors have
complied with the duty of candor and disclosure before the PTO for each of the
U.S. Patents and U.S. Patent Applications. The Applications are being diligently
pursued by the Company.
7. Such counsel knows of no notification, pending or threatened
action, suit, proceeding or claim by others or governmental authorities that the
Company is infringing or otherwise violating any patents, copyrights,
trademarks, trade secrets or intellectual property not owned or licensed by the
Company.
8. Such counsel is not aware of any pending or threatened actions,
suits, proceedings or claim by governmental authorities or others challenging
the validity, unenforceability or scope of the Applications or the Patents,
other than the patent application proceedings themselves.
9. Such counsel is not aware of any infringement on the part of
others of the Patents, Applications, Trademarks or trade secrets, know-how or
other proprietary rights of the Company.
10. Such counsel has no knowledge of any patent rights of others which
are or would be infringed by the Company's products or applications of the
Company's products referred to in the Prospectus.
11. Nothing has come to the attention of such counsel which causes
such counsel to believe that the information contained in the statements under
the captions "Risk Factors -- Uncertainty of Patent and Proprietary Technology
protection; License of Technology to Third Parties," "Business -- Technology"
and "Business -- Proprietary Technology and Patents" in (a) the Registration
Statement, or any amendments thereof, contained or contains an untrue statement
of a material fact, or omitted or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
(b) the Prospectus, or any amendments thereof, contained or contains an untrue
statement of a material fact or omitted or omits to state any 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.
2.
38
EXHIBIT IV
MATTERS TO BE COVERED IN THE OPINION OF
LYON & LYON,
PATENT COUNSEL FOR THE COMPANY
1. Such counsel represents the Company in certain matters relating to
intellectual property, including patents, copyrights, trade secrets and certain
trademark matters.
2. Such counsel is familiar with the technology used by the Company
in its business and the manner of its use and has read the portions of the
Registration Statement and the Prospectus entitled "Risk Factors -- Uncertainty
of Patent and Proprietary Technology Protection; License of Technology of Third
Parties" and "Business -- Proprietary Technology and Patents" (collectively, the
"Intellectual Property Portion").
3. The Company is either assignee of record at the PTO or the
exclusive licensee of each of the patents listed under the heading "U.S. Patents
of the Company" on Schedule B hereof (the "U.S. Patents") and each of the patent
applications listed under the heading "U.S. Patent Applications of the Company"
on Schedule B hereof (the "U.S. Applications"). To the best of knowledge of such
counsel, the Company owns ____ issued U.S. Patents, ____ allowed U.S.
Applications and ____ pending U.S. Applications. Such counsel knows of no claims
by others to any ownership interest or lien with respect to any of the U.S.
Patents or U.S. Applications. To such counsel's knowledge, none of the U.S.
Patents are subject to an interference, reexamination, reissue examination or
declaration action. To such counsel's knowledge, none of the U.S. Applications
has been appealed, finally rejected or subject to an interference.
4. The Company is either the assignee of record at the appropriate
foreign patent office or the exclusive licensee of each of the foreign patents
listed under the heading "Non-U.S. Patents of the Company" on Schedule C hereof
(the "Non-U.S. Patents") (collectively, the U.S. Patents and Non-U.S. Patents
are referred to herein as the "Patents") and each of the foreign patent
applications listed under the heading "Non-U.S. Patent Applications of they
Company" on Schedule C hereof (the "Non-U.S. Applications") (collectively, the
U.S. Applications and the Non-U.S. Applications are referred to herein as the
"Applications"). Such counsel knows of no claims by others to any of such
Non-U.S. Patents or Non-U.S. Applications. To such counsel's knowledge, none of
the Non-U.S. Patents are subject to an opposition, national invalidation
proceeding or national court proceeding. To such counsel's knowledge, none of
the Non-U.S. Applications has been finally rejected or appealed.
5. Such counsel has no knowledge of any facts that the Company lacks
or will be unable to obtain rights to all Intellectual Property necessary to
conduct its business as now or proposed to be conducted by the Company as
described in the Prospectus. Such counsel is
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not aware of any facts that (i) would preclude the Company from having clear
title to the Patents and Applications, or (ii) would lead such counsel to
conclude that any of the Patents are invalid or unenforceable or that any patent
issued from an Application would be invalid or unenforceable.
6. Such counsel is not aware of any material defects of form in the
preparation, filing or prosecution of the Application on behalf of the Company
or Licensors of the Applications. To the best of such counsel's knowledge, the
Company, Company's Patent Counsel and Patent Counsel of the Licensors have
complied with the duty of candor and disclosure before the PTO for each of the
U.S. Patents and U.S. Patent Applications. The Applications are being diligently
pursued by the Company.
7. Such counsel knows of no notification, pending or threatened
action, suit, proceeding or claim by others or governmental authorities that the
Company is infringing or otherwise violating any patents, copyrights,
trademarks, trade secrets or intellectual property not owned or licensed by the
Company.
8. Such counsel is not aware of any pending or threatened actions,
suits, proceedings or claim by governmental authorities or others challenging
the validity, unenforceability or scope of the Applications or the Patents,
other than the patent application proceedings themselves.
9. Such counsel is not aware of any infringement on the part of
others of the Patents, Applications, Trademarks or trade secrets, know-how or
other proprietary rights of the Company.
10. Such counsel has no knowledge of any patent rights of others which
are or would be infringed by the Company's products or applications of the
Company's products referred to in the Prospectus.
11. Nothing has come to the attention of such counsel which causes
such counsel to believe that the information contained in the statements under
the captions "Risk Factors -- Uncertainty of Patent and Proprietary Technology
protection; License of Technology to Third Parties," "Business -- Technology"
and "Business -- Proprietary Technology and Patents" in (a) the Registration
Statement, or any amendments thereof, contained or contains an untrue statement
of a material fact, or omitted or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
(b) the Prospectus, or any amendments thereof, contained or contains an untrue
statement of a material fact or omitted or omits to state any 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.
2.
40
EXHIBIT V
MATTERS TO BE COVERED IN THE OPINION OF
XXXXXXXX & XXXXXX,
PATENT COUNSEL FOR THE COMPANY
1. Such counsel represents the Company in certain matters relating to
intellectual property and the Company's antibody technology, including patents
and trade secrets.
2. Such counsel is familiar with the technology used by the Company
in its business and the manner of its use and has read the portions of the
Registration Statement and the Prospectus entitled "Risk Factors -- Uncertainty
of Patent and Proprietary Technology Protection; License of Technology of Third
Parties" and "Business -- Proprietary Technology and Patents" (collectively, the
"Intellectual Property Portion").
3. Such counsel has no knowledge of any facts that the Company lacks
or will be unable to obtain rights to all Intellectual Property necessary to
conduct its business as now or proposed to be conducted by the Company as
described in the Prospectus. Such counsel is not aware of any facts that (i)
would preclude the Company from having clear title to the Patents and
Applications, or (ii) would lead such counsel to conclude that any of the
Patents are invalid or unenforceable or that any patent issued from an
Application would be invalid or unenforceable.
4. Such counsel knows of no notification, pending or threatened
action, suit, proceeding or claim by others or governmental authorities that the
Company is infringing or otherwise violating any patents, copyrights,
trademarks, trade secrets or intellectual property not owned or licensed by the
Company.
5. Such counsel is not aware of any pending or threatened actions,
suits, proceedings or claim by governmental authorities or others challenging
the validity, unenforceability or scope of the Applications or the Patents,
other than the patent application proceedings themselves.
6. Such counsel is not aware of any infringement on the part of
others of the Patents, Applications, Trademarks or trade secrets, know-how or
other proprietary rights of the Company.
7. Such counsel has no knowledge of any patent rights of others which
are or would be infringed by the Company's products or applications of the
Company's products referred to in the Prospectus.
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41
8. Nothing has come to the attention of such counsel which causes
such counsel to believe that the information contained in the statements under
the captions "Risk Factors -- Uncertainty of Patent and Proprietary Technology
protection; License of Technology to Third Parties," "Business -- Technology"
and "Business -- Proprietary Technology and Patents" in (a) the Registration
Statement, or any amendments thereof, contained or contains an untrue statement
of a material fact, or omitted or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
(b) the Prospectus, or any amendments thereof, contained or contains an untrue
statement of a material fact or omitted or omits to state any 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.
2.
42
EXHIBIT VI
MATTERS TO BE COVERED IN THE OPINION OF
XXXXX & XXXXXXX LLP,
REGULATORY COUNSEL FOR THE COMPANY
The statements in the Prospectus under the captions "Risk Factors --
Government Regulation," "Business -- Products and Products Under Development,"
and "Business -- Government Regulation," insofar as such statements purport to
summarize applicable provisions of the Orphan Drug Act, the Federal Food, Drug
and Cosmetic Act and the FDA regulations promulgated thereunder, are accurate
summaries in all material respects of the provisions purported to be summarized
under such captions in the Prospectus.
During the course of preparation of the Registration Statement, we
participated in certain discussions with officers of the Company as to the FDA
regulatory matters dealt with under the captions "Risk Factors -- Government
Regulation" and Business -- Government Regulation" in the Prospectus. While we
have not undertaken to determine independently, and we do not assume any
responsibility for, the accuracy, completeness or fairness of the statements
under such captions of the Prospectus, we may state on the basis of these
discussions that no facts have come to our attention which cause us to believe
that the statements in the Prospectus under the captions "Risk Factors --
Government Regulation" and Business -- Government Regulation," insofar as such
statements relate to FDA regulatory matters, at the time the Registration
Statement 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 statement therein not misleading, or as of the date hereof, contains an
untrue statement of material fact or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
1.
