1
EXHIBIT 1.1
7,000,000 SHARES
AMERICAN MEDICAL SYSTEMS HOLDINGS, INC.
COMMON STOCK
PURCHASE AGREEMENT
_______, 2001
U.S. BANCORP XXXXX XXXXXXX INC.
BANC OF AMERICA SECURITIES LLC
X.X. XXXXXX SECURITIES INC.
XXXXXXXXX XXXXXXXX, INC.
c/o U.S. Bancorp Xxxxx Xxxxxxx Inc.
Mail Station: J1012005
000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Ladies and Gentlemen:
American Medical Systems Holdings, Inc., a Delaware corporation (the
"Company"), and Warburg, Xxxxxx Equity Partners, L.P., a Delaware limited
partnership ("Warburg Pincus"), severally propose to sell to the several
underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
7,000,000 shares (the "Firm Shares") of voting common stock, $0.01 par value per
share (the "Common Stock"), of the Company. The Firm Shares consist of 3,500,000
shares of Common Stock to be issued and sold by the Company and 3,500,000 shares
of Common Stock to be sold by Warburg Pincus. Warburg Pincus has also granted to
the several Underwriters an option to purchase up to 1,050,000 additional shares
of Common Stock to cover over-allotments (the "Option Shares"). The Firm Shares
and any Option Shares purchased pursuant to this Purchase Agreement are herein
collectively called the "Securities."
The Company and Warburg Pincus hereby confirm their agreement with
respect to the sale of the Securities to the Underwriters.
1. Registration Statement and Prospectus. A registration statement on
Form S-1 (File No. 333-62432) with respect to the Securities, including a
preliminary form of prospectus, has been prepared by the Company in conformity
with the requirements of the Securities Act of 1933, as amended (the "Act"), and
the rules and regulations ("Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder and has been filed with the
Commission; one or more amendments to such registration statement have also been
so prepared and have been, or will be, so filed; and, if the Company has elected
to rely upon Rule 462(b) of the Rules and Regulations to increase the size of
the offering registered under the Act, the Company will prepare and file with
the Commission a registration statement with respect to such increase pursuant
to Rule 462(b). Copies of such registration statement(s) and amendments and each
related preliminary prospectus have been delivered to you.
If the Company has elected not to rely upon Rule 430A of the
Rules and Regulations, the Company has prepared and will promptly file an
amendment to the registration statement and an amended prospectus (including a
term sheet meeting the requirements of Rule 434 of the Rules and Regulations).
If the Company has elected to rely upon Rule 430A of the Rules and Regulations,
it will prepare and file a
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prospectus (or a term sheet meeting the requirements of Rule 434) pursuant to
Rule 424(b) that discloses the information previously omitted from the
prospectus in reliance upon Rule 430A. Such registration statement as amended at
the time it is or was declared effective by the Commission, and, in the event of
any amendment thereto after the effective date and prior to the First Closing
Date (as hereinafter defined), such registration statement as so amended (but
only from and after the effectiveness of such amendment), including a
registration statement (if any) filed pursuant to Rule 462(b) of the Rules and
Regulations increasing the size of the offering registered under the Act and
information (if any) deemed to be part of the registration statement at the time
of effectiveness pursuant to Rules 430A(b) and 434(d) of the Rules and
Regulations, is hereinafter called the "Registration Statement." The prospectus
included in the Registration Statement at the time it is or was declared
effective by the Commission is hereinafter called the "Prospectus," except that
if any prospectus (including any term sheet meeting the requirements of Rule 434
of the Rules and Regulations provided by the Company for use with a prospectus
subject to completion within the meaning of Rule 434 in order to meet the
requirements of Section 10(a) of the Rules and Regulations) filed by the Company
with the Commission pursuant to Rule 424(b) (and Rule 434, if applicable) of the
Rules and Regulations or any other such prospectus provided to the Underwriters
by the Company for use in connection with the offering of the Securities
(whether or not required to be filed by the Company with the Commission pursuant
to Rule 424(b) of the Rules and Regulations) differs from the prospectus on file
at the time the Registration Statement is or was declared effective by the
Commission, the term "Prospectus" shall refer to such differing prospectus
(including any term sheet within the meaning of Rule 434 of the Rules and
Regulations) from and after the time such prospectus is filed with the
Commission or transmitted to the Commission for filing pursuant to such Rule
424(b) (and Rule 434, if applicable) or from and after the time it is first
provided to the Underwriters by the Company for such use. The term "Preliminary
Prospectus" as used herein means any preliminary prospectus included in the
Registration Statement prior to the time it becomes or became effective under
the Act and any prospectus subject to completion as described in Rule 430A or
434 of the Rules and Regulations.
2. Representations and Warranties of the Company and Warburg Pincus.
(a) The Company represents and warrants to, and agrees with,
the Underwriters as follows:
(i) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission and each
Preliminary Prospectus, at the time of filing thereof, did not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; except that the foregoing shall not apply to statements
in or omissions from any Preliminary Prospectus in reliance upon, and
in conformity with, written information furnished to the Company by
you, or by any Underwriter through you, specifically for use in the
preparation thereof.
(ii) As of the time the Registration Statement (or
any post-effective amendment thereto, including a registration
statement (if any) filed pursuant to Rule 462(b) of the Rules and
Regulations increasing the size of the offering registered under the
Act) is or was declared effective by the Commission, upon the filing or
first delivery to the Underwriters of the Prospectus (or any supplement
to the Prospectus (including any term sheet meeting the requirements of
Rule 434 of the Rules and Regulations)) and at the First Closing Date
and Second Closing Date (as hereinafter defined), (A) the Registration
Statement and Prospectus (in each case, as so amended and/or
supplemented) conformed or will conform in all material respects to the
requirements of the Act and the Rules and Regulations, (B) the
Registration Statement (as so amended) did not or will not include an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not
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misleading, and (C) the Prospectus (as so supplemented), including any
prospectus wrapper, did not or will not include an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances in which they are or were made, not misleading; except
that the foregoing shall not apply to statements in or omissions from
any such document in reliance upon, and in conformity with, written
information furnished to the Company by you, or by any Underwriter
through you, specifically for use in the preparation thereof. If the
Registration Statement has been declared effective by the Commission,
no stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceeding for that purpose has been
initiated or, to the Company's knowledge, threatened by the Commission.
(iii) The consolidated financial statements of the
Company and its subsidiaries, together with the notes thereto, set
forth in the Registration Statement and Prospectus comply in all
material respects with the requirements of the Act and the Rules and
Regulations and present fairly the consolidated financial condition of
the Company and its subsidiaries as of the dates indicated, the results
of operations, changes in cash flows and changes in stockholders'
equity of the Company and its subsidiaries for the periods therein
specified in conformity with generally accepted accounting principles
consistently applied throughout the periods involved (subject, in the
case of unaudited financial statements, to normal year-end adjustments
and except as otherwise stated therein); the supporting schedules
included in the Registration Statement present fairly the information
required to be stated therein and comply in all material respects with
the requirements of the Act and the Rules and Regulations; and the
other financial and statistical information and data set forth in the
Registration Statement and Prospectus are, in all material respects,
accurately presented and prepared on a basis consistent with such
financial statements and the books and records of the Company and its
subsidiaries. No other financial statements or schedules are required
to be included in the Registration Statement or Prospectus. Each of
Ernst & Young LLP and KPMG LLP, which has expressed its opinion with
respect to, in the case of Ernst & Young LLP, financial statements and
schedules, and in the case of KPMG LLP, selected financial data of the
Company's predecessor, filed as a part of the Registration Statement
and included in the Registration Statement and Prospectus, are
independent public accountants as required by the Act and the Rules and
Regulations.
(iv) Each of the Company and its subsidiaries has
been duly organized and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation. Each of
the Company and its subsidiaries has full corporate power and authority
to own its properties and conduct its business as currently being
carried on and as described in the Registration Statement and
Prospectus, and is duly qualified to do business as a foreign
corporation in good standing in each jurisdiction in which it owns or
leases real property or in which the conduct of its business makes such
qualification necessary and in which the failure to so qualify would
have a material adverse effect upon the business, condition (financial
or otherwise), prospects, results of operations, assets, liabilities or
properties of the Company and its subsidiaries, taken as a whole (a
"Material Adverse Effect"). The Company's Israeli subsidiary, Influence
Medical Technologies Ltd., is not material to the Company's operations.
(v) Except as otherwise stated in the Registration
Statement and the Prospectus, subsequent to the respective dates as of
which information is given in the Registration Statement and the
Prospectus, neither the Company nor any of its subsidiaries has
incurred any material liabilities or obligations, direct or contingent,
or entered into any material transactions, or declared or paid any
dividends or made any distribution of any kind with respect to its
capital stock and, except as otherwise stated in the Registration
Statement and the Prospectus and except for working capital advances
and scheduled principal payments under the Company's existing
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credit facility, there has not been any change in the capital stock
(other than a change in the number of outstanding shares of Common
Stock or non-voting common stock, $0.01 par value per share
("Non-Voting Common Stock") of the Company due to the issuance of
shares upon the exercise of outstanding options or warrants), or any
material change in the short-term or long-term debt, or any issuance of
options, warrants, convertible securities or other rights to purchase
the capital stock, of the Company or any of its subsidiaries, or any
material adverse change, or any development involving a prospective
material adverse change, in the business condition (financial or
otherwise), prospects, results of operations, assets, liabilities or
properties of the Company and its subsidiaries, taken as a whole (a
"Material Adverse Change").
(vi) Except as otherwise stated in the Registration
Statement and the Prospectus, there is not pending or, to the knowledge
of the Company, threatened, any action, suit or proceeding to which the
Company or any of its subsidiaries is a party before or by any court or
governmental agency, authority or body, or any arbitrator, which could
reasonably be expected to result in any Material Adverse Change.
(vii) There are no contracts or documents of the
Company or any of its subsidiaries that are required to be filed as
exhibits to the Registration Statement by the Act or by the Rules and
Regulations that have not been so filed.
(viii) This Agreement has been duly authorized,
executed and delivered by the Company, and constitutes a valid, legal
and binding obligation of the Company, enforceable in accordance with
its terms, except as rights to indemnity hereunder may be limited by
federal or state securities laws and except as such enforceability may
be limited by bankruptcy, insolvency, reorganization or similar laws
affecting the rights of creditors generally and subject to general
principles of equity. 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 and
provisions of, or constitute a default under, any statute, any
agreement or instrument to which the Company is a party or by which it
is bound or to which any of its property is subject, the Company's
charter or by-laws, or any order, rule, regulation or decree of any
court or governmental agency or body having jurisdiction over the
Company or any of its properties; no consent, approval, authorization
or order of, or filing with, any court or governmental agency or body
is required for the execution, delivery and performance of this
Agreement or for the consummation of the transactions contemplated
hereby, including the issuance or sale of the Securities by the
Company, except such as have been already obtained or such as may be
required under the Act or state securities or blue sky laws; and the
Company has full power and authority to enter into this Agreement and
to authorize, issue and sell the Securities as contemplated by this
Agreement.
(ix) The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus in the column
entitled "Actual" under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to this Agreement, pursuant to
employee benefit plans referred to in the Prospectus or pursuant to the
exercise of options or warrants referred to in the Prospectus). All of
the issued and outstanding shares of capital stock of the Company,
including any outstanding shares of Common Stock and Non-Voting Common
Stock of the Company, will be at the First Closing and the Second
Closing duly authorized and validly issued, fully paid and
nonassessable, have been issued in compliance with all federal and
state securities laws, were not issued in violation of or subject to
any preemptive rights or other rights to subscribe for or purchase
securities, and the holders thereof are not subject to personal
liability by reason of being such holders; the Securities which may be
sold hereunder by the Company have been duly authorized and, when
issued, delivered and paid for in accordance with the terms
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hereof, will have been validly issued and will be fully paid and
nonassessable, and the holders thereof will not be subject to personal
liability by reason of being such holders; and the capital stock of the
Company, including the Common Stock and Non-Voting Common Stock,
conforms to the description thereof in the Registration Statement and
Prospectus. Except as otherwise stated in the Registration Statement
and Prospectus, there are no preemptive rights or other rights to
subscribe for or to purchase, or any restriction upon the voting or
transfer of, any shares of Common Stock or Non-Voting Common Stock
pursuant to the Company's charter, by-laws or any agreement or other
instrument to which the Company is a party or by which the Company is
bound, or, to the knowledge of the Company, to which any stockholder is
a party or by which any stockholder is bound (other than in the case of
the Non-Voting Common Stock as described in the Prospectus with regard
to the voting thereof). Neither the filing of the Registration
Statement nor the offering or sale of the Securities as contemplated by
this Agreement gives rise to any rights for or relating to the
registration of any shares of Common Stock or other securities of the
Company which have not been fully satisfied or validly waived. All of
the issued and outstanding shares of capital stock of each of the
Company's subsidiaries have been duly and validly authorized and issued
and are fully paid and nonassessable, and, except as otherwise stated
in the Registration Statement and the Prospectus, the Company owns of
record and beneficially, free and clear of any security interests,
claims, liens, proxies, equities or other encumbrances, all of the
issued and outstanding shares of capital stock of each subsidiary of
the Company. Except as described in the Registration Statement and the
Prospectus, there are no options, warrants, agreements, contracts or
other rights in existence to purchase or acquire from the Company or
any subsidiary of the Company any shares of the capital stock of the
Company or any subsidiary of the Company.
(x) The Company and each of its subsidiaries holds,
and is operating in compliance in all respects with, all franchises,
grants, authorizations, licenses, permits, easements, consents,
certificates and orders of any governmental or self-regulatory body
required for the conduct of its business, except where the failure to
so hold or comply would not reasonably be expected to have a Material
Adverse Effect. All such franchises, grants, authorizations, licenses,
permits, easements, consents, certifications and orders are valid and
in full force and effect; and the Company and each of its subsidiaries
is and has been in compliance in all respects with all applicable
federal, state, local and foreign laws, regulations, orders and
decrees, except for non-compliance which would not reasonably be
expected to have a Material Adverse Effect.
(xi) The Company and its subsidiaries have good and
marketable title to all property described in the Registration
Statement and Prospectus as being owned by them, in each case free and
clear of all liens, claims, security interests or other encumbrances
except such as otherwise stated in the Registration Statement and the
Prospectus; and the property held under lease by the Company and its
subsidiaries is held by them under valid, subsisting and enforceable
leases with only such exceptions with respect to any particular lease
as do not interfere in any material respect with the conduct of the
business of the Company or its subsidiaries, taken as a whole.
(xii) Except as otherwise stated in the Registration
Statement and the Prospectus, the Company and each of its subsidiaries
owns or has the valid right to use all patents, patent applications,
trademarks, service marks, trade names, trademark registrations,
service xxxx registrations, copyrights, licenses, inventions, trade
secrets and rights necessary for the conduct of the business of the
Company and its subsidiaries as currently carried on and as described
in the Registration Statement and Prospectus ("Intellectual Property
Rights"); to the knowledge of the Company, except as otherwise stated
in the Registration Statement and
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Prospectus, (i) no name which the Company or any of its subsidiaries
uses and no other aspect of the business of the Company or any of its
subsidiaries will involve or give rise to any infringement of, or
license or similar fees for, any Intellectual Property Rights or other
similar rights of others material to the business or prospects of the
Company and neither the Company nor any of its subsidiaries has
received any notice alleging any such infringement or fee; and (ii) the
Company is not under any obligation to pay any material third-party
royalties or fees of any kind whatsoever with respect to the
Intellectual Property Rights developed, employed or used in the
Company's business as currently conducted and as proposed to be
conducted as discussed in the Prospectus.
(xiii) Neither the Company nor any of its
subsidiaries is in violation of its respective charter, by-laws or
certificate or in breach of or otherwise in default in the performance
of any material obligation, agreement or condition contained in any
material bond, debenture, note, indenture, loan agreement or any other
material contract, lease or other instrument to which it is subject or
by which any of them may be bound, or to which any of the material
property or assets of the Company or any of its subsidiaries is
subject.
(xiv) The Company has filed all forms, reports and
documents (including all exhibits thereto) required to be filed with
the Commission since the date of the Company's initial public offering
(collectively, the "SEC Reports"). The SEC Reports (i) at the time
filed, complied in all material respects with the requirements of the
Act or the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), as the case may be, and (ii) did not at the time they were filed
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading. None of the Company's
subsidiaries is required to file any statements or reports with the
Commission pursuant to Sections 13(a) or 15(d) of the Exchange Act.
(xv) The Company and its subsidiaries have filed all
federal, state, local and foreign income and franchise tax returns
required to be filed and are not in default in the payment of any taxes
which were payable pursuant to said returns or any assessments with
respect thereto, other than any which the Company or any of its
subsidiaries is contesting in good faith.
(xvi) The Company has not distributed and will not
distribute any prospectus or other offering material in connection with
the offering and sale of the Securities other than any Preliminary
Prospectus or the Prospectus or other materials permitted by the Act to
be distributed by the Company.
(xvii) The Securities have been approved for listing
on the Nasdaq National Market System, subject to official notice of
issuance and, on the date the Registration Statement became or becomes
effective, the Company's Registration Statement on Form 8-A or other
applicable form under the Exchange Act became or will become effective.
(xviii) Other than the subsidiaries of the Company
listed in Exhibit 21.1 to the Registration Statement and except for the
Company's equity investment in InjecTx, Inc. and its investment in
Collagenesis Corp., the Company owns no capital stock or other equity
or ownership or proprietary interest in any corporation, partnership,
association, trust or other entity.
(xix) 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
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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.
(xx) Other than as contemplated by this Agreement,
the Company has not incurred any liability for any finder's or broker's
fee or agent's commission in connection with the execution and delivery
of this Agreement or the consummation of the transactions contemplated
hereby.
(xxi) The Company is not, and upon issuance and sale
of the Securities as contemplated herein and the application of the net
proceeds therefrom as described in the Prospectus will not be, an
"investment company" or an entity "controlled" by an "investment
company" as such terms are defined in the Investment Company Act of
1940, as amended.
(xxii) No material labor dispute with the employees
of the Company or any of its subsidiaries exists or is threatened or
imminent.
(xxiii) The Company and its subsidiaries are insured
by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the
business in which they are engaged; neither the Company nor any of its
subsidiaries has been refused any insurance coverage sought or applied
for; and neither the Company nor any of its subsidiaries has any reason
to believe that it will not be able to renew its existing insurance
coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a Material Adverse Effect.
(xxiv) The Company and each of its subsidiaries (A)
are in compliance with any and all applicable foreign, federal, state
and local laws and regulations relating to the protection of human
health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), except where
the failure to be in compliance would not have a Material Adverse
Effect, (B) have received all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their
respective businesses, except where the failure to hold any such
permit, license or approval would not have a Material Adverse Effect
and (C) are in compliance with all terms and conditions of such
permits, licenses or other approvals except where the failure to comply
with the terms and conditions of such permits, licenses or other
approvals would not, singly or in the aggregate, have a Material
Adverse Effect.
(xxv) There has been no storage, disposal,
generation, manufacture, refinement, transportation, handling or
treatment of medical wastes, toxic wastes, hazardous wastes or
hazardous substances by the Company or any of its subsidiaries at or
upon or from any of the property now or previously owned or leased by
the Company or any of its subsidiaries in violation of any applicable
law, ordinance, rule, regulation, order, judgment, decree or permit or
which would require remedial action under any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit, except
for any violation or remedial action which would not have, or could not
be reasonably likely to have, singularly or in the aggregate with all
such violations and remedial actions a Material Adverse Effect; there
has been no material spill, discharge, leak, emission, injection,
escape, dumping or release of any kind onto such property or of any
medical wastes, toxic wastes, hazardous wastes or hazardous substances
due to or caused by the Company or any of its subsidiaries or with
respect to which the Company or any of its subsidiaries had
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knowledge, except for any such spills, discharges, leaks, emissions,
injections, escapes, dumpings or releases which would not, or could not
be reasonably likely to have, singularly or in the aggregate with all
such spills, discharges, leaks, emissions, injections, escapes,
dumpings and releases, a Material Adverse Effect; and the terms
"medical wastes," "toxic wastes," "hazardous wastes" and "hazardous
substances" shall have the meanings specified in any applicable local,
state, federal and foreign laws or regulations with respect to
environmental protection.
(xxvi) The Company and its subsidiaries and any
"employee benefit plan" (as defined under the Employee Retirement
Income Security Act of 1974, as amended, and the regulations and
published interpretations thereunder (collectively, "ERISA")
established or maintained by the Company, its subsidiaries or their
"ERISA Affiliates" (as defined below) are in compliance in all material
respects with ERISA. "ERISA Affiliate" means, with respect to the
Company or a subsidiary, any member of any group of organizations
described in Sections 414(b), (c), (m) or (o) of the Internal Revenue
Code of 1986, as amended, and the regulations and published
interpretations thereunder (the "Code") of which the Company or such
subsidiary is a member. No "reportable event" (as defined under ERISA)
has occurred or is reasonably expected to occur with respect to any
"employee benefit plan" established or maintained by the Company, its
subsidiaries or any of their ERISA Affiliates. Except as otherwise
stated in the Registration Statement and the Prospectus, no "employee
benefit plan" established or maintained by the Company, its
subsidiaries or any of their ERISA Affiliates, if such "employee
benefit plan" were terminated, would have any "amount of unfunded
benefit liabilities" (as defined under ERISA). Neither the Company, its
subsidiaries nor any of their ERISA Affiliates has incurred or
reasonably expects to incur any liability under (i) Title IV of ERISA
with respect to termination of or withdrawal from, any "employee
benefit plan", except as otherwise stated in the Registration Statement
and the Prospectus or (ii) Sections 412, 4971, 4975 or 4980B of the
Code. Each "employee benefit plan" established or maintained by the
Company, its subsidiaries or any of their ERISA Affiliates that is
intended to be qualified under Section 401 (a) of the Code is so
qualified and nothing has occurred, whether by action or failure to
act, which would cause the loss of such qualification.
(xxvii) Neither the Company nor any of its affiliates
is presently doing business with the government of Cuba or with any
person or affiliate located in Cuba.
(xxviii) The Company has not taken and will not take,
directly or indirectly, any action designed to or that might be
reasonably expected to cause or result in stabilization or manipulation
of the price of the Common Stock to facilitate the sale or resale of
the Common Stock.
(xxix) Neither the Company nor any of its
subsidiaries nor, to the best of the Company's knowledge, any employee
or agent of the Company or any subsidiary, has made any contribution or
other payment to any official of, or candidate for, any federal, state
or foreign office in violation of any law of the character required to
be disclosed in the Prospectus.
(xxx) Except as otherwise stated in the Registration
Statement and the Prospectus, the Company is not currently prohibited
from paying any dividends or from making any other distribution on the
Company's or such subsidiary's capital stock, respectively, out of
positive retained earnings or from repaying to the Company or its
stockholders, respectively, any loans or advances to such subsidiary
from the Company or to the Company from such stockholders, as the case
may be.
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(b) Warburg Pincus represents and warrants to, and agrees
with, the several Underwriters as follows:
(i) Warburg Pincus is the record and beneficial owner
of, and has, and on the First Closing Date and the Second Closing Date
will have, valid and marketable title to the Securities to be sold by
Warburg Pincus, free and clear of all security interests, claims,
liens, restrictions on transferability, legends, proxies, equities or
other encumbrances; and upon delivery of and payment for such
Securities hereunder, the several Underwriters will acquire valid and
marketable title thereto, free and clear of any security interests,
claims, liens, restrictions on transferability, legends, proxies,
equities or other encumbrances or adverse claims. Warburg Pincus is
selling the Securities to be sold by Warburg Pincus for its own account
and is not selling such Securities, directly or indirectly, for the
benefit of the Company, and no part of the proceeds of such sale
received by Warburg Pincus will inure, either directly or indirectly,
to the benefit of the Company other than as described in the
Registration Statement and Prospectus.
(ii) The certificates representing the Securities to
be sold by Warburg Pincus have been or will be duly and properly
endorsed in blank for transfer, or are or will be at the First Closing
and the Second Closing accompanied by all documents duly and properly
executed that are necessary to validate the transfer of title thereto,
to the Underwriters, free of any legend, restriction on
transferability, proxy, lien or claim, whatsoever.
(iii) Warburg Pincus has the power and authority to
enter into this Agreement and to sell, transfer and deliver the
Securities to be sold by it.
(iv) This Agreement has been duly authorized,
executed and delivered by or on behalf of Warburg Pincus and
constitutes a valid and binding agreement of Warburg Pincus,
enforceable in accordance with its terms, except as rights to indemnity
and contribution hereunder may be limited by federal or state
securities laws and except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or laws affecting the rights of
creditors generally and subject to general principles of equity. The
execution and delivery of this Agreement and the performance of the
terms hereof and the consummation of the transactions herein
contemplated will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any agreement
or instrument to which Warburg Pincus is a party or by which Warburg
Pincus is bound, or any law, regulation, order or decree applicable to
Warburg Pincus; no consent, approval, authorization or order of, or
filing with, any court or governmental agency or body is required for
the execution, delivery and performance of this Agreement or for the
consummation of the transactions contemplated hereby, including the
sale of the Securities being sold by Warburg Pincus, except such as may
be required under the Act or state securities laws or blue sky laws.
(v) Warburg Pincus has not distributed and will not
distribute any prospectus or other offering material in connection with
the offering and sale of the Securities other than any Preliminary
Prospectus or the Prospectus or other materials permitted by the Act to
be distributed by Warburg Pincus.
(vi) Warburg Pincus has reviewed those parts of the
Registration Statement and Prospectus under the captions "Certain
Transactions--Sales of Capital Stock" and "Principal and Selling
Stockholders" which provide information about Warburg Pincus and with
regard to such information only (A) the Registration Statement does not
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and (B) the Prospectus does not
contain any untrue statement
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of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which
they were made, not misleading, in each case insofar as it relates to
Warburg Pincus or its affiliates.
(c) Any certificate signed by any officer of the Company and
delivered to you or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby; any certificate signed by or on behalf of Warburg Pincus as
such and delivered to you or to counsel for the Underwriters shall be deemed a
representation and warranty by Warburg Pincus to each Underwriter as to the
matters covered thereby.
3. Purchase, Sale and Delivery of Securities.
(a) On the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company agrees to issue and sell 3,500,000 Firm Shares and Warburg
Pincus agrees to sell 3,500,000 Firm Shares to the several Underwriters, and
each Underwriter agrees, severally and not jointly, to purchase from the Company
and Warburg Pincus the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto. The purchase price for each Firm Share shall
be $____ per share. The obligation of each Underwriter to the Company and
Warburg Pincus shall be to purchase from the Company and Warburg Pincus that
number of Firm Shares (as adjusted by U.S. Bancorp Xxxxx Xxxxxxx Inc. to exclude
fractional shares) which represents the same proportion of the number of Firm
Shares to be sold by each of the Company and Warburg Pincus pursuant to this
Agreement as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto represents to the total number of Firm Shares
to be purchased by all Underwriters pursuant to this Agreement. In making this
Agreement, each Underwriter is contracting severally and not jointly; except as
provided in paragraph (c) of this Section 3 and in Section 8 hereof, the
agreement of each Underwriter is to purchase only the respective number of Firm
Shares specified in Schedule I.
The Firm Shares will be delivered by the Company and Warburg
Pincus to you for the accounts of the several Underwriters against payment of
the purchase price therefor by wire/same day funds payable to the order of the
Company at the offices of U.S. Bancorp Xxxxx Xxxxxxx Inc., Mail Station:
J1012005, 000 Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, or
such other location as may be mutually acceptable, at 9:00 a.m. Central time on
the third (or if the Securities are priced, as contemplated by Rule 15c6-1(c)
under the Exchange Act, after 4:30 p.m. Eastern time, the fourth) full business
day following the date hereof, or at such other time and date as you and the
Company determine pursuant to Rule 15c6-1(a) under the Exchange Act, such time
and date of delivery being herein referred to as the "First Closing Date." If
U.S. Bancorp Xxxxx Xxxxxxx Inc. so elects, delivery of the Firm Shares may be
made by credit through full fast transfer to the accounts at The Depository
Trust Company designated by U.S. Bancorp Xxxxx Xxxxxxx Inc. Certificates
representing the Firm Shares, in definitive form and in such denominations and
registered in such names as you may request upon at least two business days'
prior notice to the Company, will be made available for checking and packaging
not later than 10:30 a.m., Central time, on the business day next preceding the
First Closing Date at the offices of U.S. Bancorp Xxxxx Xxxxxxx Inc., Mail
Station: J1012005, 000 Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx
00000-0000, or such other location as may be mutually acceptable.
(b) On the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions herein set
forth, Warburg Pincus hereby grants to the several Underwriters an option to
purchase all or any portion of the Option Shares at the same purchase price as
the Firm Shares, for use solely in covering any over-allotments made by the
Underwriters in the sale and distribution of the Firm Shares. The option granted
hereunder may be exercised at any time (but not more
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than once) within 30 days after the effective date of this Agreement upon notice
(confirmed in writing) by U.S. Bancorp Xxxxx Xxxxxxx Inc. to Warburg Pincus and
the Company setting forth the aggregate number of Option Shares as to which the
several Underwriters are exercising the option, the names and denominations in
which the certificates for the Option Shares are to be registered and the date
and time, as determined by you, when the Option Shares are to be delivered, such
time and date being herein referred to as the "Second Closing" and "Second
Closing Date," respectively; provided, however, that the Second Closing Date
shall not be earlier than the First Closing Date nor earlier than the second
business day after the date on which the option shall have been exercised. The
number of Option Shares to be purchased by each Underwriter shall be the same
percentage of the total number of Option Shares to be purchased by the several
Underwriters as the number of Firm Shares to be purchased by such Underwriter is
of the total number of Firm Shares to be purchased by the several Underwriters,
as adjusted by U.S. Bancorp Xxxxx Xxxxxxx Inc. in such manner as U.S. Bancorp
Xxxxx Xxxxxxx Inc. deems advisable to avoid fractional shares. No Option Shares
shall be sold and delivered unless the Firm Shares previously have been, or
simultaneously are, sold and delivered.
The Option Shares will be delivered by Warburg Pincus to you
for the accounts of the several Underwriters against payment of the purchase
price therefor by wire/same day funds payable to the order of Warburg Pincus at
the offices of U.S. Bancorp Xxxxx Xxxxxxx Inc., Mail Station: J1012005, 000
Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, or such other
location as may be mutually acceptable at 9:00 a.m., Central time, on the Second
Closing Date. If U.S. Bancorp Xxxxx Xxxxxxx Inc. so elects, delivery of the
Option Shares may be made by credit through full fast transfer to the accounts
at The Depository Trust Company designated by U.S. Bancorp Xxxxx Xxxxxxx Inc.
Certificates representing the Option Shares in definitive form and in such
denominations and registered in such names as you have set forth in your notice
of option exercise, will be made available for checking and packaging not later
than 10:30 a.m., Central time, on the business day next preceding the Second
Closing Date at the office of U.S. Bancorp Xxxxx Xxxxxxx Inc., Mail Station:
J1012005, 000 Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, or
such other location as may be mutually acceptable.
(c) It is understood that any of the Underwriters may (but
shall not be obligated to) make payment to the Company or Warburg Pincus, on
behalf of any other Underwriter for the Securities to be purchased by such
Underwriter. Any such payment by you shall not relieve any such Underwriter of
any of its obligations hereunder. Nothing herein contained shall constitute any
of the Underwriters an unincorporated association or partner with the Company or
Warburg Pincus.
4. Covenants.
(a) The Company covenants and agrees with the several
Underwriters as follows:
(i) If the Registration Statement has not already
been declared effective by the Commission, the Company will use its
best efforts to cause the Registration Statement and any post-effective
amendments thereto to become effective as promptly as possible; the
Company will notify you promptly of the time when the Registration
Statement or any post-effective amendment to the Registration Statement
has become effective or any supplement to the Prospectus (including any
term sheet within the meaning of Rule 434 of the Rules and Regulations)
has been filed and of any request by the Commission for any amendment
or supplement to the Registration Statement or Prospectus or additional
information; if the Company has elected to rely on Rule 430A of the
Rules and Regulations, the Company will prepare and file a Prospectus
(or term sheet within the meaning of Rule 434 of the Rules and
Regulations) containing the information omitted therefrom pursuant to
Rule 430A of the Rules and Regulations with the Commission within the
time period required by, and otherwise in
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accordance with the provisions of, Rules 424(b), 430A and 434, if
applicable, of the Rules and Regulations; if the Company has elected to
rely upon Rule 462(b) of the Rules and Regulations to increase the size
of the offering registered under the Act, the Company will prepare and
file a registration statement with respect to such increase with the
Commission within the time period required by, and otherwise in
accordance with the provisions of, Rule 462(b) of the Rules and
Regulations; the Company will prepare and file with the Commission,
promptly upon your request, any amendments or supplements to the
Registration Statement or Prospectus (including any term sheet within
the meaning of Rule 434 of the Rules and Regulations) that, in your
opinion, may be necessary or advisable in connection with the
distribution of the Securities by the Underwriters; and the Company
will not file any amendment or supplement to the Registration Statement
or Prospectus (including any term sheet within the meaning of Rule 434
of the Rules and Regulations) to which you shall reasonably object by
notice to the Company after having been furnished a copy a reasonable
time prior to the filing.
(ii) The Company will advise you, promptly after it
receives notice or obtains knowledge thereof, of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement, of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceeding for any such purpose; and
the Company will promptly use its best efforts to prevent the issuance
of any stop order or to obtain its withdrawal if such a stop order
should be issued.
(iii) Within the time during which a prospectus
(including any term sheet within the meaning of Rule 434 of the Rules
and Regulations) relating to the Securities is required to be delivered
under the Act, the Company will comply as far as it is able with all
requirements imposed upon it by the Act, as now and hereafter amended,
and by the Rules and Regulations, as from time to time in force, so far
as necessary to permit the continuance of sales of or dealings in the
Securities as contemplated by the provisions hereof and the Prospectus.
If during such period any event occurs as a result of which the
Prospectus would include an untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in
the light of the circumstances then existing, not misleading, or if
during such period it is necessary to amend the Registration Statement
or supplement the Prospectus to comply with the Act, the Company will
promptly notify you and will amend the Registration Statement or
supplement the Prospectus (at the expense of the Company) so as to
correct such statement or omission or effect such compliance.
(iv) The Company will use its best efforts to qualify
the Securities for sale under the securities laws of such jurisdictions
(domestic or foreign) as you reasonably designate and to continue such
qualifications in effect so long as required for the distribution of
the Securities, except that the Company shall not be required in
connection therewith to qualify as a foreign corporation or to execute
a general consent to service of process in any state.
(v) The Company will furnish to the Underwriters
copies of the Registration Statement (three of which will include all
exhibits), one set of executed signature pages to the Registration
Statement, each Preliminary Prospectus, the Prospectus, and all
amendments and supplements (including any term sheet within the meaning
of Rule 434 of the Rules and Regulations) to such documents, in each
case as soon as available and in such quantities as you may from time
to time reasonably request.
(vi) During a period of five years commencing with
the date hereof, the Company will furnish to each Underwriter copies of
all periodic and special reports furnished to
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the stockholders of the Company and all information, documents and
reports filed with the Commission, the NASD, the Nasdaq National Market
or any securities exchange.
(vii) The Company will make generally available to
its security holders as soon as practicable, but in any event not later
than 15 months after the end of the Company's current fiscal quarter,
an earnings statement (which need not be audited) covering a 12-month
period beginning after the effective date of the Registration Statement
that shall satisfy the provisions of Section 11(a) of the Act and Rule
158 of the Rules and Regulations.
(viii) The Company, whether or not the transactions
contemplated hereunder are consummated or this Agreement is prevented
from becoming effective under the provisions of Section 9(a) hereof or
is terminated, will pay or cause to be paid (A) all expenses (including
transfer taxes allocated to the respective transferees) incurred in
connection with the delivery to the Underwriters of the Securities, (B)
all expenses and fees (including, without limitation, fees and expenses
of the Company's accountants and counsel but, except as otherwise
provided below, not including fees of the Underwriters' counsel) in
connection with the preparation, printing, filing, delivery, and
shipping of the Registration Statement (including the financial
statements therein and all amendments, schedules, and exhibits
thereto), the Securities, each Preliminary Prospectus, the Prospectus,
and any amendment thereof or supplement thereto, and the printing,
delivery, and shipping of this Agreement and other underwriting
documents, including Blue Sky Memoranda, (C) all filing fees and fees
and disbursements of the Underwriters' counsel incurred in connection
with the qualification of the Securities for offering and sale by the
Underwriters or by dealers under the securities or blue sky laws of the
states and other jurisdictions which you shall designate in accordance
with Section 4(iv) hereof, (D) the fees and expenses of any transfer
agent or registrar, (E) the filing fees and other fees and expenses
(including, without limitation, the reasonable fees and disbursements
of counsel for the Underwriters) incident to any required review by the
NASD of the terms of the sale of the Securities, (F) listing fees, if
any, and (G) all other costs and expenses incident to the performance
of its obligations hereunder that are not otherwise specifically
provided for herein. If the sale of the Securities provided for herein
is not consummated by reason of action by the Company pursuant to
Section 9(a) hereof which prevents this Agreement from becoming
effective, or by reason of any failure, refusal or inability on the
part of the Company or Warburg Pincus to perform any agreement on its
or their part to be performed, or because any other condition of the
Underwriters' obligations hereunder required to be fulfilled by the
Company or Warburg Pincus is not fulfilled, the Company will reimburse
the several Underwriters for all out-of-pocket disbursements (including
fees and disbursements of counsel) incurred by the Underwriters in
connection with their investigation, preparing to market and marketing
the Securities or in contemplation of performing their obligations
hereunder. The Company shall not in any event be liable to any of the
Underwriters for loss of anticipated profits from the transactions
covered by this Agreement.
(ix) The Company will apply the net proceeds from the
sale of the Securities to be sold by it hereunder in the manner
specified in the Prospectus under the heading "Use of Proceeds."
(x) The Company will not, without U.S. Bancorp Xxxxx
Xxxxxxx Inc.'s prior written consent, offer for sale, sell, contract to
sell, grant any option for the sale of or otherwise issue or dispose of
any Common Stock, Non-Voting Common Stock or any securities convertible
into or exchangeable for, or any options or rights to purchase or
acquire, Common Stock or Non-Voting Common Stock, except (A) for the
sale by the Company of the Securities to the Underwriters pursuant to
this Agreement, (B) for the issuance by the Company of shares of
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Common Stock upon the exercise of an option or warrant or the
conversion of a security outstanding on the date hereof of which the
Underwriters have been advised in writing and which are disclosed in
the Registration Statement and the Prospectus, (C) the issuance of
Common Stock upon conversion of Non-Voting Common Stock into Common
Stock in accordance with the Company's Certificate of Incorporation and
(D) for the grant by the Company of any option or right to purchase up
to an aggregate of 500,000 shares of Common Stock pursuant to the
Company's 2000 Equity Incentive Plan and Employee Stock Purchase Plan,
each as in effect on the date of this Agreement for a period of 90 days
after the date of the Prospectus.
(xi) The Company either has caused to be delivered to
you or will cause to be delivered to you prior to the effective date of
the Registration Statement a letter in the form of Exhibit A hereto
from each of the Company's directors and officers and the principal
shareholders identified in Schedule II hereto stating that such person
agrees that he or she will not, without your prior written consent,
offer for sale, sell, contract to sell or otherwise dispose of any
shares of Common Stock or Non-Voting Common Stock or rights to purchase
Common Stock or Non-Voting Common Stock, except to the Underwriters
pursuant to this Agreement, for a period of 90 days after the date of
the Prospectus.
(xii) The Company has not taken and will not take,
directly or indirectly, any action designed to or which might
reasonably be expected to cause or result in, or which has constituted,
the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities, and has not
effected any sales of Common Stock or Non-Voting Common Stock which are
required to be disclosed in response to Item 701 of Regulation S-K
under the Act which have not been so disclosed in the Registration
Statement.
(xiii) The Company will not incur any liability for
any finder's or broker's fee or agent's commission in connection with
the execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby.
(xiv) The Company will inform the Florida Department
of Banking and Finance at any time prior to the consummation of the
distribution of the Securities by the Underwriters if it commences
engaging in business with the government of Cuba or with any person or
affiliate located in Cuba. Such information will be provided within 90
days after the commencement thereof or after a change occurs with
respect to previously reported information.
(b) Warburg Pincus covenants and agrees with the several
Underwriters as follows:
(i) Except as otherwise agreed to by the Company and
Warburg Pincus, Warburg Pincus will pay all taxes, if any, on the
transfer and sale, respectively, of the Securities being sold by
Warburg Pincus, and the fees of counsel to Warburg Pincus, provided,
however, that Warburg Pincus severally will reimburse the Company for
any reimbursement made by the Company to the Underwriters pursuant to
Section 4(a)(viii) hereof to the extent such reimbursement resulted
from the willful failure or refusal on the part of Warburg Pincus to
comply under the terms or fulfill any of the conditions of this
Agreement.
(ii) If this Agreement is terminated by the
Underwriters because of any willful failure, refusal or inability on
the part of Warburg Pincus to perform any agreement to be performed by
Warburg Pincus, or because any other condition of the Underwriters'
obligations hereunder required to be fulfilled by Warburg Pincus is not
fulfilled, Warburg Pincus will reimburse the several Underwriters for
all out-of-pocket disbursements (including fees and disbursements of
counsel for the Underwriters) incurred by the Underwriters in
connection with
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their investigation, preparing to market and marketing the Securities
or in contemplation of performing their obligations hereunder. Warburg
Pincus will not in any event be liable to any of the Underwriters for
loss of anticipated profits from the transactions covered by this
Agreement.
(iii) The Securities to be sold by Warburg Pincus are
subject to the interest of the several Underwriters, and the
obligations of Warburg Pincus hereunder are irrevocable and shall not
be terminated, except as provided in this Agreement, by any act of
Warburg Pincus, by operation of law, whether by the liquidation,
dissolution or merger of Warburg Pincus, or by the occurrence of any
other event. If Warburg Pincus should liquidate, dissolve, be a party
to a merger or if any other such event should occur before the delivery
of the Securities hereunder, certificates for the Securities will be
delivered in accordance with the terms and conditions of this Agreement
as if such liquidation, dissolution, merger, death or other event had
not occurred.
(iv) Warburg Pincus or any of its affiliates has not
taken and will not take, directly or indirectly, any action designed to
or which might reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities, and has not
effected any sales of Common Stock or Non-Voting Common Stock which, if
effected by the Company, would be required to be disclosed in response
to Item 701 of Regulation S-K.
(v) Warburg Pincus will immediately notify you if any
event occurs, or of any change in information relating to Warburg
Pincus, which results in the Prospectus (as supplemented) including an
untrue statement of a material fact relating to Warburg Pincus or
omitting to state any material fact relating to Warburg Pincus
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
5. Conditions of Underwriters' Obligations. The obligations of the
Underwriters hereunder are subject to the accuracy, as of the date hereof and at
each of the First Closing Date and the Second Closing Date (as if made at such
Closing Date), of and compliance with all representations, warranties and
agreements of the Company and Warburg Pincus contained herein, to the
performance by the Company and Warburg Pincus of their respective obligations
hereunder and to the following additional conditions:
(a) The Registration Statement shall have become effective not
later than 5:00 p.m., Central time, on the date of this Agreement, or such later
time and date as you shall approve and all filings required by Rules 424, 430A
and 434 of the Rules and Regulations shall have been timely made; no stop order
suspending the effectiveness of the Registration Statement or any amendment
thereof shall have been issued; no proceedings for the issuance of such an order
shall have been initiated or threatened; and any request of the Commission for
additional information (to be included in the Registration Statement or the
Prospectus or otherwise) shall have been complied with to your satisfaction.
(b) No Underwriter shall have advised the Company that the
Registration Statement or the Prospectus, or any amendment thereof or supplement
thereto (including any term sheet within the meaning of Rule 434 of the Rules
and Regulations), contains an untrue statement of fact which, in your opinion,
is material, or omits to state a fact which, in your opinion, is material and is
required to be stated therein or necessary to make the statements therein not
misleading.
(c) Except as otherwise stated in the Registration Statement
and the Prospectus, subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, neither the Company
nor any of its subsidiaries shall have incurred any material liabilities or
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obligations, direct or contingent, or entered into any material transactions, or
declared or paid any dividends or made any distribution of any kind with respect
to its capital stock; and, except as contemplated in the Prospectus, there shall
not have been any change in the capital stock (other than a change in the number
of outstanding shares of Common Stock or Non-Voting Common Stock due to the
issuance of shares upon the exercise of outstanding options or warrants), or any
material change in the short-term or long-term debt of the Company, or any
issuance of options, warrants, convertible securities or other rights to
purchase the capital stock of the Company or any of its subsidiaries, which
would constitute a Material Adverse Change that, in your judgment, makes it
impractical or inadvisable to offer or deliver the Securities on the terms and
in the manner contemplated in the Prospectus.
(d) On each Closing Date, there shall have been furnished to
you the opinion of Xxxxxxxxxxx Xxxx & Xxxxxxxx LLP, counsel for the Company,
dated such Closing Date and addressed to you, to the effect that:
(i) Each of the Company and its material subsidiaries
has been duly organized and is validly existing as a corporation in
good standing under the laws of its jurisdiction of incorporation. Each
of the Company and its material subsidiaries has full corporate power
and authority to own its properties and conduct its business as
currently being carried on and as described in the Registration
Statement and Prospectus, and is duly qualified to do business as a
foreign corporation in good standing in each jurisdiction set forth in
a schedule to the opinion.
(ii) The capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus
under the caption "Description of Capital Stock." All of the issued and
outstanding shares of the capital stock of the Company have been duly
authorized and validly issued and are fully paid and nonassessable, and
the holders thereof are not subject to personal liability by reason of
being such holders. The Securities to be issued and sold by the Company
hereunder have been duly authorized and, when issued, delivered and
paid for in accordance with the terms of this Agreement, will have been
validly issued and will be fully paid and nonassessable, and the
holders thereof will not be subject to personal liability by reason of
being such holders. Except as otherwise stated in the Registration
Statement and Prospectus, there are no preemptive rights or other
rights to subscribe for or to purchase, or any restriction upon the
voting or transfer of, any shares of Common Stock or Non-Voting Common
Stock pursuant to the Company's charter, by-laws or any agreement or
other instrument known to such counsel to which the Company is a party
or by which the Company is bound (other than in the case of the
Non-Voting Common Stock as described in the Prospectus with regard to
the voting thereof). To such counsel's knowledge, neither the filing of
the Registration Statement nor the offering or sale of the Securities
as contemplated by this Agreement gives rise to any rights for or
relating to the registration of any shares of Common Stock or other
securities of the Company, which have not been fully satisfied or
validly waived.
(iii) All of the issued and outstanding shares of
capital stock of each of the Company's material subsidiaries have been
duly and validly authorized and issued and are fully paid and
nonassessable, and, the Company or its material subsidiaries owns of
record, free and clear of any perfected security interests, claims,
liens, proxies, equities or other encumbrances, all of the issued and
outstanding shares of capital stock of each material subsidiary of the
Company. To such counsel's knowledge, except as described in the
Registration Statement and Prospectus, there are no options, warrants,
agreements, contracts or other rights in existence to purchase or
acquire from the Company or any subsidiary any shares of the capital
stock of the Company or any subsidiary of the Company.
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(iv) The Registration Statement has become effective
under the Act and, to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose has been instituted or
threatened by the Commission.
(v) The statements made in the Registration Statement
and Prospectus under the captions "Business--Government Regulation,"
"Business--Third-Party Reimbursement," "Business--Legal Proceedings,"
"Management--Employment Agreements," "Certain Transactions," and
"Description of Capital Stock" insofar as such statements constitute a
summary of statutes, regulations, rules, legal matters, documents or
proceedings referred to therein, are accurate in all material respects
and present fairly the information required to be shown; and such
counsel does not know of any statutes or legal or governmental
proceedings required to be described in the Prospectus that are not
described as required, or of any contracts or documents of a character
required to be described in the Registration Statement or Prospectus or
included as exhibits to the Registration Statement that are not
described or included as required.
(vi) The Company has full corporate power and
authority to enter into this Agreement, and this Agreement has been
duly authorized, executed and delivered by the Company and constitutes
a valid, legal and binding obligation of the Company enforceable in
accordance with its terms (except as rights to indemnity hereunder may
be limited by federal or state securities laws and except as such
enforceability may be limited by bankruptcy, insolvency, reorganization
or similar laws affecting the rights of creditors generally and subject
to general principles of equity); 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 and provisions of, or constitute a default under, any
statute, rule or regulation, any material agreement or instrument set
forth in a schedule to the opinion, the Company's or any material
subsidiary's charter or by-laws, or any order or decree known to such
counsel of any court or governmental agency or body having jurisdiction
over the Company, its material subsidiaries or any of their respective
properties; and no consent, approval, authorization or order of, or
filing with, any court or governmental agency or body is required for
the execution, delivery and performance of this Agreement or for the
consummation of the transactions contemplated hereby, including the
issuance or sale of the Securities by the Company, except such as may
be required under the Act or state securities laws.
(vii) To such counsel's knowledge, neither the
Company nor any material subsidiary is in violation of its respective
charter or by-laws.
(viii) Neither the Company nor any of its material
subsidiaries is and, after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof as described
in the Registration Statement and the Prospectus, neither the Company
nor any material subsidiary will be an "investment company" as such
term is defined in the Investment Company Act of 1940, as amended.
(ix) The statements made in the Registration
Statement and the Prospectus under the captions "Business--Patents and
Intellectual Property" (the "Patent Sections") insofar as such
statements constitute a summary of statutes, regulations, rules, legal
matters, documents or proceedings referred to therein, present fairly
the information set forth therein with respect to such statutes,
regulations, rules, legal matters, documents or proceedings.
(x) Except as otherwise stated in the Registration
Statement and the Prospectus and except for patent application
proceedings, there are no pending legal or
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governmental proceedings to which the Company is a party which
challenge the patent rights of the Company, and to such counsel's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or others.
(xi) To such counsel's knowledge, without such
counsel having conducted an independent review of any third-party
patents or products by others and except as disclosed in the
Registration Statement and the Prospectus, the Company is not
infringing or otherwise violating any Intellectual Property Rights of
others, and, to such counsel's knowledge, except as disclosed in the
Registration Statement and the Prospectus, there are no infringements
by others of the Company's Intellectual Property Rights.
(xii) The Registration Statement and the Prospectus,
and any amendment thereof or supplement thereto (including any term
sheet within the meaning of Rule 434 of the Rules and Regulations),
comply as to form in all material respects with the requirements of the
Act and the Rules and Regulations; (except for the financial
statements, schedules and other financial data, as to which counsel
need express no opinion). On the basis of conferences with officers of
the Company, examination of documents referred to in the Registration
Statement and Prospectus and such other procedures as such counsel
deemed appropriate, nothing has come to the attention of such counsel
that causes such counsel to believe that the Registration Statement or
any amendment thereof, at the time the Registration Statement became
effective and as of such Closing Date (including any Registration
Statement filed under Rule 462(b) of the Rules and Regulations),
contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading or that the Prospectus (as of its
date and as of such Closing Date), as amended or supplemented, includes
any untrue statement of material fact or omits to state a material fact
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; it being understood that
the foregoing statement may be contained in a separate letter addressed
to the Underwriters and that such counsel need express no statement as
to the financial statements, schedules or other financial data included
in any of the documents mentioned in this clause.
(e) On each Closing Date there shall have been furnished to
you the officer's certificate of Xxxxxxxx X. Xxxxxx, Vice President, Regulatory,
Medical Affairs Assurance and Quality Systems and Compliance for the Company,
dated such Closing Date and addressed to you to the effect that:
(i) The statements made in the Registration Statement
and the Prospectus under the caption "Business--Government Regulation"
(the "Regulatory Sections") insofar as such statements constitute a
summary of statutes, regulations, rules, legal matters, documents or
proceedings referred to therein, present fairly the information set
forth therein with respect to such statutes, regulations, rules, legal
matters, documents or proceedings.
(ii) To such officer's knowledge, the Company's
business, as currently conducted and as described in the Registration
Statement and Prospectus, does not violate the Federal Food, Drug and
Cosmetic Act or any Food and Drug Administration ("FDA") rule or
regulation, and, to such officer's knowledge, there are no FDA or
judicial administration proceedings pending or threatened against the
Company.
(iii) Nothing has come to the attention of such
officer that causes such officer to believe that the Regulatory
Sections in (A) the Registration Statement or any amendment thereof, at
the time the Registration Statement became effective and as of such
Closing Date (including the Registration Statement filed under Rule
462(b) of the Rules and Regulations),
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contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein necessary to make the
statements therein not misleading or (B) the Prospectus (as of its date
and as of such Closing Date), as amended and supplemented, included any
untrue statement of a material fact or omitted to state any material
fact required to be stated therein necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(f) On each Closing Date there shall have been furnished to
you the officer's certificate of Xxxxxxx X. Xxxxxxxxxx, Vice President, Sales
and Marketing for the Company, dated such Closing Date and addressed to you to
the effect that:
(i) The statements made in the Registration Statement
and the Prospectus under the caption "Business--Third-Party
Reimbursement" (the "Reimbursement Sections") insofar as such
statements constitute a summary of statutes, regulations, rules, legal
matters, documents or proceedings referred to therein, present fairly
the information set forth therein with respect to such statutes,
regulations, rules, legal matters, documents or proceedings.
(ii) Nothing has come to the attention of such
officer that causes such officer to believe that the Reimbursement
Sections in (A) the Registration Statement or any amendment thereof, at
the time the Registration Statement became effective and as of such
Closing Date (including the Registration Statement filed under Rule
462(b) of the Rules and Regulations), contained any untrue statement of
a material fact or omitted to state any material fact required to be
stated therein necessary to make the statements therein not misleading
or (B) the Prospectus (as of its date and as of such Closing Date), as
amended and supplemented, included any untrue statement of a material
fact or omitted to state any material fact required to be stated
therein necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(g) On each Closing Date, there shall have been furnished to
you the opinion of Xxxxxxxxxxx Wolf & Xxxxxxxx LLP, counsel for Warburg Pincus,
dated such Closing Date and addressed to you, to the effect that:
(i) Warburg Pincus is, to such counsel's knowledge,
the sole record owner of the Securities to be sold by Warburg Pincus
and delivery of the certificates for the Securities to be sold by
Warburg Pincus pursuant to this Agreement, upon payment therefor by the
Underwriters, will pass good and valid title to such Securities to the
Underwriters and the Underwriters will acquire all the rights of
Warburg Pincus in the Securities (assuming the Underwriters have no
knowledge of an adverse claim), free and clear of any security
interests, claims, liens or other encumbrances and assuming that each
Underwriter is otherwise a protected purchaser for purposes of the
Uniform Commercial Code.
(ii) Warburg Pincus has the power and authority to
enter into this Agreement and to perform and discharge Warburg Pincus'
obligations hereunder; and this Agreement has been duly and validly
authorized, executed and delivered by Warburg Pincus and is a valid and
binding agreement of Warburg Pincus, enforceable in accordance with its
terms (except as rights to indemnity and contribution hereunder may be
limited by federal or state securities laws and except as such
enforceability may be limited by bankruptcy, insolvency, reorganization
or similar laws affecting creditors' rights generally and subject to
general principles of equity).
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(iii) The execution and delivery of this Agreement
and the performance of the terms hereof and the consummation of the
transactions herein contemplated will not to its knowledge, result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, rule or regulation, or any
agreement or instrument set forth on a schedule to the opinion or any
order or decree known to such counsel of any court or government agency
or body having jurisdiction over Warburg Pincus or any of its
respective properties; and no consent, approval, authorization or order
of, or filing with, any court or governmental agency or body is
required for the execution, delivery and performance of this Agreement
or for the consummation of the transactions contemplated hereby and
thereby, including the sale of the Securities being sold by Warburg
Pincus, except in each case those which, if not made or obtained, would
not have a material adverse effect on the ability of Warburg Pincus to
perform its obligation hereunder such as may be required under the Act
or state securities laws or blue sky laws.
(h) On each Closing Date, there shall have been furnished to
you such opinion or opinions from Xxxxxxx Xxxx & Xxxxxxxxx, counsel for the
several Underwriters, dated such Closing Date and addressed to you, with respect
to the formation of the Company, the validity of the Securities, the
Registration Statement, the Prospectus and other related matters as you
reasonably may request, and such counsel shall have received such papers and
information as they request to enable them to pass upon such matters.
(i) On each Closing Date you shall have received a letter from
each of Ernst & Young LLP and KPMG LLP, dated such Closing Date and addressed to
you, confirming that they are independent public accountants within the meaning
of the Act and are in compliance with the applicable requirements relating to
the qualifications of accountants under Rule 2-01 of Regulation S-X of the
Commission, and stating, as of the date of such letter (or, with respect to
matters involving changes or developments since the respective dates as of which
specified financial information is given in the Prospectus, as of a date not
more than five days prior to the date of such letter), the conclusions and
findings of said firm with respect to the financial information and other
matters covered by its letter delivered to you concurrently with the execution
of this Agreement, and the effect of the letter so to be delivered on such
Closing Date shall be to confirm the conclusions and findings set forth in such
prior letter.
(j) On such Closing Date, there shall have been furnished to
you a certificate, dated such Closing Date and addressed to you, signed by the
chief executive officer and the chief financial officer of the Company, to the
effect that:
(i) The representations and warranties of the Company
in this Agreement are true and correct as if made at and as of such
Closing Date, and the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied
at or prior to such Closing Date;
(ii) No stop order or other order suspending the
effectiveness of the Registration Statement or any amendment thereof or
the qualification of the Securities for offering or sale has been
issued, and no proceeding for that purpose has been instituted or, to
their knowledge, is contemplated by the Commission or any state or
regulatory body; and
(iii) The signers of said certificate have carefully
examined the Registration Statement and the Prospectus, and any
amendments thereof or supplements thereto (including any term sheet
within the meaning of Rule 434 of the Rules and Regulations), and (A)
the
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Registration Statement, or any amendment thereof, does not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, and the Prospectus, as amended or supplemented,
does not include any untrue statement of material fact or omit to state
a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, (B) since
the effective date of the Registration Statement, there has occurred no
event required to be set forth in an amended or supplemented prospectus
which has not been so set forth, (C) subsequent to the respective dates
as of which information is given in the Registration Statement and the
Prospectus, and except as otherwise stated in the Registration
Statement or the Prospectus, neither the Company nor any of its
subsidiaries has incurred any material liabilities or obligations,
direct or contingent, or entered into any material transactions, not in
the ordinary course of business, or declared or paid any dividends or
made any distribution of any kind with respect to its capital stock,
and except as disclosed in the Prospectus and except for working
capital advances and scheduled principal payments under the Company's
existing credit facility, there has not been any change in the capital
stock (other than a change in the number of outstanding shares of
Common Stock or Non-Voting Common Stock due to the issuance of shares
upon the exercise of outstanding options or warrants), or any material
change in the short-term or long-term debt, or any issuance of options,
warrants, convertible securities or other rights to purchase the
capital stock, of the Company, or any of its subsidiaries, or any event
or development which would constitute a Material Adverse Change, and
(D) except as stated in the Registration Statement and the Prospectus,
there is not pending, or, to the knowledge of the Company, threatened
or contemplated, any action, suit or proceeding to which the Company or
any of its subsidiaries is a party before or by any court or
governmental agency, authority or body, or any arbitrator, which could
reasonably be expected to result in a Material Adverse Effect.
(k) On each Closing Date, there shall have been furnished to
you a certificate or certificates, dated such Closing Date and addressed to you,
signed by Warburg Pincus to the effect that the representations and warranties
of Warburg Pincus contained in this Agreement are true and correct as if made at
and as of such Closing Date, and that Warburg Pincus has complied with all the
agreements and satisfied all the conditions on Warburg Pincus' part to be
performed or satisfied at or prior to such Closing Date.
(l) The Nasdaq Stock Market, Inc. shall have approved the
Securities for listing on the Nasdaq National Market, subject only to official
notice of issuance and evidence of satisfactory distribution.
(m) The "lock-up" agreements, each substantially in the form
of Exhibit A hereto, between you and the directors, officers and the
shareholders of the Company listed on Schedule II relating to sales and certain
other dispositions of Common Stock, Non-Voting Common Stock or certain other
securities, delivered to you, shall be in full force and effect.
(n) The Company shall have furnished to you and counsel for
the Underwriters such additional documents, certificates and evidence as you or
they may have reasonably requested.
All such opinions, certificates, letters and other documents
will be in compliance with the provisions hereof only if they are satisfactory
in form and substance to you and counsel for the Underwriters. The Company will
furnish you with such conformed copies of such opinions, certificates, letters
and other documents as you shall reasonably request.
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6. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and Warburg Pincus against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise (including in settlement of any litigation if such
settlement is effected with the written consent of the Company), insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon:
(i) an untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement, including
the information deemed to be a part of the Registration Statement at
the time of effectiveness pursuant to Rules 430A and 434(d) of the
Rules and Regulations, if applicable, any Preliminary Prospectus, the
Prospectus, or any amendment or supplement thereto (including any term
sheet within the meaning of Rule 434 of the Rules and Regulations), or
arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; and
(ii) any untrue statement or alleged untrue statement
of a material fact included in the supplement or prospectus wrapper
material distributed in any jurisdiction outside the United States or
the omission therefrom of a material fact necessary to make the
statements therein, when considered in conjunction with the Prospectus,
or any supplement or amendment thereto, not misleading;
and will reimburse each Underwriter and Warburg Pincus for any legal or other
expenses reasonably incurred by it in connection with investigating or defending
against such loss, claim, damage, liability or action; provided, however, that
the Company shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or action arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement, any Preliminary Prospectus, the Prospectus,
or any such amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company by you, by any Underwriter through
you (or, in the case of the Company's indemnification obligation in favor or
Warburg Pincus, by Warburg Pincus), specifically for use in the preparation
thereof. The foregoing indemnity obligation of the Company with respect to any
Preliminary Prospectus shall not inure to the benefit of any Underwriter from
whom the person asserting any such losses, claims, damages or liabilities
purchased Securities, or any person controlling such Underwriter, if a copy of
the Prospectus (as then amended or supplemented if the Company shall have
furnished any amendment or supplement thereto) was not sent or given by or on
behalf of such Underwriter to such person, if required by law to have been so
delivered, at or prior to the written confirmation of the sale of the Securities
sold by the Company to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses, claims,
damages or liabilities
In addition to their other obligations under this Section
6(a), 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 any statement or omission, or any alleged statement or omission,
described in this Section 6(a) or in connection with any violation of the nature
referred to in Section 6(a)(ii)(A), it will reimburse each Underwriter and
Warburg Pincus on a monthly basis for all reasonable legal fees 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 the Underwriters and Warburg Pincus 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 Underwriter
or Warburg Pincus that received such payment shall promptly return it to
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the party or parties that made such payment, 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 U.S. Bank (the "Prime Rate"). Any such interim reimbursement payments which
are not made to an Underwriter or Warburg Pincus within 30 days of a request for
reimbursement shall bear interest at the Prime Rate from the date of such
request. This indemnity agreement shall be in addition to any liabilities which
the Company may otherwise have.
(b) Warburg Pincus agrees to indemnify and hold harmless each
Underwriter and the Company against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter or the Company may become subject,
under the Act or otherwise (including in settlement of any litigation if such
settlement is effected with the written consent of Warburg Pincus), insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement, including the
information deemed to be a part of the Registration Statement at the time of
effectiveness pursuant to Rules 430A and 434(d) of the Rules and Regulations, if
applicable, any Preliminary Prospectus, the Prospectus, or any amendment or
supplement thereto (including any term sheet within the meaning of Rule 434 of
the Rules and Regulations), or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
each Underwriter and the Company for any legal or other expenses reasonably
incurred by it in connection with investigating or defending against such loss,
claim, damage, liability or action; provided however that Warburg Pincus shall
be obligated to indemnify the Underwriters and the Company under this Section
6(c) only if such loss, claim, damage, liability or action arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement, any Preliminary Prospectus,
the Prospectus, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company or any Underwriter
by Warburg Pincus specifically for use in the preparation thereof; provided
further that such indemnity obligation shall not exceed the net proceeds
received by Warburg Pincus from the sale of Common Stock hereunder. The
foregoing indemnity obligation of Warburg Pincus with respect to any Preliminary
Prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Securities, or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Company shall have furnished
any amendment or supplement thereto) was not sent or given by or on behalf of
such Underwriter to such person, if required by law to have been so delivered,
at or prior to the written confirmation of the sale of the Securities sold by
the Company to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such losses, claims,
damages or liabilities.
(c) Each Underwriter will indemnify and hold harmless the
Company and Warburg Pincus against any losses, claims, damages or liabilities to
which the Company and Warburg Pincus may become subject, under the Act or
otherwise (including in settlement of any litigation, if such settlement is
effected with the written consent of such Underwriter), insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, any Preliminary Prospectus, the
Prospectus, or any amendment or supplement thereto (including any term sheet
within the meaning of Rule 434 of the Rules and Regulations), or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading; or arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact included in the supplement or prospectus
wrapper material distributed in any jurisdiction outside the United States or
the omission therefrom of a material fact necessary to make the statements
therein, when considered in conjunction with the Prospectus, or any supplement
or amendment thereto, not misleading, in each case to the extent, but only to
the extent, that such untrue statement or
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alleged untrue statement or omission or alleged omission was made in the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by you, by such Underwriter through you,
specifically for use in the preparation thereof, and will reimburse the Company
for any legal or other expenses reasonably incurred by the Company or Warburg
Pincus in connection with investigating or defending against any such loss,
claim, damage, liability or action.
(d) Promptly after receipt by an indemnified party under
subsection (a), (b), (c) or (d) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is to be
made against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; but the omission so
to notify the indemnifying party shall not relieve the indemnifying party from
any liability that it may have to any indemnified party to the extent it is not
materially prejudiced as a result of such omission and in any event shall not
relieve it from any liability that it may have otherwise than under this
Agreement. In case any such action shall be brought against any indemnified
party, and it shall notify the indemnifying party of the commencement thereof,
the indemnifying party shall be entitled to participate in, and, to the extent
that it shall wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of the indemnifying party's election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under such subsection for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof other than
reasonable costs of investigation; provided, however, that if the defendants in
any such action include both the indemnified party or parties and the
indemnifying party, and the indemnified party or parties shall have concluded
that there may be legal defenses or claims available to it or them which are
different from or additional to those available to the indemnifying party, or if
there is a conflict of interest which would prevent counsel for the indemnifying
party or parties from also representing the indemnified party or parties, and
that it is advisable for the indemnified party or parties to be represented by
separate counsel, then the indemnified party or parties shall have the right to
employ a single counsel (in addition to any local counsel) to represent the
indemnified party or the indemnified parties as a group, in which event the
reasonable fees and expenses of the separate counsel shall be borne by the
indemnifying party or parties. An indemnifying party shall not be obligated
under any settlement agreement relating to any action under this Section 6 to
which it has not agreed in writing.
(e) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a), (b), (c) or (c) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of the losses, claims, damages or liabilities referred to in subsection (a),
(b), (c) or (d)) above, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and Warburg Pincus on the one hand and
the Underwriters on the other from the offering of the Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
Warburg Pincus on the one hand and the Underwriters on the other in connection
with the statements or omissions or in connection with any violation of the
nature referred to in Section 6(a)(ii)(A) that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable considerations.
The relative benefits received by the Company and Warburg Pincus 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 and Warburg Pincus bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth 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
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fact relates to information supplied by the Company and Warburg Pincus or the
Underwriters and the parties' relevant intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission, or any
violation of the nature referred to in Section 6(a)(ii)(A). The Company and
Warburg Pincus and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (e) were to be determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to in the first sentence of this
subsection (e). The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first sentence of this
subsection (e) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
against any action or claim which is the subject of this subsection (e).
Notwithstanding the provisions of this subsection (e), (i) no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages that such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission and (ii) Warburg
Pincus' contribution obligation hereunder shall not exceed the net proceeds
received by Warburg Pincus from the sale of Common Stock hereunder. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations in this
subsection (e) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(f) The obligations of the Company and Warburg Pincus under
this Section 6 shall be in addition to any liability which the Company and
Warburg Pincus may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section 6
shall be in addition to any liability that the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company (including any person who, with his consent, is named in
the Registration Statement as about to become a director of the Company), to
each officer of the Company who has signed the Registration Statement and to
each person, if any, who controls the Company and Warburg Pincus within the
meaning of the Act.
7. Representations and Agreements to Survive Delivery. All
representations, warranties, and agreements of the Company and Warburg Pincus
contained herein or in certificates delivered pursuant hereto, and the
agreements of the several Underwriters, the Company and Warburg Pincus contained
in Section 6 hereof, shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of any Underwriter or any
controlling person thereof, or the Company or any of its officers, directors, or
controlling persons, or Warburg Pincus or any controlling person thereof, and
shall survive delivery of, and payment for, the Securities to and by the
Underwriters hereunder.
8. Substitution of Underwriters.
(a) If any Underwriter shall fail to take up and pay for the
amount of Firm Shares agreed by such Underwriter to be purchased hereunder, upon
tender of such Firm Shares in accordance with the terms hereof, and the amount
of Firm Shares not purchased does not aggregate more than 10% of the total
aggregate amount of Firm Shares set forth in Schedule I hereto, the remaining
Underwriters shall be obligated to take up and pay for (in proportion to their
respective underwriting obligations hereunder as set forth in Schedule I hereto,
as applicable, except as may otherwise be determined by you) the Firm Shares
that the withdrawing or defaulting Underwriter agreed but failed to purchase.
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(b) If any Underwriter shall fail to take up and pay for the
amount of Firm Shares agreed by such Underwriter to be purchased hereunder, upon
tender of such Firm Shares in accordance with the terms hereof, and the amount
of Firm Shares not purchased aggregates more than 10% of the total aggregate
amount of Firm Shares set forth in Schedule I hereto, and arrangements
satisfactory to you for the purchase of such Firm Shares, as applicable by other
persons are not made within 36 hours thereafter, this Agreement shall terminate.
In the event of any such termination, neither the Company nor Warburg Pincus
shall be under any liability to any Underwriter (except to the extent provided
in Section 4(a)(viii), Section 4(b)(ii) and Section 6 hereof) nor shall any
Underwriter (other than an Underwriter who shall have failed, otherwise than for
some reason permitted under this Agreement, to purchase the amount of Firm
Shares agreed by such Underwriter to be purchased hereunder) be under any
liability to the Company or Warburg Pincus (except to the extent provided in
Section 6 hereof).
If Firm Shares to which a default relates are to be purchased
by the non-defaulting Underwriters or by any other party or parties, you or the
Company shall have the right to postpone the First Closing Date for not more
than seven business days in order that the necessary changes in the Registration
Statement, Prospectus and any other documents, as well as any other
arrangements, may be effected. As used herein, the term "Underwriter" includes
any person substituted for an Underwriter under this Section 8.
9. Effective Date of this Agreement and Termination.
(a) This Agreement shall become effective at 10:00 a.m.,
Central time, on the first full business day following the effective date of the
Registration Statement, or at such earlier time after the effective time of the
Registration Statement as you in your discretion shall first release the
Securities for sale to the public; provided, that if the Registration Statement
is effective at the time this Agreement is executed, this Agreement shall become
effective at such time as you in your discretion shall first release the
Securities for sale to the public. For the purpose of this Section, the
Securities shall be deemed to have been released for sale to the public upon
release by you of the publication of a newspaper advertisement relating thereto
or upon release by you of telexes offering the Securities for sale to securities
dealers, whichever shall first occur. By giving notice as hereinafter specified
before the time this Agreement becomes effective, you or the Company may prevent
this Agreement from becoming effective without liability of any party to any
other party, except that the provisions of Section 4(a)(viii), Section 4(b)(ii)
and Section 6 hereof shall at all times be effective.
(b) You shall have the right to terminate this Agreement by
giving notice as hereinafter specified at any time at or prior to the First
Closing Date, and the option referred to in Section 3(b), if exercised, may be
cancelled at any time prior to the Second Closing Date, if (i) the Company shall
have failed, refused or been unable, at or prior to such Closing Date, to
perform any agreement on its part to be performed hereunder, (ii) any other
condition of the Underwriters' obligations hereunder is not fulfilled, (iii)
trading on the New York Stock Exchange, the Nasdaq National Market or the
American Stock Exchange shall have been wholly suspended, (iv) minimum or
maximum prices for trading shall have been fixed, or maximum ranges for prices
for securities shall have been required, on the New York Stock Exchange, the
Nasdaq National Market or the American Stock Exchange, by such Exchange or by
order of the Commission or any other governmental authority having jurisdiction,
(v) a banking moratorium shall have been declared by Federal or New York
authorities, or (vi) there has occurred any material adverse change in the
financial markets in the United States or an outbreak of major hostilities (or
an escalation thereof) in which the United States is involved, a declaration of
war by Congress, any other substantial national or international calamity or any
other event or occurrence of a similar character shall have occurred since the
execution of this Agreement that, in your judgment, makes it impractical or
inadvisable to proceed with the completion of the sale of and payment for the
Securities. Any such
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termination shall be without liability of any party to any other party except
that the provisions of Section 4(a)(viii), Section 4(b)(ii) and Section 6 hereof
shall at all times be effective.
(c) If you elect to prevent this Agreement from becoming
effective or to terminate this Agreement as provided in this Section, the
Company and Warburg Pincus shall be notified promptly by you by telephone,
confirmed by letter. If the Company elects to prevent this Agreement from
becoming effective, you and Warburg Pincus shall be notified by the Company by
telephone, confirmed by letter.
10. Default by the Company. If the Company shall fail at the First
Closing Date to sell and deliver the number of Securities which it is obligated
to sell hereunder, then this Agreement shall terminate without any liability on
the part of any non-defaulting party.
No action taken pursuant to this Section 10 shall relieve the
Company from liability, if any, in respect of such default.
11. Information Furnished by Underwriters. The statements set forth in
(i) the second and sixth paragraphs of text under the caption "Underwriting"
concerning the terms of the offering by the Underwriters and (ii) the eleventh
paragraph of text under the caption "Underwriting" concerning stabilization and
over-allotment in the Prospectus constitute the written information furnished by
or on behalf of the Underwriters referred to in Section 2 and Section 6 hereof.
12. Notices. Except as otherwise provided herein, all communications
hereunder shall be in writing and, if to the Underwriters, shall be delivered by
mail, hand delivery or facsimile transmission c/o U.S. Bancorp Xxxxx Xxxxxxx
Inc., Mail Station: J1012005, 000 Xxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxxx,
Xxxxxxxxx 00000-0000, except that notices given to an Underwriter pursuant to
Section 6 hereof shall be sent to such Underwriter at the address stated in the
Underwriters' Questionnaire furnished by such Underwriter in connection with
this offering; if to the Company, shall be delivered by mail, hand delivery or
facsimile transmission to it at 00000 Xxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx; if for Warburg Pincus, 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 Attention: Xxxxx X. Xxxxxxx, Esq. All notices given by
facsimile shall be promptly confirmed by letter. Any party to this Agreement may
change such address for notices by sending to the parties to this Agreement
written notice of a new address for such purpose.
13. Persons Entitled to Benefit of Agreement. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns and the controlling persons, officers and
directors referred to in Section 6. Nothing in this Agreement is intended or
shall be construed to give to any other person, firm or corporation any legal or
equitable remedy or claim under or in respect of this Agreement or any provision
herein contained. The term "successors and assigns" as herein used shall not
include any purchaser, as such purchaser, of any of the Securities from any of
the several Underwriters.
14. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota.
[Signature Page Follows]
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28
Please sign and return to the Company the enclosed duplicates of this
letter whereupon this letter will become a binding agreement between the Company
and the several Underwriters in accordance with its terms.
Very truly yours,
AMERICAN MEDICAL SYSTEMS HOLDINGS, INC.
By _____________________________________
Name:
Title:
WARBURG, XXXXXX EQUITY PARTNERS, L.P.
By Warburg, Xxxxxx & Co.,
General Partner
By _____________________________________
Name:
Title:
Confirmed as of the date first above
mentioned, on behalf of themselves
and the other several Underwriters
named in Schedule I hereto.
U.S. BANCORP XXXXX XXXXXXX INC.
BANC OF AMERICA SECURITIES LLC
X.X. XXXXXX SECURITIES INC.
XXXXXXXXX XXXXXXXX, INC.
By: U.S. BANCORP XXXXX XXXXXXX INC.
By ___________________________________
Name:
Title:
29
SCHEDULE I
Underwriter Number of Firm Shares (1)
Total....................................... 7,000,000
=========
-----------------
(1) The Underwriters may purchase up to an additional 1,050,000 Option
Shares, to the extent the option described in Section 3(b) of the
Agreement is exercised, in the proportions and in the manner described
in the Agreement.
30
SCHEDULE II
(List of Persons Subject to Lock-up)
Crane Island Ventures LLC
Xxxxx Xxxx
Xxxxxxx X. Xxxxx/ Vertical Fund Associates, L.P.
Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxxxxxx
Xxxxx Xxxxxx
Xxxxxxx Xxxxx
Xxxxxxx Xxxxxx
Xxxxx Xxxxxxxx
Xxxxxx Xxxxx
Xxxxxxxxxxx Xxxxxx
J. Xxxxxx Xxxx
Xxxxx X. Xxxxxxx/ Upper Lake Growth Capital LLC
Xxxxx Xxxxxx
Xxxxxxxxx X. Xxxxxxxxxx/ Warburg, Xxxxxx Equity Partners, L.P.
31
EXHIBIT A
LOCK-UP AGREEMENT
__________, 2001
U.S. Bancorp Xxxxx Xxxxxxx Inc.
Mail Station: J1012005
000 Xxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Re: American Medical Systems Holdings, Inc.
Ladies and Gentlemen:
The undersigned understands that you will act as
representatives for a group of underwriters (the "Underwriters") who propose to
enter into a Purchase Agreement (the "Purchase Agreement") with American Medical
Systems Holdings, Inc. (the "Company") providing for the public offering (the
"Offering") by the Underwriters of Common Stock of the Company (the "Common
Stock") pursuant to the Company's Registration Statement on Form S-1 to be filed
with the Securities and Exchange Commission.
In consideration of the Underwriters' agreement to purchase
and make the Offering of the Common Stock, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
undersigned hereby agrees, for a period of 90 days after the date of the
Purchase Agreement, not to, without the prior written consent of U.S. Bancorp
Xxxxx Xxxxxxx Inc. (which consent may be withheld in its sole discretion),
directly or indirectly, offer for sale, sell, contract to sell, grant any option
for the sale of (including without limitation any short sale), pledge, transfer,
establish an open "put equivalent position" within the meaning of Rule 16a-1(h)
or otherwise dispose of any shares of Common Stock, options or warrants to
acquire shares of Common Stock or any security or instrument related to such
Common Stock, options or warrants, or publicly announce the undersigned's
intention to do any of the foregoing. Notwithstanding the foregoing, the
undersigned may sell or otherwise transfer shares of Common Stock (i) as a bona
fide gift or gifts to a member of the undersigned's "immediate family" within
the meaning of Rule 16a-1(e), provided that the undersigned provides prior
written notice of such gift or gifts to you and the donee or donees thereof
agree to be bound by the restrictions set forth herein, or (ii) acquired in the
public market on or after the date of the Purchase Agreement.
Furthermore, the undersigned hereby agrees and consents to the
entry of stop transfer instructions with the Company's transfer agent against
the transfer of securities of the Company held by the undersigned except in
compliance with this Lock-Up Agreement.
The undersigned recognizes that the Offering will be of
benefit to the undersigned and will benefit the Company by, among other things,
raising additional capital for its operations. The undersigned acknowledges that
the Underwriters are relying on the representations and agreements of the
undersigned contained in this Lock-Up Agreement in carrying out the Offering and
in entering into underwriting arrangements with respect to the Offering. This
Lock-Up Agreement is irrevocable and will be binding on the undersigned and the
respective successors, heirs, personal representatives and assigns of
32
the undersigned. If the Offering does not close by December 31, 2001, this
Lock-Up Agreement shall terminate immediately upon such date and you will
release us from our obligations under this Agreement.
Very truly yours,
Signature:
Printed Name:_________________________________________________
Address: __________________________________________________
(Indicate capacity of person signing if signing as
custodian or trustee or on behalf of an entity)
Address: __________________________________________________
__________________________________________________
__________________________________________________
Accepted as of the date
first set forth above:
U.S. BANCORP XXXXX XXXXXXX INC.
By:________________________________
Managing Director
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