Dated July 22, 1997
THE XXXXXX COMPANIES, INC.
2,000,000 Shares
Common Stock
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UNDERWRITING
AGREEMENT
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THE XXXXXX COMPANIES, INC.
2,000,000 Shares
Plus an option to purchase from THE XXXXXX COMPANIES, INC.
up to 300,000 additional Shares to cover over-allotments
Common Stock
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UNDERWRITING AGREEMENT
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July 22, 1997
DEUTSCHE XXXXXX XXXXXXXX INC.
PAINEWEBBER INCORPORATED
As Representatives of the several Underwriters
c/o Deutsche Xxxxxx Xxxxxxxx Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
The Xxxxxx Companies, Inc., a Delaware corporation (the
"Company"), hereby confirms its agreement with the several underwriters named in
Schedule 1 hereto (the "Underwriters"), for whom you have been duly authorized
to act as representatives (in such capacity, the "Representatives"), as set
forth below. If you are the only Underwriters, all references herein to the
Representatives shall be deemed to be references to the Underwriters.
Section 1. Underwriting. Subject to the terms and conditions contained
herein:
(a) The Company proposes to issue and sell 2,000,000 shares of
common stock, par value $.10 per share (the "Common Stock"), of the Company (the
"Firm Shares") to the several Underwriters. The Company also proposes to issue
and sell to the several Underwriters not more than 300,000 additional shares of
Common Stock (the "Option Shares" and, together with the Firm Shares, the
"Shares") if requested by the Representatives as provided in Section 2(b)
hereof.
(b) Upon your authorization of the release of the Firm Shares,
the Underwriters propose to make a public offering (the "Offering") of the Firm
Shares upon the terms set forth in the Prospectus (as defined below) as soon
after the final filing of the Prospectus as in the Representatives' sole
judgment is advisable. As used in this Agreement, the term "Original
Registration Statement" means the registration statement on Form S-3 and any
post-effective
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amendments thereto (File No. 333-25051) filed with the Securities and Exchange
Commission (the "Commission") relating to the Shares, as amended at the time
when it was or is declared effective, including all documents incorporated by
reference in the Prospectus contained therein and all financial schedules and
exhibits thereto and including any information included that is permitted to be
omitted therefrom pursuant to Rule 430A under the Securities Act of 1933, as
amended (the "Securities Act"), and included in the Prospectus; the term "Rule
462(b) Registration Statement" means any registration statement filed with the
Commission pursuant to Rule 462(b) under the Securities Act (including the
Registration Statement and any Preliminary Prospectus (as defined below) or
Prospectus incorporated therein at the time such Registration Statement becomes
effective); the term "Registration Statement" includes both the Original
Registration Statement and any Rule 462(b) Registration Statement; the term
"Preliminary Prospectus" means each prospectus subject to completion filed with
the Original Registration Statement or any amendment or supplement thereto
(including the prospectus subject to completion, if any, included in the
Original Registration Statement or any amendment or supplement thereto at the
time it was or is declared effective and any documents incorporated by reference
therein pursuant to Item 12 of Form S-3 as of the date of such preliminary
prospectus); the term "Prospectus" means:
(i) if the Company relies on Rule 434 under the Securities
Act, the Term Sheet (as defined below) relating to the Shares
that is first filed pursuant to Rule 424(b)(7) under the
Securities Act, together with the Preliminary Prospectus
identified therein that such Term Sheet supplements;
(ii) if the Company does not rely on Rule 434 under the
Securities Act, the prospectus filed with the Commission
pursuant to Rule 424(b) under the Securities Act including any
supplements thereto and any documents incorporated by
reference therein pursuant to Item 12 of Form S-3 as of the
date of such prospectus;
(iii) if the Company does not rely on Rule 434 under the
Securities Act and if no prospectus is required to be filed
pursuant to Rule 424(b) under the Securities Act, the
prospectus included in the Registration Statement including
any supplements thereto and any documents incorporated by
reference therein pursuant to Item 12 of Form S-3 as of the
date of such prospectus; or
(iv) for purposes of the representations and warranties in
Section 5 hereof, if the Prospectus is not in existence, the
most recent Preliminary Prospectus;
and the term "Term Sheet" means any term sheet that satisfies the requirements
of Rule 434 under the Securities Act. Any reference herein to the "date" of a
Prospectus that includes a Term Sheet shall mean the date of such Term Sheet.
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Section 2. Purchase and Closing.
(a) On the basis of the representations, warranties,
agreements and covenants herein contained and subject to the terms and
conditions herein set forth, the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters, severally and not jointly, agrees to
purchase from the Company, at a purchase price of $22 1/4 per Share (the
"Purchase Price"), the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule 1 hereto. One or more certificates in definitive form
for the Firm Shares that the several Underwriters have agreed to purchase
hereunder, and in such denomination or denominations and registered in such name
or names as the Representatives shall request, upon notice to the Company at
least 48 hours prior to the First Closing Date (as defined below), shall be
delivered by or on behalf of the Company to the Representatives for the
respective accounts of the Underwriters. The Firm Shares shall be registered by
the American Stock Transfer & Trust Company in the name of the nominee of the
Depository Trust Company ("DTC"), Cede & Co. ("Cede & Co."), and credited to the
accounts of such of its participants as the Representatives shall request, upon
notice to the Company at least 48 hours prior to the First Closing Date (as
defined below), with any transfer taxes payable in connection with the transfer
of the Firm Shares to the Underwriters duly paid, against payment by or on
behalf of the Underwriters to the account of the Company of the aggregate
Purchase Price therefor by wire transfer in immediately available funds. The
Company will make the certificate or certificates for the Firm Shares available
for checking and packaging by the Representatives at the offices in New York,
New York of the Company's transfer agent or registrar or of the Representatives
at least 24 hours prior to the First Closing Date. Delivery or registry of and
payment for the Firm Shares shall be made at the offices of Xxxxxx, Xxxxx &
Xxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000 at 9:30 A.M., New York City
time, on July 28, 1997, the fourth full business day following the date of this
Agreement, or at such other place, time or date as the Representatives and the
Company may agree upon. Such time and date of delivery against payment are
herein referred to as the "First Closing Date", and the implementation of all
the actions described in this Section 2(a) is herein referred to as the "First
Closing."
(b) For the purpose of covering any over-allotments in
connection with the distribution and sale of the Firm Shares as contemplated by
the Prospectus, the Company hereby grants to the several Underwriters an option
to purchase, severally and not jointly, the Option Shares. The purchase price to
be paid for any Option Shares shall be the same as the Purchase Price for the
Firm Shares set forth above in paragraph (a) of this Section 2 plus, if the
purchase and sale of any Option Shares takes place after the First Closing Date
and after the Firm Shares are trading "ex-dividend", an amount equal to the
dividends payable on such Option Shares. The option granted hereby may be
exercised as to all or any part of the Option Shares from time to time within
thirty days after the date of the Prospectus (or, if such 30th day shall be a
Saturday or Sunday or a holiday, on the next business day thereafter when the
New York Stock Exchange and the Pacific Stock Exchange are open for trading).
The Underwriters shall not be under any obligation to purchase any of the Option
Shares prior to the exercise of such option. The Representatives may from time
to time exercise the option granted hereby by giving notice in writing or by
telephone (confirmed in writing) to the Company setting forth the aggregate
number of Option Shares as to which the several Underwriters are then exercising
the option and the date and time for delivery or registry of and
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payment for such Option Shares. Any such date of delivery or registry shall be
determined by the Representatives but shall not be earlier than three business
days or later than five business days after such exercise of the option unless
otherwise agreed to by the Company and the Representatives and, in any event,
shall not be earlier than the First Closing Date. The time and date set forth in
such notice, or such other time or date as the Representatives and the Company
may agree upon or as the Representatives may determine pursuant to Section 2(a)
hereof, is herein called an "Option Closing Date" with respect to such Option
Shares, and the implementation of all the actions described in this Section 2(b)
is herein referred to as the "Option Closing." As used in this Agreement, the
term "Closing Date" means either the First Closing Date or any Option Closing
Date, as applicable, and the term "Closing" means either the First Closing or
any Option Closing, as applicable. If the option is exercised as to all or any
portion of the Option Shares, then either one or more certificates in definitive
form for such Option Shares shall be delivered or, if such Option Shares are to
be held through DTC, such Option Shares shall be registered and credited, on the
related Option Closing Date in the same manner, and upon the same terms and
conditions, set forth in paragraph (a) of this Section 2, except that reference
therein to the Firm Shares and the First Closing Date shall be deemed, for
purposes of this paragraph (b), to refer to such Option Shares and Option
Closing Date, respectively. Upon exercise of the option as provided herein, the
Company shall become obligated to sell to each of the several Underwriters, and,
on the basis of the representations, warranties, agreements and covenants herein
contained and subject to the terms and conditions herein set forth, each of the
Underwriters (severally and not jointly) shall become obligated to purchase from
the Company, the same percentage of the total number of the Option Shares as to
which the several Underwriters are then exercising the option as such
Underwriter is obligated to purchase of the aggregate number of Firm Shares, as
adjusted by the Representatives in such manner as they deem advisable to avoid
fractional shares.
(c) The Company hereby acknowledges that the payment of monies
pursuant to Section 2(a) hereof (a "Payment") by or on behalf of the
Underwriters of the aggregate Purchase Price for any Shares does not constitute
closing of a purchase and sale of the Shares. Only execution and delivery, by
facsimile or otherwise, of a receipt for Shares by the Underwriters indicates
completion of the closing of a purchase of the Shares from the Company.
Furthermore, in the event that the Underwriters make a Payment to the Company
prior to the completion of the closing of a purchase of Shares, the Company
hereby acknowledges that until the Underwriters execute and deliver such receipt
for the Shares the Company will not be entitled to the Payment and shall return
the Payment to the Underwriters as soon as practicable (by wire transfer of
same-day funds) upon demand. In the event that the closing of a purchase of
Shares is not completed and the Payment is not returned by the Company to the
Underwriters on the same day the Payment was received by the Company, the
Company agrees to pay to the Underwriters in respect of each day the Payment is
not returned by it, in same-day funds, interest on the amount of such Payment in
an amount representing the Underwriters' cost of financing as reasonably
determined by the Representatives.
(d) It is understood that either of you, individually and not
as one of the Representatives, may (but shall not be obligated to) make Payment
on behalf of any Underwriter or Underwriters for any of the Shares to be
purchased by such Underwriter or Underwriters. No such Payment shall relieve
such Underwriter or Underwriters from any of its or their obligations hereunder.
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Section 3. Covenants of the Company. The Company covenants and agrees with the
several Underwriters that:
(a) The Company will:
(i) use its best efforts to cause the Registration
Statement, if not effective at the time of execution
of this Agreement, and any amendments thereto to
become effective as promptly as possible. If
required, the Company will file the Prospectus or any
Term Sheet that constitutes a part thereof and any
amendment or supplement thereto with the Commission
in the manner and within the time period required by
Rules 434 and 424(b) under the Securities Act. During
any time when a prospectus relating to the Shares is
required to be delivered under the Securities Act,
the Company (x) will comply with all requirements
imposed upon it by the Securities Act and the rules
and regulations of the Commission thereunder to the
extent necessary to permit the continuance of sales
of or dealings in the Shares in accordance with the
provisions hereof and of the Prospectus, as then
amended or supplemented, and (y) will not, prior to
the earlier of the Option Closing Date or the date
thirty days after the date of the Prospectus, file
with the Commission the Prospectus, Term Sheet, any
amendment or supplement to such Prospectus or Term
Sheet, any amendment to the Registration Statement
(including the amendment referred to in the second
sentence of Section 5(a)(i)) or any Rule 462(b)
Registration Statement unless the Representatives
previously have been advised of, and furnished with a
copy within a reasonable period of time prior to, the
proposed filing and the Representatives shall have
given their consent to such filing. The Company
agrees to file promptly all reports and any
definitive proxy or information statements required
to be filed by the Company pursuant to Section 13(a),
13(c), 14 or 15 of the Securities Exchange Act of
1934, as amended (the "Exchange Act"), subsequent to
the date of the Prospectus as amended or supplemented
and for so long as the delivery of a prospectus is
required in connection with the offering or sale of
the Shares. The Company will prepare and file with
the Commission, in accordance with the rules and
regulations of the Commission, promptly upon request
by the Representatives or counsel for the
Underwriters, any amendments to the Registration
Statement or amendments or supplements to the
Prospectus that may be necessary or advisable in
connection with the distribution of the Shares by the
several Underwriters. The Company will advise the
Representatives, promptly after receiving notice
thereof, of the time when the Registration Statement
or any amendment thereto has been filed or declared
effective or the Prospectus or Term Sheet or any
amendment
5
or supplement thereto has been filed and will provide
evidence satisfactory to the Representatives of each
such filing or effectiveness.
(ii) without charge, provide (x) to the
Representatives and to counsel for the Underwriters,
an executed or a certified copy and a conformed copy
of the Original Registration Statement and each
amendment thereto or any Rule 462(b) Registration
Statement (in each case including exhibits thereto),
(y) to each other Underwriter, a conformed copy of
the Original Registration Statement and each
amendment thereto or any Rule 462(b) Registration
Statement (in each case without exhibits thereto),
and (z) so long as a prospectus relating to the
Shares is required to be delivered under the
Securities Act, as many copies of each Preliminary
Prospectus or the Prospectus or any amendment or
supplement thereto as the Representatives may
reasonably request. Without limiting the application
of clause (z) of the preceding sentence, the Company,
not later than (I) 9:00 A.M., New York City time, on
the business day following the date of determination
of the public offering price, if such determination
occurred at or prior to 12:00 noon, New York City
time, on such date or (II) 6:00 P.M., New York City
time, on the business day following the date of
determination of the public offering price, if such
determination occurred after 12:00 noon, New York
City time, on such date, will deliver to the
Underwriters, without charge, as many copies of the
Prospectus and any amendment or supplement thereto as
the Representatives may reasonably request for
purposes of confirming orders that are expected to
settle on the First Closing Date.
(iii) advise the Representatives, promptly after
receiving notice or obtaining knowledge thereof, of
(w) the issuance by the Commission of any stop order
suspending the effectiveness of the Original
Registration Statement or any amendment thereto or
any Rule 462(b) Registration Statement or any order
preventing or suspending the use of any Preliminary
Prospectus or the Prospectus or any amendment or
supplement thereto, (x) the suspension of the
qualification of the Shares for offering or sale in
any jurisdiction, (y) the institution, threatening or
contemplation of any proceeding for any such purpose,
or (z) any request made by the Commission for
amending the Original Registration Statement or any
Rule 462(b) Registration Statement, for amending or
supplementing the Prospectus or for additional
information. The Company will use its best efforts to
prevent the issuance of any such stop order and, if
any such stop order is issued, to obtain the
withdrawal thereof as promptly as possible.
(b) The Company will endeavor in good faith, in cooperation
with the Representatives, to arrange for the qualification of the Shares for
offering and sale in each jurisdiction as the Representatives shall designate
including, but not limited to, pursuant to applicable state securities ("Blue
Sky") laws of certain states of the United States of America or other U.S.
jurisdictions, and the Company shall maintain such qualifications in effect for
so long as
6
may be necessary in order to complete the placement of the Shares; provided,
however, that the Company shall not be obliged to file any general consent to
service of process or to qualify as a foreign corporation or as a securities
dealer in any jurisdiction or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject.
(c) If, at any time prior to the final date when a prospectus
relating to the Shares is required to be delivered under the Securities Act, any
event occurs as a result of which the Prospectus, as then amended or
supplemented, would include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading, or if
for any other reason it shall be necessary at any time to amend or supplement
the Registration Statement or the Prospectus to comply with the Securities Act
or the rules or regulations of the Commission thereunder or applicable law, the
Company will promptly notify the Representatives thereof and will promptly, at
its own expense, but subject to the second sentence of Section 3(a)(i) hereof:
(x) prepare and file with the Commission an amendment or supplement to the
Registration Statement or Prospectus which will correct such statement or
omission or effect such compliance; and (y) supply any amended or supplemented
Prospectus to the Underwriters in such quantities as the Underwriters may
reasonably request.
(d) The Company will make generally available to the Company's
securityholders and to the Representatives as soon as practicable an earning
statement that satisfies the provisions of Section 11(a) of the Securities Act,
including Rule 158 thereunder.
(e) The Company will apply the net proceeds from the sale of
the Shares as set forth under "Use of Proceeds" in the Prospectus.
(f) The Company will not, and will not allow any subsidiary
to, publicly announce any intention to, and will not itself, and will not allow
any subsidiary to, without the prior written consent of the Representatives, on
behalf of the Underwriters, (i) offer, pledge, sell, offer to sell, contract to
sell, sell any option or contract to purchase, purchase any option to sell,
grant any option, right or warrant to purchase, or otherwise transfer or dispose
of, directly or indirectly, any shares of Common Stock or any securities
convertible into, or exercisable or exchangeable for, Common Stock, or (ii)
enter into any swap or other agreement that transfers, in whole or in part, any
of the economic consequences of ownership of the shares of Common Stock or
securities convertible into, or exercisable or exchangeable for, shares of
Common Stock (whether any such transaction described in clause (i) or (ii) above
is to be settled by delivery of shares of Common Stock or such other securities,
in cash or otherwise), for a period beginning from the date hereof and
continuing to and including the date ninety days after the date hereof, except
pursuant to this Agreement and other than with respect to (x) shares of Common
Stock to be issued upon the exercise of warrants to purchase shares of Common
Stock, or upon conversion or exchange of securities convertible or exchangeable
into shares of Common Stock, in each case, which are outstanding on the date
hereof and disclosed in the Prospectus, and (y) shares of Common Stock (or any
securities convertible into or exchangeable for shares of Common Stock) issued
pursuant to any benefit plans, qualified stock option plans or other
compensation plans which are disclosed in the Prospectus.
7
(g) Neither the Company nor any of its affiliates, nor any
person acting on behalf of any of them will, directly or indirectly, prior to
the earlier of the Option Closing Date or the date thirty days after the date of
the Prospectus, (i) take any action designed to cause or to result in, or that
has constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Shares or (ii) (x) sell, bid for, purchase,
or pay anyone any compensation for soliciting purchases of, the Shares or (y)
pay or agree to pay to any person any compensation for soliciting another to
purchase any other securities of the Company.
(h) The Company will obtain the agreements described in
Section 7(f) hereof prior to the First Closing Date.
(i) If at any time during the period prior to any Closing
Date, any rumor, publication or event relating to or affecting the Company shall
occur as a result of which in the Representatives' reasonable judgment the
market price of the Shares has been or is likely to be materially affected
(regardless of whether such rumor, publication or event necessitates a
supplement to or amendment of the Prospectus), the Company will, after notice
from the Representatives advising the Company to the effect set forth above,
forthwith consult with the Representatives concerning the substance of any such
rumor, publication or event, and cooperate fully with the Representatives to
formulate a mutually acceptable response to such rumor, publication or event.
(j) If the Company elects to rely on Rule 462(b), the Company
shall both file the Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) and pay the applicable fees in accordance with Rule
111 promulgated under the Securities Act by the earlier of (i) 10:00 P.M. New
York City time on the date of this Agreement and (ii) the time confirmations are
sent or given, as specified by Rule 462(b)(2) under the Securities Act.
(k) The Company will cause the Shares to be duly authorized
for listing, subject to issuance, by the New York Stock Exchange and the Pacific
Stock Exchange prior to the First Closing Date. The Company will ensure that the
Shares remain authorized for listing following the First Closing Date.
(l) The Company agrees to furnish its stockholders after the
end of each fiscal year an annual report and, after the end of each of the first
three quarters of each fiscal year, consolidated summary financial information
of the Company and its subsidiaries for such quarter, as may be required at the
time by the Exchange Act or the New York Stock Exchange.
(m) During a period of two years from the date hereof, the
Company agrees to furnish to you copies of all reports or other communications
(financial or otherwise) furnished to stockholders, and to deliver to you as
soon as they are available, copies of all reports and financial statements
furnished to or filed with the Commission or any national securities exchange on
which any class of securities of the Company is listed.
8
Section 4. Expenses. The Company shall bear and pay all costs and expenses
incurred incident to the performance of its obligations under this Agreement,
whether or not the transactions contemplated herein are consummated or this
Agreement is terminated pursuant to Section 9 hereof, including: (i) fees and
expenses of preparation, issuance and delivery of this Agreement to the
Underwriters; (ii) the fees and expenses of its counsel, accountants and any
other experts or advisors retained by the Company; (ii) fees and expenses
incurred in connection with the registration of the Shares under the Securities
Act and the preparation and filing of the Registration Statement, the Prospectus
and all amendments and supplements thereto; (iii) the printing and distribution
of the Prospectus and any Preliminary Prospectus and the printing and production
of all other documents connected with the Offering; (iv) expenses related to the
qualification of the Shares under the state securities or Blue Sky laws,
including filing fees and the fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of
any Blue Sky memoranda; (v) the filing fees and expenses, if any, incurred with
respect to any filing with the National Association of Securities Dealers, Inc.,
including the fees and disbursements of counsel for the Underwriters in
connection therewith; (vi) all expenses arising from the listing of the Shares
on the New York Stock Exchange and the Pacific Stock Exchange; (vii) all
arrangements relating to the preparation, issuance and delivery to the
Underwriters of any certificates evidencing the Shares, including transfers
agent's and registrar's fees; and (viii) the costs and expenses of the
"roadshow" and any other meetings with prospective investors in the Shares
(other than as shall have been specifically approved by the Representatives to
be paid for by the Underwriters); and (ix) the costs and expenses of advertising
relating to the Offering (other than as shall have been specifically approved by
the Representatives to be paid for by the Underwriters).
Section 5. Representations And Warranties.
(a) As a condition of the obligation of the Underwriters to
underwrite and pay for the Shares, the Company represents and warrants to each
of the several Underwriters as follows:
Registration Statement and Prospectus
(i) The Original Registration Statement, including
the Preliminary Prospectus, has been filed by the Company with
the Commission under the Securities Act, and one or more
amendments to such Registration Statement may have been so
filed. After the execution of this Agreement, the Company will
file with the Commission either (x) if such Registration
Statement, as it may have been amended, has been declared by
the Commission to be effective under the Securities Act,
either (I) if the Company relies on Rule 434 under the
Securities Act, a Term Sheet relating to the Shares that shall
identify the Preliminary Prospectus that it supplements
containing such information as is required or permitted by
Rules 434, 430A and 424(b) under the Securities Act or (II) if
the Company does not rely on Rule 434 under the Securities
Act, a prospectus in the form most recently included in an
amendment to such Registration Statement (or, if no such
amendment shall have been filed, in such Registration
Statement), with such changes or insertions as are required by
Rule 430A under the Securities Act or permitted by Rule 424(b)
under
9
the Securities Act, and in the case of either clause (I) or
(II) of this sentence, as have been provided to and approved
by the Representatives prior to the execution of this
Agreement, or (y) if such Registration Statement, as it may
have been amended, has not been declared by the Commission to
be effective under the Securities Act, an amendment to such
Registration Statement, including a form of prospectus, a copy
of which amendment has been furnished to and approved by the
Representatives prior to the execution of this Agreement. The
Company may also file a Rule 462(b) Registration Statement
with the Commission for the purpose of registering certain
additional Shares, which registration shall be effective upon
filing with the Commission.
(ii) The Company is eligible to use Form S-3 under
the Securities Act for the registration of the Shares. The
Commission has not issued any order preventing or suspending
the use of any Preliminary Prospectus. When any Preliminary
Prospectus was filed with the Commission, it (x) contained all
statements required to be stated therein in accordance with,
and complied in all material respects with the requirements
of, the Securities Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder and (y)
did not include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading. When the Registration
Statement or any amendment thereto was declared effective, it
(I) contained or will contain all statements required to be
stated therein in accordance with, and complied or will comply
in all material respects with the requirements of, the
Securities Act or the Exchange Act , as applicable, and the
rules and regulations of the Commission thereunder and (II)
did 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.
When the Prospectus or any Term Sheet that is a part thereof
or any amendment or supplement to the Prospectus is filed with
the Commission pursuant to Rule 424(b) (or, if the Prospectus
or such amendment or supplement is not required to be so
filed, when the Registration Statement or the amendment
thereto containing the Prospectus or such amendment or
supplement to the Prospectus was or is declared effective) and
on the Closing Date, the Prospectus, as amended or
supplemented at any such time, (A) contained or will contain
all statements required to be stated therein in accordance
with, and complied or will comply in all material respects
with the requirements of, the Securities Act or the Exchange
Act , as applicable, and the rules and regulations of the
Commission thereunder and (B) did not or will not include any
untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements
therein, in the light of the circumstances under which they
were made, not misleading. The foregoing provisions of this
paragraph (ii) do not apply to statements or omissions made in
any Preliminary Prospectus, the Registration Statement or any
amendment thereto or the Prospectus or any amendment or
supplement thereto in reliance upon and in
10
conformity with written information furnished to the Company
by any Underwriter through the Representatives specifically
for use therein.
(iii) The documents incorporated by reference in the
Registration Statement, the Prospectus and the Preliminary
Prospectus, when they were filed with the Commission,
conformed in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder, and none
of such documents contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not
misleading; and, prior to the earlier of the Option Closing
Date or the date thirty days after the date of the Prospectus,
any further documents so filed and incorporated by reference
in the Registration Statement, the Prospectus or the
Preliminary Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed
with the Commission, as the case may be, will conform in all
material respects to the requirements of the Securities Act or
the Exchange Act as applicable, and the rules and regulations
of the Commission thereunder, and will not contain an untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading.
(iv) If the Company has elected to rely on Rule
462(b) and the Rule 462(b) Registration Statement has not been
declared effective, (x) the Company will file a Rule 462(b)
Registration Statement in compliance with, and that is
effective upon filing pursuant to, Rule 462(b) and (y) the
Company has given irrevocable instructions for transmission of
the applicable filing fee in connection with the filing of the
Rule 462(b) Registration Statement, in compliance with Rule
111 under the Securities Act, or the Commission has received
payment of such filing fee.
(v) If the Company has elected to rely on Rule 434
under the Securities Act, the Prospectus is not "materially
different", as such term is used in Rule 434, from the
prospectus included in the Registration Statement at the time
of its effectiveness or an effective post-effective amendment
thereto (including such information that is permitted to be
omitted pursuant to Rule 430A under the Securities Act).
(vi) The Company has not distributed and, prior to
the later of (x) any Closing Date and (y) the completion of
the distribution of the Shares, will not distribute any
offering material in connection with the Offering other than
the Registration Statement or any amendment thereto, any
Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto.
11
(vii) Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus (x) the Company and its subsidiaries, taken as a
whole, have not incurred any material liability or obligation,
direct or contingent, nor entered into any material
transaction not in the ordinary course of business; (y) the
Company has not purchased any of its outstanding capital
stock, nor declared, paid or otherwise made any dividend or
distribution of any kind on its capital stock; and (z) there
has not been any material change in the capital stock,
short-term or long-term debt of the Company and its
subsidiaries, taken as a whole, except in each case as
described in or contemplated by the Prospectus.
The Shares
(viii) The Company has an authorized, issued and
outstanding capitalization as set forth in the Prospectus
(except for any subsequent issuances pursuant to benefit or
option plans). All of the issued shares of capital stock of
the Company have been duly authorized and validly issued and
are fully paid and nonassessable, have been issued in
compliance with all applicable federal and state securities
laws and were not issued in violation of or subject to any
preemptive rights or other rights to subscribe for or purchase
such securities. The Shares have been duly authorized by all
necessary corporate action of the Company and, after payment
therefor in accordance herewith, will be validly issued, fully
paid and nonassessable at the Closing Date. No holders of
outstanding shares of capital stock of the Company are
entitled as such to any preemptive or other rights to
subscribe for any of the Shares, and no holder of securities
of the Company has any right which has not been fully
exercised or waived to require the Company to register the
offer or sale of any securities owned by such holder under the
Securities Act in the Offering contemplated by this Agreement.
(ix) Except as disclosed in the Prospectus, there are
no outstanding (x) securities or obligations of the Company or
any of its subsidiaries convertible into or exchangeable for
any capital stock of the Company or any such subsidiary, (y)
warrants, rights or options to subscribe for or purchase from
the Company or any such subsidiary any such capital stock or
any such convertible or exchangeable securities or
obligations, or (z) obligations of the Company or any such
subsidiary to issue any shares of capital stock, any such
convertible or exchangeable securities or obligations, or any
such warrants, rights or options.
(x) Except for the shares of capital stock of each of
the subsidiaries owned by the Company and such subsidiaries
and any shares of stock or any equity interests which in the
aggregate are not material to the Company and its
subsidiaries, taken as a whole, neither the Company nor any
such subsidiary owns any shares of stock or any other equity
securities of any corporation or has any equity interest in
any firm, partnership, association or other entity, except as
described in or contemplated by the Prospectus.
12
Listing
(xi) All of the Shares have been duly authorized and
accepted for listing on the New York Stock Exchange and the
Pacific Stock Exchange, subject to official notice of
issuance.
Market manipulation
(xii) Neither the Company nor any of its affiliates,
nor any person acting on behalf of any of them has, directly
or indirectly, (x) taken any action designed to cause or to
result in, or that has constituted or which might reasonably
be expected to constitute, the stabilization or manipulation
of the price of any security of the Company to facilitate the
sale or resale of the Shares, or (y) since the filing of the
Original Registration Statement (I) sold, bid for, purchased,
or paid anyone any compensation for soliciting purchases of,
the Shares or (II) paid or agreed to pay to any person any
compensation for soliciting another to purchase any other
securities of the Company.
Corporate power and authority
(xiii) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
law of its jurisdiction of incorporation with full power and
authority to own, lease and operate its properties and assets
and conduct its business as described in the Prospectus, is
duly qualified to transact business and is in good standing in
each jurisdiction in which its ownership, leasing or operation
of its properties or assets or the conduct of its business
requires such qualification, except where the failure to be so
qualified does not amount to or would not result in a material
adverse effect to the Company and its subsidiaries, taken as a
whole, and has full power and authority to execute and perform
its obligations under this Agreement; each subsidiary of the
Company is a corporation duly incorporated and validly
existing as a corporation in good standing under the laws of
its jurisdiction of incorporation and is duly qualified to
transact business and is in good standing in each jurisdiction
in which its ownership, leasing or operation of its properties
or assets or the conduct of its business requires such
qualification, except where the failure to be so qualified
does not amount to or would not result in a material adverse
effect to the Company and its subsidiaries, taken as a whole,
and each has full power and authority to own, lease and
operate its properties and assets and conduct its business as
described in the Registration Statement and the Prospectus;
all of the issued and outstanding shares of capital stock of
each of the Company's subsidiaries have been duly authorized
and are fully paid and nonassessable and are owned
beneficially by the Company free and clear of any security
interests, liens, encumbrances, equities or claims, except
that: (i) all of the outstanding common stock of CooperVision,
Inc. has been pledged to Foothill
13
Capital Corporation as collateral pursuant to the Security
Agreement-Stock Pledge dated September 20, 1994 between the
Company and Foothill Capital Corporation; (ii) all of the
outstanding Series A Preferred Stock of CooperSurgical Inc.
has been pledged to IBJ Xxxxxxxxx Bank and Trust Company as
trustee (the "Trustee") for the 10% Senior Subordinated
Secured Notes due 2006 (the "Notes") pursuant to a Pledge
Agreement (the "Notes Pledge Agreement"), dated as of January
6, 1994, to secure the Notes between the Company and the
Trustee; (iii) all of the outstanding common stock of Hospital
Group of America, Inc. has been pledged to the Trustee as
security for the Notes pursuant to the Notes Pledge Agreement;
(iv) all of the outstanding common stock of Unimar, Inc. has
been pledged to Xxxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxxxx and
Xxxxxx XxXxxxx (from whom the Company acquired such stock) as
security pursuant to the Pledge Agreement, dated as of April
11, 1996, among the such individuals and The Xxxxxx Healthcare
Group, Inc.; and (v) shares of capital stock of subsidiaries
of the Company that are not Significant Subsidiaries (as
defined below) may be pledged to secure indebtedness that is
described in the Prospectus.
(xiv) The execution and delivery of this Agreement
and the issue and sale of the Shares have been duly authorized
by all necessary corporate action of the Company, and this
Agreement has been duly executed and delivered by the Company
and is the valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms.
(xv) The issuance, offering and sale of the Shares to
the Underwriters by the Company pursuant to this Agreement,
the compliance by the Company with the other provisions of
this Agreement and the consummation of the other transactions
herein contemplated do not (x) require the consent, approval,
authorization, registration or qualification of or with any
governmental authority, except such as have been obtained or
made or such as may be required by the federal securities laws
or state securities or Blue Sky laws of the various states of
the United States of America or other U.S. jurisdictions in
connection with the offer and sale of the Shares by the
Underwriters, or (y) conflict with or result in a material
breach or violation of any of the terms and provisions of, or
constitute a material default under, any indenture, mortgage,
deed of trust, lease or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries or any of their
respective properties are bound, or conflict with or result in
a breach or violation of any of the terms and provisions of,
or constitute a default under, the charter documents or
by-laws of the Company or any of its subsidiaries, or any
statute or any judgment, decree, order, rule or regulation of
any court or other governmental authority or any arbitrator
applicable to the Company or any of its subsidiaries.
(xvi) The Company is not, and will conduct its
operations in a manner so that it continues not to be, an
"investment company" and, after giving effect to the Offering
and the application of the proceeds therefrom, will not be an
"investment
14
company", as such term is defined in the Investment Company
Act of 1940, as amended (the "1940 Act").
Title, licenses and consents
(xvii) The Company and each of its subsidiaries have
good and marketable title in fee simple to all items of real
property and marketable title to all personal property owned
by each of them, in each case free and clear of any security
interests, liens, encumbrances, equities, claims and other
defects, except such as do not interfere with the use made or
proposed to be made of such property by the Company or such
subsidiary, and any real property and buildings held under
lease by the Company or any such subsidiary are held under
valid, subsisting and enforceable leases, with such exceptions
as are not material and do not interfere with the use made or
proposed to be made of such property and buildings by the
Company or such subsidiary, in each case except as described
in or contemplated by the Prospectus.
(xviii) The Company and its subsidiaries own or
possess, or can acquire on reasonable terms, all material
patents, patent applications, trademarks, service marks, trade
names, licenses, know-how, copyrights, trade secrets and
proprietary or other confidential information necessary to
operate the business now operated by them, with such
exceptions as are not material, and neither the Company nor
any such subsidiary has received any notice of infringement of
or conflict with asserted rights of any third party with
respect to any of the foregoing which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling
or finding, would have a materially adverse effect on or
constitute a materially adverse change in, or constitute a
development involving a prospective materially adverse effect
on or change in, the condition (financial or otherwise),
earnings, properties, business affairs or business prospects,
stockholders' equity, net worth or results of operations of
the Company or any of its subsidiaries, taken as a whole,
except as described in or contemplated by the Prospectus.
(xix) The Company and its subsidiaries possess all
consents, licenses, certificates, authorizations and permits
issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct their respective businesses,
with such exceptions as are not material, and neither the
Company nor any such subsidiary has received any notice of
proceedings relating to the revocation or modification of any
such certificate, authorization or permit which, singly or in
the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a materially adverse effect on
or constitute a materially adverse change in, or constitute a
development involving a prospective materially adverse effect
on or change in, the condition (financial or otherwise),
earnings, properties, business affairs or business prospects,
net worth or results of operations of the Company or any of
its subsidiaries, taken as a whole, except as described in or
contemplated by the Prospectus.
15
Financial statements
(xx) KPMG Peat Marwick LLP, who have audited the
consolidated financial statements of the Company through the
fiscal year ended October 31, 1996, and its consolidated
subsidiaries and delivered their report with respect to such
consolidated financial statements and schedules included in
the Registration Statement and the Prospectus, are independent
certified public accountants as required by the Securities Act
and the applicable rules and regulations thereunder.
(xxi) The consolidated financial statements and
schedules of the Company and its consolidated subsidiaries
included in the Registration Statement and the Prospectus were
prepared in accordance with generally accepted accounting
principles ("GAAP") consistently applied throughout the
periods involved (except as otherwise noted therein) and they
present fairly the financial condition of the Company as at
the dates at which they were prepared and the consolidated
results of operations of the Company in respect of the periods
for which they were prepared.
Internal Accounting Controls
(xxii) The Company and each of its subsidiaries
maintain a system of internal accounting controls sufficient
to provide reasonable assurance that (w) transactions are
executed in accordance with management's general or specific
authorizations; (x) transactions are recorded as necessary to
permit preparation of financial statements in conformity with
GAAP and to maintain asset accountability; (y) access to
assets is permitted only in accordance with management's
general or specific authorization; and (z) the recorded
accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with
respect to any differences.
Litigation
(xxiii) No legal or governmental proceedings are
pending or threatened to which the Company or any of its
subsidiaries is a party or to which the property of the
Company or any of its subsidiaries is subject that are
required to be described in the Registration Statement or the
Prospectus and are not described therein; and there are no
statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration
Statement that are not described therein or filed as required.
16
Dividends and Distributions
(xxiv) No subsidiary of the Company is currently
prohibited, directly or indirectly, from paying any dividends
to the Company, making any other distribution on such
subsidiary's capital stock, repaying to the Company any loans
or advances to such subsidiary from the Company or
transferring any of such subsidiary's property or assets to
the Company or any other subsidiary of the Company, and the
Company is not currently prohibited, directly or indirectly,
from paying any dividends, making any other distribution on
its capital stock, in each case except as described in or
contemplated by the Prospectus.
Taxes
(xxv) The Company has filed all foreign, federal,
state and local tax returns that are required to be filed or
has requested extensions thereof (except in any case in which
the failure so to file would not have a materially adverse
effect on the Company and its subsidiaries, taken as a whole)
and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, to the extent
that any of the foregoing is due and payable, except for any
such assessment, fine or penalty that is currently being
contested in good faith or as described in or contemplated by
the Prospectus.
Insurance
(xxvi) Except as described in the Prospectus, the
Company and each of its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; neither the Company nor
any such subsidiary has been refused any insurance coverage
sought or applied for; and neither the Company nor any such
subsidiary has any reason to believe that it will not be able
to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a
cost that would not materially and adversely affect the
condition (financial or otherwise), earnings, properties,
business affairs or business prospects, net worth or results
of operations of the Company or any of its subsidiaries, taken
as a whole, except as described in or contemplated by the
Prospectus.
Pension and Labor
(xxvii) The Company is in compliance in all material
respects with all presently applicable provisions of the
Employee Retirement Income Security Act of 1974, as amended,
including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in
ERISA) has occurred with respect to any "pension plan" (as
defined in ERISA) for which the Company would have any
liability; the Company has not incurred and does not expect to
incur liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any
17
"pension plan" or (ii) Sections 412 or 4971 of the Internal
Revenue Code of 1986, as amended, including the regulations
and published interpretations thereunder (the "Code"); and
each "pension plan" for which the Company would have any
liability that is intended to be qualified under Section
401(a) of the Code is so qualified in all material respects
and nothing has occurred, whether by action or by failure to
act, which would cause the loss of such qualification.
(xxviii) No labor dispute with the employees of the
Company or any of its subsidiaries exists or is threatened or
imminent that could reasonably be expected to have a
materially adverse effect on or constitute a materially
adverse change in, or constitute a development involving a
prospective materially adverse effect on or change in, the
condition (financial or otherwise), properties, management,
earnings, business affairs or business prospects, net worth or
results of operations of the Company or any of its
subsidiaries, taken as a whole, except as described in or
contemplated by the Prospectus.
Environmental
(xxix) Neither the Company nor any of its
subsidiaries is in violation of any federal or state law or
regulation relating to occupational safety and health or to
the storage, handling or transportation of hazardous or toxic
materials and the Company and its subsidiaries have received
all permits, licenses or other approvals required of them
under applicable federal and state occupational safety and
health and environmental laws and regulations to conduct their
respective businesses, and the Company and each such
subsidiary is in compliance with all terms and conditions of
any such permit, license or approval, except any such
violation of law or regulation, failure to receive required
permits, licenses or other approvals or failure to comply with
the terms and conditions of such permits, licenses or
approvals which would not, singly or in the aggregate, have a
materially adverse effect on or constitute a materially
adverse change in, or constitute a development involving a
prospective materially adverse effect on or change in, the
condition (financial or otherwise), earnings, properties,
business affairs or business prospects, net worth or results
of operations of the Company or any of its subsidiaries, taken
as a whole, except as described in or contemplated by the
Prospectus.
Other Agreements
(xxx) No default exists, and no event has occurred
which, with notice or lapse of time or both, would constitute
a material default in the due performance and observance of
any term, covenant or condition of any indenture, mortgage,
deed of trust, lease or other agreement or instrument to which
the Company or any of its subsidiaries is a party or by which
the Company or any of its subsidiaries or any of their
respective properties is bound.
18
Absence of Materially Adverse Change
(xxxi) Subsequent to the respective dates as of which
information is given in the Registration Statement or
incorporated by reference therein and the Prospectus or
incorporated by reference therein, neither the Company nor any
of its subsidiaries has sustained any material loss or
interference with their respective businesses or properties
from fire, flood, hurricane, accident or other calamity,
whether or not covered by insurance, or from any labor dispute
or any legal or governmental proceeding, and there has been no
materially adverse change (including, without limitation, a
change in management or control), or development involving a
prospective materially adverse change, in the condition
(financial or otherwise), management, earnings, property,
business affairs or business prospects, stockholders' equity,
net worth or results of operations of the Company or any of
its subsidiaries, taken as a whole, other than as described in
or contemplated by the Prospectus.
(b) The above representations and warranties shall be deemed
to be repeated at each Closing, and all references therein to the Shares and the
Closing Date shall be deemed to refer to the Firm Shares or the Option Shares
and the First Closing Date or the applicable Option Closing Date, each as
applicable.
Section 6. Indemnity.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and its officers and directors and each person, if any, who controls
any Underwriter within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, against any and all losses, claims, damages or
liabilities, joint or several, to which such Underwriter or such controlling
person may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon:
(i) any untrue statement or alleged untrue statement
made by the Company in Section 5 hereof,
(ii) any untrue statement or alleged untrue statement
of any material fact contained in the Registration
Statement or any amendment thereto, any Preliminary
Prospectus or the Prospectus or any amendment or
supplement thereto, or
(iii) the omission or alleged omission to state in
the Registration Statement or any amendment thereto,
any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto a material fact
required to be stated therein or necessary to make
the statements therein not misleading,
and will reimburse, as incurred, each Underwriter and each such controlling
person for any legal or other costs or expenses reasonably incurred by such
Underwriter or such controlling person in
19
connection with investigating or defending against any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any untrue statement or alleged untrue statement
or omission or alleged omission made in the Registration Statement or any
amendment thereto, any Preliminary Prospectus, the Prospectus or any amendment
or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives specifically for use therein; and provided further, that the
Company will not be liable to any Underwriter or any person controlling such
Underwriter with respect to any such untrue statement or omission made in any
Preliminary Prospectus that is corrected in the Prospectus (or any amendment or
supplement thereto) if the person asserting any such loss, claim, damage or
liability purchased Shares from such Underwriter but was not sent or given a
copy of the Prospectus (as amended or supplemented) in any case where such
delivery of the Prospectus (as amended or supplemented) was required by the
Securities Act, unless such failure to deliver the Prospectus (as amended or
supplemented) was a result of noncompliance by the Company with Section 3
hereof. The indemnity provided for in this Section 6 shall be in addition to any
liability which the Company may otherwise have. The Company will not, without
the prior written consent of the Representatives, settle or compromise or
consent to the entry of any judgment in any pending or threatened claim, action,
suit or proceeding in respect of which indemnification may be sought hereunder
(whether or not any such Representatives or any person who controls any such
Representatives is a party to such claim, action, suit or proceeding), unless
such settlement, compromise or consent includes an unconditional release of all
of the Underwriters and such controlling persons from all liability arising out
of such claim, action, suit or proceeding.
(b) Each Underwriter, severally and not jointly, will
indemnify and hold harmless the Company, each of its directors, each of its
officers who signed the Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act against any losses, claims, damages or
liabilities to which the Company or any such director, officer or controlling
person may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement or any amendment thereto,
any Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto or (ii) the omission or the alleged omission to state therein a material
fact required to be stated in the Registration Statement or any amendment
thereto, any Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such
Underwriter through the Representatives specifically for use therein, and,
subject to the limitation set forth immediately preceding this clause, will
reimburse, as incurred, any legal or other expenses reasonably incurred by the
Company or any such director, officer or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or any action
in respect thereof. The remedies provided for in this Section 6 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
20
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to paragraph (a) or (b) of this Section 6, such
person (for purposes of this paragraph (c), the "indemnified party") shall,
promptly after receipt by such party of notice of the commencement of such
action, notify the person against whom such indemnity may be sought (for
purposes of this paragraph (c), the "indemnifying party"), but the omission so
to notify the indemnifying party will not relieve it from any liability which it
may have to any indemnified party otherwise than under this Section 6. In case
any such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party;
provided, however, that if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded (based upon the written advice of its counsel) that
there may be one or more legal defenses available to it which are different from
or additional to those available to the indemnifying party, the indemnifying
party shall not have the right to direct the defense of such action on behalf of
such indemnified party or parties and such indemnified party or parties shall
have the right to select separate counsel to defend such action on behalf of
such indemnified party or parties. After notice from the indemnifying party to
such indemnified party of its election so to assume the defense of any such
action and approval by such indemnified party of counsel appointed to defend
such action, the indemnifying party will not be liable to such indemnified party
under this Section 6 for any legal or other expenses, other than reasonable
costs of investigation, subsequently incurred by such indemnified party in
connection with the defense thereof, unless (i) the indemnified party shall have
employed separate counsel in accordance with the proviso to the next preceding
sentence (it being understood, however, that in connection with such action the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to local counsel) in any one action or separate
but substantially similar actions in the same jurisdiction arising out of the
same general allegations or circumstances, designated in writing by the
Representatives in the case of paragraph (a) of this Section 6, representing the
indemnified parties under such paragraph (a) who are parties to such action or
actions), or (ii) the indemnifying party does not promptly retain counsel
satisfactory to the indemnified party, or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party. All fees and expenses reimbursed pursuant to this
paragraph (c) shall be reimbursed as they are incurred. After such notice from
the indemnifying party to such indemnified party, the indemnifying party will
not be liable for the costs and expenses of any settlement of such action
effected by such indemnified party without the consent of the indemnifying
party.
(d) In circumstances in which the indemnity agreement provided
for in the preceding paragraphs of this Section 6 is unavailable or
insufficient, for any reason, to hold harmless an indemnified party in respect
of any losses, claims, damages or liabilities (or actions in respect thereof),
each indemnifying party, in order to provide for just and equitable
contribution, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect (i)
21
the relative benefits received by the indemnifying party or parties on the one
hand and the indemnified party on the other from the Offering or (ii) if the
allocation provided by the foregoing clause (i) is not permitted by applicable
law, not only such relative benefits but also the relative fault of the
indemnifying party or parties on the one hand and the indemnified party on the
other in connection with the statements or omissions or alleged statements or
omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total proceeds from the Offering (after discounts and commissions but
before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters. The
relative fault of the parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters, the parties' relative intents,
knowledge, access to information and opportunity to correct or prevent such
statement or omission, and any other equitable considerations appropriate in the
circumstances. The Company and the Underwriters agree that it would not be
equitable if the amount of such contribution were determined by pro rata or per
capita allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take into account
the equitable considerations referred to above in this paragraph (d).
Notwithstanding any other provision of this paragraph (d), no Underwriter shall
be obligated to make contributions hereunder that in the aggregate exceed the
total public offering price of the Shares purchased by such Underwriter under
this Agreement, less the aggregate amount of any damages that such Underwriter
has otherwise been required to pay in respect of the same or any substantially
similar claim, and no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute hereunder are
several in proportion to their respective underwriting obligations and not
joint, and contributions among Underwriters shall be governed by the provisions
of the Deutsche Xxxxxx Xxxxxxxx Inc. Master Agreement Among Underwriters. For
purposes of this paragraph (d), each officer and director and each person, if
any, who controls an Underwriter within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as such Underwriter, and each director of the Company, each officer
of the Company who signed the Registration Statement and each person, if any,
who controls the Company within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act, shall have the same rights to contribution as
the Company.
Section 7. Conditions Precedent.
The obligations of the several Underwriters to purchase and
pay for the Shares shall be subject to the accuracy of the representations and
warranties of the Company contained herein as of the date hereof and as of each
Closing Date, as if made on and as of each Closing Date, to the accuracy of the
statements of the Company's officers made pursuant to the provisions hereof, to
the performance by the Company of its covenants and agreements hereunder and to
the following additional conditions:
22
(a) (i) If the Original Registration Statement or any
amendment thereto filed prior to the First Closing Date has not been declared
effective as of the time of execution hereof, the Original Registration
Statement or such amendment shall have been declared effective not later than
6:00 P.M., New York City time on the date of determination of the public
offering price, if such determination occurred at or prior to 4:30 P.M., New
York City time on such date, or 12:00 Noon, New York City time on the business
day following the day on which the public offering price was determined, if such
determination occurred after 4:30 P.M., New York City time on such date, and
(ii) if the Company has elected to rely upon Rule 462(b), the Rule 462(b)
Registration Statement shall have been declared effective not later than the
time confirmations are sent or given as specified by Rule 462(b)(2), or such
later time and date as shall have been consented to by the Representatives; if
required, the Prospectus or any Term Sheet that constitutes a part thereof and
any amendment or supplement thereto shall have been filed with the Commission in
the manner and within the time period required by Rules 434 and 424(b) under the
Securities Act; no stop order suspending the effectiveness of the Registration
Statement or any amendment thereto shall have been issued, and no proceedings
for that purpose shall have been instituted or threatened or, to the knowledge
of the Company or the Representatives, shall be contemplated by the Commission;
and the Company shall have complied with any request of the Commission for
additional information (to be included in the Registration Statement or the
Prospectus or otherwise).
(b) The Representatives shall have received a legal opinion
from Xxxxxx & Xxxxxxx, counsel for the Company, dated the Closing Date, to the
effect that:
(i) the Company has been duly incorporated and is
validly existing and is in good standing under the laws of the
State of Delaware, with corporate power and authority to own,
lease and operate its properties and assets and to conduct its
business as described in the Registration Statement and the
Prospectus; based solely on certificates from public
officials, such counsel confirms that the Company is qualified
to do business as a foreign corporation and is in good
standing in the States of California, New Jersey, New York,
Washington and West Virginia;
(ii) each of Coopervision, Inc., CooperSurgical,
Inc., Hospital Group of America, Inc., Xxxxxx Acquisition
Corp. and Unimar, Inc. (collectively, the "Significant
Subsidiaries") has been duly incorporated and is validly
existing and in good standing under the laws of the: (a) State
of New York (in the case of Coopervision, Inc.), (b) State of
Delaware (in the case of CooperSurgical, Inc., Hospital Group
of America, Inc. and Xxxxxx Acquisition Corp.), and (c) State
of California (in the case of Unimar, Inc.), with corporate
power and authority to own, lease and operate its properties
and assets and to conduct its business as described in the
Registration Statement and the Prospectus; based solely on
certificates from public officials, such counsel confirms that
(i) Coopervision, Inc. is qualified to do business and is in
good standing in the States of California and Montana; (ii)
CooperSurgical, Inc, is qualified to do business and is in
good standing in the States of New York, Washington and
Connecticut; and (iii) Hospital Group of America, Inc. is
qualified to do business and is in good standing in the State
of Virginia;
23
(iii) the Company has the corporate power to enter
into this Agreement and to carry out all of the terms and
provisions hereof to be carried out by it;
(iv) the Shares to be issued and sold by the Company
pursuant to this Agreement have been duly authorized by all
necessary corporate action and, when issued to and paid for by
the Representatives and the other Underwriters in accordance
with the terms of this Agreement, will be validly issued,
fully paid and non-assessable; to the best of such counsel's
knowledge, no holders of outstanding shares of capital stock
of the Company are entitled as such to any preemptive or other
rights to subscribe for any of the Shares; and to the best of
such counsel's knowledge, no holder of securities of the
Company has any right which has not been fully exercised or
waived to require the Company to register the offer or sale of
any securities owned by such holder under the Securities Act
in the Offering contemplated by this Agreement; all of the
issued and outstanding shares of capital stock of each of the
Company's Significant Subsidiaries (except Coopervision, Inc.,
as to which we express no opinion) have been duly authorized
and validly issued, are fully paid and nonassessable and
(except for 6,632 shares of common stock of CooperSurgical,
Inc. owned by ArthurVision, Inc. and 6,632 shares of common
stock of CooperSurgical, Inc. owned by Xx. Xxxxx X.
Xxxxxxxxxxx), to the best of such counsel's knowledge, are
owned of record by the Company; to the best of such counsel's
knowledge, the shares of capital stock of Xxxxxx Acquisition
Corp. are free and clear of any perfected security interests
or any other security interests or liens;
(v) this Agreement has been duly authorized, executed
and delivered by the Company; the issuance, offering and sale
of the Shares by the Company pursuant to this Agreement, the
compliance by the Company with the other provisions of this
Agreement and the consummation of the other transactions
herein contemplated will not conflict with or result in the
violation by the Company or any of the Significant
Subsidiaries of their Certificates of Incorporation or Bylaws
or any federal or New York statute, rule or regulation known
to such counsel to be applicable to the Company or the
Significant Subsidiaries (except for statutes, rules or
regulations applicable to Xxxxxxxxx Hospital, Hospital Group
of New Jersey, Inc., The Midwest Center for Youth and Families
and Hospital Group of Delaware, Inc. and other than federal or
state securities laws, which are specifically addressed
elsewhere herein) or in the breach of or a default under any
of the Material Agreements, as listed in Exhibit A attached
hereto (the "Material Agreements"); and to the best of such
counsel's knowledge, no consent, approval, authorization or
order of, or filing with, any federal or New York court or
governmental agency or body is required for the consummation
of the issuance and sale of the Shares by the Company pursuant
to this Agreement, except (a) such, if any, which may be
applicable to Xxxxxxxxx Hospital, Hospital Group of New
Jersey, Inc., The Midwest Center for Youth and Families and
Hospital Group of Delaware, Inc., (b) such as have been
obtained under
24
the Securities Act and (c) such as may be required under state
securities laws in connection with the purchase and
distribution of such Shares by the Underwriters;
(vi) the Registration Statement has become effective
under the Securities Act and no stop order suspending the
effectiveness of the Registration Statement has been issued
under the Securities Act and, to the best of such counsel's
knowledge, no proceedings therefor have been initiated or
threatened by the Commission; and any required filing of the
Prospectus pursuant to Rule 424(b) under the Securities Act
has been made in accordance with Rule 424(b) under the
Securities Act;
(vii) the Registration Statement and the Prospectus
comply as to form in all material respects with the
requirements for registration statements on Form S-3 under the
Securities Act and the rules and regulations of the Commission
thereunder; it being understood, however, that such counsel
expresses no opinion with respect to the financial statements,
schedules and other financial and statistical data included in
the Registration Statement or the Prospectus; in passing upon
the compliance as to form of the Registration Statement and
the Prospectus, such counsel has assumed that the statements
made and incorporated by reference therein are correct and
complete;
(viii) each of the documents incorporated by
reference in the Registration Statement or the Prospectus,
when they became effective or were filed with the Commission,
as the case may be, complied as to form in all material
respects with requirements of the Securities Act or the
Exchange Act, as applicable, and the regulations promulgated
thereunder; it being understood, however, that such counsel
expresses no opinion with respect to the financial statements,
schedules and other financial and statistical data included in
such incorporated documents; in passing upon the compliance as
to form of such incorporated documents, such counsel has
assumed that the statements made and incorporated by reference
therein are correct and complete;
(ix) the statements set forth in the Prospectus under
the headings "Risk Factors -- Certain Anti-Takeover Effects"
and "Risk Factors -- Governmental Regulation" and the
statements incorporated by reference in the Prospectus set
forth under the heading "Description of Capital Stock"
contained in the Company's Registration Statement on Form 8-A
filed on October 28, 1983, insofar as such statements
constitute a summary of legal matters, documents, proceedings
and certain governmental regulations effecting the Company and
its operations, are accurate in all material respects, except
as set forth in the Prospectus; to the best of such counsel's
knowledge, there are no statutes or legal or governmental
proceedings required to be described in the Prospectus that
are not described, or contracts or documents of a character
required to be described in the Registration Statement or
Prospectus (or required to be filed under the Exchange Act, if
upon such filing they
25
would be incorporated by reference therein) or to be filed as
exhibits to the Registration Statement that are not described
and filed;
(x) all of the Shares have been duly authorized and
accepted for listing on the New York Stock Exchange and the
Pacific Stock Exchange, subject to official notice of
issuance; and
(xi) the Company is not an "investment company" and,
after giving effect to the Offering and the application of the
proceeds therefrom, will not be an "investment company," as
such term is defined in the Investment Company Act of 1940, as
amended.
In addition, such counsel shall state that although it is not passing
upon, and does not assume any responsibility for, the accuracy, completeness or
fairness of the statements contained in the Registration Statement and the
Prospectus and has not made any independent check or verification thereof,
(relying as to materiality to a large extent upon the statements of officers and
other representatives of the Company), no facts have come to such counsel's
attention that cause it to believe that the Registration Statement, at the time
it became effective or on the date hereof, contained or contains an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that the Prospectus, at the time it was filed or on the date hereof, included or
includes an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; it being
understood that such counsel expresses no belief with respect to the financial
statements, schedules and other financial and statistical data included in the
Registration Statement or the Prospectus.
(c) The Representatives shall have received a legal opinion
from Xxxxxxxx, Xxxxxxxx & Xxxxxx, counsel for Hospital Group of New Jersey,
Inc., dated the Closing Date, to the effect that (i) the statements set forth in
the Prospectus under the heading "Risk Factors -- Government Regulations",
insofar as such statements purport to summarize certain governmental regulations
applicable to Hospital Group of New Jersey, Inc. and its operations, provide a
fair summary of such regulations and provisions, in all material respects as
required by the Securities Act and the rules and regulations thereunder; (ii)
there are no statutes or regulations, with respect to health care matters, or
legal or governmental proceedings required to be described in the Prospectus
that are not described as required; and (iii) with respect to Hospital Group of
New Jersey, Inc., no consent, approval, authorization or order of, or filing
with, any federal or court or governmental agency or body being required for the
consummation of the issuance and sale of the Shares by the Company pursuant to
this Agreement.
(d) The Representatives shall have received a legal opinion
from Xxxxx & Xxxxxxx, counsel for Xxxxxxxxx Hospital and The Midwest Center for
Youth and Families, dated the Closing Date, to the effect that (i) the
statements set forth in the Prospectus under the heading "Risk Factors --
Government Regulations", insofar as such statements purport to summarize certain
governmental
26
regulations applicable to Xxxxxxxxx Hospital and The Midwest Center for Youth
and Families and their operations, provide a fair summary of such regulations
and provisions, in all material respects as required by the Securities Act and
the rules and regulations thereunder; (ii) there are no statutes or regulations,
with respect to health care matters, or legal or governmental proceedings
required to be described in the Prospectus that are not described as required;
and (iii) with respect to Xxxxxxxxx Hospital and The Midwest Center for Youth
and Families, no consent, approval, authorization or order of, or filing with,
any federal or court or governmental agency or body being required for the
consummation of the issuance and sale of the Shares by the Company pursuant to
this Agreement.
(e) The Representatives shall have received a legal opinion
from Xxxxxxxx, Xxxxxx & Finger, counsel for Hospital Group of Delaware, Inc.,
dated the Closing Date, to the effect that (i) the statements set forth in the
Prospectus under the heading "Risk Factors -- Government Regulations", insofar
as such statements purport to summarize certain governmental regulations
applicable to Hospital Group of Delaware, Inc. and its operations, provide a
fair summary of such regulations and provisions, in all material respects as
required by the Securities Act and the rules and regulations thereunder; (ii)
there are no statutes or regulations, with respect to health care matters, or
legal or governmental proceedings required to be described in the Prospectus
that are not described as required; and (iii) with respect to Hospital Group of
Delaware, Inc., no consent, approval, authorization or order of, or filing with,
any federal or court or governmental agency or body being required for the
consummation of the issuance and sale of the Shares by the Company pursuant to
this Agreement.
(f) The Representatives shall have received a legal opinion
from Morris, Nichols, Arsht & Xxxxxxx, special counsel for the Company, dated
the Closing Date, to the effect that certain statements, relating to their
representation of the Company, set forth (i) under the heading "Legal
Proceedings" in the Company's Annual Report on Form 10-K for the fiscal year
ended October 31, 1996 and (ii) under the heading "Business--Legal
Proceedings", insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to therein, have been reviewed by
such counsel and constitute an accurate summary of such proceedings.
In rendering any such opinion, such counsel may rely, as to
matters of fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Company and public officials.
References to the Registration Statement, the Prospectus and
the Preliminary Prospectus in this paragraph (b) shall include any amendment or
supplement thereto as well as any documents incorporated by reference pursuant
to Item 12 of Form S-3 at the date of such opinion. The opinions of issuer's
counsel described herein shall be rendered to the Underwriters at the request of
the Company and shall so state therein.
(g) The Representatives shall have received a legal opinion
from Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel for the Underwriters, dated the
Closing Date, covering the issuance and sale of the Shares, the Registration
Statement and the Prospectus, and such other related matters as the
Representatives may reasonably require, and the Company shall have furnished to
such counsel such
27
documents as they may reasonably request for the purpose of enabling them to
pass upon such matters.
(h) The Representatives shall have received from KPMG Peat
Marwick LLP a letter or letters dated, respectively, the date hereof and the
Closing Date, in form and substance satisfactory to the Representatives, to the
effect that:
(i) they are independent accountants with respect to
the Company and its consolidated subsidiaries within the
meaning of the Securities Act and the applicable rules and
regulations thereunder;
(ii) in their opinion, the audited consolidated
financial statements and schedules examined by them and
included in the Registration Statement or incorporated by
reference therein and the Prospectus or incorporated by
reference therein comply in form in all material respects with
the applicable accounting requirements of the Securities Act
and the Exchange Act and the related published rules and
regulations;
(iii) on the basis of a reading of the latest
available interim unaudited consolidated condensed financial
statements of the Company and its consolidated subsidiaries,
carrying out certain specified procedures (which do not
constitute an examination made in accordance with generally
accepted auditing standards) that would not necessarily reveal
matters of significance with respect to the comments set forth
in this paragraph (iii), a reading of the minute books of the
shareholders, the board of directors and any committees
thereof of the Company and each of its consolidated
subsidiaries, and inquiries of certain officials of the
Company and its consolidated subsidiaries who have
responsibility for financial, accounting and legal matters,
nothing came to their attention that caused them to believe
that:
(x) the unaudited consolidated condensed
financial statements of the Company and its
consolidated subsidiaries included in the
Registration Statement or incorporated by
reference therein and the Prospectus or
incorporated by reference therein do not
comply in form in all material respects with
the applicable accounting requirements of
the Securities Act and the Exchange Act and
the related published rules and regulations
thereunder or are not in conformity with
GAAP applied on a basis substantially
consistent with that of the audited
consolidated financial statements included
in the Registration Statement or
incorporated by reference therein and the
Prospectus or incorporated by reference
therein;
(y) the unaudited amounts for net sales of
products, net service revenues and total and
per share amounts of net income included in
the Registration Statement or incorporated
by reference therein and
28
the Prospectus or incorporated by reference
therein do not agree with the amounts set
forth in any unaudited consolidated
financial statements for those same periods;
and
(z) at a specific date not more than five
business days prior to the date of such
letter, there were any changes in the
capital stock or long-term debt of the
Company and its consolidated subsidiaries or
any decreases in net current assets (current
assets minus current liabilities) or
stockholders' equity of the Company and its
consolidated subsidiaries, in each case
compared with amounts shown on the date of
the most recent consolidated balance sheet
included in the Registration Statement or
incorporated by reference therein and the
Prospectus or incorporated by reference
therein, or for the period from one day
after the date of the most recent
consolidated balance sheet to such specified
date there were any decreases, as compared
with appropriate comparative period or, if
no appropriate period exists, dollar amounts
for each item, in net sales of products, net
service revenues, net income before income
taxes or total or per share amounts of net
income of the Company and its consolidated
subsidiaries, except in all instances for
changes, decreases or increases set forth in
such letter; and
(iv) they have carried out certain specified
procedures, not constituting an audit, with respect
to certain amounts, percentages and financial
information that are derived from the general
accounting records of the Company and its
consolidated subsidiaries and are included in the
Registration Statement or incorporated by reference
therein and the Prospectus or incorporated by
reference therein and in Exhibit 11 to the
Registration Statement, and have compared such
amounts, percentages and financial information with
such records of the Company and its consolidated
subsidiaries and with information derived from such
records and have found them to be in agreement,
excluding any questions of legal interpretation.
In the event that the letters referred to above set forth any
such changes, decreases or increases, it shall be a further condition to the
obligations of the Underwriters that (I) such letters shall be accompanied by a
written explanation of the Company as to the significance thereof, unless the
Representatives deem such explanation unnecessary, and (II) such changes,
decreases or increases do not, in the sole judgment of the Representatives, make
it impractical or inadvisable to proceed with the purchase and delivery of the
Shares as contemplated by the Registration Statement, as amended as of the date
hereof. References to the Registration Statement and the Prospectus in this
paragraph (h) with respect to either letter referred to above shall include any
amendment or supplement thereto at the date of such letter.
29
(i) The Company shall have furnished or caused to be furnished
to the Underwriters at the Closing a certificate of its President and Chief
Executive Officer and its Chief Financial Officer satisfactory to the
Underwriters to the effect that:
(i) the representations and warranties of the Company
in this Agreement are true and correct as if made on
and as of the Closing Date; the Registration
Statement and any documents incorporated by reference
therein, as amended as of the Closing Date, does not
include any untrue statement of a material fact or
omit to state any material fact necessary to make the
statements therein not misleading, and the Prospectus
and any documents incorporated by reference therein,
as amended or supplemented as of the Closing Date,
does not include any untrue statement of a material
fact or omit to state any material fact necessary in
order to make the statements therein, in the light of
the circumstances under which they were made, not
misleading; and the Company has performed all
covenants and agreements and satisfied all conditions
on its part to be performed or satisfied at or prior
to the Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement or any amendment thereto
has been issued, and no proceedings for that purpose
have been instituted or, to the best of the Company's
knowledge, threatened by the Commission; and
(iii) subsequent to the respective dates as of which
information is given in the Registration Statement,
including any information incorporated by reference
therein and the Prospectus, including any information
incorporated by reference therein, neither the
Company nor any of its subsidiaries has sustained any
material loss or interference with their respective
businesses or properties from fire, flood, hurricane,
accident or other calamity, whether or not covered by
insurance, or from any labor dispute or any legal or
governmental proceeding, and there has not been any
materially adverse change (including, without
limitation, a change in management or control), or
development involving a prospective materially
adverse change, in the condition (financial or
otherwise), management, earnings, properties,
business affairs or business prospects, stockholders'
equity, net worth or results of operations of the
Company or any of its subsidiaries, except in each
case as described in or contemplated by the
Prospectus.
(j) The Representatives shall have received from each person
who is a director or officer of the Company, named under the heading
"Management" in the Prospectus, and Xxxxxx Life Sciences, Inc., an agreement
dated on or before the date of this Agreement to the effect that such person
will not publicly announce any intention to and will not, without the prior
written consent of the Representatives on behalf of the Underwriters, (i) offer,
pledge, sell, offer to sell, contract to sell, sell any option or contract to
purchase, purchase any option to sell, grant any option right or
30
warrant to purchase, or otherwise transfer or dispose of, directly or
indirectly, any of the shares of Common Stock or any securities convertible
into, or exercisable or exchangeable for, Common Stock, or (ii) enter into any
swap or other agreement that transfers, in whole or in part, any of the economic
consequences of ownership of the shares of Common Stock or any securities
convertible into, or exercisable or exchangeable for, shares of Common Stock
(whether any such transaction described in clause (i) or (ii) above is to be
settled by delivery of shares of Common Stock or such other securities, in cash
or otherwise), in each case, beneficially owned (within the meaning of Rule
13d-3 under the Exchange Act) or otherwise controlled by such person on the date
hereof or hereafter acquired, for a period beginning from the date hereof and
continuing to and including the date ninety days after the date hereof.
(k) Prior to the commencement of the Offering, the Company
shall have made an application for the listing of the Shares on the New York
Stock Exchange and the Pacific Stock Exchange and the Shares shall have been
approved for listing on the New York Stock Exchange and the Pacific Stock
Exchange, subject to official notice of issuance.
(l) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date, there shall not have occurred any downgrading,
nor shall any notice have been given of any intended or potential downgrading or
of any review for a possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's securities by any
"nationally recognized statistical rating organization", as such term is defined
for purposes of Rule 436(g)(2) under the Securities Act.
(m) On or before the Closing Date, the Representatives and
counsel for the Underwriters shall have received such further certificates,
documents or other information as they may have reasonably requested from the
Company.
All opinions, certificates, letters and documents delivered
pursuant to this Agreement will comply with the provisions hereof only if they
are satisfactory in all material respects to the Representatives and counsel for
the Underwriters. The Company shall furnish to the Representatives such
conformed copies of such opinions, certificates, letters and documents in such
quantities as the Representatives and counsel for the Underwriters shall
reasonably request.
The respective obligations of the several Underwriters to
purchase and pay for any Shares shall be subject, in their discretion, to each
of the foregoing conditions to purchase the Shares, except that all references
therein to the Shares and the Closing Date shall be deemed to refer to the Firm
Shares or the Option Shares and the First Closing Date or the related Option
Closing Date, each as applicable.
31
Section 8. Default of Underwriters.
If, at any Closing, any one or more of the Underwriters shall
fail or refuse to purchase Shares that it has or they have agreed to purchase
hereunder on such date, and the aggregate number of Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase is ten
percent or less of the aggregate number of the Shares to be purchased on such
date, the other Underwriters may make arrangements satisfactory to the
Representatives for the purchase of such Shares by other persons (who may
include one or more of the non-defaulting Underwriters, including the
Representatives), but if no such arrangements are made by the First Closing Date
or the related Option Closing Date, as the case may be, the other Underwriters
shall be obligated severally in the proportions that the number of Firm Shares
set forth opposite their respective names in Schedule 1 hereto bears to the
aggregate number of Firm Shares set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Representatives
may specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date. If, at the
First Closing, any Underwriter or Underwriters shall fail or refuse to purchase
Firm Shares and the aggregate number of Firm Shares with respect to which such
default occurs is more than ten per cent of the aggregate number of Firm Shares
to be purchased, and arrangements satisfactory to the Representatives and the
Company for the purchase of such Firm Shares are not made within 36 hours after
such default, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter or the Company. In any such case either the
Representatives or the Company shall have the right to postpone the Closing, but
in no event for longer than seven days, in order that the required changes, if
any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. If, at any Option Closing, any
Underwriter or Underwriters shall fail or refuse to purchase Option Shares, the
non-defaulting Underwriters shall have the option to (i) terminate their
obligation hereunder to purchase Option Shares or (ii) purchase not less than
the number of Option Shares that such non-defaulting Underwriters would have
been obligated to purchase in the absence of such default. As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section 8. Any action taken under this Section 8 shall
not relieve any defaulting Underwriter from liability in respect of any default
of such Underwriter under this Agreement.
Section 9. Termination.
This Agreement shall be subject to termination in the sole
discretion of the Representatives by notice to the Company given prior to any
Closing Date in the event that the Company shall have failed, refused or been
unable to perform all obligations and satisfy all conditions on its part to be
performed or satisfied hereunder at or prior thereto or, if at or prior to any
Closing Date: (a) trading in securities generally on the New York Stock Exchange
or the Pacific Stock Exchange shall have been suspended or materially limited or
minimum or maximum prices shall have been established by or on, as the case may
be, the Commission or the New York Stock Exchange or the Pacific Stock Exchange;
(b) trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market; (c) a general moratorium on
commercial banking activities shall have been declared by either Federal or New
York State authorities; (d) there shall have occurred (i) an outbreak or
escalation of hostilities between the
32
United States and any foreign power, (ii) an outbreak or escalation of any other
insurrection or armed conflict involving the United States, or (iii) any other
calamity or crisis or materially adverse change in general economic, political
or financial conditions having an effect on the U.S. financial markets that, in
the sole judgment of the Representatives, makes it impractical or inadvisable to
proceed with the public offering or the delivery of the Shares as contemplated
by the Registration Statement, as amended as of the date hereof; or (e) the
Company or any of its subsidiaries shall have, in the sole judgment of the
Representatives, sustained any material loss or interference with their
respective businesses or properties from fire, flood, hurricane, accident or
other calamity, whether or not covered by insurance, or from any labor dispute
or any legal or governmental proceeding, or there shall have been any materially
adverse change (including, without limitation, a change in management or
control), or constitute a development involving a prospective materially adverse
change, in the condition (financial or otherwise), management, earnings,
properties, business affairs or business prospects, stockholders' equity, net
worth or results of operations of the Company or any of its subsidiaries, except
in each case as described in or contemplated by the Prospectus (exclusive of any
amendment or supplement thereto). Termination of this Agreement pursuant to this
Section 9 shall be without liability of any party to any other party except for
the liability of the Company in relation to expenses as provided in Sections 4
and 10 hereof, the indemnity provided in Section 6 hereof and any liability
arising before or in relation to such termination.
Section 10. Reimbursement of Expenses.
If the sale of the Shares provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 7 hereof is not satisfied or because of any termination
pursuant to Section 9 hereof (other than by reason of a default by any of the
Underwriters), the Company shall reimburse the Underwriters, severally upon
demand, for all out-of-pocket expenses (including fees and disbursements of
counsel) that shall have been incurred by them in connection with the proposed
purchase and sale of the Shares.
Section 11. Information Supplied by Underwriters.
The statements set forth in the last paragraph on the front
cover page and under the heading "Underwriting" in any Preliminary Prospectus or
the Prospectus (to the extent such statements relate to the Underwriters)
constitute the only information furnished by any Underwriter through the
Representatives to the Company for the purposes of Section 5(a)(ii) and Section
6 hereof. The Underwriters confirm that such statements (to such extent) are
correct.
Section 12. Notices.
In all dealings hereunder, you shall act on behalf of each of
the Underwriters, and the parties hereto shall be entitled to act and rely upon
any statement, request, notice or agreement on behalf of any Underwriter made or
given by you. Any notice or notification in any form to be given under this
Agreement may be delivered in person or sent by telex, facsimile or telephone
(subject in the case of a communication by telephone to confirmation by telex or
facsimile) addressed to:
33
in the case of the Company:
The Xxxxxx Companies, Inc.
0000 Xxxxxxxxxx Xxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
Vice President of Legal Affairs
in the case of the Underwriters:
Deutsche Xxxxxx Xxxxxxxx Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: 000-000-0000
Attention: Xxxxxxx X. Xxxxxxx
Vice President
Any such notice shall take effect, in the case of delivery, at the time
of delivery and, in the case of telex or facsimile, at the time of dispatch.
Section 13. Miscellaneous.
(a) Time shall be of the essence of this Agreement.
(b) The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect, the meaning or
interpretation of this Agreement.
(c) For purposes of this Agreement, (a) "business day" means
any day on which the New York Stock Exchange is open for trading, and (b)
"subsidiary" has the meaning set forth in Rule 405 under the Securities Act.
(d) This Agreement may be executed in any number of
counterparts, all of which, taken together, shall constitute one and the same
Agreement and any party may enter into this Agreement by executing a
counterpart.
34
(e) This Agreement shall inure to the benefit of and shall be
binding upon the several Underwriters, the Company and their respective
successors and legal representatives, and nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person any legal
or equitable right, remedy or claim under or in respect of this Agreement, or
any provisions herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person, except that (i)
the indemnities of the Company contained in Section 6 hereof shall also be for
the benefit of any person or persons who control any Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
and (ii) the indemnities of the Underwriters contained in Section 6 hereof shall
also be for the benefit of the directors of the Company, the officers of the
Company who have signed the Registration Statement and any person or persons who
control the Company within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act. No purchaser of Shares from any Underwriter
shall be deemed a successor because of such purchase.
(f) The respective representations, warranties, agreements,
covenants, indemnities and other statements of the Company, its officers and the
several Underwriters set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement shall remain in full force and
effect, regardless of (i) any investigation made by or on behalf of the Company,
any of its officers or directors, any Underwriter or any controlling person
referred to in Section 6 hereof and (ii) delivery of and payment for the Shares.
The respective agreements, covenants, indemnities and other statements set forth
in Sections 4, 6 and 10 hereof shall remain in full force and effect, regardless
of any termination or cancellation of this Agreement.
Section 14. Severability.
It is the desire and intent of the parties that the provisions
of this Agreement be enforced to the fullest extent permissible under the law
and public policies applied in each jurisdiction in which enforcement is sought.
Accordingly, in the event that any provision of this Agreement would be held in
any jurisdiction to be invalid, prohibited or unenforceable for any reason, such
provision, as to such jurisdiction, shall be ineffective, without invalidating
the remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
Section 15. Governing Law.
The validity and interpretation of this Agreement, and the
terms and conditions set forth herein, shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to any
provisions relating to conflicts of laws.
35
If the foregoing is in accordance with your understanding,
please sign and return to us the sum of one for the Company and one for each of
the Representatives plus one for each counsel, and upon the acceptance hereof by
you, on behalf of each of the Underwriters, this letter and such acceptance
hereof shall constitute a binding agreement among each of the Underwriters and
the Company. It is understood that your acceptance of this letter on behalf of
each of the Underwriters is pursuant to the authority set forth in the Deutsche
Xxxxxx Xxxxxxxx Inc. Master Agreement Among Underwriters, the form of which
shall be submitted to the Company for examination upon request, but without
warranty on your part as to the authority of the signers thereof.
Very truly yours,
THE XXXXXX COMPANIES, INC.
By______________________________
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President
and Chief Financial Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
DEUTSCHE XXXXXX XXXXXXXX INC.
PAINEWEBBER INCORPORATED
By: DEUTSCHE XXXXXX XXXXXXXX INC.
By______________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
By______________________________
Name:
Title:
For itself and on behalf of the Representatives.
SCHEDULE 1
The Underwriters
Underwriter Underwriting commitment
----------- -----------------------
Deutsche Xxxxxx Xxxxxxxx Inc.............................. 1,000,000
PaineWebber Incorporated.................................. 1,000,000
--------------------
Total .................................................... 2,000,000
EXHIBIT A
---------
List of Material Agreements
---------------------------
1. Employment Agreements (unless otherwise indicated)
(a) A. Xxxxxx Xxxxxx -- Severance Agreement
(b) Xxxxxxx Xxxxxxx -- Xxxxxxxxx Agreement
(c) Xxxxx Xxxxxxx
(d) Xxxxxxxx Xxxxxxxx-- Xxxxxxxxx Agreement
(e) Xxxx Xxxxxxx
(f) Xxxxxx Xxxxxx
(g) Xxxxxx X. Xxxxx -- Severance Agreement
(h) Xxxxxxx X. Xxxxxxxxx
2. CooperSurgical, Inc.
(a) Amended and Restated Note, dated January 4, 1994,
CooperSurgical, Inc. borrowing $4 million from The Xxxxxx
Companies, Inc.
(b) Stockholders' Agreement, dated November 15, 1991, between
CooperSurgical, Inc. and The Xxxxxx Companies, Inc.
(c) CooperSurgical, Inc. Series A Preferred Stock Purchase
Agreement, dated November 1, 1991.
(d) Credit Agreement by and between The Xxxxxx Companies, Inc.
and CooperSurgical, Inc., dated as of November 1, 1991 for
$12,000,000.
3. CooperVision, Inc.
(a) Settlement Agreement between The Xxxxxx Companies, Inc. and
Xxxxxx X. Xxxxxx, dated as of June 30, 1994 and executed on
August 30, 1994.
4. Hospital Group of America, Inc.
(a) Subordinated Promissory Note. The Xxxxxx Companies, Inc,
$16,000,000 loan to PSG Acquisition, Inc. (now named Hospital
Group of America, Inc.), dated May 29, 1992.
5. Litigation: Consent decrees, settlements, injunctive orders
(a) Settlement Agreement between The Xxxxxx Companies, Inc. and
Xxxxxx Life Sciences, Inc., dated June 14, 1993.
(b) Settlement Agreement between A.L.C. Pottash, M.D., and
Hospital Group of New Jersey, Inc., Hospital Group of
America, Inc., and The Xxxxxx Companies, Inc., dated
November 24, 1995.
(c) Contract Purchase and Assignment Agreement between Hampton
Medical Group, P.A., and Hospital Group of New Jersey, Inc.,
Hospital Group of America, Inc., and The Xxxxxx Companies,
Inc., dated November 24, 1995.
(d) Agreement, dated as of September 28, 1993, between Medical
Engineering Corporation and The Xxxxxx Companies, Inc.
6. Marketing Agreements
(a) Services Agreement between CooperSurgical, Inc., Medtech
Research Corporation and Xxxxx X. Xxxxx, dated as of
November 27, 1996.
(b) Distributorship Agreement between CooperVision, Inc. and
Rhoto Pharmaceutical Co., Ltd., dated as of January 20, 1997.
(c) Cooperative Marketing Agreement between CooperVision, Inc.
and EyeSys Technologies, dated as of September 23, 1996.
(d) Xxxxxxxx Instruments Distribution Agreement with
CooperVision, Inc., dated as of May 15, 1997.
7. Supply Agreements
(a) Blairden Precision Instruments, Inc. and CooperSurgical, Inc.
Acquisition and Supply Agreement, dated June 28, 1995.
(b) Supply Agreement between PBH, Inc. and The Xxxxxx Companies,
Inc., dated March 17, 1997.
(c) Design and Supply Agreement between Aspect Vision Care Ltd.
and CooperVision, Inc., dated January 1, 1997.
(d) Manufacturing Contracts -- CooperSurgical, Inc.
(e) Unimar, Inc. and Mallinckrodt Medical, Inc., dated March 24,
1993 (HUMI).
(f) Prodimed, Inc. and Unimar, Inc., dated December 8, 1986
(Pipelle).
(g) Unimar, Inc. and Rovers, B.V., Futura Nova, B.V., J. Van
Brunschot, B.V., dated June 31, 1993 (Cervex-Brush).
8. Licensing and Development Agreements
(a) Color Patent License Agreement between Xxxxxx-Xxxxxx
Corporation and The Xxxxxx Companies, Inc., dated March 17,
1997.
(b) Licensing and Development Agreement between Medtech Research
Corporation and CooperSurgical, Inc, dated as November 27,
1996.
9. Acquisition and Disposition of Companies or Assets
(a) Asset Purchase Agreement between Xxxxxx-Xxxxxx Corporation,
PBH, Inc. and The Xxxxxx Companies, Inc., dated as of January
24, 1997.
(b) Stock Purchase Agreement, dated as of April 10, 1996 among
The Xxxxxx Healthcare Group, Inc. and Xxxxxxx X. Xxxxxxx,
Xxxxxx X. Xxxxxxx and Xxxxxx X. XxXxxxx and Unimar, Inc.
(c) Agreement and Plan of Merger among The Xxxxxx Companies,
Inc., Xxxxxx Acquisition Corp., Xxxxxx Surgical Technologies,
Inc. and the Shareholders of Xxxxxx Surgical Technologies,
Inc., dated April 3, 1997.
(d) Agreement for Purchase of Shares between CooperSurgical, Inc.
and Euro-Med, Inc., dated as of January 9, 1997.
(e) Asset Purchase Agreement, dated as of March 14, 1990 among
Frigi Acquisition, Inc., TCC Subsidiary Number 11, Inc.,
The Xxxxxx Companies, Inc., Frigitronics of Conn., Inc. and
Staar Surgical Company.
10. Secrecy/Security Agreements
(a) Security Agreement between Medtech Research Corporation and
CooperSurgical, Inc., dated as of November 27, 1996.
(b) Confidentiality Agreement between CooperVision, Inc., and
AspectVision Care Ltd., dated as of November 3, 1996.
11. Other Agreements Material to the business of the Company
(a) Royalty and Confidentiality Agreement/Patent Rights
Assignment with Xxxxxx Xxxxxx, M.D. dated January 25, 1996
(Post Partum Tubal Retractor)
(b) Product Royalty Agreement between Euro-Med Division of
CooperSurgical, Inc. and Xxxxx X. Xxxxxxxxxxx, dated
November 8, 1993.
(c) Foothill Capital Agreements
(d) Loan and Security Agreement, by and among CooperVision, Inc.,
CooperVision, Inc.(Canada), and Foothill Capital Corporation,
dated as of September 20, 1994.
(e) Amended and Restated Loan and Security Agreement, between
Foothill Capital Corporation and Hospital Group of Delaware,
Inc., Hospital Group of New Jersey, Inc., Hospital Group of
Illinois, Inc., dated May 29, 1992.
(f) County of Monroe Industrial Development Agency, $3,000,000
Tax Exempt Variable Rate Demand Industrial Development
Revenue Bonds (CooperVision, Inc. Project),
Series 1997, dated February 12, 1997.
(g) Registration Rights Agreement, dated June 14, 1992 between
The Xxxxxx Companies, Inc. and Xxxxxx Life Sciences, Inc.
(h) Term Notes, loans to The Xxxxxx Companies, Inc. from Xxxxxx
Life Sciences, Inc., dated April 18, 1997.
(i) $2.68 million
(ii) $2.32 million
(i) $50,000,000 Credit Facilities Underwritten Commitment Letter
from KeyBank National Association to The Xxxxxx Companies,
Inc., dated May 30, 1997.
(j) 10% Senior Subordinated Secured Notes due 2003
(k) Leases
(l) CoastVision, Inc., and Xxxxxxx X. Xxxxx and Xxxxx X. Xxxxx,
Huntington Beach facility, dated February 25, 1990, amended
February 24, 1997.
(m) CooperVision, Inc. and the County of Monroe Industrial
Development Agency, WillowBrook Office Park, dated August 1,
1995.
(n) CooperVision, Inc. and The Xxxxxx-Xxxxx Corporation, Irvine
facility, dated May 6, 1994, amended May 16, 1997.
(o) CooperSurgical, Inc. and Xxxxxx X. Xxxxxx, Shelton facility,
dated February 15, 1991, amended October 31, 1996.
