EXHIBIT 1.1
2,200,000 SHARES
ALBANY MOLECULAR RESEARCH, INC.
COMMON STOCK
(Par VALUE $.01 PER SHARE)
UNDERWRITING AGREEMENT
----------------------
[INSERT DATE]
ING BARING XXXXXX XXXX LLC
XXXXXXXXX & XXXXX
As Representatives of the
several Underwriters
c/o ING Baring Xxxxxx Xxxx LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
1. INTRODUCTION. Albany Molecular Research, Inc., a Delaware
corporation (the "Company"), proposes to issue and sell to the several
Underwriters named in Schedule I hereto (the "Underwriters"), for which ING
Baring Xxxxxx Xxxx LLC and Xxxxxxxxx & Xxxxx are acting as representatives (the
"Representatives"), an aggregate of 2,200,000 shares of the Company's Common
Stock, par value $.01 per share (the "Common Stock"). The 2,200,000 shares of
Common Stock to be sold by the Company are referred to herein as the "Firm
Shares." The Company also proposes to issue and sell to the several
Underwriters an aggregate of not more than 330,000 additional shares of Common
Stock (the "Additional Shares"), if requested by the Underwriters in accordance
with Section 9 hereof. The Firm Shares and the Additional Shares are
collectively referred to herein as the "Shares." The words "you" and "your"
refer to the Representatives of the Underwriters.
The Company hereby agrees with the several Underwriters as follows:
2. REPRESENTATIONS AND WARRANTIES.
The Company represents, warrants and agrees with each of the
Underwriters that:
(i) A registration statement on Form S-1 (File No. 333-58795)
under the Securities Act of 1933 as amended (the "Act"), with respect to
the Shares, including a
form of prospectus subject to completion, has been prepared by the Company
in conformity with the requirements of the Act and the rules and
regulations of the Securities and Exchange Commission (the "Commission")
thereunder (the "Rules and Regulations"). Such registration statement has
been filed with the Commission under the Act, and one or more amendments to
such registration statement may also have been so filed. After the
execution of this Agreement, the Company shall file with the Commission
either (A) if such registration statement, as it may have been amended, has
been declared by the Commission to be effective under the Act, a prospectus
in the form most recently included in an amendment to such registration
statement filed with the Commission (or, if no such amendment shall have
been filed, in such registration statement), with such insertions and
changes as are required by Rule 430A under the Act or permitted by Rule
424(b) under the Act as shall have been provided to and approved by the
Representatives prior to the filing thereof, or (B) if such registration
statement, as it may have been amended, has not been declared by the
Commission to be effective under the 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 filing
thereof. As used in this Agreement, the term "Registration Statement" means
such registration statement, as amended at the time when it was or is
declared effective, including all financial schedules and exhibits thereto;
the Registration Statement shall be deemed to include any information
omitted therefrom pursuant to Rule 430A under the Act and included in the
Prospectus (as hereinafter defined) and shall also mean any registration
statement filed pursuant to Rule 462(b) under the Act; the term
"Preliminary Prospectus" means each prospectus subject to completion
contained in such registration statement or any amendment thereto
(including the prospectus subject to completion, if any, included in the
Registration Statement or any amendment thereto or filed pursuant to Rule
424(a) under the Act at the time it was or is declared effective); and the
term "Prospectus" means the prospectus first filed with the Commission
pursuant to Rule 424(b) under the Act or, if no prospectus is required to
be filed pursuant to said Rule 424(b), such term means the prospectus
included in the Registration Statement.
(ii) The Company has not received any order preventing or
suspending the use of any Preliminary Prospectus and the Company has not
received any notice that the Commission has instituted nor, to the
Company's knowledge, has the Commission threatened to institute any
proceedings with respect to such an order. When any Preliminary Prospectus
was filed with the Commission it (A) contained all statements required to
be stated therein in accordance with, and complied in all material respects
with the requirements of the Act and the Rules and Regulations and (B) 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 or is declared
effective, it (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 Act and the Rules and
Regulations and (B) did not or will not include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein not misleading. When the Prospectus and when any
amendment or supplement thereto is filed with the Commission pursuant to
Rule
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424(b) (or, if the Prospectus or such amendment or supplement is not
required to be so filed, when the Registration Statement and when any
amendment thereto containing such amendment or supplement to the Prospectus
was or is declared effective) and at all times subsequent thereto up to and
including the Closing Date (as defined in Section 3 hereof) and the Option
Closing Date (as defined in Section 9 hereof), 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 Act
and the Rules and Regulations 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) shall not apply to (A) statements or
omissions made in any Preliminary Prospectus which have been corrected in a
subsequent Preliminary Prospectus or the Prospectus or (B) 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 conformity with, information furnished in
writing to the Company by or on behalf of the Underwriters through the
Representatives expressly for use therein.
(iii) Each of the Company and its subsidiaries (the
"Subsidiaries") (A) is a duly incorporated and validly existing corporation
in good standing under the laws of its jurisdiction of incorporation, with
corporate power and corporate authority to own or lease its properties and
to conduct its business as described in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus); and (B) is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction (x) in
which the conduct of its business requires such qualification (except for
those jurisdictions in which the failure so to qualify has not had and will
not have a Material Adverse Effect (as hereinafter defined)) and (y) in
which it owns or leases property. "Material Adverse Effect" means, when
used in connection with the Company or its Subsidiaries, any development,
change or effect that is materially adverse to the business, properties,
assets, net worth, condition (financial or other) or results of operations
of the Company and its Subsidiaries taken as a whole.
(iv) The Company has the duly authorized and validly outstanding
capitalization set forth under the caption "Capitalization" in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and will have the adjusted capitalization set forth
therein on the Closing Date and the Option Closing Date, based on the
assumptions and including the exceptions set forth therein and the
footnotes thereto. The capital stock of the Company conforms in all
material respects to the description thereof contained in the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus). The outstanding shares of Common Stock have been duly
authorized and validly issued by the Company and are fully paid and
nonassessable. Except as created hereby or described in the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus), there are no outstanding options, warrants, rights or other
arrangements requiring the Company or any subsidiary at any time to issue
any capital stock. No holders of outstanding shares of capital stock of
the Company are entitled as such to any preemptive or other rights to
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subscribe for any of the Shares, other than those which have been waived or
satisfied, and neither the filing of the registration statement nor the
offering or sale of the Shares as contemplated by this Agreement gives rise
to any rights, other than those which have been waived or satisfied, for or
relating to, the registration of any securities of the Company. The Shares
have been duly authorized; on the Closing Date or the Option Closing Date
(as the case may be), after payment therefor in accordance with the terms
of this Agreement, (A) the Firm Shares and the Additional Shares to be sold
by the Company hereunder will be validly issued, fully paid and
nonassessable, and (B) good and marketable title to the Shares will pass to
the Underwriters on the Closing Date or the Option Closing Date (as the
case may be) free and clear of any lien, encumbrance, security interest,
claim or other restriction whatsoever. All the outstanding shares of
capital stock of each Subsidiary has been duly authorized and validly
issued, are fully paid and nonassessable and are owned directly by the
Company, free and clear of any lien, encumbrance, security interest, claim
or other restriction whatsoever. The Company has received, subject to
notice of issuance, approval to have the Shares quoted on the National
Market System of the National Association of Securities Dealers' Automated
Quotation System and the Company knows of no reason or set of facts which
is likely to adversely affect such approval.
(v) The consolidated financial statements and the related notes
and schedules thereto included in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) fairly present, in all material respects, the
consolidated financial condition, results of operations, stockholders'
equity and cash flows of the Company and its subsidiaries at the dates and
for the periods specified therein. Such financial statements and the
related notes and schedules thereto have been prepared in accordance with
generally accepted accounting principles consistently applied throughout
the periods involved (except as otherwise noted therein) and such financial
statements as are audited have been examined by KPMG Peat Marwick LLP, who
are independent public accountants within the meaning of the Act and the
Rules and Regulations, as indicated in their reports filed therewith. The
selected financial information set forth under the caption "Selected
Financial Data" in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) have been prepared on a
basis consistent with the consolidated financial statements of the Company
and its Subsidiaries.
(vi) The Company and each of its Subsidiaries have filed all
necessary federal, state and local income, franchise and other material tax
returns and have paid all taxes shown as due thereunder, and the Company
has no knowledge of any tax deficiency which is reasonably likely to be
assessed against the Company which, if so assessed, would have a Material
Adverse Effect.
(vii) The Company and each of its Subsidiaries maintain
insurance of the types and in amounts which they reasonably believe to be
adequate for their business in such amounts and with such deductibles as is
customary for companies in the same or similar business, all of which
insurance is in full force and effect.
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(viii) Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus),
there is no action, suit, proceeding or investigation pending or, to the
Company's best knowledge, threatened before or by any court, regulatory
body or administrative agency or any other governmental agency or body,
domestic or foreign, which (A) questions the validity of the capital stock
of the Company or this Agreement or of any action taken or to be taken by
the Company pursuant to or in connection with this Agreement, (B) is
required to be disclosed in the Registration Statement which is not so
disclosed (and such proceedings, if any, as are summarized in the
Registration Statement are accurately summarized in all material respects),
or (C) if decided adversely to the Company, would have a Material Adverse
Effect.
(ix) The Company has all requisite corporate, power and authority
to enter into this Agreement and to consummate the transactions provided
for herein. This Agreement has been duly authorized, executed and
delivered by the Company and, assuming it is a binding agreement of yours,
constitutes a legal, valid and binding agreement of the Company enforceable
against the Company in accordance with its terms (except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application relating to
or affecting the enforcement of creditors' rights and the application of
equitable principles relating to the availability of remedies and except as
rights to indemnity or contribution may be limited by federal or state
securities laws and the public policy underlying such laws), and none of
the Company's execution or delivery of this Agreement, its performance
hereunder, its consummation of the transactions contemplated herein, its
application of the net proceeds of the offering in the manner set forth
under the caption "Use of Proceeds" or the conduct of its business as
described in the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus), conflicts or will conflict with or
results or will result in any breach or violation of any of the terms or
provisions of, or constitutes or will constitute a default under, causes or
will cause (or permits or will permit) the maturation or acceleration of
any liability or obligation or the termination of any right under, or
result in the creation or imposition of any lien, charge, or encumbrance
upon, any property or assets of the Company or any of its Subsidiaries
pursuant to the terms of (A) the certificate of incorporation or by-laws of
the Company or any of its Subsidiaries, (B) any indenture, mortgage, deed
of trust, voting trust agreement, stockholders' agreement, note agreement
or other agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which any of them are or may be bound or to
which any of their respective property is or may be subject or (C) any
statute, judgment, decree, order, rule or regulation applicable to the
Company or any of its Subsidiaries of any government, arbitrator, court,
regulatory body or administrative agency or other governmental agency or
body, domestic or foreign, having jurisdiction over the Company, any of its
Subsidiaries or any of their respective activities or properties, except,
in the cases of clauses (B) and (C) above, for breaches, violations,
defaults or terminations which would not be reasonably likely to have a
Material Adverse Effect.
(x) All executed agreements or copies of executed agreements
filed as exhibits to the Registration Statement to which the Company or any
of its Subsidiaries is
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a party or by which any of them are or may be bound or to which any of
their assets, properties or businesses is or may be subject have been duly
and validly authorized, executed and delivered by the Company or such
Subsidiary, as the case may be, and, assuming such agreements are the
legal, valid, binding and enforceable agreements of the other parties
thereto, constitute the legal, valid and binding agreements of the Company
or such Subsidiary, as the case may be, enforceable against each of them in
accordance with their respective terms (except as such enforceability may
be limited by applicable bankruptcy, insolvency, reorganization or other
similar laws relating to enforcement of creditors' rights generally, and
general equitable principles relating to the availability of remedies, and
except as rights to indemnity or contribution may be limited by federal or
state securities laws and the public policy underlying such laws). The
descriptions in the Registration Statement of contracts and other documents
are accurate in all material respects and fairly present the information
required to be shown with respect thereto by the Act and the Rules and
Regulations, and there are no contracts or other documents which are
required by the Act or the Rules and Regulations to be described in the
Registration Statement or filed as exhibits to the Registration Statement
which are not described or filed as required, and the exhibits which have
been filed are complete and correct copies of the documents of which they
purport to be copies.
(xi) Subsequent to the most recent respective dates as of which
information is given in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), and except as expressly
contemplated therein, neither the Company nor any of its Subsidiaries has
incurred, other than in the ordinary course of its business, any material
liabilities or obligations, direct or contingent, purchased any of its
outstanding capital stock, paid or declared any dividends or other
distributions on its capital stock or entered into any material
transactions not in the ordinary course of business, and there has been no
material change in capital stock or debt or any material adverse change in
the business, properties, assets, net worth, condition (financial or
other), or results of operations of the Company and its Subsidiaries taken
as a whole. Neither the Company nor any of its Subsidiaries (or the manner
in which it any of them conducts its business) is in breach or violation
of, or in default under, any term or provision of (A) its certificate of
incorporation or bylaws, (B) any indenture, mortgage, deed of trust, voting
trust agreement, stockholders' agreement, note agreement or other agreement
or instrument to which it is a party or by which it is or may be bound or
to which any of its property is or may be subject, or any indebtedness, the
effect of which breach or default singly or in the aggregate may have a
Material Adverse Effect, or (C) any statute, judgment, decree, order, rule
or regulation applicable to the Company or any of its Subsidiaries or of
any arbitrator, court, regulatory body, administrative agency or any other
governmental agency or body, domestic or foreign, having jurisdiction over
the Company or any of its Subsidiaries or any of their respective
activities or properties and the effect of which breach or default singly
or in the aggregate would have a Material Adverse Effect.
(xii) No labor disturbance by the employees of the Company or
any of its Subsidiaries exists or is imminent which would have a Material
Adverse Effect.
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(xiii) Except as set forth in the Prospectus under the captions
"Risk Factors - Proprietary Technology; Unpredictability of Patent
Protection" and "Business - Patents and Proprietary Rights," (i) the
Company and its Subsidiaries own or possess valid and enforceable licenses
for all inventions, patents, patent applications, trademarks (registered or
unregistered), trademark applications, tradenames, copyrights,
manufacturing processes, formulae, trade secrets, know-how, and other
intangible property and assets necessary to the conduct of their business
now conducted as described in the Prospectus (collectively, "Intellectual
Property") and the Company does not know of any facts which would form a
reasonable basis for a claim that the Company or any of its Subsidiaries do
not own or possess valid and enforceable licenses for all Intellectual
Property necessary to the conduct of their business proposed to be
conducted as described in the Prospectus; (ii) the Company has no knowledge
that it or any of its Subsidiaries lack or will be unable to obtain any
rights or licenses to use any of the Intellectual Property; (iii) the
Company does not know of any third parties who have or will be able to
establish rights to any of the Intellectual Property; (iv) to the Company's
knowledge, there is no infringement by third parties of any of the
Intellectual Property; (v) there is no pending or, to the Company's
knowledge, threatened action, suit, proceeding or claim by others
challenging the Company's or any Subsidiary's rights of title or other
interest in or to any Intellectual Property, and the Company does not know
of any facts which would form a reasonable basis for any such claim; (vi)
except as disclosed in the Prospectus, there is no pending, or, to the
Company's knowledge, threatened action, suit, proceeding or claim by others
challenging the validity and scope of any Intellectual Property, and the
Company does not know of any facts which would form a reasonable basis for
any such claim; (vii) there is no pending or, to the Company's knowledge,
threatened action, suit, proceeding or claim by others that the Company or
any of its Subsidiaries or any of their products or processes infringe or
otherwise violate any patent, trademark, copyright, trade secret or other
proprietary right of others, and the Company is unaware of any facts which
would form a reasonable basis for any such claim; (viii) except as
disclosed in the Prospectus, to the Company's knowledge, there are no
grounds for an interference proceeding before the USPTO in relation to any
of the patents or patent applications currently owned by the Company or any
of its Subsidiaries; (ix) to the Company's knowledge, there are no facts
which would bar the grant of a patent from each of the patent applications
within the Intellectual Property; (x) there is no pending or, to the
Company's knowledge, threatened action, suit, proceeding or claim by any
current or former employee, consultant or agent of the Company or any of
its Subsidiaries seeking either ownership rights to any invention or
compensation from the Company or any of its Subsidiaries for any invention
made by such employee, consultant or agent in the course of his/her
employment with the Company or any of its Subsidiaries, nor, to the
Company's knowledge, can any such action, suit, proceeding or claim, if
instituted, be sustained; and (xi) there is no act or omission by the
Company or its agents or representatives of which the Company has knowledge
that may render any patent or patent application within the Intellectual
Property unpatentable, unenforceable or invalid. The Prospectus fairly and
accurately describes in all material respects the Company's and its
Subsidiaries' rights with respect to the Intellectual Property.
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(xiv) No consent, approval, authorization or order of or filing
with any court, regulatory body, administrative agency or any other
governmental agency or body, domestic or foreign, is required for the
performance of this Agreement or the consummation of the transactions
contemplated hereby, except such as have been or may be required to be
obtained under the Act or may be required under state securities or Blue
Sky laws in connection with the Underwriters' purchase and distribution of
the Shares.
(xv) Neither the Company nor any of its officers, directors or
affiliates (within the meaning of the Rules and Regulations) has taken,
directly or indirectly, any action designed to stabilize or manipulate the
price of any security of the Company, or which has constituted or which
might in the future reasonably be expected to cause or result in
stabilization or manipulation of the price of any security of the Company,
to facilitate the sale or resale of the Shares or otherwise.
(xvi) Each of the Company and its Subsidiaries has good and
valid title to, or valid and enforceable leasehold interests in, all
properties and assets owned or leased by it, free and clear of all liens,
encumbrances, security interests, claims, restrictions, equities, claims
and defects, except (A) such as are described in the Registration Statement
and Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), or such as do not materially adversely affect the
value of any of such properties or assets taken as a whole and do not
materially interfere with the use made and proposed to be made of any of
such properties or assets, and (B) liens for taxes not yet due and payable
as to which appropriate reserves have been established and reflected in the
financial statements included in the Registration Statement. The Company
owns or leases all such properties as are materially necessary to its
operations as now conducted, and as proposed to be conducted as set forth
in the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus); and the
properties and business of the Company and its Subsidiaries conform in all
material respects to the descriptions thereof contained in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus). All the material leases and
subleases of the Company and its Subsidiaries, and under which the Company
or any Subsidiary holds properties or assets as lessee or sublessee,
constitute valid leasehold interests of the Company or such Subsidiary free
and clear of any lien, encumbrance, security interest, restriction, equity,
claim or defect, are in full force and effect, and neither the Company nor
any Subsidiary is in default in respect of any of the material terms or
provisions of any such material leases or subleases, and neither the
Company nor any Subsidiary has notice of any claim which has been asserted
by anyone adverse to the Company's or any of its Subsidiary's rights as
lessee or sublessee under either the material lease or sublease, or
affecting or questioning the Company's or any Subsidiary's right to the
continued possession of the leased or subleased premises under any such
material lease or sublease, in each case which default or claim would have
a Material Adverse Effect.
(xvii) Neither the Company nor any Subsidiary has violated any
applicable environmental, safety, health or similar law applicable to the
business of the Company, nor any federal or state law relating to
discrimination in the hiring, promotion, or pay of employees, nor any
applicable federal or state wages and hours law, nor any
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provisions of ERISA or the rules and regulations promulgated thereunder,
the consequences of which violation would have a Material Adverse Effect.
(xviii) Each of the Company and its Subsidiaries hold and at the
Closing Date and any later Option Closing Date, as the case may be, will
hold, all franchises, licenses, permits, approvals, certificates and other
authorizations from federal, state and foreign and other governmental or
regulatory authorities, including, but not limited to, the FDA and any
foreign regulatory authorities performing functions similar to those
performed by the FDA, necessary to the ownership, leasing and operation of
their properties or required for the present conduct of business, and such
franchises, licenses, permits, approvals, certificates and other
governmental authorizations are in full force and effect and the Company
and its Subsidiaries are in compliance therewith in all material respects
except where the failure so to obtain, maintain or comply with would not be
reasonably likely to have a Material Adverse Effect. All of the
descriptions in the Registration Statement and Prospectus of the legal and
governmental proceedings by or before the FDA or any foreign, state or
local government body exercising comparable authority are true, complete
and accurate in all material respects.
(xix) No Subsidiary of the Company is currently prohibited,
directly or indirectly, from paying any dividends to the Company, from
making any other distribution on such Subsidiary's capital stock, from
repaying to the Company any loans or advances to such Subsidiary from the
Company or from transferring any of such Subsidiary's property or assets to
the Company or any other Subsidiary of the Company, except as described in
or contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(xx) Neither the Company nor any of its Subsidiaries is (i) in
violation of its certificate of incorporation or bylaws, (ii) in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any bond, debenture, note or other evidence of
indebtedness, which default would have a Material Adverse Effect, (iii) in
default in the performance or observance of any contract, indenture,
mortgage, loan agreement joint venture or other agreement or instrument to
which it is a party or by which its or any of its properties are bound,
which default would have a Material Adverse Effect, or (iv) in violation of
any law, order, rule, regulation, writ, injunction, judgment or decree of
any court of government agency or body to which the Company is subject,
including, but not limited to, the FDA, which violation would have a
Material Adverse Effect.
(xxi) The Company and its Subsidiaries are (i) in compliance
with any and all applicable United States, foreign, state and local
environmental laws, rules, regulations, treaties, statutes and codes
promulgated by any and all governmental authorities relating to the
protection of human health and safety, the environment or toxic substances
or wastes, pollutants or contaminants ("Environmental Laws"), (ii) have
received all permits, licenses or other approvals required of it under
applicable Environmental Laws to conduct their business as currently
conducted, and (iii) are in compliance with all terms and conditions of any
such permit, license or approval, except, in the case of each of clauses
(i) through (iii), above, where such noncompliance with
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Environmental Laws, failure to receive required permit licenses or other
approvals would not, individually or in the aggregate, be reasonably likely
to have a Material Adverse Effect. No action, proceeding, revocation
proceeding, writ, injunction or claim is pending or, to the Company's
knowledge, threatened against the Company or its Subsidiaries relating to
the Environmental Laws or to their activities involving Hazardous
Materials. "Hazardous Materials" means for purposes of this Agreement any
material or substance (i) that is prohibited or regulated by any
environmental law, rule, regulation, order, treaty, statute or code
promulgated by any governmental authority, or any amendment or modification
thereto, or (ii) that has been designated or regulated by any governmental
authority as radioactive, toxic, hazardous or otherwise a danger to health,
reproduction or the environment. The Company and its Subsidiaries have not
engaged in the generation, use, manufacture, transportation or storage of
any Hazardous Materials on any of their properties or former properties,
except where such use, manufacture, transportation or storage is in
compliance in all material respects with Environmental Laws. The Company
and its Subsidiaries have not disposed of any, and to the Company's
knowledge, no parties other than the Company and its Subsidiaries have
disposed of, Hazardous Materials on any of their properties or on
properties formerly owned or leased by them during the time of such
ownership or lease, except in compliance in all material respects with
Environmental Laws. To the Company's knowledge, no spills, discharges,
releases, deposits, emplacements, leaks or disposal of any Hazardous
Materials have occurred on or under or have emanated from any of the
Company's or its Subsidiaries' properties or former properties during the
time of their ownership or lease thereof except in compliance in all
respects with Environmental Laws or that would not be reasonably likely to
have a Material Adverse Effect, and except as disclosed in the Prospectus,
the Company has no knowledge of any spills, discharges, releases, deposits,
emplacements, leaks or disposal of any Hazardous Materials that have
occurred on or under or have emanated from any of the Company's or
Subsidiaries' properties or former properties prior to the Company's or
Subsidiaries' ownership or lease thereof.
(xxii) Except as disclosed in the Prospectus, there are no
business relationships or related party transactions required to be
disclosed therein by Item 404 of Regulation S-K of the Commission.
(xxiii) The Company and its Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurances
that (i) transactions are executed in accordance with management's general
or specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets;
(iii) access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded accountability for
assets is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(xxiv) The Company and its Subsidiaries are in compliance with
all provisions of Florida Statutes (S)517.075 and the regulations
thereunder, relating to issuers doing business with Cuba.
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(xxv) The Company and its Subsidiaries have not at any time
during the last five years (i) made any unlawful contribution to any
candidate for foreign office, or failed to disclose fully any contribution
in violation of law, or (ii) made any payment to any foreign, United States
or state governmental officer or official, or other person charged with
similar public or quasi-public duties, other than payments required or
permitted by the laws of the United States.
3. PURCHASE, SALE AND DELIVERY OF THE SHARES. On the basis of the
representations, warranties, covenants and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company agrees to sell
to each Underwriter and each Underwriter, severally and not jointly, agrees to
purchase from the Company at a purchase price of $______________ per Share, the
number of Firm Shares set forth opposite the name of such Underwriter in Column
(1) of Schedule I hereto.
Delivery of certificates, and payment of the purchase price, for the
Firm Shares shall be made at the offices of ING Baring Xxxxxx Xxxx LLC at 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other location as shall be agreed
upon by the Company and the Representatives. Such delivery and payment shall be
made at 10:00 a.m., New York City time, on __________, 1998 or at such other
time and date not more than ten business days thereafter as shall be agreed upon
by the Representatives and the Company. The time and date of such delivery and
payment are herein called the "Closing Date." Delivery of the certificates for
the Firm Shares shall be made to the Representatives for the respective accounts
of the several Underwriters against payment by the several Underwriters through
the Representatives of the purchase price for the Firm Shares by wire transfer
of immediately available funds to an account designated to the Representatives
in writing at least two business days preceding the Closing Date. The
certificates for the Shares to be so delivered will be in definitive, fully
registered form, will bear no restrictive legends and will be in such
denominations and registered in such names as the Representatives shall request,
not less than two full business days prior to the Closing Date. The
certificates for the Firm Shares will be made available to the Representatives
at such office or such other place as the Representatives may designate for
inspection, checking and packaging not later than 9:30 a.m., New York time on
the business day prior to the Closing Date.
4. PUBLIC OFFERING OF THE SHARES. It is understood that the
Underwriters propose to make a public offering of the Shares at the price and
upon the other terms set forth in the Prospectus.
5. COVENANTS OF THE COMPANY. The Company covenants and agrees with
each of the Underwriters that:
(i) The Company will 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
practicable. If required, the Company will file the Prospectus and any
amendment or supplement thereto with the Commission in the manner and
within the time period required by Rule 424(b) under the Act. During any
time when a prospectus relating to the Shares is required to be delivered
11
under the Act, the Company (A) will comply with all requirements imposed
upon it by the Act and the Rules and Regulations 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 (B) will not file with the Commission the prospectus or
the amendment referred to in the third sentence of Section 2(a)(i) hereof,
any amendment or supplement to such prospectus or any amendment to the
Registration Statement of which the Representatives shall not previously
have been advised and furnished with a copy a reasonable period of time
prior to the proposed filing and as to which filing the Representatives
shall not have given their consent.
(ii) As soon as the Company is advised or obtains knowledge
thereof, the Company will advise the Representatives (A) when the
Registration Statement, as amended, has become effective; if the provisions
of Rule 430A promulgated under the Act will be relied upon, when the
Prospectus has been filed in accordance with said Rule 430A and when any
post-effective amendment to the Registration Statement becomes effective;
(B) of any request made by the Commission for amending the Registration
Statement, for supplementing any Preliminary Prospectus or the Prospectus
or for additional information, or (C) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or any post-effective amendment thereto or any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto or the institution or threat of any
investigation or proceeding for that purpose, and will use its best efforts
to prevent the issuance of any such order and, if issued, to obtain the
lifting thereof as soon as possible.
(iii) The Company will (A) use its best efforts to arrange for
the qualification of the Shares for offer and sale under the state
securities or blue sky laws of such jurisdictions as the Representatives
may designate, and the continuation of such qualifications in effect for as
long as may be necessary to complete the distribution of the Shares, and
(B) make such applications, file such documents and furnish such
information as may be required for the purposes set forth in clause (A);
provided, however, that the Company shall not be required to qualify as a
-------- -------
foreign corporation or file a general or unlimited consent to service of
process in any such jurisdiction.
(iv) The Company consents to the use of the Prospectus (and any
amendment or supplement thereto) by the Underwriters and all dealers to
whom the Shares may be sold, in connection with the offering or sale of the
Shares and for such period of time thereafter as the Prospectus is required
by law to be delivered in connection therewith. If, at any time when a
prospectus relating to the Shares is required to be delivered under the
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 a material fact necessary to make the statements therein not
misleading, or if it becomes necessary at any time to amend or supplement
the Prospectus to comply with the Act or the Rules and Regulations, the
Company promptly will so notify the Representatives and, subject to Section
5(a)(i) hereof, will prepare and file with the Commission an amendment to
the Registration Statement or an amendment or supplement to the Prospectus
which will correct such statement or omission or effect
12
such compliance, each such amendment or supplement to be reasonably
satisfactory to counsel to the Underwriters.
(v) As soon as practicable, but in any event not later than 45
days after the end of the 12-month period beginning on the day after the
end of the fiscal quarter of the Company during which the effective date of
the Registration Statement occurs (90 days in the event that the end of
such fiscal quarter is the end of the Company's fiscal year), the Company
will make generally available to its security holders, in the manner
specified in Rule 158(b) of the Rules and Regulations, and to the
Representatives, an earnings statement which will be in the detail required
by, and will otherwise comply with, the provisions of Section 11(a) of the
Act and Rule 158(a) of the Rules and Regulations, which statement need not
be audited unless required by the Act or the Rules and Regulations,
covering a period of at least 12 consecutive months after the effective
date of the Registration Statement.
(vi) During a period of five years after the date hereof, the
Company will furnish to its stockholders, as soon as practicable, annual
reports (including financial statements audited by independent public
accountants) and unaudited quarterly reports of earnings, and will deliver
to the Representatives:
(A) concurrently with furnishing any quarterly reports to
its stockholders, statements of income of the Company for each
quarter in the form furnished to the Company's stockholders;
(B) concurrently with furnishing annual reports to its
stockholders, a balance sheet of the Company as at the end of the
preceding fiscal year, together with statements of operations,
stockholders' equity, and cash flows of the Company for such
fiscal year, accompanied by a copy of the report thereon of
independent public accountants;
(C) as soon as they are available, copies of all
information (financial or other) mailed to stockholders;
(D) as soon as they are available, copies of all reports
and financial statements furnished to or filed with the
Commission, the National Association of Securities Dealers, Inc.
("NASD") or any securities exchange;
(E) every press release and every material news item or
article of interest to the financial community in respect of the
Company or its affairs which was released or prepared by the
Company; and
(F) any additional information of a public nature
concerning the Company or its business in the possession of the
Company which the Representatives may reasonably request.
During such five-year period, if the Company has active subsidiaries,
the foregoing financial statements will be on a consolidated basis to
the extent that
13
the accounts of the Company and its subsidiaries are consolidated, and
will be accompanied by similar financial statements for any
significant subsidiary which is not so consolidated.
(vii) The Company will maintain a Transfer Agent and, if
necessary under the jurisdiction of incorporation of the Company, a
Registrar (which may be the same entity as the Transfer Agent) for its
Common Stock.
(viii) The Company will furnish, without charge, to the
Representatives or on the Representatives' order, at such place as the
Representatives may designate, copies of the each Preliminary Prospectus,
the Registration Statement and any pre-effective or post-effective
amendments thereto (two of which copies will be signed and will include all
financial statements and exhibits) and the Prospectus, and all amendments
and supplements thereto, in each case as soon as available and in such
quantities as the Representatives may reasonably request.
(ix) The Company will not, directly or indirectly, without the
prior written consent of the Representatives, issue, offer, sell, grant any
option to purchase or otherwise dispose (or announce any issuance, offer,
sale, grant of any option to purchase or other disposition) of any shares
of Common Stock or any securities convertible into, or exchangeable or
exercisable for, shares of Common Stock for the period ending 180 days
after the date hereof, except pursuant to this Agreement , except for
issuances pursuant to the exercise of stock options outstanding on or
granted subsequent to the date hereof, pursuant to a stock option or other
employee benefit plan in existence on the date hereof, except for the
Company's issuance of shares of Common Stock upon the conversion of the
outstanding shares of the Convertible Preferred Stock in connection with
the consummation of the transactions contemplated hereby and by the
Prospectus, except for the issuance of shares of Common Stock in connection
with the acquisition by the Company of another business or entity, provided
that the terms of such acquisition prohibit the resale or other disposition
of such shares for the period ending 180 days after the date hereof and
except as contemplated by the Prospectus.
(x) The Company will use its best efforts to cause the Shares to
be included for quotation on the Nasdaq National Market prior to the
Closing Date.
(xi) The Company will apply the net proceeds of the offering
received by it in the manner set forth under the caption "Use of Proceeds"
in the Prospectus.
(xii) The Company will timely file all such reports, forms or
other documents as may be required from time to time, under the Act, the
Rules and Regulations, the Exchange Act, and the rules and regulations
thereunder, and all such reports, forms and documents filed will comply as
to form and substance with the applicable requirements under the Act, the
Rules and Regulations, the Exchange Act and the rules and regulations
thereunder.
14
6. EXPENSES.
(a) Regardless of whether the transactions contemplated in this
Agreement are consummated, and regardless of whether for any reason this
Agreement is terminated subject to the last sentence of this Section 6(a), the
Company will pay, and hereby agrees to indemnify each Underwriter against, all
fees and expenses incident to the performance of the obligations of the Company
under this Agreement, including, but not limited to, (i) fees and expenses of
accountants and counsel for the Company, (ii) all costs and expenses incurred in
connection with the preparation, duplication, printing, filing, delivery and
shipping of copies of the Registration Statement and any pre-effective or post-
effective amendments thereto, any Preliminary Prospectus and the Prospectus and
any amendments or supplements thereto (including postage costs related to the
delivery by the Underwriters of any Preliminary Prospectus or Prospectus, or any
amendment or supplement thereto), this Agreement, the Agreement Among
Underwriters, any Selected Dealer Agreement, Underwriters' Questionnaire,
Underwriters' Power of Attorney, and all other documents in connection with the
transactions contemplated herein, including the cost of all copies thereof,
(iii) fees and expenses relating to qualification of the Shares under state
securities or blue sky laws, including the cost of preparing and mailing the
preliminary and final blue sky memoranda and filing fees and disbursements and
reasonable fees of counsel and other related expenses, if any, in connection
therewith, (iv) filing fees of the Commission and the NASD relating to the
Shares, (v) any fees and expenses in connection with the quotation of the Shares
on the Nasdaq National Market and reasonable fees of counsel to the Underwriters
in connection with NASD filings, (vi) costs and expenses incident to the
preparation, issuance and delivery to the Underwriters of any certificates
evidencing the Shares, including transfer agent's and registrar's fees and any
applicable transfer taxes incurred in connection with the delivery to the
Underwriters of the Shares to be sold by the Company pursuant to this Agreement,
(vii) costs and expenses incident to any 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 (viii) costs and
expenses of advertising relating to the offering of the Shares (other than as
shall have been specifically approved by the Representatives to be paid for by
the Underwriters). Except as set forth above and in Section 6(b) below, the
Underwriters shall pay all of their own expenses (including the fees and
disbursements of their counsel and their travel expenses) incurred in connection
with this Agreement and the transactions contemplated hereby.
(b) If the purchase of the Shares as herein contemplated is not
consummated for any reason other than the Underwriters' default under this
Agreement or other than by reason of Section 11(a), the Company shall reimburse
the several Underwriters for their reasonable out-of-pocket expenses (including
reasonable counsel fees and disbursements) in connection with any investigation
made by them, and any preparation made by them in respect of marketing of the
Shares or in contemplation of the performance by them of their obligations
hereunder.
7. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligation of
each Underwriter to purchase and pay for the Shares set forth opposite the name
of such Underwriter in Schedule I is subject to the continuing accuracy of the
representations and warranties of the Company herein as of the date hereof and
as of the Closing Date as if they had been made on and as of the Closing Date;
the accuracy on and as of the Closing Date of the statements of officers of the
Company made pursuant to the provisions hereof; the performance by the Company
on and as of the Closing Date of all of its covenants and agreements hereunder
which are to be performed on or prior to the Closing Date; and the following
additional conditions:
15
(a) If the Company has elected to rely on Rule 430A under the Act, the
Registration Statement shall have been declared effective, and the Prospectus
(containing the information omitted pursuant to Rule 430A) shall have been filed
with the Commission not later than the Commission's close of business on the
second business day following the date hereof or such later time and date to
which the Representatives shall have consented; if the Company does not elect to
rely on Rule 430A, the Registration Statement shall have been declared effective
not later than 11:00 A.M., New York time, on the first business day following
the date hereof or such later time and date to which the Representatives shall
have consented; if required, in the case of any changes in or amendments or
supplements to the Prospectus in addition to those contemplated above, the
Company shall have filed such Prospectus as amended or supplemented with the
Commission in the manner and within the time period required by Rule 424(b)
under the 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, to the knowledge of the Company
or the Representatives, shall be contemplated or threatened 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 Registration Statement, or any amendment thereto, shall not
contain an untrue statement of material fact, or omit to state a material fact
which is required to be stated therein or is necessary to make the statements
therein not misleading, and the Prospectus, or any supplement thereto, shall not
contain an untrue statement of material fact, or omit to state a material fact
which is required to be stated therein or is necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(c) On or prior to the Closing Date, the Representatives shall have
received from counsel to the Underwriters, such opinion or opinions with respect
to the issuance and sale of the Firm Shares, the Registration Statement and the
Prospectus and such other related matters as the Representatives reasonably may
request and such counsel shall have received such documents and other
information as they request to enable them to pass upon such matters.
(d) On the Closing Date, the Underwriters shall have received the
opinion, dated the Closing Date, of (i) Xxxxxxx, Procter & Xxxx LLP, counsel to
the Company ("Company Counsel") and (ii) Ostolenk, Fabes, Gerb & Soffen LLP
special patent counsel to the Company, in the forms attached hereto as Appendix
--------
A, addressed to the Underwriters.
-
(e) On or prior to the Closing Date, counsel to the Underwriters shall
have been furnished such documents, certificates and opinions as they may
reasonably require in order to evidence the accuracy, completeness or
satisfaction of any of the representations or warranties of the Company, or
conditions herein contained.
(f) On the Closing Date, the Representatives shall have received, a
letter from the KPMG Peat Marwick LLP addressed to the Company and the
Underwriters, dated the Closing Date, confirming that it is an independent
certified public accountant with respect to the Company within the meaning of
the Act and the Rules and Regulations thereunder and based upon the procedures
described in its letter delivered to you concurrently with the execution of this
Agreement (herein called the "Original Letter"), but carried out to a date not
more than three
16
days prior to the Closing Date, (i) confirming that the statements and
conclusions set forth in the Original Letter are accurate as of the Closing
Date; and (ii) setting forth any revisions and additions to the statements and
conclusions set forth in the Original Letter that are necessary to reflect any
changes in the facts described in the Original Letter since the date of such
letter, or to reflect the availability of more recent financial statements, data
or information. The letter shall not disclose any change, or any development
involving a prospective change, in or affecting the business or properties of
the Company which, in your reasonable judgment, makes it impracticable or
inadvisable to proceed with the public offering of the Shares as contemplated by
the Prospectus. In addition, you shall have received from the Accountants a
letter addressed to the Company and made available to you for the use of the
Underwriters stating that its review of the Company's system of internal
accounting controls, to the extent it deemed necessary in establishing the scope
of its latest examination of the Company's financial statements, did not
disclose any weaknesses in internal controls that it considered to be material
weaknesses. All such letters shall be in a form reasonably satisfactory to the
Representatives and their counsel.
(g) On the Closing Date, the Representatives shall have received a
certificate, dated the Closing Date, of the principal executive officer and the
principal financial or accounting officer of the Company to the effect that each
of such persons has carefully examined the Registration Statement and the
Prospectus and any amendments or supplements thereto and this Agreement, and
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,
and the Company has complied with all agreements and covenants and
satisfied all conditions contained in this Agreement 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 has been issued, and no proceedings for that purpose have
been instituted or are pending or, to the best knowledge of each of
such persons are contemplated or threatened under the Act and any and
all filings required by Rule 424 and Rule 430A have been timely made;
(iii) The Registration Statement and Prospectus and, if any, each
amendment and each supplement thereto, contain all statements and
information required to be included therein, and neither the
Registration Statement nor any amendment thereto includes any untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading and neither the Prospectus nor any supplement
thereto includes any untrue statement of a material fact or omits or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and
(iv) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus up to and
including the Closing Date, other than as contemplated by the
Prospectus, neither the Company nor any of the
17
Subsidiaries has incurred, other than in the ordinary course of its
business, any material liabilities or obligations, direct or
contingent; neither the Company nor any of the Subsidiaries has
purchased any of its outstanding capital stock or paid or declared any
dividends or other distributions on its capital stock; neither the
Company nor any of the Subsidiaries has entered into any transactions
not in the ordinary course of business; and there has not been any
change in the capital stock or consolidated long-term debt or any
increase in the consolidated short-term borrowings (other than any
increase in short-term borrowings in the ordinary course of business)
of the Company or any material adverse change to the business,
properties, assets, net worth, condition (financial or other), or
results of operations of the Company and its Subsidiaries taken as a
whole; neither the Company nor any of the Subsidiaries has sustained
any material loss or damage to its property or assets, whether or not
insured; there is no litigation which is pending or threatened against
the Company or any of its Subsidiaries which if adversely decided
would have a Material Adverse Effect.
References to the Registration Statement and the Prospectus in
this paragraph (g) are to such documents as amended and supplemented
at the date of the certificate.
(h) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus up to and including the
Closing Date there has not been (i) any material change or decrease specified in
the letter or letters referred to in paragraph (f) of this Section 7 or (ii) any
material adverse change, or any development involving a prospective material
adverse change, in the business or properties of the Company or its Subsidiaries
which change or decrease in the case of clause (i) or change or development in
the case of clause (ii) makes it impractical or inadvisable in the
Representatives' judgment to proceed with the public offering or the delivery of
the Shares as contemplated by the Prospectus.
(i) No order suspending the sale of the Shares in any jurisdiction
designated by you pursuant to Section 5(a)(iii)(A) hereof has been issued on or
prior to the Closing Date and no proceedings for that purpose have been
instituted or, to your knowledge or that of the Company, have been or are
contemplated.
(j) The Representatives shall have received from each person
identified on Appendix B attached hereto an agreement to the effect that such
----------
person will not, for the period ending one hundred and eighty (180) days after
the date hereof, directly or indirectly offer, sell, solicit an offer to buy,
make any short sale, pledge, grant any option to purchase, contract to sell, or
otherwise dispose of or transfer (collectively, a "Disposition") any shares of
Common Stock (including, without limitation, shares of Common Stock which may be
deemed to be beneficially owned by the undersigned in accordance with the rules
and regulations of the Securities and Exchange Commission) or any securities
convertible into or exercisable or exchangeable for, or any rights to purchase
or acquire, shares of Common Stock now owned or hereafter acquired directly by
the undersigned or with respect to which the undersigned has or hereafter
acquires the power of Disposition, otherwise than (i) as a bona fide gift or
gifts, provided the donee or donees thereof agree in writing to be bound by this
restriction or (ii) as a distribution to partners or
18
stockholders of the undersigned, provided that the distributees thereof agree in
writing to be bound by the terms of this restriction.
(k) The Company shall have furnished the Underwriters with such
further opinions, letters, certificates or documents as you or counsel for the
Representatives may reasonably request. All opinions, certificates, letters and
documents to be furnished by the Company will comply with the provisions hereof
(to the extent a form of such document is not attached hereto) only if they are
reasonably satisfactory in all material respects to the Representatives and to
counsel for the Representatives. The Company shall furnish the Representatives
with conformed copies of such opinions, certificates, letters and documents in
such quantities as you reasonably request. The certificates delivered under
this Section 7 shall constitute representations, warranties and agreements of
the Company, as to all matters set forth therein as fully and effectively as if
such matters had been set forth in Section 2 of this Agreement.
(l) The Shares shall have been duly authorized for quotation on the
Nasdaq National Market.
8. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls such Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, against any and all
losses, claims, damages or liabilities, joint or several (and actions in respect
thereof), to which such Underwriter or such controlling person may become
subject, under the Act or other federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages, liabilities or
actions arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement or the
Prospectus or any Preliminary Prospectus, or any amendment or supplement
thereto, or any blue sky application or other document executed by the Company
specifically for the purpose of qualifying, or based upon written information
furnished by the Company filed in any state or other jurisdiction in order to
qualify, any or all of the Shares under the securities or blue sky laws thereof
(any such application, document or information being hereinafter called a "Blue
Sky Application"), or arise out of or are based upon the omission or alleged
omission therein of a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, and will reimburse, as incurred, such
Underwriter or such controlling persons for any legal or other expenses
reasonably incurred by such Underwriter or such controlling persons in
connection with investigating, defending or appearing as a third party witness
in connection with 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, liability or action arises out of or is based upon
any untrue statement or alleged untrue statement or omission or alleged omission
made in any of such documents in reliance upon and in conformity with
information furnished in writing to the Company on behalf of such Underwriter
through the Representatives expressly for use therein, and provided, further,
-------- -------
that such indemnity with respect to any Preliminary Prospectus shall not inure
to the benefit of any Underwriter (or to the benefit of any person controlling
such Underwriter) from whom the person asserting any such loss, claim, damage,
liability or action purchased Shares which are the
19
subject thereof to the extent that any such loss, claim, damage, liability or
action (i) results from the fact that such Underwriter failed to send or give a
copy of the Prospectus (as amended or supplemented) to such person at or prior
to the confirmation of the sale of such Shares to such person in any case where
such delivery is required by the Act and (ii) arises out of or is based upon an
untrue statement or omission of a material fact contained in such Preliminary
Prospectus that was corrected in the Prospectus (as amended and supplemented),
unless such failure resulted from non-compliance by the Company with Section
5(viii) hereof.
The indemnity agreement in this paragraph (a) shall be in addition to
any liability which the Company may otherwise have.
(b) Each of the Underwriters agrees severally, but not jointly, to
indemnify and hold harmless the Company, each of its directors, each of its
officers who has signed the Registration Statement, each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act against any and all losses, claims, damages or liabilities
(and actions in respect thereof) to which the Company or any such director,
officer, or controlling person may become subject, under the Act or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or actions arise out of or
are based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement or the Prospectus or any
Preliminary Prospectus, or any amendment or supplement thereto or in any Blue
Sky Application, or arise out of or are based upon the (i) any untrue statement
or alleged untrue statement of any material fact contained therein, or (ii) the
omission or alleged omission therein of a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, 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 information furnished in writing by that Underwriter through the
Representatives to the Company expressly for use therein; and will reimburse, as
incurred, all legal or other expenses reasonably incurred by the Company or any
such director, officer, controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action. The Company
acknowledges that the statements with respect to the public offering of the
Shares set forth in paragraphs one (1) and three (3) under the heading
"Underwriting" and the stabilization legend in the Prospectus have been
furnished by the Underwriters to the Company expressly for use therein and
constitute the only information furnished in writing by or on behalf of the
Underwriters for inclusion in the Registration Statement, the Prospectus and any
Preliminary Prospectus. The indemnity agreement contained in this subsection
(b) shall be in addition to any liability which the Underwriters may otherwise
have.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against one or more indemnifying parties
under this Section 8, notify such indemnifying party or parties of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) of this Section 8 or to the extent
that the indemnifying party was not adversely affected by such omission. In
case any such action is brought against an indemnified party and it notifies an
indemnifying party or parties of the
20
commencement thereof, the indemnifying party or parties against which a claim is
to be made will be entitled to participate therein and, to the extent that it or
they may wish, 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 has reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the indemnified
party or parties shall have the right to select separate counsel to assume such
legal defenses and otherwise to participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses (other than the reasonable costs of
investigation) subsequently incurred by such indemnified party in connection
with the defense thereof unless (i) the indemnified party has employed such
counsel in connection with the assumption of such different or additional legal
defenses in accordance with the proviso to the immediately preceding sentence,
(ii) the indemnifying party has not employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action, or (iii) the indemnifying party
has authorized in writing the employment of counsel for the indemnified party at
the expense of the indemnifying party; provided, however, that the Company shall
-------- -------
only be liable for the reasonable fees and expenses of one (1) such additional
counsel in any single jurisdiction plus appropriate local counsel in other
jurisdictions.
(d) If the indemnification provided for in this Section 8 is
unavailable or insufficient to hold harmless an indemnified party under
paragraph (a) or (b) above in respect of any losses, claims, damages, expenses
or liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party 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) (i) in such proportion as is appropriate to reflect
the relative benefits received by each of the contributing parties, on the one
hand, and the party to be indemnified, on the other hand, from the offering of
the Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of each of the contributing parties, on the one hand, and the party to be
indemnified, on the other hand in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. In any case where the Company is the
contributing party and the Underwriters are the indemnified party, the relative
benefits received by the Company on the one hand, and the Underwriters, on the
other, shall be deemed to be in the same proportion as the total net proceeds
from the offering of the Shares (before deducting expenses) bear to the total
underwriting discounts received by the Underwriters hereunder, in each case as
set forth in the table on the cover page of the Prospectus. Relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or by
the Underwriters, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions in respect thereof) referred
to above in this paragraph (d) shall be deemed to
21
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this paragraph (d), the Underwriters shall not
be required to contribute any amount in excess of the underwriting discount
applicable to the Shares purchased by the Underwriters hereunder. The
Underwriters' obligations to contribute pursuant to this paragraph (d) are
several in proportion to their respective underwriting obligations, and not
joint. No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. For purposes of this
paragraph (d), (i) each person, if any, who controls an Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act shall have
the same rights to contribution as such Underwriter and (ii) each director of
the Company, each officer of the Company who has signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act shall have the same
rights to contribution as the Company, subject in each case to this paragraph
(d). Any party entitled to contribution will, promptly after receipt of notice
of commencement of any action, suit or proceeding against such party in respect
to which a claim for contribution may be made against another party or parties
under this paragraph (d), notify such party or parties from whom contribution
may be sought, but the omission so to notify such party or parties shall not
relieve the party or parties from whom contribution may be sought from any other
obligation (x) it or they may have hereunder or otherwise than under this
paragraph (d) or (y) to the extent that such party or parties were not adversely
affected by such omission. The contribution agreement set forth above shall be
in addition to any liabilities which any indemnifying party may otherwise have.
9. RIGHT TO INCREASE OFFERING. At anytime during a period of 30 days
from the date of the Prospectus, the Underwriters, by no less than two business
days' prior notice to the Company may designate a closing (which may be
concurrent with, and part of, the closing on the Closing Date with respect to
the Firm Shares or may be a second closing held on a date subsequent to the
Closing Date, in either case such date shall be referred to herein as the
"Option Closing Date") at which the Underwriters may purchase all or less than
all of the Additional Shares in accordance with the provisions of this Section 9
at the purchase price per share to be paid for the Firm Shares. In no event
shall the Option Closing Date be later than 10 business days after written
notice of election to purchase Additional Shares is given.
The Company agrees to sell to the several Underwriters on the Option
Closing Date the number of Additional Shares specified in such notice and the
Underwriters agree severally and not jointly, to purchase such Additional Shares
on the Option Closing Date. Such Additional Shares shall be purchased for the
account of each Underwriter in the same proportion as the number of Firm Shares
set forth opposite the name of such Underwriter in Column (3) of Schedule I
bears to the total number of Firm Shares (subject to adjustment by you to
eliminate fractions) and may be purchased by the Underwriters only for the
purpose of covering over-allotments made in connection with the sale of the Firm
Shares.
No Additional Shares shall be sold or delivered unless the Firm Shares
previously have been, or simultaneously are, sold and delivered. The right to
purchase the Additional Shares or any portion thereof may be surrendered and
terminated at any time upon notice by you to the Company.
22
Except to the extent modified by this Section 9, all provisions of
this Agreement relating to the transactions contemplated to occur on the Closing
Date for the sale of the Firm Shares shall apply, mutatis mutandis, to the
Option Closing Date for the sale of the Additional Shares.
10. REPRESENTATIONS, ETC. TO SURVIVE DELIVERY. The respective
representations, warranties, agreements, covenants, indemnities and statements
of, and on behalf of, the Company and its officers and the Underwriters,
respectively, set forth in or made pursuant to this Agreement will remain in
full force and effect, regardless of any investigation made by or on behalf of
the Underwriters, and will survive delivery of and payment for the Shares. Any
successors to the Underwriters shall be entitled to the indemnity, contribution
and reimbursement agreements contained in this Agreement.
11. EFFECTIVE DATE AND TERMINATION.
(a) This Agreement shall become effective at 11:00 A.M., New York time
on the first business day following the date hereof, or at such earlier time
after the Registration Statement becomes effective as the Representatives, in
their sole discretion, shall release the Shares for the sale to the public
unless prior to such time the Representatives shall have received written notice
from the Company that it elects that this Agreement shall not become effective,
or the Representatives shall have given written notice to the Company that the
Representatives on behalf of the Underwriters elect that this Agreement shall
not become effective; provided, however, that the provisions of this Section and
-------- -------
of Section 6 and Section 8 hereof shall at all times be effective. For purposes
of this Section 11(a), the Shares to be purchased hereunder shall be deemed to
have been so released upon the earlier of notification by the Representatives to
securities dealers releasing such Shares for offering or the release by the
Representatives for publication of the first newspaper advertisement which is
subsequently published relating to the Shares.
(b) This Agreement (except for the provisions of Sections 6 and 8
hereof) may be terminated by the Representatives by notice to the Company has
failed to comply in any respect with any of the provisions of this Agreement
required on its part to be performed at or prior to the Closing Date or the
Option Closing Date, or if any of the representations or warranties of the
Company is not accurate in any respect or if the covenants, agreements or
conditions of, or applicable to the Company herein contained have not been
complied with in any respect or satisfied within the time specified on the
Closing Date or the Option Closing Date, respectively, or if prior to the
Closing Date or the Option Closing Date:
(i) the Company or any of its Subsidiaries shall have sustained a
loss by strike, fire, flood, accident or other calamity of such a character
as to interfere materially with the conduct of the business and operations
of the Company and its Subsidiaries taken as a whole regardless of whether
or not such loss was insured;
(ii) trading in the Common Stock shall have been suspended by the
Commission or the Nasdaq National Market or trading in securities generally
on the New York Stock Exchange or the National Association of Securities
Dealers Automated Quotations National Market System shall have been
suspended or a material limitation
23
on such trading shall have been imposed or minimum or maximum prices shall
have been established on any such exchange or market system;
(iii) a banking moratorium shall have been declared by New York
or United States authorities;
(iv) there shall have been an outbreak or escalation of
hostilities between the United States and any foreign power or an outbreak
or escalation of any other insurrection or armed conflict involving the
United States; or
(v) there shall have been a material adverse change in (A)
general economic, political or financial conditions or (B) the present or
prospective business or condition (financial or other) of the Company and
its Subsidiaries taken as a whole that, in each case, in the
Representatives' judgment makes it impracticable or inadvisable to make or
consummate the public offering, sale or delivery of the Company's Shares on
the terms and in the manner contemplated in the Prospectus and the
Registration Statement.
(c) Termination of this Agreement under this Section 11 or Section 12
after the Firm Shares have been purchased by the Underwriters hereunder shall be
applicable only to the Additional Shares. Termination of this Agreement shall
be without liability of any party to any other party other than as provided in
Sections 6 and 8 hereof.
12. SUBSTITUTION OF UNDERWRITERS. If one or more of the Underwriters
shall fail or refuse (otherwise than for a reason sufficient to justify the
termination of this Agreement under the provisions of Section 7 or 11 hereof) to
purchase and pay for (a) in the case of the Closing Date, the number of Firm
Shares agreed to be purchased by such Underwriter or Underwriters upon tender to
you of such Firm Shares in accordance with the terms hereof or (b) in the case
of the Option Closing Date, the number of Additional Shares agreed to be
purchased by such Underwriter or Underwriters upon tender to you of such
Additional Shares in accordance with the terms hereof, and the number of such
Shares shall not exceed 10% of the Firm Shares or Additional Shares required to
be purchased on the Closing Date or the Option Closing Date, as the case may be,
then, each of the non-defaulting Underwriters shall purchase and pay for (in
addition to the number of such Shares which it has severally agreed to purchase
hereunder) that proportion of the number of Shares which the defaulting
Underwriter or Underwriters shall have so failed or refused to purchase on such
Closing Date or Option Closing Date, as the case may be, which the number of
Shares agreed to be purchased by such non-defaulting Underwriter bears to the
aggregate number of Shares so agreed to be purchased by all such non-defaulting
Underwriters on such Closing Date or Option Closing Date, as the case may be.
In such case, you shall have the right to postpone the Closing Date or the
Option Closing Date, as the case may be, to a date not exceeding seven full
business days after the date originally fixed as such Closing Date or the Option
Closing Date, as the case may be, pursuant to the terms hereof in order that any
necessary changes in the Registration Statement, the Prospectus or any other
documents or arrangements may be made.
If one or more of the Underwriters shall fail or refuse (otherwise
than for a reason sufficient to justify the termination of this Agreement under
the provisions of Section 7 or 11
24
hereof) to purchase and pay for (a) in the case of the Closing Date, the number
of Firm Shares agreed to be purchased by such Underwriter or Underwriters upon
tender to you of such Firm Shares in accordance with the terms hereof or (b) in
the case of the Option Closing Date, the number of Additional Shares agreed to
be purchased by such Underwriter or Underwriters upon tender to you of such
Additional Shares in accordance with the terms hereof, and the number of such
Shares shall exceed 10% of the Firm Shares or Additional Shares required to be
purchased by all the Underwriters on the Closing Date or the Option Closing
Date, as the case may be, then (unless within 48 hours after such default
arrangements to your satisfaction shall have been made for the purchase of the
defaulted Shares by an Underwriter or Underwriters) and subject to the
provisions of Section 11(b) hereof, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or on the part of the
Company except as otherwise provided in Sections 6 and 8 hereof. As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this paragraph. Nothing in this Section 12, and no action
taken hereunder, shall relieve any defaulting Underwriter from liability in
respect of any default of such Underwriter under this Agreement.
13. NOTICES. All communications hereunder shall be in writing and if
sent to the Representatives shall be mailed or delivered or telegraphed and
confirmed by letter or telecopied and confirmed by letter to c/o ING Baring
Xxxxxx Xxxx LLC at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Syndicate Department, with a copy to Xxxxxxx, Phleger & Xxxxxxxx LLP, 0000
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxxx X. Xxxxx or, if sent to
the Company, shall be mailed or delivered or telegraphed and confirmed to the
Company at 00 Xxxxxxxxx Xxxxxx, Xxxxxx, Xxx Xxxx 00000-0000, with a copy to
Xxxxxxx, Xxxxxxx & Xxxx LLP, Exchange Place, Boston, Massachusetts 02109,
Attention: Xxxxxx X. Cable.
14. SUCCESSORS. This Agreement shall inure to the benefit of and be
binding upon the Company and each Underwriter and the Company's and each
Underwriter's 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 the representations, warranties, indemnities and
contribution agreements of the Company contained in this Agreement shall also be
for the benefit of any person or persons, if any, who control any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
and except that the Underwriters' indemnity and contribution agreements shall
also be for the benefit of the directors of the Company, the officers of the
Company who have signed the Registration Statement, any person or persons, if
any, who control the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act. No purchaser of Shares from the Underwriters
will be deemed a successor because of such purchase.
15. APPLICABLE LAW; JURISDICTION. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York, without
giving effect to the choice of law or conflict of law principles thereof. Each
party hereto consents to the jurisdiction of each court in which any action is
commenced seeking indemnity or contribution pursuant to Section 8 above and
agrees to accept, either directly or through an agent, service of process of
each such court.
25
16. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, and all of which
together shall be deemed to be one and the same instrument.
If the foregoing correctly sets forth our understanding, please
indicate the Underwriters' acceptance thereof in the space provided below for
that purpose, whereupon this letter shall constitute a binding agreement between
us.
Very truly yours,
ALBANY MOLECULAR RESEARCH, INC.
Name:
Title:
Accepted as of the date first
above written:
ING BARING XXXXXX XXXX LLC
By: ING Baring Xxxxxx Xxxx LLC
Acting on its own behalf and as
one of the Representatives
of the several Underwriters
referred to in the foregoing Agreement
By:
Title:
26
SCHEDULE I
UNDERWRITERS
Underwriting Agreement dated ______________, 1998
(1) (2)
Number of Firm Aggregate
Shares to be Number of
Purchased from Firm Shares
the Company to be Purchased
------------------- -------------------
Name and Address
----------------
ING Baring Xxxxxx Xxxx LLC.............
------------------- -------------------
Xxxxxxxxx & Xxxxx......................
------------------- -------------------
Total..................................
------------------- -------------------
=================== ===================
1
APPENDIX A
1. Opinion of Counsel to the Company
---------------------------------
(a) The Company is a corporation, validly existing and in good
standing under the laws of the state of its incorporation with all requisite
corporate power and corporate authority to own or lease its properties and to
conduct its business as described in the Prospectus;
(b) The authorized, issued and outstanding capital stock of the
Company is as set forth under the caption "Capitalization" in the Prospectus;
the issued and outstanding shares of the Company's capital stock have been duly
authorized and validly issued by the Company, are fully paid and nonassessable
and have been issued in compliance with all federal and state securities laws
and to the knowledge of such counsel, have not been issued in violation of any
preemptive right, co-sale right, registration right, right of first refusal or
other similar right known to such counsel;
(c) The Company has duly authorized the issuance and sale of the
Shares to be sold by it hereunder; such Shares, when issued by the Company and
paid for in accordance with the terms hereof, will be validly issued, fully paid
and nonassessable and will conform in all material respects to the description
thereof contained in the Prospectus and will be sold free and clear of any
pledge, lien, security interests, encumbrance, claim, or equitable interest,
and, to the knowledge of such counsel, not in violation of or subject to any
preemptive right, co-sale right, right of first refusal or other similar right,
which rights have not previously been waived, in connection with the purchase or
sale of any of the Shares;
(d) To the best knowledge of such counsel, there are no contracts or
documents which are required by the Act to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the Registration
Statement which are not described or filed as required by the Act and the Rules
and Regulations;
(e) The statements set forth under the headings "Risk Factors --
Government Regulation," "Risk Factors -- Anti-Takeover Provisions," "Business --
Government Regulation," "Business -- Legal Proceedings," "Management -- Employee
Stock and Other Benefit Plans," "Description of Capital Stock," "Shares Eligible
for Future Sale" and "Certain Transactions" and statements in response to Items
14 and 15 of Form S-1 under the Act of the Registration Statement in the
Prospectus, insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to therein, provide an accurate
summary in all material respects of such legal matters, documents and
proceedings;
(f) The Company has all requisite corporate legal right, power, and
authority to enter into this Agreement and to consummate the transactions
provided for herein; this Agreement has been duly authorized, executed and
delivered by the Company;
(g) None of the Company's execution or delivery of this Agreement, its
performance hereof, its consummation of the transactions contemplated herein
conflicts or will conflict with or results or will result in any breach or
violation of any of the terms or provisions of, or constitute a default under,
the terms of the certificate of incorporation or by-laws of the
1
Company; the terms of any indenture, mortgage, deed of trust, voting trust
agreement, stockholder's agreement, note agreement or other agreement or
instrument filed as an exhibit to the Registration Statement to which the
Company is a party or by which it is or may be bound or to which any of its
properties may be subject; or, to the best knowledge of such counsel, any
Massachusetts or United States statute, rule or regulation or the Delaware
General Corporate Law, of any state or Federal regulatory body or administrative
agency or other governmental agency or body, of any state or Federal government,
arbitrator, court, regulatory body or administrative agency or other
governmental agency or body, having such jurisdiction;
(h) No consent, approval, authorization or order of any state or
Federal court regulatory body or administrative agency or other Massachusetts or
Federal governmental agency or body, has been or is required for the Company's
performance of this Agreement or the consummation of the transactions
contemplated hereby, except such as have been obtained under the Act or may be
required under state securities or blue sky laws (as to which no opinion shall
be expressed) in connection with the purchase and distribution by the
Underwriters of the Shares or may be required by the National Association of
Securities Dealers, Inc. (as to which no opinion shall be expressed);
(i) All holders of securities of the Company who, to such counsel's
knowledge, have rights to cause the Company to register shares of Common Stock
or other securities because of the filing of the Registration Statement by the
Company have waived such rights, such rights have expired by reason of lapse of
time following notification of the Company's intent to file the Registration
Statement or such rights have been satisfied in accordance with their respective
terms;
(j) No transfer taxes are required to be paid in connection with the
sale or delivery to the Underwriters of the Shares;
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 and, as to matters involving the
application of laws of any jurisdiction other than the Commonwealth of
Massachusetts, the Delaware General Corporation Law or the United States.
References to the Registration Statement and the Prospectus in such
opinion shall include any amendment or supplement thereto at the date of such
opinion.
In addition, such counsel shall provide a separate letter to the
Representatives of the several Underwriters in the form attached hereto as
Appendix A-1.
2
2. Opinion of Patent Counsel to the Company.
----------------------------------------
c/o Xxxxxx Xxxx LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Our client, Albany Molecular Research, Inc., a New York corporation
(the "Company"), has requested that we furnish to you, as representatives of the
several underwriters, our opinion in respect of certain matters pursuant to
Section ____ of the Underwriting Agreement, dated _______________, 1998, by and
among Xxxxxx Xxxx LLC and Xxxxxxxxx & Xxxxx LLC as representatives of the
several underwriters and the Company (the "Underwriting Agreement").
Capitalized terms not otherwise defined herein shall have the meaning ascribed
to them in the Underwriting Agreement.
For the purposes of rendering the opinions set forth below, we have
reviewed the following (collectively the "Documents"):
(i) the Underwriting Agreement;
(ii) that certain Form S-1 as filed by the Company with the Securities
and Exchange Commission on [INSERT DATE], together with any and all
exhibits; Amendment No. 1 as filed by the Company with the Securities
and Exchange Commission on [INSERT DATE]; and [INSERT DETAILS OF ANY
OTHER AMENDMENTS TO THE S-1];
(iii) the Company's Prospectus dated [INSERT DATE];
(iv) the patents and patent applications listed on Schedule 1 attached
hereto, which include all of the patents and patent applications
referred to in the Prospectus (the "Patents and Patent Applications")
and which are divided into category A, which are the patents and
patent applications owned by the Company and the Company's
subsidiaries listed on Schedule 2 attached hereto (the "Subsidiaries")
(collectively, the "Owned Patent Rights") and category B, which are
the patents and patent applications licensed from third parties by the
Company and its Subsidiaries (collectively, the "Licensed Patent
Rights");
(v) copies of the license agreements listed on Schedule 3 attached
hereto (collectively, the "License Agreements");
(vi) copies of assignments relevant to ownership of the Patents and
Patent Applications;
(vii) the results of searches in the United States Patent and
Trademark Office ("USPTO"), completed on ____________ [DATE MUST BE
JUST PRIOR TO THE DATE OF THE OPINION] in relation to the USPTO's
record of title to the United States patents and patent applications
within the Patents and Patent Applications;
3
(viii) the results of a search of the Uniform Commercial Code ("UCC")
records of the following jurisdictions [INSERT DETAILS OF THE STATE(S)
AND COUNTY/COUNTIES] completed on ________ [DATE MUST BE JUST PRIOR TO
THE DATE OF THE OPINION] against the current and former names of the
Company, the Subsidiaries and the licensors specified in the License
Agreements (collectively, the "Licensors") [OTHER POTENTIAL UCC
SEARCHES TO BE DISCUSSED];
(ix) a litigation search of the ________ database completed on
___________ [DATE MUST BE JUST PRIOR TO THE DATE OF THE OPINION];
(x) any and all references cited to, or by, the USPTO during the
prosecution of the United States patents and patent applications
included within the Patents and Patent Applications;
(xi) the documents referred to in those certain opinions of this firm
copies of which are attached as Exhibits hereto;
(xii) the internal files of this firm pertaining to the Company and
its Subsidiaries.
[INSERT DETAILS OF OTHER DOCUMENTS UPON WHICH COUNSEL HAS RELIED IN
PREPARING THIS OPINION]
Whenever our opinions herein are qualified by the phrase "to our best
knowledge," except as may be further qualified below, such language means that
based upon the Documents, the actual knowledge of attorneys within our firm
(i.e., not including matters as to which such attorneys could be deemed to have
constructive knowledge) and inquiries of officers, directors and employees of
the Company, we believe that such opinions are factually correct.
(a) To our best knowledge, the Company and its Subsidiaries are
the sole owners of the Owned Patent Rights and have obtained valid,
currently effective licenses to the Licensed Patent Rights pursuant to the
License Agreements.
(b) The Company and its Subsidiaries are listed in the records of
the USPTO as the sole owners of the United States patents and patent
applications within the Owned Patent Rights.
(c) The Licensors are listed in the records of the USPTO as the
sole owners of the United States patents and patent applications within the
Licensed Patent Rights.
(d) To our best knowledge, the Company and its Subsidiaries have
good and marketable title to the Owned Patent Rights, free of any liens,
pledges, claims, security interests or other encumbrances.
(e) To our best knowledge, the Licensors have good and marketable
title to the Licensed Patent Rights, free of any liens, pledges, claims,
security interests or
4
other encumbrances, except for the licenses granted to the Company and the
Subsidiaries pursuant to the License Agreements.
(f) To our best knowledge, there are no facts which would
preclude the grant of a patent from each of the patent applications within
the Patents and Patent Applications.
(g) To our best knowledge, the Company, the Subsidiaries and the
Licensors have all complied with USPTO's duty of candor and disclosure for
each of the United States patents and patent applications included in the
Patents and Patent Applications.
(h) To our best knowledge, there are no facts which form a basis
for a finding of unenforceability or invalidity of any of the claims of the
Patents and Patent Applications.
(i) To our best knowledge, no one other than the Company, the
Subsidiaries and the Licensors have or will be able to establish any rights
of title or other interest to any of the Patents and Patent Applications,
trademarks (either registered and unregistered), trade names, copyrights or
trade secrets described in the Prospectus as being owned or licensed by the
Company or its Sublicensees (collectively, the "Intellectual Property").
(j) To our best knowledge, there are no facts known to us that
indicate that the Company and its Subsidiaries lack or will be unable to
obtain any rights or licenses which are necessary for its business as
described in the Prospectus.
(k) There is no pending or, to our best knowledge, threatened
action, suit, proceeding or claim by others challenging the Company's or
its Subsidiaries' ownership or license rights in or to any of the
Intellectual Property.
(l) Except as disclosed in the Prospectus, there is no pending
or, to our best knowledge, threatened action, suit, proceeding or claim by
others challenging the validity or scope of any of the Intellectual
Property.
(m) There is no pending or, to our best knowledge, threatened
action, suit, proceeding or claim by the Company or its Subsidiaries that a
third party has or will infringe or otherwise violate any of the
Intellectual Property.
(n) There is no pending or, to our best knowledge, threatened
action, suit, proceeding or claim by any third party that the Company or
its Subsidiaries or their products and processes infringe or otherwise
violate any patent, trademark, copyright, trade secret, or other right of
such third party.
(o) The statements in the Registration Statement and Prospectus
under the captions "Risk Factors - Uncertainty Relating to Licenses,
Patents and Proprietary Rights" and "Business - Licenses, Patents, and
Proprietary Rights" and other references in the Prospectus to the
Intellectual Property and other patent, trade secret, trademark and
licensing matters, insofar as such statements constitute a summary of the
legal matters,
5
documents or proceedings referred to therein, are accurate in all material
respects and fairly present the information purported to be disclosed
therein.
(p) To our best knowledge, there are no contracts or other
documents relating to the Intellectual Property that are of a character
required to be filed as an exhibit to the Registration Statement or
required to be described in the Registration Statement or Prospectus that
are not filed or described as required.
We have participated in conferences with officials and other
representatives of the Company, Company's counsel and others, at which
conferences the contents of the Registration Statement and the Prospectus and
related matters were discussed, and although we have not verified the accuracy
or completeness of the statements contained in the Registration Statement or the
Prospectus, nothing has come to our attention which leads us to believe that, at
the time the Registration Statement became effective and at all times subsequent
thereto up to and including the date hereof, the Registration Statement and any
amendment or supplement thereto (other than the financial statements including
supporting schedules and other financial and statistical information derived
therefrom) contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that the Prospectus, as of its date and
all times subsequent thereto up to and including the date hereof, contained any
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading.
6
Schedule 1
----------
A. Patents and Patent Applications owned by the Company and the Subsidiaries
-------------------------------------------------------------------------
[LIST ALL U.S. AND FOREIGN PATENTS AND PATENT APPLICATIONS WITHIN
THIS CATEGORY, WITH THE FOLLOWING DETAILS:
. patent number for patents and serial number for patent
applications
. date of issuance for patents and filing date for patent
applications
B. Patents and Patent Applications licensed by the Company and the
---------------------------------------------------------------
Subsidiaries
------------
[LIST ALL U.S. AND FOREIGN PATENTS AND PATENT APPLICATIONS WITHIN THIS
CATEGORY, WITH THE FOLLOWING DETAILS:
. patent number for patents and serial number for patent
applications
. date of issuance for patents and filing date for patent
applications
. name and address of licensor
1
Schedule 2
----------
1
The Subsidiaries
----------------
1
Schedule 3
----------
The License Agreements
----------------------
1
Schedule 1
----------
A. Patents and Patent Applications owned by the Company
----------------------------------------------------
list all U.S. and foreign patents and patent applications within this
category, with the following details:
. patent number for patents and serial number for patent
applications
. date of issuance for patents and filing date for patent
applications
B. Patents and Patent Applications licensed by the Company
-------------------------------------------------------
list all U.S. and foreign patents and patent applications within this
category, with the following details:
. patent number for patents and serial number for patent
applications
. date of issuance for patents and filing date for patent
applications
. name and address of licensor
1
Schedule 2
----------
The License Agreements
----------------------
1
APPENDIX A-1
[Insert Date]
ING Baring Xxxxxx Xxxx LLC
Xxxxxxxxx & Xxxxx
As representatives of the several
Underwriters named in Schedule I hereto
c/o ING Baring Xxxxxx Xxxx LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
We have acted as counsel for Albany Molecular Research, Inc., a Delaware
corporation (the "Company"), in connection with the preparation and filing with
the Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Securities Act"), of its Registration Statement on
Form S-1 (Registration No. 333-58795), as amended, relating to the offering of
an aggregate of 2,200,000 shares (the "Shares") of the Company's common stock,
par value $.01 per share (the "Common Stock"), by the Company to the several
underwriters (the "Underwriters") listed in Schedule I to the Underwriting
Agreement, dated __________, 1998 (the "Agreement"), between the Company and
you, as representatives of the several Underwriters (the "Representatives").
The Registration Statement, as amended when it became effective (including the
information deemed to be a part thereof as of such time pursuant to Rule 430A
under the Securities Act), is herein called the "Registration Statement," and
the related prospectus dated __________, 1998, as filed on __________, 1998 with
the Commission pursuant to Rule 424(b) under the Securities Act, is herein
called the "Prospectus."
We have examined such corporate records, certificates and other documents
as we have considered necessary or appropriate for the purposes of this letter.
Whenever a statement herein is indicated to be based upon "our knowledge"
or "the best of our knowledge" or contains a similar qualification, it should be
understood that during the course of our representation of the Company we have
not undertaken any independent investigation to determine the existence or
absence of facts in connection with the preparation of this letter. The phrase
"our knowledge," and similar language used in certain of the statements below,
are limited to the knowledge of the lawyers within our firm who have [given
substantive attention to the Company's affairs].
2
Capitalized terms used but not defined herein shall have the respective
meanings attributed to them in the Agreement.
We have participated in the preparation of the Registration Statement and
Prospectus and have participated in discussions with your representatives, those
of counsel for the Underwriters, and those of the Company and its accountants.
On the basis of the information that we gained in the course of the performance
of the services referred to above, considered in the light of our understanding
of the applicable law and the experience we have gained through our practice
under the Securities Act, we confirm to you that nothing that came to our
attention in the course of such review has caused us to believe that the
Registration Statement or any further amendment thereto made by the Company
prior to the Closing Date contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, or that, as of its date, the
Prospectus or any further amendment or supplement thereto made by the Company
prior to the Closing Date contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which they were
made, not misleading or that, as of the Closing Date, either the Registration
Statement or the Prospectus or any further amendment or supplement thereto made
by the Company prior to the Closing Date contains an untrue statement of a
material fact or omits to state a material fact necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading.
The Registration Statement and the Prospectus and any further amendments or
supplements thereto made by the Company prior to the Closing Date (other than
financial, statistical or accounting data and related schedules therein, as to
which we make no statement) appeared on their face to be appropriately
responsive in all material respects to the requirements of the Securities Act
and the applicable Rules and Regulations promulgated under the Securities Act.
To the best of our knowledge, there is not pending or threatened against
the Company any action, suit, proceeding or investigation before or by any
court, regulatory body or administrative agency, or any other governmental
agency or body, domestic or foreign (other than the FDA or the USPTO, as to
which we make no statement), of a character required to be disclosed in the
Registration Statement or the Prospectus which is not so disclosed therein.
The Registration Statement has become effective under the Securities Act.
The foregoing statement is based solely upon verbal advice of __________ the
Securities and Exchange Commission staff on __________, 1998 that the Commission
had declared the Registration Statement effective as of _____ p.m. on
__________, 1998. To the best of our knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued by the Commission
nor has any proceeding been instituted or contemplated for that purpose under
the Securities Act. Based solely upon a written confirmation from the
Commission's XXXXX Filing Desk dated __________, 1998, the Prospectus has been
filed with the Commission pursuant to Rule 424(b) of the Rules and Regulations
promulgated under the Securities Act within the time period required thereby.
Notwithstanding the foregoing, the limitations inherent in the independent
verification of factual matters and the character of determinations involved in
the registration process are such, however, that we do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus except for those made
under the captions "risk Factors--Governmental Regulation," "Risk Factors--Anti-
takeover Provisions," "Business--Government Regulation," "Business--Legal
Proceedings," "Management--Employee Stock and Other Benefit Plans," "Description
of Capital Stock," "Shares Eligible for Future Sale" and "Certain Transactions"
in the Prospectus and statements in response to Items 14 and 15 of Form S-1
under the Act of the Registration Statement, insofar as such statements
constitute a summary in all material respects of documents referred to therein
or matters of law. Also, we do not express any belief or otherwise make any
statement as to (i) the statements in the Registration Statement or the
Prospectus made under the captions "Risk Factors--Proprietary Technology;
Unpredictability of Patent Protection," "Business--Allegra Royalty and Licensing
Arrangement" and "Business--Patents and Proprietary Rights" and (ii) the
financial statements, other financial, statistical or accounting data and
related schedules contained in the Registration Statement or the Prospectus.
This letter is furnished by us as counsel for the Company to you as
Representatives of the several Underwriters and is solely for the benefit of the
several Underwriters and may not be relied upon by any other person without our
express written consent. The statements in this letter are made as of the date
hereof and we disclaim any obligation to advise you of any changes in facts or
circumstances which might affect any matters or statements set forth herein.
Very truly yours,
XXXXXXX, PROCTER & XXXX XXX
0
XXXXXXXX X
[List of Persons Subject to Lockups]
1
