EXHIBIT 1.1
FORM OF UNDERWRITING AGREEMENT
8,000,000 SHARES
THORATEC CORPORATION
COMMON STOCK
UNDERWRITING AGREEMENT
January __, 2002
XXXXXX BROTHERS INC.,
As Representative of the several
Underwriters named in Schedule 1,
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Thoratec Corporation, a California corporation (the "Company"),
and certain shareholders of the Company named in Schedule 2 (each, a "Selling
Shareholder" and collectively, the "Selling Shareholders") propose to sell an
aggregate of 8,000,000 shares (the "Firm Stock") of the Company's Common Stock,
no par value per share (the "Common Stock"). Of the 8,000,000 shares of the Firm
Stock, 2,055,000 are being sold by the Company and 5,945,000 by the Selling
Shareholders. In addition, the Company and Thermo Electron Business Trust, a
Massachusetts business trust ("Thermo Electron"), propose to grant to the
Underwriters named in Schedule 1 hereto (the "Underwriters") an option to
purchase up to an additional 1,200,000 shares of the Common Stock on the terms
and for the purposes set forth in Section 4 (the "Option Stock"). The Firm Stock
and the Option Stock, if purchased, are hereinafter collectively called the
"Stock." This is to confirm the agreement concerning the purchase of the Stock
from the Company and the Selling Shareholders by the Underwriters.
1. Representations, Warranties and Agreements of the Company. The
Company represents, warrants and agrees that:
(a) A registration statement on Form S-3 (including any
amendments thereto, if any) with respect to the Stock has (i) been prepared by
the Company in conformity with the requirements of the United States Securities
Act of 1933 (the "Securities Act") and the rules and regulations (the "Rules and
Regulations") of the United States Securities and Exchange Commission (the
"Commission") thereunder, (ii) been filed with the Commission under the
Securities Act and (iii) become effective under the Securities Act. Copies of
such registration statement and any amendment thereto have been delivered by the
Company to you as the representative (the "Representative") of the Underwriters.
As used in this Agreement, "Effective Time" means the date and the time as of
which such registration statement, or the most recent
post-effective amendment thereto, if any, was declared effective by the
Commission; "Effective Date" means the date of the Effective Time; "Preliminary
Prospectus" means each prospectus included in such registration statement, or
amendments thereof, before it became effective under the Securities Act and any
prospectus filed with the Commission by the Company with the consent of the
Representative pursuant to Rule 424(a) of the Rules and Regulations;
"Registration Statement" means such registration statement, as amended at the
Effective Time, including any documents incorporated by reference therein at
such time and all information contained in the final prospectus filed with the
Commission pursuant to Rule 424(b) of the Rules and Regulations in accordance
with Section 7 hereof and deemed to be a part of the registration statement as
of the Effective Time pursuant to paragraph (b) of Rule 430A of the Rules and
Regulations; and "Prospectus" means such final prospectus, as first filed with
the Commission pursuant to paragraph (1) or (4) of Rule 424(b) of the Rules and
Regulations. Reference made herein to any Preliminary Prospectus or to the
Prospectus shall be deemed to refer to and include any documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the Securities Act, as
of the date of such Preliminary Prospectus or the Prospectus, as the case may
be, and any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include any
document filed under the United States Securities Exchange Act of 1934 (the
"Exchange Act") after the date of such Preliminary Prospectus or the Prospectus,
as the case may be, and incorporated by reference in such Preliminary Prospectus
or the Prospectus, as the case may be; and any reference to any amendment to the
Registration Statement shall be deemed to include any annual report of the
Company filed with the Commission pursuant to Section 13(a) or 15(d) of the
Exchange Act after the Effective Time that is incorporated by reference in the
Registration Statement. The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus.
(b) The Registration Statement conforms, and the Prospectus and
any further amendments or supplements to the Registration Statement or the
Prospectus will, when they become effective or are filed with the Commission, as
the case may be, conform in all respects to the requirements of the Securities
Act and the Rules and Regulations and do not and will not, as of the applicable
effective date (as to the Registration Statement and any amendment thereto) and
as of the applicable filing date (as to the Prospectus and any amendment or
supplement thereto) contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided that no representation or warranty
is made as to information contained in or omitted from the Registration
Statement or the Prospectus in reliance upon and in conformity with written
information furnished to the Company through the Representative by or on behalf
of any Underwriter specifically for inclusion therein.
(c) The documents incorporated by reference in the Prospectus,
when they became effective or were filed with the Commission, as the case may
be, conformed in all material respects to the requirements of the Securities Act
or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and any
further documents so filed and incorporated by reference in the Prospectus, when
such documents become effective or are filed with Commission, as the case may
be, will conform in all material respects to the requirements of the Securities
Act or the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading.
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(d) The Company and each of its subsidiaries (as defined in
Section 18) have been duly incorporated and are validly existing as corporations
in good standing under the laws of their respective jurisdictions of
incorporation, are duly qualified to do business and are in good standing as
foreign corporations in each jurisdiction in which their respective ownership or
lease of property or the conduct of their respective businesses requires such
qualification, which jurisdictions are listed, with respect to the Company and
each such subsidiary, on Schedule 3, and have all power and authority necessary
to own or hold their respective properties and to conduct the businesses in
which they are engaged; and, other than International Technidyne Corporation,
none of the subsidiaries of the Company is a "significant subsidiary," as such
term is defined in Rule 405 of the Rules and Regulations. International
Technidyne Corporation Limited does not have any assets, employees or
operations.
(e) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the description thereof contained in the
Prospectus; and all of the issued shares of capital stock of each subsidiary of
the Company have been duly and validly authorized and issued and are fully paid
and non-assessable and are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims.
(f) The unissued shares of the Stock to be issued and sold by the
Company to the Underwriters hereunder have been duly and validly authorized and,
when issued and delivered against payment therefor as provided herein, will be
duly and validly issued, fully paid and non-assessable; and the Stock will
conform to the description thereof contained in the Prospectus.
(g) This Agreement has been duly authorized, executed and
delivered by the Company and each of the documents relating to this Agreement to
which the Company is a party has been duly authorized, executed and delivered by
the Company.
(h) The execution, delivery and performance of this Agreement by
the Company and the consummation of the transactions contemplated hereby and in
the Registration Statement and Prospectus will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or to which
any of the property or assets of the Company or any of its subsidiaries is
subject, nor will such actions result in any violation of the provisions of the
charter or by-laws of the Company or any of its subsidiaries or any statute or
any order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
properties or assets; and except for the registration of the Stock under the
Securities Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and applicable state or
foreign securities laws in connection with the purchase and distribution of the
Stock by the Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency or body is
required for the execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated hereby.
(i) Except as described in the Prospectus, there are no
contracts, agreements or understandings between the Company and any person
granting such person the right (other than rights which have been waived or
satisfied), to require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company owned or to be
owned by such person or to require the Company to include such securities in the
securities
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registered pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the Company
under the Securities Act.
(j) Except as described in the Prospectus, the Company has not
sold or issued any shares of Common Stock during the six-month period preceding
the date of the Prospectus, including any sales pursuant to Rule 144A under, or
Regulations D or S of, the Securities Act, other than shares issued pursuant to
employee benefit plans, qualified stock options plans or other employee
compensation plans or pursuant to outstanding options, rights or warrants.
(k) Neither the Company nor any of its subsidiaries has
sustained, since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus, any material loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Prospectus;
and, since such date, there has not been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any material adverse
change, or any development involving a prospective material adverse change, in
or affecting the general affairs, management, financial position, shareholders'
equity or results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus.
(l) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or included or
incorporated by reference in the Prospectus present fairly the financial
condition and results of operations of the entities purported to be shown
thereby, at the dates and for the periods indicated, and have been prepared in
conformity with generally accepted accounting principles applied on a consistent
basis throughout the periods involved.
(m) (i) Deloitte & Touche LLP, who have certified certain
financial statements of the Company, whose report appears in the Prospectus or
is incorporated by reference therein and who have delivered the initial letter
referred to in Section 10(k) hereof, are independent public accountants as
required by the Securities Act and the Rules and Regulations.
(ii) Xxxxxx Xxxxxxxx LLP, who have certified certain
financial statements of the Company, whose report appears in the Prospectus or
is incorporated by reference therein and who have delivered the letter referred
to in Section 10(m) hereof, are independent public accountants as required by
the Securities Act and the Rules and Regulations.
(n) The Company and each of its subsidiaries have good and
marketable title in fee simple to all real property and good and marketable
title to all personal property owned by them, in each case free and clear of all
liens, encumbrances and defects except such as are described in the Prospectus
or such as do not materially affect the value of such property and do not
materially interfere with the use made and proposed to be made of such property
by the Company and its subsidiaries; and all real property and buildings held
under lease by the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases, with such exceptions as are not material and
do not interfere with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries.
(o) The Company and each of its subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as is adequate for
the conduct of their respective businesses and the value of their respective
properties and as is customary for companies engaged in similar businesses in
similar industries.
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(p) The Company and each of its subsidiaries own or possess
adequate licenses or other rights to use all patents, patent applications,
inventions, trademarks, trade names, applications for registration of
trademarks, service marks, service xxxx applications, copyrights, know-how,
manufacturing processes, formulae, trade secrets, licenses and rights in any
thereof and any other intangible property and assets (herein called the
"Proprietary Rights") necessary to conduct its business in the manner described
in the Prospectus, except where the failure to so own or possess such
Proprietary Rights would not, singularly or in the aggregate, have a material
adverse effect on the financial position, shareholders' equity, results of
operations, business or prospects of the Company. The Company and each of its
subsidiaries take security measures to provide adequate trade secret protection
in its non-patented technology. Except as disclosed in the Prospectus, neither
the Company nor any of its subsidiaries has received any notice of infringement
or conflict with asserted rights of others with respect to any Proprietary
Rights which could result in any material adverse effect on the Company, or any
of its subsidiaries, as the case may be, and, except as specifically identified
and described in the Prospectus, no action, suit, arbitration or legal,
administrative or other proceeding, or investigation is pending, or, to the
knowledge of the Company, threatened, which involves any Proprietary Rights.
Except as disclosed in the Prospectus, the Proprietary Rights of the Company and
its subsidiaries referred to in the Prospectus do not, to the knowledge of the
Company, infringe or conflict with any right or valid and enforceable patent of
any third party, or any discovery, invention, product or process which is the
subject of a patent application filed by any third party, known to the Company
which could have a material adverse effect on the Company or any of its
subsidiaries. Neither the Company nor any of its subsidiaries is subject to any
judgment, order, writ, injunction or decree of any court or any Federal, state,
local, foreign or other governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, or any arbitrator, nor, except
as described in the Prospectus, has it entered into or is a party to any
contract which restricts or impairs the use of any such Proprietary Rights in a
manner which would have a material adverse effect on the use of any of the
Proprietary Rights. The Company and each of its subsidiaries have complied, in
all material respects, with its respective contractual obligations relating to
the protection of the Proprietary Rights used pursuant to licenses. To the
knowledge of the Company, no person is infringing on or violating the
Proprietary Rights owned or used by the Company or any of its subsidiaries.
(q) There are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any property
or assets of the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries, might have a
material adverse effect on the consolidated financial position, shareholders'
equity, results of operations, business or prospects of the Company and its
subsidiaries; and to the best of the Company's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or threatened by
others.
(r) The conditions for use of Form S-3, as set forth in the
General Instructions thereto, have been satisfied.
(s) There are no contracts or other documents which are required
to be described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which have not
been described in the Prospectus or filed as exhibits to the Registration
Statement or incorporated therein by reference as permitted by the Rules and
Regulations.
(t) No relationship, direct or indirect, exists between or among
the Company on the one hand, and the directors, officers, shareholders,
customers or suppliers of the Company on the other hand, which is required to be
described in the Prospectus which is not so described.
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(u) No labor disturbance by the employees of the Company exists
or, to the knowledge of the Company, is imminent which might be expected to have
a material adverse effect on the consolidated financial position, shareholders'
equity, results of operations, business or prospects of the Company and its
subsidiaries.
(v) The Company is in compliance in all material respects with
all presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in ERISA) has occurred
with respect to any "pension plan" (as defined in ERISA) for which the Company
would have any liability; the Company has not incurred and does not expect to
incur liability under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the Internal
Revenue Code of 1986, as amended, including the regulations and published
interpretations thereunder (the "Code"); and each "pension plan" for which the
Company would have any liability that is intended to be qualified under Section
401(a) of the Code is so qualified in all material respects and nothing has
occurred, whether by action or by failure to act, which would cause the loss of
such qualification.
(w) The Company and each of its subsidiaries has filed all
federal, state and local income and franchise tax returns required to be filed
through the date hereof and has paid all taxes due thereon, and no tax
deficiency has been determined adversely to the Company or any of its
subsidiaries which has had (nor does the Company have any knowledge of any tax
deficiency which, if determined adversely to the Company or any of its
subsidiaries, might have) a material adverse effect on the consolidated
financial position, shareholders' equity, results of operations, business or
prospects of the Company and its subsidiaries.
(x) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be disclosed in
the Prospectus, the Company has not (i) issued or granted any securities, (ii)
incurred any liability or obligation, direct or contingent, other than
liabilities and obligations which were incurred in the ordinary course of
business, (iii) entered into any transaction not in the ordinary course of
business or (iv) declared or paid any dividend on its capital stock.
(y) The Company and each of its subsidiaries (i) makes and keeps
accurate books and records and (ii) maintains internal accounting controls which
provide reasonable assurance that (A) transactions are executed in accordance
with management's authorization, (B) transactions are recorded as necessary to
permit preparation of its financial statements and to maintain accountability
for its assets, (C) access to its assets is permitted only in accordance with
management's authorization and (D) the reported accountability for its assets is
compared with existing assets at reasonable intervals.
(z) Neither the Company nor any of its subsidiaries (i) is in
violation of its charter or by-laws or similar governing document, (ii) is in
default in any material respect, and no event has occurred which, with notice or
lapse of time or both, would constitute such a default, in the due performance
or observance of any term, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to which any of its
properties or assets is subject or (iii) is in violation in any material respect
of any law, ordinance, governmental rule, regulation or court decree to which it
or its property or assets may be subject or has failed to obtain any material
license, permit, certificate, franchise or other governmental authorization or
permit necessary to the ownership of its property or to the conduct of its
business.
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(aa) Neither the Company nor any of its subsidiaries, nor any
director, officer, agent, employee or other person associated with or acting on
behalf of the Company or any of its subsidiaries, has used any corporate funds
for any unlawful contribution, gift, entertainment or other unlawful expense
relating to political activity; made any direct or indirect unlawful payment to
any foreign or domestic government official or employee from corporate funds;
violated or is in violation of any provision of the Foreign Corrupt Practices
Act of 1977; or made any bribe, rebate, payoff, influence payment, kickback or
other unlawful payment.
(ab) There has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of toxic wastes,
medical wastes, hazardous wastes or hazardous substances by the Company or any
of its subsidiaries (or, to the knowledge of the Company, any of their
predecessors in interest) at, upon or from any of the property now or previously
owned or leased by the Company or its subsidiaries in violation of any
applicable law, ordinance, rule, regulation, order, judgment, decree or permit
or which would require remedial action under any applicable law, ordinance,
rule, regulation, order, judgment, decree or permit, except for any violation or
remedial action which would not have, or could not be reasonably likely to have,
singularly or in the aggregate with all such violations and remedial actions, a
material adverse effect on the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries; there has been no material spill, discharge, leak, emission,
injection, escape, dumping or release of any kind onto such property or into the
environment surrounding such property of any toxic wastes, medical wastes, solid
wastes, hazardous wastes or hazardous substances due to or caused by the Company
or any of its subsidiaries or with respect to which the Company or any of its
subsidiaries have knowledge, except for any such spill, discharge, leak,
emission, injection, escape, dumping or release which would not have or would
not be reasonably likely to have, singularly or in the aggregate with all such
spills, discharges, leaks, emissions, injections, escapes, dumpings and
releases, a material adverse effect on the general affairs, management,
financial position, shareholders' equity or results of operations of the Company
and its subsidiaries; and the terms "hazardous wastes," "toxic wastes,"
"hazardous substances" and "medical wastes" shall have the meanings specified in
any applicable local, state, federal and foreign laws or regulations with
respect to environmental protection.
(ac) Neither the Company nor any subsidiary is an "investment
company" within the meaning of such term under the Investment Company Act of
1940 and the rules and regulations of the Commission thereunder.
(ad) The Company and each of its subsidiaries has such permits,
licenses, franchises, authorizations and clearances (collectively, "Permits") of
governmental or regulatory authorities, including, without limitation, the Food
and Drug Administration and/or any committee thereof, as are reasonably
necessary to own, lease and operate its properties and to conduct its business
in the manner described in the Prospectus, subject to such qualifications as may
be set forth in the Prospectus, except where such failure to receive such
Permits would not, individually or in the aggregate, be reasonably expected to
have a material adverse effect on the operations, business or prospects of the
Company; subject to such qualifications as may be set forth in the Prospectus,
the Company and each of its subsidiaries has fulfilled and performed all its
material obligations with respect to the Permits, and no event has occurred that
allows, or after notice or lapse of time would allow, revocation or termination
thereof or results in any other material impairment of the rights of the holder
of any Permit, subject in each case to such qualification as may be set forth in
the Prospectus. Except as described in the Prospectus, none of the Permits
contains any restriction that is materially burdensome to the Company or any of
its subsidiaries.
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(ae) Except to the extent disclosed in the Registration Statement
and the Prospectus, the clinical, pre-clinical and other studies and tests
conducted by or on behalf of or sponsored by the Company or any of its
subsidiaries or in which the Company or any of its subsidiaries or the Company's
or any of its subsidiaries' products under development have participated that
are described in the Prospectus were and, if still pending, are being conducted
in accordance with standard medical and scientific research procedures. The
descriptions of the results of such studies and tests are accurate and complete
in all material respects and fairly present the data derived from such studies
and tests, and the Company has no knowledge of any other studies or tests the
results of which are inconsistent with or otherwise call into question the
results described or referred to in the Prospectus. Except to the extent
disclosed in the Registration Statement and the Prospectus, the Company has
operated and currently is in compliance in all material respects with all
applicable FDA rules, regulations and policies. Except to the extent disclosed
in the Registration Statement and the Prospectus, neither the Company nor any of
its subsidiaries has received any notices or other correspondence from the Food
and Drug Administration or any other governmental agency requiring the
termination, suspension or modification of any clinical or pre-clinical studies
or tests that are described in the Prospectus or the results of which are
referred to therein.
2. Representations, Warranties and Agreements of J. Xxxxxx Xxxx,
Xxxxxx X. Xxxxxxxx, Xx. and J. Xxxxxx Xxxx. Each of J. Xxxxxx Xxxx, Xxxxxx X.
Xxxxxxxx, Xx. and J. Xxxxxx Xxxx, as a Selling Shareholder, severally
represents, warrants and agrees that:
(a) The Selling Shareholder has, and immediately prior to the
First Delivery Date (as defined in Section 6 hereof) the Selling Shareholder
will have, good and valid title to the shares of Stock to be sold by the Selling
Shareholder hereunder on such date, free and clear of all liens, encumbrances,
equities or claims; and upon delivery of such shares and payment therefor
pursuant hereto, good and valid title to such shares, free and clear of all
liens, encumbrances, equities or claims, will pass to the several Underwriters.
(b) The Selling Shareholder has placed in custody under a custody
agreement (the "Custody Agreement" and, together with all other similar
agreements executed by the other Selling Shareholders, the "Custody Agreements")
with Computershare Trust Company, Inc., as custodian (the "Custodian"), for
delivery under this Agreement, certificates in negotiable form (with signature
guaranteed by a commercial bank or trust company having an office or
correspondent in the United States or a member firm of the New York or American
Stock Exchanges) representing the shares of Stock to be sold by the Selling
Shareholder hereunder.
(c) The Selling Shareholder has duly and irrevocably executed and
delivered a power of attorney (the "Power of Attorney" and, together with all
other similar agreements executed by the other Selling Shareholders, the "Powers
of Attorney") appointing the Custodian and one or more other persons, as
attorneys-in-fact, with full power of substitution, and with full authority
(exercisable by any one or more of them) to execute and deliver this Agreement
and to take such other action as may be necessary or desirable to carry out the
provisions hereof on behalf of the Selling Shareholder.
(d) The Selling Shareholder has full right, power and authority
to enter into this Agreement, the Power of Attorney and the Custody Agreement;
the execution, delivery and performance of this Agreement, the Power of Attorney
and the Custody Agreement by the Selling Shareholder and the consummation by the
Selling Shareholder of the transactions contemplated hereby will not conflict
with or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Selling Shareholder is a
party or by which the Selling Shareholder is bound or to which any of the
property or assets of the Selling Shareholder is
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subject, nor will such actions result in any violation of the provisions of any
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Selling Shareholder or the property or assets
of the Selling Shareholder; and, except for the registration of the Stock under
the Securities Act and such consents, approvals, authorizations, registrations
or qualifications as may be required under the Exchange Act and applicable state
securities laws in connection with the purchase and distribution of the Stock by
the Underwriters, no consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is required for
the execution, delivery and performance of this Agreement, the Power of Attorney
or the Custody Agreement by the Selling Shareholder and the consummation by the
Selling Shareholder of the transactions contemplated hereby.
(e) The Registration Statement and the Prospectus and any further
amendments or supplements to the Registration Statement or the Prospectus, when
they become effective or are filed with the Commission, as the case may be, do
not and will not, as of the applicable effective date (as to the Registration
Statement and any amendment thereto) and as of the applicable filing date (as to
the Prospectus and any amendment or supplement thereto) contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided that no representation or warranty is made as to information contained
in or omitted from the Registration Statement or the Prospectus in reliance upon
and in conformity with written information furnished to the Company through the
Representative by or on behalf of any Underwriter specifically for inclusion
therein.
(f) The Selling Shareholder has no reason to believe that the
representations and warranties of the Company contained in Section 1 hereof are
not materially true and correct, is familiar with the Registration Statement and
the Prospectus (as amended or supplemented) and has no knowledge of any material
fact, condition or information not disclosed in the Registration Statement, as
of the effective date, or the Prospectus (or any amendment or supplement
thereto), as of the applicable filing date, which has adversely affected or may
adversely affect the business of the Company and is not prompted to sell shares
of Common Stock by any information concerning the Company which is not set forth
in the Registration Statement and the Prospectus.
(g) The Selling Shareholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has constituted
or which might reasonably be expected to cause or result in the stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the shares of the Stock.
3. Representations, Warranties and Agreements of Thermo Electron.
Thermo Electron, as a Selling Shareholder, represents, warrants and agrees that:
(a) The Selling Shareholder has, and immediately prior to the
First Delivery Date (as defined in Section 6 hereof) the Selling Shareholder
will have, good and valid title to the shares of Stock to be sold by the Selling
Shareholder hereunder on such date, free and clear of all liens, encumbrances,
equities or claims; and upon delivery of such shares and payment therefor
pursuant hereto, good and valid title to such shares, free and clear of all
liens, encumbrances, equities or claims, will pass to the several Underwriters.
(b) The Selling Shareholder has placed in custody under a Custody
agreement, for delivery under this Agreement, certificates in negotiable form
(with signature guaranteed by a commercial bank or trust company having an
office or correspondent in the United States or a member firm of the New York or
American Stock Exchanges) representing the shares of Stock to be sold by the
Selling Shareholder hereunder.
9
(c) The Selling Shareholder has duly and irrevocably executed and
delivered a Power of Attorney appointing the Custodian and one or more other
persons, as attorneys-in-fact, with full power of substitution, and with full
authority (exercisable by any one or more of them) to execute and deliver this
Agreement and to take such other action as may be necessary or desirable to
carry out the provisions hereof on behalf of the Selling Shareholder.
(d) The Selling Shareholder has full right, power and authority
to enter into this Agreement, the Power of Attorney and the Custody Agreement;
the execution, delivery and performance of this Agreement, the Power of Attorney
and the Custody Agreement by the Selling Shareholder and the consummation by the
Selling Shareholder of the transactions contemplated hereby will not conflict
with or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument (in each case, as amended and in
effect on the date of this Agreement) to which the Selling Shareholder is a
party or by which the Selling Shareholder is bound or to which any of the
property or assets of the Selling Shareholder is subject, nor will such actions
result in any violation of the provisions of the charter or by-laws (or any
other or similar constitutive instruments or agreements) of the Selling
Shareholder or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Selling Shareholder or
the property or assets of the Selling Shareholder; and, except for the
registration of the Stock under the Securities Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under the
Exchange Act and applicable state securities laws in connection with the
purchase and distribution of the Stock by the Underwriters, no consent,
approval, authorization or order of, or filing or registration with, any such
court or governmental agency or body is required for the execution, delivery and
performance of this Agreement, the Power of Attorney or the Custody Agreement by
the Selling Shareholder and the consummation by the Selling Shareholder of the
transactions contemplated hereby.
(e) To the best of the Selling Shareholder's actual knowledge,
the Registration Statement and the Prospectus and any further amendments or
supplements to the Registration Statement or the Prospectus, when they become
effective or are filed with the Commission, as the case may be, do not and will
not, as of the applicable effective date (as to the Registration Statement and
any amendment thereto) and as of the applicable filing date (as to the
Prospectus and any amendment or supplement thereto) contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; provided
that no representation or warranty is made as to information contained in or
omitted from the Registration Statement or the Prospectus in reliance upon and
in conformity with written information furnished to the Company through the
Representative by or on behalf of any Underwriter specifically for inclusion
therein.
(f) The Selling Shareholder has no actual knowledge that the
representations and warranties of the Company contained in Section 1 hereof are
not materially true and correct, is familiar with the Registration Statement and
the Prospectus (as amended or supplemented) and has no actual knowledge of any
material fact, condition or information not disclosed in the Registration
Statement, as of the effective date, or the Prospectus (or any amendment or
supplement thereto), as of the applicable filing date, which has adversely
affected or may adversely affect the business of the Company and is not prompted
to sell shares of Common Stock by any information concerning the Company which
is not set forth in the Registration Statement and the Prospectus.
(g) The Selling Shareholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has constituted
or which might reasonably be
10
expected to cause or result in the stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the shares of
the Stock.
4. Purchase of the Stock by the Underwriters. On the basis of the
representations and warranties contained in, and subject to the terms and
conditions of, this Agreement, the Company agrees to sell 2,055,000 shares of
the Firm Stock and each Selling Shareholder hereby agrees to sell the number of
shares of the Firm Stock set opposite their name in Schedule 2 hereto, severally
and not jointly, to the several Underwriters and each of the Underwriters,
severally and not jointly, agrees to purchase the number of shares of the Firm
Stock set opposite that Underwriter's name in Schedule 1 hereto. Each
Underwriter shall be obligated to purchase from the Company and from each
Selling Shareholder that number of shares of the Firm Stock which represents the
same proportion of the number of shares of the Firm Stock to be sold by the
Company and by each Selling Shareholder as the number of shares of the Firm
Stock set forth opposite the name of such Underwriter in Schedule 1 represents
of the total number of shares of the Firm Stock to be purchased by all of the
Underwriters pursuant to this Agreement. The respective purchase obligations of
the Underwriters with respect to the Firm Stock shall be rounded among the
Underwriters to avoid fractional shares, as the Representative may determine.
In addition, the Company grants to the Underwriters an option to
purchase up to __________ shares of Option Stock and Thermo Electron grants to
the Underwriters an option to purchase up to __________ shares of Option Stock.
Each such option is granted solely for the purpose of covering over-allotments
in the sale of Firm Stock and is exercisable as provided in Section 6 hereof.
Shares of Option Stock shall be purchased severally for the account of the
Underwriters in proportion to the number of shares of Firm Stock set opposite
the name of such Underwriters in Schedule 1 hereto. The respective purchase
obligations of each Underwriter with respect to the Option Stock shall be
adjusted by the Representative so that no Underwriter shall be obligated to
purchase Option Stock other than in 100 share amounts.
The price of both the Firm Stock and any Option Stock shall be
$_____ per share.
The Company or the Selling Shareholders shall not be obligated to
deliver any of the Stock to be delivered on any Delivery Date (as defined in
Section 6), as the case may be, except upon payment for all the Stock to be
purchased on such Delivery Date as provided herein.
5. Offering of Stock by the Underwriters. Upon authorization by
the Representative of the release of the Firm Stock, the several Underwriters
propose to offer the Firm Stock for sale upon the terms and conditions set forth
in the Prospectus.
6. Delivery of and Payment for the Stock. Delivery of and payment
for the Firm Stock shall be made at the offices of Xxxxxxxx Chance Xxxxxx &
Xxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 A.M., New York
City time, on the fourth full business day following the date of this Agreement
or at such other date or place as shall be determined by agreement between the
Representative and the Company. This date and time are sometimes referred to as
the "First Delivery Date." On the First Delivery Date, the Company and the
Selling Shareholders shall deliver or cause to be delivered certificates
representing the Firm Stock to the Representative for the account of each
Underwriter against payment to or upon the order of the Company or the Selling
Shareholders of the purchase price by wire transfer in immediately available
funds. Time shall be of the essence, and delivery at the time and place
specified pursuant to this Agreement is a further condition of the obligation of
each Underwriter hereunder. Upon delivery, the Firm Stock shall be registered in
such names and in such denominations as the Representative shall request in
writing not less than two full business days prior to the First Delivery Date.
For the purpose of expediting the checking and packaging of the
11
certificates for the Firm Stock, the Company and the Selling Shareholders shall
make the certificates representing the Firm Stock available for inspection by
the Representative in New York, New York, not later than 2:00 P.M., New York
City time, on the business day prior to the First Delivery Date.
The option granted in Section 4 will expire 30 days after the
date of this Agreement and may be exercised in whole or in part from time to
time by written notice being given to the Company and Thermo Electron by the
Representative. If the Option is exercised in part, the Underwriters shall
purchase from the Company and Thermo Electron a pro rata portion, based on the
number of shares of Option Stock being offered by each, of that number of shares
of Option Stock for which such Option is being exercised pursuant to Section 4
hereof. Such notice shall set forth the aggregate number of shares of Option
Stock as to which the option is being exercised, the names in which the shares
of Option Stock are to be registered, the denominations in which the shares of
Option Stock are to be issued and the date and time, as determined by the
Representative, when the shares of Option Stock are to be delivered; provided,
however, that this date and time shall not be earlier than the First Delivery
Date nor earlier than the second business day after the date on which the option
shall have been exercised nor later than the fifth business day after the date
on which the option shall have been exercised. The date and time the shares of
Option Stock are delivered are sometimes referred to as a "Second Delivery Date"
and the First Delivery Date and any Second Delivery Date are sometimes each
referred to as a "Delivery Date."
Delivery of and payment for the Option Stock shall be made at the
place specified in the first sentence of the first paragraph of this Section 6
(or at such other place as shall be determined by agreement between the
Representative and the Company or Thermo Electron, as applicable) at 10:00 A.M.,
New York City time, on the such Second Delivery Date. On the such Second
Delivery Date, the Company and Thermo Electron shall deliver or cause to be
delivered the certificates representing the Option Stock to the Representative
for the account of each Underwriter against payment to or upon the order of the
Company or Thermo Electron, as applicable, of the purchase price by wire
transfer in immediately available funds. Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a further
condition of the obligation of each Underwriter hereunder. Upon delivery, the
Option Stock shall be registered in such names and in such denominations as the
Representative shall request in the aforesaid written notice. For the purpose of
expediting the checking and packaging of the certificates for the Option Stock,
the Company and Thermo Electron shall make the certificates representing the
Option Stock available for inspection by the Representative in New York, New
York, not later than 2:00 P.M., New York City time, on the business day prior to
such Second Delivery Date.
7. Further Agreements of the Company. The Company agrees:
(a) To prepare the Prospectus in a form approved by the
Representative and to file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than Commission's close of business on the second
business day following the execution and delivery of this Agreement or, if
applicable, such earlier time as may be required by Rule 430A(a)(3) under the
Securities Act; to make no further amendment or any supplement to the
Registration Statement or to the Prospectus prior to the last Delivery Date
except as permitted herein; to advise the Representative, promptly after it
receives notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish the
Representative with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or
12
15(d) of the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with the offering
or sale of the Stock; to advise the Representative, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or the
Prospectus, of the suspension of the qualification of the Stock for offering or
sale in any jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or the Prospectus
or suspending any such qualification, to use promptly its best efforts to obtain
its withdrawal;
(b) To furnish promptly to the Representative and to counsel for
the Underwriters a signed copy of the Registration Statement as originally filed
with the Commission, and each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith;
(c) To deliver promptly to the Representative such number of the
following documents as the Representative shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case excluding exhibits other
than this Agreement and the computation of per share earnings), (ii) each
Preliminary Prospectus, the Prospectus and any amended or supplemented
Prospectus and (iii) any document incorporated by reference in the Prospectus
(excluding exhibits thereto) and, if the delivery of a prospectus is required at
any time after the Effective Time in connection with the offering or sale of the
Stock or any other securities relating thereto and if at such time any events
shall have occurred as a result of which the Prospectus as then amended or
supplemented would include an 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 when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be necessary
to amend or supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order to comply with the
Securities Act or the Exchange Act, to notify the Representative and, upon its
request, to file such document and to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as the Representative
may from time to time reasonably request of an amended or supplemented
Prospectus which will correct such statement or omission or effect such
compliance;
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the judgment of the Company or the Representative, be required by
the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus, any document
incorporated by reference in the Prospectus or any Prospectus pursuant to Rule
424 of the Rules and Regulations, to furnish a copy thereof to the
Representative and counsel for the Underwriters and obtain the consent of the
Representative to the filing;
(f) As soon as practicable after the Effective Date, to make
generally available to the Company's security holders and to deliver to the
Representative an earnings statement of the Company and its subsidiaries (which
need not be audited) complying with Section 11(a) of the Securities Act and the
Rules and Regulations (including, at the option of the Company, Rule 158);
13
(g) For a period of five years following the Effective Date, to
furnish to the Representative copies of all materials furnished by the Company
to its shareholders and all public reports and all reports and financial
statements furnished by the Company to the principal national securities
exchange upon which the Common Stock may be listed pursuant to requirements of
or agreements with such exchange or to the Commission pursuant to the Exchange
Act or any rule or regulation of the Commission thereunder;
(h) Promptly from time to time to take such action as the
Representative may reasonably request to qualify the Stock for offering and sale
under the securities laws of such jurisdictions as the Representative may
request and to comply with such laws so as to permit the continuance of sales
and dealings therein in such jurisdictions for as long as may be necessary to
complete the distribution of the Stock; provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation or to file
a general consent to service of process in any jurisdiction;
(i) For a period of 90 days from the date of the Prospectus, not
to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise
dispose of (or enter into any transaction or device which is designed to, or
could be expected to, result in the disposition by any person at any time in the
future of) any shares of Common Stock or securities convertible into or
exchangeable for Common Stock (other than the Stock and shares issued pursuant
to employee benefit plans, qualified stock option plans or other employee
compensation plans existing on the date hereof or pursuant to currently
outstanding options, warrants or rights), or sell or grant options, rights or
warrants with respect to any shares of Common Stock or securities convertible
into or exchangeable for Common Stock (other than the grant of options pursuant
to option plans existing on the date hereof), or (2) enter into any swap or
other derivatives transaction that transfers to another, in whole or in part,
any of the economic benefits or risks of ownership of such shares of Common
Stock, whether any such transaction described in clause (1) or (2) above is to
be settled by delivery of Common Stock or other securities, in cash or
otherwise, in each case without the prior written consent of Xxxxxx Brothers
Inc. on behalf of the Underwriters;
(j) Prior to the Effective Date, to apply, to the extent
required, for the inclusion of the Stock on the Nasdaq National Market System
and to use its best efforts to complete that inclusion, subject only to official
notice of issuance and evidence of satisfactory distribution, prior to the First
Delivery Date;
(k) To apply the net proceeds from the sale of the Stock being
sold by the Company as set forth in the Prospectus; and
(l) To take such steps as shall be necessary to ensure that
neither the Company nor any subsidiary shall become an "investment company"
within the meaning of such term under the Investment Company Act of 1940 and the
rules and regulations of the Commission thereunder.
8. Further Agreements of the Selling Shareholders. Each Selling
Shareholder agrees:
(a) For a period of 90 days from the date of the Prospectus, not
to, directly or indirectly, (1) offer for sale, sell, pledge or otherwise
dispose of (or enter into any transaction or device which is designed to, or
could be expected to, result in the disposition by any person at any time in the
future of) any shares of Common Stock or securities convertible into or
exchangeable for Common Stock (other than the Stock) or (2) enter into any swap
or other derivatives transaction that transfers to another, in whole or in part,
any of the economic benefits or risks of ownership of such shares of Common
Stock, whether any such transaction described in
14
clause (1) or (2) above is to be settled by delivery of Common Stock or other
securities, in cash or otherwise, in each case without the prior written consent
of Xxxxxx Brothers Inc.
(b) That the Stock to be sold by the Selling Shareholder
hereunder, which is represented by the certificates held in custody for the
Selling Shareholder, is subject to the interest of the Underwriters, that the
arrangements made by the Selling Shareholder for such custody are to that extent
irrevocable, and that the obligations of the Selling Shareholder hereunder shall
not be terminated by any act of the Selling Shareholder, by operation of law, by
the death or incapacity of any individual Selling Shareholder or, in the case of
a trust, by the death or incapacity of any executor or trustee or the
termination of such trust, or the occurrence of any other event.
(c) To deliver to the Representative prior to the First Delivery
Date a properly completed and executed United States Treasury Department Form
W-8 (if the Selling Shareholder is a non-United States person or Form W-9 (if
the Selling Shareholder is a United States person).
9. Expenses.
(a) Except as otherwise provided in Section 9(c), the Company
agrees to pay (i) the costs incident to the authorization, issuance, sale and
delivery of the Stock and any taxes payable in that connection; (ii) the costs
incident to the preparation, printing and filing under the Securities Act of the
Registration Statement and any amendments and exhibits thereto; (iii) the costs
of distributing the Registration Statement as originally filed and each
amendment thereto and any post-effective amendments thereof (including, in each
case, exhibits), any Preliminary Prospectus, the Prospectus and any amendment or
supplement to the Prospectus or any document incorporated by reference therein,
all as provided in this Agreement; (iv) the costs of producing and distributing
this Agreement and any other related documents in connection with the offering,
purchase, sale and delivery of the stock; (v) the costs of delivering and
distributing the Custody Agreements and the Powers of Attorney; (vi) the filing
fees incident to securing any required review by the National Association of
Securities Dealers, Inc. of the terms of sale of the Stock; (vii) any applicable
listing or other fees; (viii) the fees and expenses of qualifying the Stock
under the securities laws of the several jurisdictions as provided in Section
7(h) and of preparing, printing and distributing a Blue Sky Memorandum
(including related fees and expenses of counsel to the Underwriters); (ix)
two-thirds of the costs and expenses of any chartered aircraft used in
connection with any roadshow or investor presentations and all accommodations
and other costs and expenses of any Company personnel involved in any roadshow
or investor presentations; and (x) all other costs and expenses incident to the
performance of the obligations of the Company and the Selling Shareholders under
this Agreement.
(b) Thermo Electron (i) shall pay the fees and expenses of its
counsel, [the Custodian (any other attorney in fact)], any transfer taxes
payable in connection with its sales of Stock to the Underwriters and (ii)
agrees to reimburse the Company for one-third of the costs and expenses of any
chartered aircraft used in connection with any roadshow or investor
presentations and a pro rata share, based on the number of shares of Stock to be
sold by the Company and Thermo Electron, of all other fees and expenses paid by
the Company in connection with the Offering of the Stock (other than those
referred to in Section 9(a)(ix)); provided that Thermo Electron shall not be
required to pay more than $400,000 pursuant to this clause (ii).
(c) Except as otherwise provided in this Section 9 and in Section
14, the Underwriters shall pay their own costs and expenses, including the costs
and expenses of their counsel and the accommodations and other costs and
expenses of any Underwriter personnel involved in any roadshow or investor
presentations, any transfer taxes on the Stock which they
15
may sell, the expenses of advertising any offering of the Stock made by the
Underwriters and one-third of the costs and expenses of any chartered aircraft
used in connection with any roadshow or investor presentations.
10. Conditions of Underwriters' Obligations. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on each Delivery Date, of the representations and warranties of the Company
and the Selling Shareholders contained herein, to the performance by the Company
and the Selling Shareholders of their respective obligations hereunder, and to
each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the
Commission in accordance with Section 6(a); no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission; and any request of the Commission for inclusion of
additional information in the Registration Statement or the Prospectus or
otherwise shall have been complied with.
(b) No Underwriter shall have discovered and disclosed to the
Company on or prior to such Delivery Date that the Registration Statement or the
Prospectus or any amendment or supplement thereto contains an untrue statement
of a fact which, in the opinion of Xxxxxxxx Chance Xxxxxx & Xxxxx LLP, counsel
for the Underwriters, is material or omits to state a fact which, in the opinion
of such counsel, is material and is required to be stated therein or is
necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to
the authorization, form and validity of this Agreement, the Powers of Attorney,
the Custody Agreements, the Registration Statement and the Prospectus, and all
other legal matters relating to this Agreement and the transactions contemplated
hereby shall be reasonably satisfactory in all material respects to counsel for
the Underwriters, and the Company and the Selling Shareholders shall have
furnished to such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
(d) Xxxxxx Xxxxxx White & XxXxxxxxx shall have furnished to the
Representative its written opinion, as counsel to the Company, addressed to the
Underwriters and dated such Delivery Date, in form and substance reasonably
satisfactory to the Representative, to the effect that:
(i) The Company and each of its subsidiaries that is
organized under the laws of one of the United States (each a "U.S. Subsidiary")
has been duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation and has all
corporate power and corporate authority necessary to own or hold its properties
and conduct its business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the outstanding shares of capital stock of
the Company (including the shares of Stock being delivered on such Delivery
Date) have been duly authorized and are validly issued, fully paid and
non-assessable and conform to the description thereof contained in the
Prospectus; and all of the outstanding shares of capital stock of each U.S.
Subsidiary have been duly authorized and are validly issued, fully paid and
non-assessible and (except for directors' qualifying shares) are owned directly
or indirectly by the Company, to our knowledge, free and clear of all liens,
encumbrances, equities or claims;
16
(iii) There are no preemptive or other rights to subscribe
for or to purchase, nor any restriction upon the voting or transfer of, any
shares of the Stock pursuant to the Company's charter or by-laws or, to our
knowledge, any agreement or other instrument;
(iv) All real property and buildings in California and
Massachusetts held under lease by the Company and its subsidiaries are held by
them under valid, subsisting and enforceable leases, with such exceptions as are
not material and do not interfere with the use made and proposed to be made of
such property and buildings by the Company and its subsidiaries;
(v) To such counsel's knowledge and other than as set forth
in the Prospectus, there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any property
or assets of the Company or any of its subsidiaries is the subject; and, to such
counsel's knowledge, no such proceedings are threatened by governmental
authorities or by others;
(vi) The Registration Statement was declared effective under
the Securities Act as of the date and time specified in such opinion, the
Prospectus was filed with the Commission pursuant to the subparagraph of Rule
424(b) of the Rules and Regulations specified in such opinion on the date
specified therein and no stop order suspending the effectiveness of the
Registration Statement has been issued and, to the knowledge of such counsel, no
proceeding for that purpose is pending or threatened by the Commission;
(vii) The Registration Statement and the Prospectus and any
further amendments or supplements thereto made by the Company prior to such
Delivery Date (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) comply as to form in
all material respects with the requirements of the Securities Act and the Rules
and Regulations; the documents incorporated by reference in the Prospectus and
any further amendment or supplement to any such incorporated document made by
the Company prior to such Delivery Date (other than the financial statements and
related schedules therein, as to which such counsel need express no opinion),
when they became effective or were filed with the Commission, as the case may
be, complied as to form in all material respects with the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules and regulations
of the Commission thereunder;
(viii) The statements in the Prospectus under the caption
"Description of Capital Stock," insofar as they describe statutes, rules or
regulations of the State of California or the Company's articles of
incorporation or bylaws, constitute a fair summary thereof and the opinion of
such counsel filed as Exhibit 5.1 to the Registration Statement is confirmed and
the Underwriters may rely on such opinion as if it were addressed to them;
(ix) To such counsel's knowledge, there are no contracts or
other documents which are required to be described in the Prospectus or filed as
exhibits to the Registration Statement by the Securities Act or by the Rules and
Regulations which have not been described or filed as exhibits to the
Registration Statement or incorporated therein by reference as permitted by the
Rules and Regulations;
(x) The Company has all requisite corporate power and
authority to enter into this Agreement and to perform its obligations hereunder
and this Agreement has been duly authorized, executed and delivered by the
Company;
(xi) Neither the execution and delivery of this Agreement on
behalf of the Company nor the performance by the Company of the transactions
contemplated hereby (including the issuance and sale of the Stock and the use of
proceeds from the sale of the Stock as
17
described under the caption "Use of Proceeds" in the Prospectus) (i) conflicts
with any provision of the articles of incorporation or bylaws of the Company,
(ii) conflicts with or violates any law applicable to the Company or its
properties or assets, or, any statute or any order, rule or regulation
(including any statute, order, rule or regulation promulgated by the United
States Food and Drug Administration) known to such counsel of any court or
governmental agency or body having jurisdiction over the Company or any of its
properties or assets or (iii) conflicts with or results in a breach or violation
of any of the terms or provisions of, or constitutes a default under, any
agreement, document or instrument included or incorporated by reference as an
exhibit to any registration statement, report or other filing made by the
Company with the Commission on or after January 1, 2001;
(xii) No consent, approval, authorization, order,
qualification, registration or filing of or with any court or governmental
agency is required for the execution, delivery and performance of this Agreement
by the Company and the consummation of the transactions contemplated thereby,
except the registration under the Securities Act of the Stock, the registration
of the Stock under the Exchange Act and the inclusion of the Stock in the Nasdaq
National Market System in accordance with the rules and regulations of the
Nasdaq National Market System;
(xiii) To such counsel's knowledge, there are no contracts,
agreements or understandings between the Company and any person granting such
person the right (other than rights which have been waived or satisfied) to
require the Company to file a registration statement under the Securities Act
with respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the securities
registered pursuant to the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the Company
under the Securities Act; and
(xiv) Neither the Company nor any subsidiary is an
"investment company" as defined in the Investment Company Act of 1940, as
amended.
In rendering such opinion, such counsel may (i) state that its
opinion is limited to matters governed by the Federal laws of the United States
of America, the laws of the State of California and the General Corporation Law
of the State of Delaware and (ii) assume, for the purposes of the opinion in
paragraph (iv), to the extent that such opinion relates to real property and
buildings in Massachusetts, that the laws of the Commonwealth of Massachusetts
are the same as the laws of the State of California. Such counsel shall also
have furnished to the Representative a written statement, addressed to the
Underwriters and dated such Delivery Date, in form and substance satisfactory to
the Representative, to the effect that (x) such counsel has acted as counsel to
the Company on a regular basis and has acted as counsel to the Company in
connection with the preparation of the Registration Statement, and (y) based on
the foregoing, no facts have come to the attention of such counsel which lead
them to believe that (I) the Registration Statement, as of the Effective Date,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein not misleading, or that the Prospectus contains any untrue statement of
a material fact or omits to state a material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading or (II) any document
incorporated by reference in the Prospectus or any further amendment or
supplement to any such incorporated document made by the Company prior to such
Delivery Date, when they became effective or were filed with the Commission, as
the case may be, contained, in the case of a registration statement which became
effective under the Securities Act, any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein not misleading, or, in the
18
case of other documents which were filed under the Exchange Act with the
Commission, an untrue statement of a material fact or omitted to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(e) Fish & Xxxxxxxxxx P.C. shall have furnished to the
Representative its written opinion, as patent counsel to the Company and its
subsidiaries, addressed to the Underwriters and dated such Delivery Date, in
form and substance reasonably satisfactory to the Representative, to the effect
that it serves as patent counsel to the Company and its subsidiaries with
respect to the Proprietary Rights, and that:
(i) The information in the Prospectus contained under the
headings "Risk Factors, Our inability to protect our proprietary technologies or
an infringement of others' patents could harm our competitive position,"
"Business, Our Products, The Thoratec VAD," "Business, Our Products, Vascular
Graft Products," "Business, Our Products, Blood Coagulation Testing and Skin
Incision Devices" and "Business, Patents and Proprietary Rights," to the extent
that it constitutes description of intellectual property legal matters or
summaries of intellectual property legal matters, documents or proceedings, has
been reviewed by such counsel and is correct in all material respects and it
fairly and correctly presents the information presented therein;
(ii) To such counsel's knowledge, there are no pending legal
or governmental proceedings, or allegations on the part of any person of
infringement by the Company or any of its subsidiaries of patents, trade
secrets, trademarks, service marks, or copyrights of others, nor to such
counsel's knowledge, has the Company or any of its subsidiaries been advised
that such proceedings are threatened or contemplated. To such counsel's
knowledge, neither the Company nor any of its subsidiaries is infringing any
patents, trademarks, service marks, copyrights or violating any trade secrets of
others. Such counsel has conducted an infringement search of the United States
Patent and Trademark Office (the "PTO") patent records in the subject matter
areas of [biomaterials and arterial grafts], and has reviewed the patents
uncovered in the search. Such counsel has not reviewed the prosecution files and
makes no opinion as to such files. To such counsel's knowledge, no person is
infringing or otherwise violating any of the Company's or any of its
subsidiaries' patents, trade secrets, trademarks, service marks, copyrights or
other proprietary information or know-how of the Company or any of its
subsidiaries in any way which could materially affect the use thereof by the
Company or such subsidiary;
(iii) To such counsel's knowledge, the Company and its
subsidiaries own or possess sufficient licenses or other rights to use all
patents, trade secrets, trademarks, service marks or other proprietary
information or know-how described in the above-identified headings of the
Prospectus necessary to conduct the business now being or proposed to be
conducted by the Company and its subsidiaries as described in the Prospectus;
(iv) With respect to the United States patents and patent
applications relating to biomaterials, ventricular assist devices, grafts, blood
coagulation monitoring devices and skin incision devices identified in the
above-identified headings in the Prospectus, the Company or one of its
subsidiaries is listed in the records of the PTO as the sole assignee of record
in each of the relevant patents and applications listed in Schedule I attached
to its opinion, except that U.S. Patent No. 5,443,504 is assigned to Xxxxxx
Xxxx. Additionally, U.S. Patent Nos. 5,235,003 and 4,731,073 are solely assigned
to the Company by virtue of assignments recorded in their respective parent
applications, therefore there are no assignments in the PTO recorded on these
patents. To such counsel's knowledge, there are no asserted claims of any person
relating to the scope of or to the ownership of the patents or applications, nor
to such counsel's knowledge has any unasserted claim relating to such scope or
ownership been
19
communicated to the Company or any of its subsidiaries. To such counsel's
knowledge, there are no outstanding liens which have been filed in the PTO
against the patents or applications in Schedule I, except as listed. There are
no material defects of form in the preparation or filing of the applications
which such counsel has reviewed. A list of the applications which such counsel
has reviewed is attached to its opinion as Schedule II. These applications are
being diligently prosecuted and no application has been finally rejected. None
of these applications is abandoned;
(v) To such counsel's knowledge, according to its files of
the foreign patents listed in Schedule I, the Company or one of its subsidiaries
is listed as the sole assignee of record;
(vi) To such counsel's knowledge, there are no asserted
claims of any persons relating to the scope or ownership of the foreign patents
in Schedule I nor, to such counsel's knowledge, has any unasserted claim
relating to such scope or ownership been communicated to the Company or any of
its subsidiaries. To such counsel's knowledge, there are no material defects of
form in the preparation or filing of the foreign applications. The foreign
applications have completed prosecution, and issued as patents indicated in
Schedule I;
(vii) The Company is the exclusive licensee in fields of use
respectively specified in the license with Xxxxxxxxxxx XX dated March 29, 1989,
of the United States patent and foreign patent and patent applications in
Schedule III attached to its opinion. With the Underwriters' permission, such
counsel assumes the validity of the signatures and proper authorization of the
signatures to such licenses. To such counsel's knowledge, such licenses are duly
executed, validly binding and enforceable in accordance with their terms and the
Company is not in default of any material provision of such license. To such
counsel's knowledge, there are no asserted claims of any persons relating to the
scope or ownership of the foreign patents or foreign applications in Schedule
III;
(viii) To such counsel's knowledge, and upon inquiry of the
Company and its subsidiaries, all relevant prior art references known to the
Company and its subsidiaries or its counsel in the prosecution of the U.S.
patents and applications in Schedules I and II as "prosecuted by us" were
disclosed to the PTO and to such counsel's knowledge and upon inquiry of the
Company and its subsidiaries, neither such counsel nor the Company or any of its
subsidiaries made any misrepresentation to or concealed any material fact from
the PTO during such prosecution;
(ix) Upon inquiry of the Company and its subsidiaries, the
Company and its subsidiaries take security measures adequate to assert trade
secret protection in its non-patented technology. Upon inquiry of the Company
and its subsidiaries, the agreements executed by the Company's and its
subsidiaries' employees, consultants and other advisors respecting trade
secrets, confidentiality, or intellectual property rights appear to be valid,
binding and enforceable in accordance with their terms; and
(x) Such counsel is not aware of any other matter that leads
it to believe that, with respect to licenses, patents, trade secrets, copyrights
or other proprietary information or know-how owned or used by the Company or its
subsidiaries which are the subject of the foregoing opinion, the registration
statement, at the time it became effective, contained an untrue statement of
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, included or includes an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of circumstances under which they were made,
not misleading.
20
(f) Xxxxx, Xxxxxx & XxXxxxxx, P.C. shall have furnished to the
Representative its written opinion, as FDA regulatory counsel to the Company and
its subsidiaries, addressed to the Underwriters and dated such Delivery Date, in
form and substance reasonably satisfactory to the Representative, to the effect
that it serves as FDA regulatory counsel to the Company and its subsidiaries
with respect to the Proprietary Rights, and that:
(i) The information in the Prospectus under the headings set
forth in Schedule 4 insofar as they constitute summaries of Food and Drug
Administration regulatory provisions in general, have been reviewed by such
counsel and are correct in all material respects and fairly and correctly
present the material information called for with respect thereto; and
(ii) Such counsel has reviewed the Registration Statement,
and nothing has come to its attention that leads it to believe that, with
respect to matters pending before the FDA, the Registration Statement, at the
time it became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus, as of its
date (unless the term "Prospectus" refers to a prospectus which has been
provided to the Underwriters by the Company for use in connection with the
offering which differs from the Prospectus on file at the Commission at the time
the Registration Statement becomes effective, in which case at the time it is
first provided to the Underwriters for such use) or at the First Delivery Date
or the Second Delivery Date, as the case may be, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact
relating to matters pending before the FDA necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(g) _______________ shall have furnished to the Representative
its written opinion, as special New Jersey counsel to the Company and its
subsidiaries, addressed to the Underwriters and dated such Delivery Date, in
form and substance reasonably satisfactory to the Representative, to the effect
that it has acted as special New Jersey counsel to the Company and its
subsidiaries, and that the Company and each of its subsidiaries have good and
marketable title in fee simple to all real property in New Jersey owned by them,
in each case free and clear of all liens, encumbrances and defects except such
as are described in the Prospectus or such as do not materially affect the value
of such property and do not materially interfere with the use made and proposed
to be made of such property by the Company and its subsidiaries; and all real
property and buildings in New Jersey held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and enforceable leases,
with such exceptions as are not material and do not interfere with the use made
and proposed to be made of such property and buildings by the Company and its
subsidiaries;
(h) The counsel for Thermo Electron shall have furnished to the
Representative its written opinion, as counsel to such Selling Shareholder and
TEC (as defined in Section 10(s)), addressed to the Underwriters and dated the
First Delivery Date, in form and substance reasonably satisfactory to the
Representative, to the effect that:
(i) Such Selling Shareholder has full right, power and
authority to enter into this Agreement, the Power of Attorney and the Custody
Agreement; the execution, delivery and performance of this Agreement, the Power
of Attorney and the Custody Agreement by such Selling Shareholder and the
consummation by such Selling Shareholder of the transactions contemplated hereby
and thereby will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument (in
each case, as amended and in effect on the date of this Agreement) known to such
counsel to which such Selling Shareholder is a party or by which such Selling
Shareholder is bound or to which any of
21
the property or assets of such Selling Shareholder is subject, nor will such
actions result in any violation of the provisions of the constitutive
instruments and agreements of such Selling Shareholder or any statute or any
order, rule or regulation known to such counsel of any court or governmental
agency or body having jurisdiction over such Selling Shareholder or the property
or assets of such Selling Shareholder; and, except for the registration of the
Stock under the Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange Act and
applicable state or foreign securities laws in connection with the purchase and
distribution of the Stock by the Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any such court or
governmental agency or body is required for the execution, delivery and
performance of this Agreement, the Power of Attorney or the Custody Agreement by
such Selling Shareholder and the consummation by such Selling Shareholder of the
transactions contemplated hereby and thereby;
(ii) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Shareholder;
(iii) A Power-of-Attorney and a Custody Agreement have been
duly authorized, executed and delivered by such Selling Shareholder and
constitute valid and binding agreements of such Selling Shareholder, enforceable
in accordance with their respective terms;
(iv) Immediately prior to the First Delivery Date, such
Selling Shareholder had good and valid title to the shares of Stock to be sold
by such Selling Shareholder under this Agreement, free and clear of all liens,
encumbrances, equities or claims, and full right, power and authority to sell,
assign, transfer and deliver such shares to be sold by such Selling Shareholder
hereunder;
(v) TEC has full right, power and authority to enter into the
TEC Guaranty (as defined in Section 10(s)); the execution, delivery and
performance of the TEC Guaranty by TEC and the consummation by TEC of the
transactions contemplated hereby and thereby will not conflict with or result in
a breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which TEC is a party or by
which TEC is bound or to which any of the property or assets of TEC is subject,
nor will such actions result in any violation of the provisions of the
constitutive instruments and agreements of TEC or any statute or any order, rule
or regulation known to such counsel of any court or governmental agency or body
having jurisdiction over TEC or the property or assets of TEC; and no consent,
approval, authorization or order of, or filing or registration with, any such
court or governmental agency or body is required for the execution, delivery and
performance of the TEC Guaranty by TEC and the consummation by TEC of the
transactions contemplated thereby; and
(vi) The TEC Guaranty has been duly authorized, executed and
delivered by or on behalf of TEC.
In rendering such opinion, such counsel may (i) state that their
opinion is limited to matters governed by the Federal laws of the United States
of America, the laws of the Commonwealth of Massachusetts and the General
Corporation Law of the State of Delaware and (ii) in rendering the opinion in
Section 10(h)(iv) above, rely upon a certificate of such Selling Shareholder in
respect of matters of fact as to ownership of and liens, encumbrances, equities
or claims on the shares of Stock sold by such Selling Shareholder, provided that
such counsel shall furnish copies thereof to the Representative and state that
they believe that both the Underwriters and they are justified in relying upon
such certificate.
22
(i) Xxxxxxxx Chance Limited Liability Partnership, shall have
furnished to the Representative its written opinion, as special U.K. counsel to
the Company, addressed to the Underwriters and dated such Delivery Date, in form
and substance reasonably satisfactory to the representative to the effect that:
(i) Thoratec Europe Limited is duly incorporated and is
validly existing under the laws of the jurisdiction of England;
(ii) All of the issued shares of capital stock of Thoratec
Europe Limited have been duly and validly authorized and issued and are fully
paid and are owned by the Company, and none of such shares of capital stock was
issued in violation of preemptive or other similar rights arising by operation
of law or under the Memorandum and Articles of Association of Thoratec Europe
Limited;
(iii) Neither the execution and delivery of the Underwriting
Agreement by the Company nor the consummation of the transactions contemplated
in the Underwriting Agreement will result in any violation of the provisions of
the Memorandum and Articles of Association of Thoratec Europe Limited or any
statute or any order, rule or regulation known to such counsel of any court or
governmental agency or body having jurisdiction over Thoratec Europe Limited or
any of its properties or assets; and
(iv) No governmental consents, approval, authorizations,
registrations, declarations or filings are required by Thoratec Europe Limited
for the execution and delivery of this Agreement by the Company and consummation
of the transactions contemplated herein.
(j) Xxxxxxxx Chance Xxxxxx & Xxxxx LLP shall have furnished to
the Representative its written opinion, as counsel for the Underwriters,
addressed to the Underwriters and dated such Delivery Date, with respect to the
issuance and sale of the Stock, the Registration Statement, the Prospectus and
other related matters as the Representative may reasonably require, and the
Company shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(k) At the time of execution of this Agreement, the
Representative shall have received from Deloitte & Touche LLP a letter, in form
and substance satisfactory to the Representatives, addressed to the Underwriters
and dated the date hereof (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance with
the applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date
hereof (or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to the date hereof), the
conclusions and findings of such firm with respect to the financial information
and other matters ordinarily covered by accountants' "comfort letters" to
underwriters in connection with registered public offerings.
(l) With respect to the letter of Deloitte & Touche LLP referred
to in the preceding paragraph and delivered to the Representative concurrently
with the execution of this Agreement (the "initial letter"), the Company shall
have furnished to the Representative a letter (the "bring-down letter") of such
accountants, addressed to the Underwriters and dated such Delivery Date (i)
confirming that they are independent public accountants within the meaning of
the Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation S-X
of the Commission, (ii) stating, as of the date of the bring-down letter (or,
with respect to matters involving changes or
23
developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than five days
prior to the date of the bring-down letter), the conclusions and findings of
such firm with respect to the financial information and other matters covered by
the initial letter and (iii) confirming in all material respects the conclusions
and findings set forth in the initial letter.
(m) At the time of execution of this Agreement, the
Representative shall have received from Xxxxxx Xxxxxxxx LLP a letter, in form
and substance satisfactory to the Representatives, addressed to the Underwriters
and dated the date hereof (i) confirming that they are independent public
accountants within the meaning of the Securities Act and are in compliance with
the applicable requirements relating to the qualification of accountants under
Rule 2-01 of Regulation S-X of the Commission, (ii) stating, as of the date
hereof, the conclusions and findings of such firm with respect to the financial
information and other matters ordinarily covered by accountants' "comfort
letters" to underwriters in connection with registered public offerings.
(n) The Company shall have furnished to the Representative a
certificate, dated such Delivery Date, of its Chairman of the Board, its
President or a Vice President and its chief financial officer stating that:
(i) The representations, warranties and agreements of the
Company in Section 1 are true and correct as of such Delivery Date; the Company
has complied with all its agreements contained herein; and the conditions set
forth in Sections 10(a) and 10(p) have been fulfilled; and
(ii) They have carefully examined the Registration Statement
and the Prospectus and, in their opinion (A) as of the Effective Date, the
Registration Statement and the Prospectus did not include any untrue statement
of a material fact and did not omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
(B) since the Effective Date no event has occurred which should have been set
forth in a supplement or amendment to the Registration Statement or the
Prospectus.
(o) Each Selling Shareholder (or the Custodian or one or more
attorneys-in-fact on behalf of each Selling Shareholder) shall have furnished to
the Representative on the First Delivery Date a certificate, dated the First
Delivery Date, signed by, or on behalf of, such Selling Shareholder (or the
Custodian or one or more attorneys-in-fact) stating that the representations,
warranties and agreements of such Selling Shareholder contained herein are true
and correct as of the First Delivery Date and that such Selling Shareholder has
complied with all agreements contained herein to be performed by such Selling
Shareholder at or prior to the First Delivery Date.
(p) (i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Prospectus
or (ii) since such date there shall not have been any change in the capital
stock or long-term debt of the Company or any of its subsidiaries or any change,
or any development involving a prospective change, in or affecting the general
affairs, management, financial position, shareholders' equity or results of
operations of the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such case described
in clause (i) or (ii), is, in the judgment of the Representative, so material
and adverse as to make it impracticable or inadvisable to proceed with the
public offering or the
24
delivery of the Stock being delivered on such Delivery Date on the terms and in
the manner contemplated in the Prospectus.
(q) Subsequent to the execution and delivery of this Agreement
there shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange, the
Nasdaq National Market or in the over-the-counter market, or trading in any
securities of the Company on any exchange or in the over-the-counter market,
shall have been suspended or the settlement of such trading generally shall have
been materially disrupted or minimum prices shall have been established on any
such exchange or such market by the Commission, by such exchange or by any other
regulatory body or governmental authority having jurisdiction, (ii) a banking
moratorium shall have been declared by Federal or state authorities, (iii) the
United States shall have become engaged in hostilities, there shall have been an
escalation in hostilities involving the United States or there shall have been a
declaration of a national emergency or war by the United States or (iv) there
shall have occurred such a material adverse change in general economic,
political or financial conditions, including without limitation as a result of
terrorist activities, or the effect of international conditions on the financial
markets in the United States shall be such as to make it, in the judgment of a
majority in interest of the several Underwriters, impracticable or inadvisable
to proceed with the public offering or delivery of the Stock being delivered on
such Delivery Date on the terms and in the manner contemplated in the Prospectus
(r) The Nasdaq National Market System shall have approved the
Stock for inclusion, subject only to official notice of issuance and evidence of
satisfactory distribution.
(s) Thermo Electron Corporation, a Delaware corporation ("TEC"),
shall have executed and delivered to the Representative a guarantee,
substantially in the form of Exhibit A (the "TEC Guaranty") of the obligations
of Thermo Electron under this Agreement.
All opinions, letters, evidence and certificates mentioned above
or elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
11. Indemnification and Contribution.
(a) Each of the Company, J. Xxxxxx Xxxx, Xxxxxx X. Xxxxxxxx, Xx.,
and J. Xxxxxx Xxxx jointly and severally shall indemnify and hold harmless each
Underwriter, its officers and employees, each of its directors and each person,
if any, who controls any Underwriter within the meaning of the Securities Act,
from and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof (including, but not limited to, any loss, claim,
damage, liability or action relating to purchases and sales of Stock), to which
that Underwriter, officer, employee, director or controlling person may become
subject, under the Securities Act or otherwise, insofar as such loss, claim,
damage, liability or action arises out of, or is based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in (A) any
Preliminary Prospectus, the Registration Statement or the Prospectus or in any
amendment or supplement thereto, or (B) any materials or information provided to
investors by, or with the approval of, the Company in connection with the
marketing of the offering of the Stock ("Marketing Materials"), including any
roadshow or investor presentations made to investors by the Company (whether in
person or electronically), (ii) the omission or alleged omission to state in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or in any
amendment or supplement thereto, or in any Marketing Materials, any material
fact required to be stated therein or necessary to make the statements therein
not misleading or (iii) any act or failure to act or any alleged act or failure
to act by any Underwriter in connection with, or relating in any manner to, the
Stock or the offering contemplated hereby, and which is
25
included as part of or referred to in any loss, claim, damage, liability or
action arising out of or based upon matters covered by clause (i) or (ii) above
(provided that the Company and such individuals shall not be liable under this
clause (iii) to the extent that it is determined in a final judgment by a court
of competent jurisdiction that such loss, claim, damage, liability or action
resulted directly from any such acts or failures to act undertaken or omitted to
be taken by such Underwriter through its gross negligence or willful
misconduct), and shall reimburse each Underwriter and each such officer,
employee, director or controlling person promptly upon demand for any legal or
other expenses reasonably incurred by that Underwriter, officer, employee,
director or controlling person in connection with investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that the Company and such
individuals shall not be liable in any such case to the extent that any such
loss, claim, damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or in any such amendment or supplement, in reliance upon and in
conformity with written information concerning such Underwriter furnished to the
Company through the Representative by or on behalf of any Underwriter
specifically for inclusion therein, which information consists solely of the
information specified in Section 11(f). The foregoing indemnity agreement is in
addition to any liability which the Company or such individuals may otherwise
have to any Underwriter or to any officer, employee, director or controlling
person of that Underwriter.
(b) The Selling Shareholder named in the first sentence of
Section 3 shall indemnify and hold harmless each Underwriter, its officers and
employees, each of its directors and each person, if any, who controls any
Underwriter within the meaning of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof
(including, but not limited to, any loss, claim, damage, liability or action
relating to purchases and sales of Stock), to which that Underwriter, officer,
employee, director or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or supplement
thereto, (ii) the omission or alleged omission to state in any Preliminary
Prospectus, Registration Statement or the Prospectus, or in any amendment or
supplement thereto, any material fact required to be stated therein or necessary
to make the statements therein not misleading or (iii) the inaccuracy of any
representation or the breach of any warranty made by such Selling Shareholder
hereunder, and shall reimburse each Underwriter, and each such officer,
employee, director or controlling person for any legal or other expenses
reasonably incurred by that Underwriter, officer, employee, director or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that such Selling Shareholder shall
only be liable, in the case of clauses (i) and (ii) above, 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 Preliminary Prospectus, the Registration Statement or the
Prospectus or in any such amendment or supplement insofar as it relates to
information regarding such Selling Shareholder; provided, further, that such
Selling Shareholder shall not be liable in any such case to the extent that any
such loss, claim, damage, liability or action arises out of, or is based upon,
any untrue statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the Prospectus
or in any such amendment or supplement in reliance upon and in conformity with
written information concerning such Underwriter furnished to the Company through
the Representative by or on behalf of any Underwriter specifically for inclusion
therein, which information consists solely of the
26
information specified in Section 11(f). Notwithstanding the provisions of this
Section 11(b), the aggregate liability of such Selling Shareholder under this
Section 11(b) shall not exceed the proceeds received by such Selling Shareholder
from the sale of shares of Stock under this Agreement. The foregoing indemnity
agreement is in addition to any liability which such Selling Shareholder may
otherwise have to any Underwriter or to any officer, employee, director or
controlling person of that Underwriter.
(c) Each Underwriter, severally and not jointly, shall indemnify
and hold harmless the Company, its officers and employees, each of its
directors, each Selling Shareholder and each person, if any, who controls the
Company within the meaning of the Securities Act, from and against any loss,
claim, damage or liability, joint or several, or any action in respect thereof,
to which the Company or any such director, officer, Selling Shareholder or
controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus or in any amendment or supplement thereto, or (ii) the omission or
alleged omission to state in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or in any amendment or supplement thereto, any
material fact required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information concerning such
Underwriter furnished to the Company through the Representative by or on behalf
of that Underwriter specifically for inclusion therein, and shall reimburse the
Company and any such director, officer, Selling Shareholder or controlling
person for any legal or other expenses reasonably incurred by the Company or any
such director, officer, Selling Shareholder or controlling person in connection
with investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred. The foregoing
indemnity agreement is in addition to any liability which any Underwriter may
otherwise have to the Company or any such director, officer, employee, Selling
Shareholder or controlling person.
(d) Promptly after receipt by an indemnified party under this
Section 11 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 11, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 11 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 11.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 11 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Representative shall have the right to employ counsel to represent jointly
the Representative and those other Underwriters and their respective officers,
employees and controlling persons who may be subject to liability arising out of
any claim in respect of which indemnity may be sought by the Underwriters
against the Company or any Selling Shareholder under this Section 11 if, in the
reasonable judgment of the Representative, it
27
is advisable for the Representative and those Underwriters, officers, employees
and controlling persons to be jointly represented by separate counsel, and in
that event the fees and expenses of such separate counsel shall be paid by the
Company or such Selling Shareholder. No indemnifying party shall (i) without the
prior written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with the consent of
the indemnifying party or if there be a final judgment of the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(e) If the indemnification provided for in this Section 11 shall
for any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 11(a), 11(b) or 11(c) in respect of any loss, claim, damage
or liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company and the Selling Shareholders on the one hand and the
Underwriters on the other from the offering of the Stock or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Selling Shareholders on the one hand and the Underwriters on the other with
respect to the statements or omissions which resulted in such loss, claim,
damage or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company and the
Selling Shareholders on the one hand and the Underwriters on the other with
respect to such offering shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Stock purchased under this Agreement
(before deducting expenses) received by the Company and the Selling
Shareholders, on the one hand, and the total underwriting discounts and
commissions received by the Underwriters with respect to the shares of the Stock
purchased under this Agreement, on the other hand, bear to the total gross
proceeds from the offering of the shares of the Stock under this Agreement, in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company, the Selling
Shareholders or the Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company, the Selling Shareholders and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 11(e) were to be determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Section shall be deemed to include, for
purposes of this Section 11(e), 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 Section 11(e), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Stock underwritten by it and distributed
to the public was offered to the public exceeds the
28
amount of any damages which such Underwriter has otherwise paid or become liable
to pay by reason of any untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute as provided in
this Section 11(e) are several in proportion to their respective underwriting
obligations and not joint.
(f) The Underwriters severally confirm and the Company and the
Selling Shareholders acknowledge that the statements with respect to the public
offering of the Stock by the Underwriters set forth on the cover page of, and
the concession and reallowance figures appearing under the caption
"Underwriting" in, the Prospectus are correct and constitute the only
information concerning such Underwriters furnished in writing to the Company by
or on behalf of the Underwriters specifically for inclusion in the Registration
Statement and the Prospectus.
12. Defaulting Underwriters.
If, on either Delivery Date, any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting Underwriters shall be obligated to purchase the Stock which the
defaulting Underwriter agreed but failed to purchase on such Delivery Date in
the respective proportions which the number of shares of the Firm Stock set
opposite the name of each remaining non-defaulting Underwriter in Schedule 1
hereto bears to the total number of shares of the Firm Stock set opposite the
names of all the remaining non-defaulting Underwriters in Schedule 1 hereto;
provided, however, that the remaining non-defaulting Underwriters shall not be
obligated to purchase any of the Stock on such Delivery Date if the total number
of shares of the Stock which the defaulting Underwriter or Underwriters agreed
but failed to purchase on such date exceeds 9.09% of the total number of shares
of the Stock to be purchased on such Delivery Date, and any remaining
non-defaulting Underwriter shall not be obligated to purchase more than 110% of
the number of shares of the Stock which it agreed to purchase on such Delivery
Date pursuant to the terms of Section 4. If the foregoing maximums are exceeded,
the remaining non-defaulting Underwriters, or those other underwriters
satisfactory to the Representative who so agree, shall have the right, but shall
not be obligated, to purchase, in such proportion as may be agreed upon among
them, all the Stock to be purchased on such Delivery Date. If the remaining
Underwriters or other underwriters satisfactory to the Representative do not
elect to purchase the shares which the defaulting Underwriter or Underwriters
agreed but failed to purchase on such Delivery Date, this Agreement (or, with
respect to the Second Delivery Date, the obligation of the Underwriters to
purchase, and of the Company to sell, the Option Stock) shall terminate without
liability on the part of any non-defaulting Underwriter or the Company or the
Selling Shareholders, except that the Company will continue to be liable for the
payment of expenses to the extent set forth in Sections 9 and 14. As used in
this Agreement, the term "Underwriter" includes, for all purposes of this
Agreement unless the context requires otherwise, any party not listed in
Schedule 1 hereto who, pursuant to this Section 12, purchases Stock which a
defaulting Underwriter agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter
of any liability it may have to the Company and the Selling Shareholders for
damages caused by its default. If other underwriters are obligated or agree to
purchase the Stock of a defaulting or withdrawing Underwriter, either the
Representative or the Company may postpone the Delivery Date for up to seven
full business days in order to effect any changes that in the opinion of counsel
for the Company or counsel for the Underwriters may be necessary in the
Registration Statement, the Prospectus or in any other document or arrangement.
13. Termination. The obligations of the Underwriters hereunder
may be terminated by the Representative by notice given to and received by the
Company and the Selling
29
Shareholders prior to delivery of and payment for the Firm Stock if, prior to
that time, any of the events described in Section 10(p) or 10(q), shall have
occurred or if the Underwriters shall decline to purchase the Stock for any
reason permitted under this Agreement.
14. Reimbursement of Underwriters' Expenses. If the Company or
any Selling Shareholder shall fail to tender the Stock for delivery to the
Underwriters by reason of any failure, refusal or inability on the part of the
Company or such Selling Shareholder to perform any agreement on its part to be
performed, or because any other condition of the Underwriters' obligations
hereunder required to be fulfilled by the Company or such Selling Shareholder is
not fulfilled, the Company and the Selling Shareholders will reimburse the
Underwriters for all reasonable out-of-pocket expenses (including fees and
disbursements of counsel) incurred by the Underwriters in connection with this
Agreement and the proposed purchase of the Stock, and upon demand the Company
and the Selling Shareholders shall pay the full amount thereof to the
Representative. If this Agreement is terminated pursuant to Section 13 by reason
of the default of one or more Underwriters, neither the Company nor any Selling
Shareholder shall be obligated to reimburse any defaulting Underwriter on
account of those expenses.
15. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission to Xxxxxx Brothers Inc., 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Syndicate Department (Fax: ________________),
with a copy, in the case of any notice pursuant to Section 11(d), to the
Director of Litigation, Office of the General Counsel, Xxxxxx Brothers Inc., 000
Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 (Fax: 000-000-0000);
(b) if to the Company, shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: D. Xxxxx Xxxxxxxx (Fax: 000-000-0000);
(c) If to any Selling Shareholder, shall be delivered or sent by
mail, telex or facsimile transmission to such Selling Shareholder at the address
set forth in Schedule 2 hereto;
provided, however, that any notice to an Underwriter pursuant to Section 11(d)
shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its acceptance telex to the
Representative, which address will be supplied to any other party hereto by the
Representative upon request. Any such statements, requests, notices or
agreements shall take effect at the time of receipt thereof. The Company and the
Selling Shareholders shall be entitled to act and rely upon any request,
consent, notice or agreement given or made on behalf of the Underwriters by
Xxxxxx Brothers Inc. and the Company and the Underwriters shall be entitled to
act and rely upon any request, consent, notice or agreement given or made on
behalf of the Selling Shareholders by the Custodian.
16. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Underwriters, the Company,
the Selling Shareholders and their respective personal representatives and
successors. This Agreement and the terms and provisions hereof are for the sole
benefit of only those persons, except that (A) the representations, warranties,
indemnities and agreements of the Company and the Selling Shareholders contained
in this Agreement shall also be deemed to be for the benefit of each officer,
employee or director of an Underwriter and the person or persons, if any, who
control any Underwriter within the meaning of Section 15 of the Securities Act
and (B) the indemnity agreement of the Underwriters contained in Section 11(c)
of this Agreement shall be deemed to
30
be for the benefit of directors of the Company, officers of the Company who have
signed the Registration Statement and any person controlling the Company within
the meaning of Section 16 of the Securities Act. Nothing in this Agreement is
intended or shall be construed to give any person, other than the persons
referred to in this Section 16, any legal or equitable right, remedy or claim
under or in respect of this Agreement or any provision contained herein.
17. Survival. The respective indemnities, representations,
warranties and agreements of the Company, the Selling Shareholders and the
Underwriters contained in this Agreement or made by or on behalf on them,
respectively, pursuant to this Agreement, shall survive the delivery of and
payment for the Stock and shall remain in full force and effect, regardless of
any investigation made by or on behalf of any of them or any person controlling
any of them.
18. Definition of the Terms "Business Day" and "subsidiary." For
purposes of this Agreement, (a) "business day" means each Monday, Tuesday,
Wednesday, Thursday or Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close and (b) "subsidiary" has the meaning set forth in Rule 405 of the Rules
and Regulations.
19. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of New York.
20. Consent to Jurisdiction. Each party irrevocably agrees that
any legal suit, action or proceeding arising out of or based upon this Agreement
or the transactions contemplated hereby ("Related Proceedings") may be
instituted in the federal courts of the United States of America located in the
City of New York or the courts of the State of New York in each case located in
the Borough of Manhattan in the City of New York (collectively, the "Specified
Courts"), and irrevocably submits to the exclusive jurisdiction (except for
proceedings instituted in regard to the enforcement of a judgment of any such
court (a "Related Judgment"), as to which such jurisdiction is non-exclusive) of
such courts in any such suit, action or proceeding. The parties further agree
that service of any process, summons, notice or document by mail to such party's
address set forth above shall be effective service of process for any lawsuit,
action or other proceeding brought in any such court. The parties hereby
irrevocably and unconditionally waive any objection to the laying of venue of
any lawsuit, action or other proceeding in the Specified Courts, and hereby
further irrevocably and unconditionally waive and agree not to plead or claim in
any such court that any such lawsuit, action or other proceeding brought in any
such court has been brought in an inconvenient forum.
21. Counterparts. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
22. Headings. The headings herein are inserted for convenience of
reference only and are not intended to be part of, or to affect the meaning or
interpretation of, this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
31
If the foregoing correctly sets forth the agreement among the
Company, the Selling Shareholders and the Underwriters, please indicate your
acceptance in the space provided for that purpose below.
Very truly yours,
THORATEC CORPORATION,
as the Company
By:
----------------------------------------
Name:
Title:
The Selling Shareholders:
THERMO ELECTRON BUSINESS TRUST
By:
----------------------------------------
Name:
Title:
--------------------------------------------
J. Xxxxxx Xxxx
--------------------------------------------
Xxxxxx X. Xxxxxxxx, Xx.
--------------------------------------------
J. Xxxxxx Xxxx
32
Accepted:
XXXXXX BROTHERS INC.
For itself and as Representative of the
several Underwriters named in Schedule 1
hereto
By: XXXXXX BROTHERS INC.
By:
-------------------------------
Authorized Representative
33
SCHEDULE 1
Underwriters Number of Shares
------------- ----------------
Xxxxxx Brothers Inc.............................................
X.X. Xxxxxx Securities Inc......................................
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated........................................
Bear, Xxxxxxx & Co. Inc........................................
Xxxxx, Xxxxxxxx & Xxxx, Inc.....................................
Fidelity Capital Markets, a division of National
Financial Services Corporation...............................
Total..................................... 8,000,000
=========
SCHEDULE 2
Number of Shares
Name and address of Selling Shareholder of Firm Stock
--------------------------------------- ----------------
Thermo Electron Business Trust................................. 5,825,000
00 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: General Counsel
Facsimile: (000) 000-0000
J. Xxxxxx Xxxx................................................. 30,000
---------------------
---------------------
---------------------
Xxxxxx X. Xxxxxxxx, Xx......................................... 50,000
---------------------
---------------------
---------------------
J. Xxxxxx Xxxx................................................. 40,000
---------------------
---------------------
---------------------
Total............................ 5,945,000
=========
SCHEDULE 3
Jurisdiction where Company and each of
its subsidiaries is qualified to do business
THORTEC CORPORATION
Alabama
Arizona
California
Florida
Illinois
Kentucky
Louisiana
Massachusetts
Minnesota
Missouri
North Carolina
Ohio
Pennsylvania
South Carolina
Texas
Utah
Virginia
INTERNATIONAL TECHNIDYNE CORPORATION
Arizona
California
Connecticut
Michigan
Minnesota
New Jersey
New York
Pennsylvania
Tennessee
Texas
Utah
Washington
THORATEC EUROPE LIMITED
[To be completed by Thoratec/Xxxxxx Xxxxxx]
INTERNATIONAL TECHNIDYNE CORPORATION LIMITED
[To be completed by Thoratec/Xxxxxx Xxxxxx]
SCHEDULE 4
Prospectus sections to be covered by FDA counsel
- Risk Factors - We have a history of net losses, and we may not achieve
or maintain profitability.
- Risk Factors - We rely on specialized suppliers and alternative
suppliers may not be available.
- Risk Factors - If we fail to obtain approval from the FDA and from
foreign regulatory authorities, we cannot market and sell our products
under development in the United States and in other countries.
- Business - Overview.
- Business - The REMATCH Trial.
- Business - Our Strategy - Obtain Approval for New Indications for our
Products.
- Business - Our Markets.
- Business - Our Products.
- Business - Manufacturing and Facilities.
- Business - Government Regulations.
- Business - Third Party Reimbursement And Cost Containment.
EXHIBIT A
Form of TEC Guaranty
