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VISX, INCORPORATED
COMMON STOCK
($.01 Par Value)
UNDERWRITING AGREEMENT
November ___, 1995
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UNDERWRITING AGREEMENT
November __, 1995
Xxxxxx, Read & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
PaineWebber Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
as Managing Underwriters
Dear Sirs:
VISX, Incorporated, a Delaware corporation (the "Company"), proposes
to issue and sell to the underwriters named in Schedule A (the "Underwriters")
2,500,000 shares (the "Firm Shares") of Common Stock, par value $.01 per share
(the "Common Stock"), of the Company. In addition, solely for the purpose of
covering overallotments, the Company proposes to issue and sell, at the
Underwriters' option, up to 375,000 additional shares of the Common Stock (the
"Additional Shares"). The Additional Shares and the Firm Shares are collectively
referred to as the "Shares". The Shares are described in the Prospectus which is
referred to below.
The Company has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the "Act"), with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3, including a prospectus,
relating to the Shares, which incorporates by reference certain documents that
the Company has filed in accordance with the provisions of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder
(collectively, the "Exchange Act"). The Company has furnished to you, for use by
the Underwriters and by dealers, copies of one or more preliminary prospectuses
and all documents incorporated by reference therein (collectively, the
"Preliminary Prospectus") relating to the Shares. Except where the
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context otherwise requires, the registration statement as in effect at the time
of execution of this Agreement or, if the registration statement is not yet
effective, as amended when it becomes effective, including all documents filed
as a part thereof or incorporated by reference therein, and including any
information contained in a prospectus subsequently filed with the Commission
pursuant to Rule 424(b) under the Act and deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430A under the Act, is
herein called the "Registration Statement", and the prospectus, including all
documents incorporated therein by reference, in the form filed by the Company
with the Commission pursuant to Rule 424(b) under the Act or, if no such filing
is required, in the form of final prospectus included in the Registration
Statement at the time it became effective, is herein called the "Prospectus".
The Company and the Underwriters agree as follows:
1. Sale and Purchase. On the basis of the representations and
warranties and the other terms and conditions herein set forth, the Company
agrees to sell to the respective Underwriters and each of the Underwriters,
severally and not jointly, agrees to purchase from the Company, the number of
Firm Shares set forth opposite the name of such Underwriter on Schedule A, at a
purchase price of $____ per Share. You may release the Firm Shares for public
sale promptly after this Agreement becomes effective. You may from time to time
increase or decrease the public offering price after the initial public offering
to such extent as you may determine.
In addition, on the basis of the representations and warranties and
the other terms and conditions herein set forth, the Company hereby grants to
the several Underwriters an option to purchase, and the Underwriters shall have
the right to purchase, severally and not jointly, from the Company all or a
portion of the Additional Shares as may be necessary to cover overallotments
made in connection with the offering of the Firm Shares, at the same purchase
price per share to be paid by the several Underwriters to the Company for the
Firm Shares. This option may be exercised at any time or from time to time on or
before the thirtieth day following the date hereof, by written notice to the
Company. Such notice shall set forth the aggregate number of Additional Shares
as to which the option is being exercised, and the date and time when the
Additional Shares are to be delivered (such date and time being herein referred
to as an "additional time of purchase"); provided, however, that no additional
time of purchase shall occur earlier than the time of purchase (as defined
below) nor
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earlier than the second business day* after the date on which the option shall
have been exercised nor later than the eighth business day after the date on
which the option shall have been exercised. The number of Additional Shares to
be sold to each Underwriter at an additional time of purchase shall be the
number which bears the same proportion to the aggregate number of Additional
Shares being purchased at such additional time of purchase as the number of Firm
Shares set forth opposite the name of such Underwriter on Schedule A bears to
the total number of Firm Shares (subject, in each case, to such adjustment as
you may determine to eliminate fractional shares).
2. Payment and Delivery. Payment of the purchase price for the Firm
Shares shall be made to the Company by certified or official bank check, in New
York Clearing House funds, at the office of Xxxxxx, Read & Co. Inc. in New York
City, against delivery of the certificates for the Firm Shares to you for the
respective accounts of the Underwriters. Such payment and delivery shall be made
at 9:30 A.M., New York City time, on November __, 1995 (unless another time
shall be agreed to by you and the Company or unless postponed in accordance with
the provisions of Section 8). The time at which such payment and delivery are
actually made is called the "time of purchase". Certificates for the Firm Shares
shall be delivered to you in definitive form in such names and in such
denominations as you shall specify on the second business day preceding the time
of purchase. For the purpose of expediting the checking of the certificates for
the Firm Shares by you, the Company agrees to make such certificates available
to you for such purpose at least one full business day preceding the time of
purchase.
Payment of the purchase price for the Additional Shares shall be made
to the Company at the additional time of purchase in the same manner and at the
same office as the payment for the Firm Shares. Certificates for the Additional
Shares shall be delivered to you in definitive form in such names and in such
denominations as you shall specify on the second business day preceding the
additional time of purchase. For the purpose of expediting the checking of the
certificates for the Additional Shares by you, the Company agrees to make such
certificates available to you for such purpose at least one full business day
preceding the additional time of purchase.
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* As used herein, "business day" shall mean a day on which the New York
Stock Exchange is open for trading.
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3. Representations and Warranties of the Company. The Company
represents and warrants to each of the Underwriters that:
(a) Each Preliminary Prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the Act, complied when so filed in all
material respects with the Act; when the Registration Statement becomes or
became effective and at all times subsequent thereto up to the time of
purchase and the additional time of purchase, the Registration Statement
and the Prospectus, and any supplements or amendments thereto, complied
and will comply in all material respects with the provisions of the Act;
and the Registration Statement at all such times did not 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, and the Prospectus at all such times did not and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no
representation or warranty with respect to any statement contained in the
Registration Statement or the Prospectus in reliance upon and in
conformity with information concerning the Underwriters and furnished in
writing by or on behalf of any Underwriter through you to the Company
expressly for use in the Registration Statement or the Prospectus and set
forth in the section of the Registration Statement and the Prospectus
entitled "Underwriting"; the documents incorporated by reference in the
Prospectus, at the time they were filed with the Commission, complied in
all material respects with the requirements of the Exchange Act, and do
not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
(b) As of the date of this Agreement, the Company has an
authorized capitalization as set forth under the column entitled "June 30,
1995 Actual" in the section of the Registration Statement and the
Prospectus entitled "Capitalization" and, as of the time of purchase, the
capitalization of the Company will be as set forth under the column
entitled "June 30, 1995 As Adjusted" in the section of the
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Registration Statement and the Prospectus entitled "Capitalization"; all
of the issued and outstanding shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid and
nonassessable; the Company has been duly organized and is validly existing
as a corporation in good standing under the laws of the State of Delaware
with full power and authority to (i) own its properties and conduct its
business as described in the Registration Statement and the Prospectus and
(ii) execute and deliver this Agreement and to issue, sell and deliver the
Shares as herein contemplated.
(c) The Company does not own any interest in any corporation,
joint venture or partnership except VISX Partner, Inc., a Delaware
corporation (the "Subsidiary"). The Subsidiary does not own any interest
in any corporation, joint venture or partnership, except that it is a
general partner of Pillar Point Partners, a Delaware general partnership
(the "Partnership"). All of the issued and outstanding shares of capital
stock of the Subsidiary are owned directly by the Company; all of such
shares have been duly authorized and validly issued and are fully paid and
nonassessable and, except as described in the Prospectus, are owned free
and clear of any pledge, lien, encumbrance, security interest or other
claim; there are no outstanding rights, subscriptions, warrants, calls,
preemptive rights, options or other agreements of any kind with respect to
the capital stock of the Subsidiary.
(d) The Subsidiary owns the general partnership interests (the
"Partnership Interests") of the Partnership contemplated by the General
Partnership Agreement dated as of June 3, 1992 between the Subsidiary and
Summit Partner, Inc.; the Partnership Interests are owned free and clear
of any pledge, lien, encumbrance, security interest or other claim; there
are no outstanding rights, subscriptions, warrants, calls, preemptive
rights, options or other agreements of any kind with respect to the
partnership interests of the Partnership.
(e) The Subsidiary has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with full corporate power and authority to
own its properties and to conduct its businesses.
(f) The Partnership has been duly organized and is validly
existing as a general partnership under
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the laws of Delaware, with full power and authority to own its properties
and to conduct its business.
(g) Each of the Company and the Subsidiary is duly qualified or
licensed by and is in good standing in each jurisdiction in which it owns
or leases property or conducts its business and in each other jurisdiction
in which the failure, individually or in the aggregate, to be so qualified
or licensed could have a material adverse effect on the properties,
assets, operations, business, business prospects or condition (financial
or other) of the Company and the Subsidiary taken as a whole; each of the
Company and the Subsidiary is in compliance in all material respects with
the laws, orders, rules, regulations and directives issued or administered
by each such jurisdiction; the Partnership is in compliance in all
material respects with the laws, orders, rules, regulations and directives
issued or administered by each jurisdiction in which it owns or leases
property or conducts its business.
(h) Neither the Company nor the Subsidiary is in breach of, or in
default under (nor has any event occurred which with notice, lapse of time
or both would constitute a breach of, or default under), its charter or
bylaws, or in the performance or observance of any obligation, agreement,
covenant or condition contained in any license, indenture, lease,
mortgage, deed of trust, bank loan or credit agreement, material supply
agreement or other agreement or instrument to which the Company or the
Subsidiary is a party or by which either of them may be bound or affected.
The execution, delivery and performance of this Agreement, the issuance of
the Shares and the consummation of the transactions contemplated hereby
will not conflict with, or result in any breach of or constitute a default
under (nor constitute any event which with notice, lapse of time or both
would constitute a breach of, or default under), the charter or bylaws of
the Company or the Subsidiary or under any provision of any license,
indenture, lease, mortgage, deed of trust, bank loan or credit agreement,
material supply agreement or other agreement or instrument to which the
Company or the Subsidiary is a party or by which either of them or their
properties may be bound or affected, or under any federal, state, local or
foreign law, regulation or rule or any decree, judgment or order
applicable to the Company or the Subsidiary.
(i) The Partnership is not in breach of, or in default under (nor
has any event occurred which with
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notice, lapse of time or both would constitute a breach of, or default
under), the performance or observance of any obligation, agreement,
covenant or condition contained in any license, indenture, lease,
mortgage, deed of trust, bank loan or credit agreement, material supply
agreement or other agreement or instrument to which the Partnership is a
party or by which it may be bound or affected.
(j) The Firm Shares and the Additional Shares, when issued and
delivered to and paid for by the Underwriters as contemplated hereby, will
be duly authorized and validly issued and fully paid and nonassessable,
free and clear of any pledge, lien, encumbrance, security interest,
preemptive right or other claim.
(k) This Agreement has been duly authorized, executed and
delivered by the Company.
(l) The capital stock of the Company, including the Shares,
conforms in all material respects to the description thereof contained in
the Registration Statement and the Prospectus; and the certificates for
the Shares are in due and proper form and the holders of the Shares after
making payment therefor will not be subject to personal liability under
the General Corporations Law of Delaware by reason of being such holders.
(m) No approval, authorization, consent or order of or filing with
any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency is required in connection
with the issuance and sale of the Shares as contemplated hereby, other
than registration of the Shares under the Act, clearance of the offering
of the Shares with the National Association of Securities Dealers, Inc.
(the "NASD") and any necessary qualification under the securities or blue
sky laws of the various jurisdictions in which the Shares are being
offered by the Underwriters.
(n) No person has the right, contractual or otherwise, to cause
the Company to issue to it, or (except for such rights as have been
satisfied or waived) register pursuant to the Act, any securities of the
Company in consequence of the issue and sale of the Shares to the
Underwriters hereunder, nor does any person have preemptive rights, rights
of first refusal or other rights to purchase any of the Shares.
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(o) Xxxxxx Xxxxxxxx LLP, whose reports on the consolidated
financial statements of the Company and the Subsidiary are included or
incorporated by reference in the Registration Statement and the
Prospectus, are independent public accountants with respect to the Company
as required by the Act and the applicable published rules and regulations
thereunder.
(p) Each of the Company, the Subsidiary and the Partnership has
all necessary licenses, authorizations, consents and approvals and has
made all necessary filings required under any federal, state, local or
foreign law, regulation or rule, and has obtained all necessary
authorizations, consents, licenses and approvals from other persons, in
order to conduct its business; neither the Company, the Subsidiary nor the
Partnership is in violation of, or in default under, any such license,
authorization, consent or approval or any federal, state, local or foreign
law, regulation or rule or any decree, order or judgment applicable to the
Company, the Subsidiary or the Partnership the result of which could have
a material adverse effect on the properties, assets, operations, business,
business prospects or condition (financial or other) of the Company and
the Subsidiary taken as a whole.
(q) All legal or governmental proceedings, contracts or documents
of a character required to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the Registration Statement
have been so described or filed as required.
(r) Except as set forth in the Registration Statement and the
Prospectus, there is no action, suit or proceeding pending or threatened
against the Company, the Subsidiary or the Partnership or any of their
properties, at law or in equity, or before or by any federal, state, local
or foreign governmental or regulatory commission, board, body, authority
or agency that could result in a judgment, decree or order having a
material adverse effect on the properties, assets, operations, business,
business prospects or condition (financial or other) of the Company and
the Subsidiary taken as a whole.
(s) The audited and unaudited financial statements included in the
Registration Statement and the Prospectus present fairly the consolidated
financial condition of the Company and the Subsidiary as of the dates
indicated and the consolidated results
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of operations and cash flows of the Company and the Subsidiary for the
periods specified; such financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis during the periods involved.
(t) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, and except as may
be otherwise stated in the Registration Statement or the Prospectus, there
has not been: (A) any material adverse change in the properties, assets,
operations, business, business prospects or condition (financial or
other), present or prospective, of the Company and the Subsidiary taken as
a whole; (B) any transaction, that is material to the Company and the
Subsidiary taken as a whole, contemplated or entered into by the Company,
the Subsidiary or the Partnership; or (C) any obligation, contingent or
otherwise, directly or indirectly incurred by the Company, the Subsidiary
or the Partnership that is material to the Company and the Subsidiary
taken as a whole.
(u) The Company has obtained the agreement of the stockholders
listed on Schedule B not to sell, contract to sell, grant any option to
sell, transfer or otherwise dispose of, directly or indirectly, any shares
of Common Stock, or securities convertible into or exchangeable for Common
Stock or warrants or other rights to purchase Common Stock for a period of
90 days from the date of the Prospectus. In addition, pursuant to the
terms of an agreement in principle dated October 27, 1995 between the
Company, Alcon Laboratories, Inc. ("Alcon"), CAP Advisers Limited, CAP
Trust and Osterfak Limited, subject to execution of a definitive
settlement agreement and court approval, Alcon has agreed that it will
not dispose of any or all of the 224,000 shares of Common Stock owned by
Alcon before January 24, 1996.
(v) The business, operations and facilities of the Company and the
Subsidiary have been and are being conducted in compliance in all material
respects with all applicable laws, ordinances, rules, regulations,
licenses, permits, approvals, plans, authorizations or requirements
relating to occupational safety and health, or pollution, or protection of
health or the environment, or reclamation (including without limitation
those relating to emissions, discharges, releases or threatened releases
of pollutants, contaminants or hazardous or toxic substances, materials or
wastes into ambient air, surface water, groundwater or land, or relating
to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of chemical substances, pollutants,
contaminants or hazardous or toxic substances, materials or wastes,
whether solid, gaseous or liquid in nature) or otherwise relating to
remediating real property in which the Company or the Subsidiary has any
interest, whether owned or leased,
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of any governmental department, commission, board, bureau, agency or
instrumentality of the United States, any state or political subdivision
thereof or any foreign jurisdiction and all applicable judicial or
administrative agency or regulatory decrees, awards, judgments and orders
relating thereto; and neither the Company nor the Subsidiary has received
any notice from a governmental instrumentality or any third party alleging
any violation thereof or liability thereunder (including without
limitation liability for costs of investigating or remediating sites
containing hazardous substances or damages to natural resources).
(w) Neither the Company nor the Subsidiary, nor any employee of
the Company or the Subsidiary, has made any payment of funds of the
Company or the Subsidiary prohibited by law, and no funds of the Company
or the Subsidiary have been set aside to be used for any payment
prohibited by law.
(x) The Company, the Subsidiary and, to the knowledge of the
Company, the Partnership have filed all federal or state income or
franchise tax returns required to be filed and have paid all taxes shown
thereon as due, and there is no material tax deficiency which has been or
might be asserted against the Company, the Subsidiary or, to the knowledge
of the Company, the Partnership; all material tax liabilities are
adequately provided for on the books of the Company, the Subsidiary and
the Partnership.
(y) The Company has not incurred any liability for any finder's
fees or similar payments in connection with the transactions herein
contemplated.
(z) The Company, the Subsidiary and, to the knowledge of the
Company, the Partnership have good title to all properties and assets
owned or leased by them, in each case free and clear of all liens,
security interests, pledges, charges, encumbrances, mortgages and defects
(except such as are described or referred to in the Prospectus and the
financial statements and the notes thereto contained therein or such as do
not interfere with the use made and proposed to be made of such property
by the Company, the Subsidiary and, to the knowledge of the Company, the
Partnership).
(aa) Neither the Company nor the Subsidiary is an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended, or is subject to regulation under such Act.
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4. Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise
to cooperate in qualifying the Shares for offering and sale under the
securities or blue sky laws of such states as you may designate and to
maintain such qualifications in effect as long as required for the
distribution of the Shares, provided that the Company shall not be
required to qualify as a foreign corporation or to consent to the service
of process under the laws of any such state (except service of process
with respect to the offering and sale of the Shares); promptly to advise
you of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Shares for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose; and
to use its best efforts to obtain the withdrawal of any order of
suspension at the earliest practicable moment;
(b) to make available to you in New York City, as soon as
practicable after the Registration Statement becomes effective, and
thereafter from time to time to furnish to the Underwriters, as many
copies of the Prospectus (or of the Prospectus as amended or supplemented
if the Company shall have made any amendment or supplement thereto after
the effective date of the Registration Statement) as the Underwriters may
request for the purposes contemplated by the Act;
(c) to advise you promptly and if requested by you to confirm such
advice in writing, (i) when the Registration Statement has become
effective and when any post-effective amendment thereto becomes effective
and (ii) when the Prospectus is filed with the Commission pursuant to Rule
424(b) under the Act, if required under the Act (which the Company agrees
to file in a timely manner under such Rule);
(d) to advise you promptly, confirming such advice in writing, of
any request by the Commission for amendments or supplements to the
Registration Statement or the Prospectus or for additional information
with respect thereto, or of notice of institution of proceedings for or
the entry of a stop order suspending the effectiveness of the Registration
Statement and, if the Commission should enter a stop order suspending the
effectiveness of the Registration Statement, to use its best efforts to
obtain the lifting or removal of such order as soon as possible; to advise
you promptly of any proposal to amend or supplement the Registration
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Statement or the Prospectus, including by filing any document that would
be incorporated therein by reference, and to file no such amendment or
supplement to which you shall object in writing;
(e) to furnish to you and, upon request to each of the other
Underwriters, for a period of five years from the date of this Agreement
(i) copies of all reports or other communications that the Company shall
send to its stockholders or from time to time shall publish or publicly
disseminate and (ii) copies of all annual, quarterly and current reports
filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other
similar form as may be designated by the Commission, and any other
document filed by the Company pursuant to Section 12, 13, 14 or 15(d) of
the Exchange Act;
(f) to advise the Underwriters promptly of the happening of any
event known to the Company within the time during which a prospectus
relating to the Shares is required to be delivered under the Act that, in
the reasonable judgment of the Company, would require the making of any
change in the Prospectus then being used, or in the information
incorporated therein by reference, so that the Prospectus, as then
supplemented, would not include an untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they are made, not misleading
and, during such time, promptly to prepare and furnish, at the Company's
expense, to the Underwriters such amendments or supplements to such
Prospectus as may be necessary to reflect any such change in such
quantities as requested by the Underwriters, and to furnish to you a copy
of such proposed amendment or supplement before filing any such amendment
or supplement with the Commission;
(g) to make generally available to its security holders, and to
deliver to you, an earnings statement of the Company (which need not be
audited and which will satisfy the provisions of Section 11(a) of the Act
including, at the option of the Company, Rule 158) covering a period of 12
months beginning after the effective date of the Registration Statement
but ending not later than 15 months after the date of the Registration
Statement, as soon as is reasonably practicable after the termination of
such 12-month period;
(h) to furnish to you three signed copies of the Registration
Statement, as initially filed with the
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Commission, and of all amendments thereto (including all exhibits thereto
and documents incorporated by reference therein) and sufficient conformed
copies of the foregoing (other than exhibits) for distribution of a copy
to each of the other Underwriters;
(i) to furnish to you as early as practicable prior to the time of
purchase and the additional time of purchase, as the case may be, but not
later than two business days prior thereto, a copy of the latest available
unaudited interim consolidated financial statements, if any, of the
Company and the Subsidiary that have been read by the Company's
independent certified public accountants as stated in their letter to be
furnished pursuant to Section 6(b);
(j) to apply the net proceeds from the sale of the Shares in the
manner set forth under the caption "Use of Proceeds" in the Registration
Statement and the Prospectus;
(k) to use its best efforts to cause the Shares to be included in
the Nasdaq National Market;
(l) whether or not the transactions contemplated in this Agreement
are consummated or this Agreement otherwise becomes effective or is
terminated, to pay all expenses, fees and taxes (other than (x) any
transfer taxes and (y) fees and disbursements of your counsel except as
set forth under Section 5 and clauses (iii) and (iv) below) in connection
with (i) the preparation and filing of the Registration Statement, each
Preliminary Prospectus, the Prospectus and any amendment or supplement
thereto, and the printing and furnishing of copies of each thereof to you
and to dealers (including costs of mailing and shipment), (ii) the
issuance, sale and delivery of the Shares, (iii) the word processing or
printing of this Agreement and any dealer agreements, and the reproduction
or printing and furnishing of copies of each thereof to you and to dealers
(including costs of mailing and shipment), (iv) the qualification of the
Shares for offering and sale under state laws as aforesaid (including
legal fees and filing fees and other disbursements of your counsel) and
the printing and furnishing of copies of any blue sky surveys to you and
to dealers, (v) any listing of the Shares on any securities exchange or
qualification of the Shares for inclusion in the Nasdaq National Market
and any registration thereof under the Exchange Act, (vi) any filing for
review of the public offering of the Shares
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by the NASD and (viii) the performance of the Company's other obligations
hereunder;
(m) not to sell, contract to sell, grant any option to sell,
transfer or otherwise dispose of, directly or indirectly, any shares of
Common Stock or securities convertible into or exchangeable for Common
Stock or warrants or other rights to purchase Common Stock or permit the
registration under the Act of any shares of Common Stock, except for the
registration of the Shares and the sales to you pursuant to this Agreement
for a period commencing on the date hereof and continuing for 90 days
after the date of the Prospectus, without the prior written consent of
Xxxxxx, Read & Co. Inc., except for the issuance of shares of Common Stock
(i) upon exercise of options granted prior to the date hereof under the
Company's stock option plans described in Note 5 to the Company's
consolidated financial statements included in the Registration Statement
to the extent such options become exercisable in accordance with their
terms; and (ii) pursuant to the Company's Employee Stock Purchase Plan
described in Note 5 to the Company's consolidated financial statements
included in the Registration Statement; and
(n) to refrain from investing the proceeds from the sale of the
Shares in a manner to cause the Company or the Subsidiary to become an
"investment company" within the meaning of the Investment Company Act of
1940, as amended.
5. Reimbursement of Underwriters' Expenses. If the Shares are not
delivered for any reason other than as provided in the second paragraph of
Section 7, the Company will reimburse the Underwriters for all of their
out-of-pocket expenses, including the fees and disbursements of their counsel.
6. Conditions of Underwriters' Obligations. The several obligations
of the Underwriters hereunder are subject to the accuracy of the representations
and warranties on the part of the Company on the date hereof and at the time of
purchase (and the several obligations of the Underwriters at the additional time
of purchase are subject to the accuracy of the representations and warranties on
the part of the Company on the date hereof and at the time of purchase and at
the additional time of purchase, as the case may be), the performance by the
Company of its obligations hereunder and to the following conditions:
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(a) The Company shall furnish to you at the time of purchase and
at the additional time of purchase, as the case may be, an opinion of
Wilson, Sonsini, Xxxxxxxx & Xxxxxx, counsel for the Company, addressed to
the Underwriters, and dated the time of purchase or the additional time of
purchase, as the case may be, with reproduced copies for each of the other
Underwriters and in form satisfactory to Xxxxxx, Xxxx & Xxxxxxxx, counsel
for the Underwriters, stating that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of Delaware, with full corporate power and authority (A) to
own its properties and conduct its business as described in the
Registration Statement and the Prospectus and (B) to execute and
deliver this Agreement and to issue, sell and deliver the Shares as
herein contemplated;
(ii) to such counsel's knowledge after due inquiry, the
Company does not own any interest in any corporation, joint venture
or partnership except the Subsidiary, and the Subsidiary does not
own any interest in any corporation, joint venture or partnership
except the Partnership; the Subsidiary has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the state in which such Subsidiary is incorporated, with
full corporate power and authority to own its properties and to
conduct its business as described in the Registration Statement and
the Prospectus;
(iii) the Subsidiary owns the Partnership Interests; the
Partnership Interests are owned free and clear of any pledge, lien,
encumbrance, security interest or other claim; there are no
outstanding rights, subscriptions, warrants, calls, preemptive
rights, options or other agreements of any kind with respect to the
partnership interests of the Partnership.
(iv) each of the Company and the Subsidiary is duly qualified
or licensed to do business by and is in good standing as a foreign
corporation in each jurisdiction in which it conducts business or
owns property and in which the failure, individually or in the
aggregate, to be so licensed or qualified could have a material
adverse effect on the properties, assets,
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operations, business, business prospects or condition (financial or
other) of the Company and the Subsidiary taken as a whole;
(v) the Partnership has been duly organized and is validly
existing as a general partnership under the laws of Delaware, with
full partnership power and authority to own its properties and to
conduct its business.
(vi) all of the issued and outstanding shares of capital stock
of the Subsidiary have been duly authorized and validly issued and
are fully paid and nonassessable and, except as set forth in the
Prospectus, are owned, directly or indirectly, by the Company free
and clear of any pledge, lien, encumbrance, security interest,
preemptive right or other claim, and there are no rights, warrants,
options or other agreements to acquire or instruments convertible
into or exchangeable for any shares of capital stock or other equity
interest of the Subsidiary, except as set forth in the Prospectus;
(vii) this Agreement has been duly authorized, executed and
delivered by the Company;
(viii) (a) the Shares, when issued and delivered to and paid for
by the Underwriters, will be duly authorized, validly issued, fully
paid and nonassessable, and will be free of any pledge, lien,
encumbrance, claim or preemptive right; and (b) the certificates for
the Shares are in due and proper form and the holders of the Shares
will not be subject to personal liability by reason of being such
holders;
(ix) (a) the Company has an authorized capitalization as set
forth under the heading "Capitalization" in the Registration
Statement and the Prospectus, and (b) the outstanding shares of
capital stock of the Company have been duly authorized and validly
issued and are fully paid, nonassessable and free of statutory and
contractual preemptive rights;
(x) the capital stock of the Company, including the Shares,
conforms in all material respects to the description thereof
contained in the Registration Statement and the Prospectus;
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(xi) the Registration Statement and the Prospectus (except as
to the financial statements and schedules contained or incorporated
by reference therein as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Act;
(xii) the Registration Statement has become effective under the
Act and, to such counsel's knowledge after due inquiry, no stop
order proceedings with respect thereto are pending or threatened
under the Act;
(xiii) no approval, authorization, consent or order of or filing
with any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency is required in
connection with the issuance or sale of the Shares as contemplated
hereby other than registration of the Shares under the Act (except
such counsel need express no opinion as to any necessary
qualification under the state securities or blue sky laws of the
various jurisdictions in which the Shares are being offered by the
Underwriters);
(xiv) the execution, delivery and performance of this Agreement
by the Company and the consummation by the Company of the
transactions contemplated hereby do not and will not conflict with,
or result in any breach of, or constitute a default under (nor
constitute any event which with notice, lapse of time or both would
constitute a breach of or default under), the charter or bylaws of
the Company or the Subsidiary, or any provision of any license,
indenture, lease, mortgage, deed of trust, bank loan or credit
agreement or other agreement or instrument to which the Company or
the Subsidiary is a party or by which the Company or the Subsidiary
or their properties are bound or affected, or under any federal,
state, local or foreign law, regulation or rule or any decree,
judgment or order applicable to the Company or the Subsidiary;
(xv) all contracts or documents of a character required to be
described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement have been so
described or filed;
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(xvi) except as described in the Registration Statement and the
Prospectus, there are no actions, suits or proceedings of which such
counsel has knowledge pending or threatened against the Company, the
Subsidiary or the Partnership, or any of their respective
properties, at law or in equity, or before or by any federal, state,
local or foreign governmental or regulatory commission, board, body,
authority or agency that individually or in the aggregate could
result in a judgment, decree or order having a material adverse
effect on the properties, assets, operations, business, business
prospects or condition (financial or other) of the Company and the
Subsidiary taken as a whole;
(xvii) the documents incorporated by reference in the
Registration Statement and Prospectus, when they were filed (or, if
an amendment with respect to any such document was filed, when such
amendment was filed), complied as to form in all material respects
with the Exchange Act (except as to the financial statements and
schedules and other financial and statistical data contained or
incorporated by reference therein, as to which such counsel need
express no opinion);
(xviii) to such counsel's knowledge after due inquiry, each person
who has the right, contractual or otherwise, to request the Company
to register pursuant to the Act securities of the Company upon the
issue and sale of the Shares to the Underwriters hereunder or who
has preemptive rights, rights of first refusal or other rights to
purchase any of the Shares, except to the extent included in the
Registration Statement, either waived such rights or was excluded
from including any such shares in this offering, or from any
preemptive rights, rights of first refusal or other purchase rights,
in accordance with the terms thereof;
(xix) the statements in the Registration Statement and the
Prospectus under the captions "Risk Factors -- Risks Relating to
Pillar Point Partners," "Risk Factors -- Dependence on Third-Party
Sales and Marketing," "Risk Factors -- Product Liability and
Insurance," "Business -- Pillar Point Partners and Other Licensing
Agreements," "Business -- Marketing, Sales and Distribution,"
"Business -- Product Liability and Insurance," "Business --
Facilities" and "Business
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-- Legal Proceedings," insofar as they are descriptions of laws,
regulations and rules, of legal and governmental proceedings or of
contracts, agreements, leases and other legal documents, or refer to
statements of law or legal conclusions, have been reviewed by such
counsel and are accurate in all material respects;
(xx) neither the Company nor the Subsidiary is an "investment
company" or a person "controlled" by an "investment company" within
the meaning of the Investment Company Act of 1940, as amended; and
(xxi) the sales of securities by the Company described in Item
15 of the Registration Statement were exempt from the registration
requirements of the Act.
In addition, such counsel's opinion shall state that nothing has
come to the attention of such counsel that causes them to believe that the
Registration Statement or any amendment thereto at the time such
Registration Statement or amendment 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 or any supplement thereto at the date
of such Prospectus or such supplement, and at all times up to and
including the time of purchase contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading (it being understood that such
counsel need express no opinion with respect to the financial information,
statements and schedules included in the Registration Statement or
Prospectus).
(b) You shall have received from Xxxxxx Xxxxxxxx LLP letters
dated, respectively, the date of this Agreement and the time of purchase
and additional time of purchase, as the case may be, and addressed to the
Underwriters (with reproduced copies for each of the Underwriters) in form
and substance satisfactory to the Managing Underwriters.
(c) You shall have received at the time of purchase and at the
additional time of purchase, as the
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case may be, opinions from Xxxxxx, Xxxx & Xxxxxxxx in form and substance
satisfactory to you.
(d) No amendment or supplement to the Registration Statement or
the Prospectus, including documents deemed to be incorporated by reference
therein, shall be filed prior to the time the Registration Statement
becomes effective to which you shall have objected in writing.
(e) The Registration Statement shall become effective at or before
5:00 P.M., New York City time, on the date of this Agreement and, if Rule
430A under the Act is used, the Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) under the Act at or before 5:00 P.M.,
New York City time, on the second full business day after the date of this
Agreement; provided, however, that the Company and you and any group of
Underwriters, including you, who have agreed hereunder to purchase in the
aggregate at least 50% of the Firm Shares from time to time may agree in
writing or by telephone, confirmed in writing, on a later date.
(f) Prior to the time of purchase or the additional time of
purchase, as the case may be: (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued under
the Act or proceedings initiated under Section 8(d) or 8(e) of the Act;
(ii) the Registration Statement and all amendments thereto, or
modifications thereof, if any, shall 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; and
(iii) the Prospectus and all amendments or supplements thereto, or
modifications thereof, if any, shall not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(g) Between the time of execution of this Agreement and the time
of purchase or the additional time of purchase, as the case may be, there
has not been: (i) any material and adverse change, present or prospective,
in the properties, assets, operations, business, business prospects or
condition (financial or other) of the Company and the Subsidiary taken as
a whole, other than as described in the Registration Statement and the
Prospectus; (ii) any transaction that
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is material to the Company and the Subsidiary taken as a whole
contemplated or entered into by the Company or the Subsidiary, other than
as described in the Registration Statement and the Prospectus; or (iii)
any obligation, contingent or otherwise, directly or indirectly, incurred
by the Company or the Subsidiary that is material to the Company and the
Subsidiary taken as a whole, other than as described in the Registration
Statement and the Prospectus.
(h) The Company, at the time of purchase or additional time of
purchase, as the case may be, will deliver to you a certificate of two of
its executive officers to the effect that the representations and
warranties of the Company as set forth in this Agreement are true and
correct as of each such date and the conditions set forth in Section 6(f)
and Section 6(g) have been met.
(i) You shall have received a signed letter, dated the date of
this Agreement, from each of the stockholders listed in Schedule B to the
effect that such persons shall not sell, contract to sell, grant any
option to sell, transfer or otherwise dispose of, directly or indirectly,
any shares of Common Stock or securities convertible into or exchangeable
for Common Stock or warrants or other rights to purchase Common Stock for
a period of 90 days from the date of the Prospectus without the prior
written consent of Xxxxxx, Read & Co. Inc.
(j) The Company shall have furnished to you such other documents
and certificates as to the accuracy and completeness of any statement in
the Registration Statement or the Prospectus as of the time of purchase
and the additional time of purchase, as the case may be, as you reasonably
may request.
(k) The Company shall have performed such of its obligations under
this Agreement as are to be performed by the terms hereof at or before the
time of purchase and at or before the additional time of purchase, as the
case may be.
(l) The Shares shall have been approved for quotation through the
Nasdaq National Market.
7. Effective Date of Agreement; Termination. This Agreement shall
become effective (i) if Rule 430A under the Act is not used, when you shall have
received notification of the effectiveness of the Registration Statement, or
(ii) if Rule 430A under the Act is used, when
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the parties hereto have executed and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be
subject to termination in the absolute discretion of you or any group of
Underwriters (which may include you) which has agreed to purchase in the
aggregate at least 50% of the Firm Shares if, at any time prior to the time of
purchase or, with respect to the purchase of any Additional Shares, the
additional time of purchase, as the case may be, trading in securities on the
New York Stock Exchange shall have been suspended or minimum prices shall have
been established on the New York Stock Exchange, or if a banking moratorium
shall have been declared either by the United States or New York State
authorities, or if the United States shall have declared war in accordance with
its constitutional processes or there shall have occurred any material outbreak
or escalation of hostilities or other national or international calamity or
crisis of such magnitude in its effect on, or any material adverse change in,
any financial market which, in each case, in your judgment, or in the judgment
of such group of Underwriters, makes it impracticable to market the Shares.
If you or any group of Underwriters elect to terminate this Agreement
as provided in this Section 7, the Company and each other Underwriter shall be
notified promptly by letter or telegram.
If the sale to the Underwriters of the Shares, as contemplated by
this Agreement, is not carried out by the Underwriters for any reason permitted
under this Agreement or if such sale is not carried out because the Company
shall be unable to comply with any of the terms of this Agreement, the Company
shall not be under any obligation or liability under this Agreement (except to
the extent provided in Sections 4(l), 5 and 9), and the Underwriters shall be
under no obligation or liability to the Company under this Agreement (except to
the extent provided in Section 9).
8. Increase in Underwriters' Commitments. If any Underwriter shall
default in its obligation to take up and pay for the Firm Shares to be purchased
by it hereunder and if the number of Firm Shares which all Underwriters so
defaulting shall have agreed but failed to take up and pay for does not exceed
10% of the total number of Firm Shares, the non-defaulting Underwriters shall
take up and pay for (in addition to the aggregate principal amount of Firm
Shares they are obligated to purchase pursuant to Section 1) the number of Firm
Shares agreed to be purchased by all such defaulting Underwriters as hereinafter
provided. Such Shares shall be taken up and paid for by such non-defaulting
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Underwriter or Underwriters in such amount or amounts as you may designate with
the consent of each Underwriter so designated or, in the event no such
designation is made, such Shares shall be taken up and paid for by all
non-defaulting Underwriters pro rata in proportion to the aggregate number of
Firm Shares set opposite the names of such non-defaulting Underwriters in
Schedule A.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that they
will not sell any Firm Shares hereunder unless all of the Firm Shares are
purchased by the Underwriters (or by substituted Underwriters selected by you
with the approval of the Company or selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provision, the Company or you shall have the right
to postpone the time of purchase for a period not exceeding five business days
in order that any necessary change in the Registration Statement and the
Prospectus and other documents may be effected.
The term Underwriter as used in this Agreement shall refer to and
include any Underwriter substituted under this Section 8 with like effect as if
such substituted Underwriter had originally been named in Schedule A.
9. Indemnity by the Company and the Underwriters.
(a) The Company agrees to indemnify, defend and hold harmless each
Underwriter, each person that controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, and each Underwriter's
agents, employees, officers and directors and the agents, employees, officers
and directors of any such controlling person (collectively, the "Underwriter
indemnified parties") from and against any and all losses, claims, damages,
judgments, liabilities and expenses (including the fees and expenses of counsel
and other expenses in connection with investigating, defending or settling any
such action or claim) which, jointly or severally, any Underwriter indemnified
party may incur as they are incurred (and regardless of whether such Underwriter
indemnified party is a party to the litigation, if any) arising out of or based
upon any untrue statement or alleged untrue statement of a material fact
contained in the registration statement relating to the Shares or the Prospectus
or any Preliminary Prospectus, or arising out of or based upon any omission or
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25
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages, judgments, liabilities or expenses arise out of,
or are based upon, any such untrue statement or omission or alleged untrue
statement or omission based upon and in conformity with information with respect
to any Underwriter furnished in writing by any Underwriter through you to the
Company expressly for use therein with reference to such Underwriter. This
indemnity agreement will be in addition to any liability the Company otherwise
may have.
(b) If any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought or asserted against any
Underwriter indemnified party, with respect to which indemnity may be sought
against the Company pursuant to this Section 8, such Underwriter indemnified
party shall promptly notify the Company in writing, and the Company shall assume
the defense thereof, including the employment of counsel reasonably satisfactory
to the Underwriter indemnified party and payment of all fees and expenses;
provided that the omission so to notify the Company shall not relieve it from
any liability that it may have to any Underwriter indemnified party. An
Underwriter indemnified party shall have the right to employ separate counsel in
any such action or proceeding and to assume the defense thereof, but the fees
and expenses of such counsel shall be at the expense of such Underwriter
indemnified party unless (i) the employment of such counsel has been authorized
in writing by the Company, (ii) the Company has failed promptly to assume the
defense and employ counsel satisfactory to the Underwriter indemnified party or
(iii) the named parties to any such action or proceeding (including any
impleaded parties) include both the Underwriter indemnified party and the
Company and such Underwriter indemnified party shall have reasonably concluded
that there may be one or more legal defenses available to it that are different
from or additional to those available to the Company (in which case the Company
shall not have the right to assume the defense of such action on behalf of such
Underwriter indemnified party), in any of which events such fees and expenses
shall be borne by the Company and reimbursed as they are incurred. It is
understood, however, that the Company shall not, in connection with any one such
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) at any time for all such Underwriter indemnified
parties, which firm shall be designated in writing by Xxxxxx, Read & Co. Inc.,
and that all such fees
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and expenses shall be reimbursed as they are incurred. The Company shall not be
liable for any settlement of any such action effected without the written
consent of the Company (which consent shall not be unreasonably withheld or
delayed), but if settled with the written consent of the Company, or if there is
a final judgment with respect thereto, the Company agrees to indemnify and hold
harmless each Underwriter indemnified party from and against any loss or
liability by reason of such settlement or judgment.
(c) Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, its officers who sign the Registration Statement,
and any person that controls the Company within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act (collectively, the "Company indemnified
parties") to the same extent as the foregoing indemnity from the Company to the
Underwriter indemnified parties, but only with respect to information concerning
such Underwriter furnished in writing by or on behalf of such Underwriter
through you to the Company expressly for use with respect to such Underwriter in
the Registration Statement, any Preliminary Prospectus or the Prospectus. In
case any action shall be brought against any Company indemnified party based on
the Registration Statement, any Preliminary Prospectus or the Prospectus and in
respect of which indemnity may be sought against any Underwriter pursuant to
this Section 8(c), such Underwriter shall have the rights and duties given to
the Company by Section 8(b) (except that if the Company shall have assumed the
defense thereof such Underwriter shall not be required to do so, but may employ
separate counsel therein and participate in the defense thereof, provided that
the fees and expenses of such separate counsel shall be at the expense of such
Underwriter), and the Company indemnified parties shall have the rights and
duties given to the Underwriter indemnified parties by Section 8(b).
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless any Underwriter indemnified
party or any Company indemnified party, then the party required to indemnify
such indemnified party under this Section 8, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, judgments,
liabilities and expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Shares, or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault
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of the Company on the one hand and the Underwriters on the other hand in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other hand shall be deemed to be in the
same proportion as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether the untrue statement or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party as a
result of the losses, claims, damages, judgments, liabilities and expenses
referred to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or defending
any claim or action.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) were determined by pro
rata allocation or by any other method of allocation (even if the Underwriters
were treated as one entity for such purpose) that does not take account of the
equitable considerations referred to in this Section 8(d). Notwithstanding the
provisions of this Section 8(d), no Underwriter indemnified party shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by such Underwriter indemnified party and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter indemnified party otherwise has been required to
pay by reason of such untrue statement or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 8 are several
in proportion to their respective underwriting commitments and are not joint.
The statements under the caption "Underwriting" in the Prospectus (to
the extent such statements relate to an
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Underwriter) constitute the only information furnished to the Company in writing
by such Underwriter expressly for use in the Registration Statement, any
Preliminary Prospectus or the Prospectus.
(e) The indemnity and contribution agreements contained in this
Section 8 and the representations, warranties and covenants of the Company
contained in this Agreement shall remain in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter indemnified party or
by or on behalf of any Company indemnified party, and shall survive any
termination of this Agreement or the issuance and delivery of the Shares.
Subject to the provisions of Section 8(b) and Section 8(c), the Company and each
Underwriter agree promptly to notify the other of the commencement of any
litigation or proceeding against it in connection with the issuance and sale of
the Shares or in connection with the Registration Statement or the Prospectus.
10. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or sent to
Xxxxxx, Read & Co. Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Syndicate Department, and if to the Company, shall be sufficient in
all respects if delivered or sent to the Company at the offices of the Company
at 0000 Xxxxxxx Xxxxxxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000, Attention: Chief
Financial Officer.
11. Construction. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW. THE SECTION HEADINGS IN THIS AGREEMENT HAVE BEEN
INSERTED AS A MATTER OF CONVENIENCE OF REFERENCE AND ARE NOT A PART OF THIS
AGREEMENT.
12. Parties at Interest. The Agreement herein set forth has been and
is made solely for the benefit of the Underwriters, the Company, the Underwriter
indemnified parties and the Company indemnified parties, and their respective
successors, assigns, executors and administrators. No other person, partnership,
association or corporation (including a purchaser, as such purchaser, from any
of the Underwriters) shall acquire or have any right under or by virtue of this
Agreement.
13. Counterparts. This Agreement may be signed by the parties in
counterparts which together shall constitute one and the same agreement among
the parties.
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If the foregoing correctly sets forth the understanding among the
Company and the Underwriters, please so indicate in the space provided below for
such purpose, whereupon this letter and your acceptance shall constitute a
binding agreement among the Company and the Underwriters, severally.
Very truly yours,
VISX, INCORPORATED
By:
-----------------------
Name:
Title:
Accepted and agreed to as of
the date first above written,
on behalf of themselves,
PaineWebber Incorporated
and the other several
Underwriters named in
Schedule A
XXXXXX, READ & CO. INC., as
Managing Underwriter
By:
---------------------------
Name: Xxxxx Xxxxxxxx
Title: Vice President
30
SCHEDULE A
Number of
Underwriter Firm Shares
----------- -----------
Xxxxxx, Read & Co. Inc.............................
PaineWebber Incorporated...........................
----------
Total 2,500,000
==========
31
SCHEDULE B
STOCKHOLDERS WHO HAVE EXECUTED LOCK-UP AGREEMENTS
Xxxx X. Xxxxx
Xxxxxxxxx Xxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx Xxxxx
Xxxxxx X. Xxxxxxxxxx
W. Xxxxxxx Xxxxxx
Xxxxxxx X Xxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
