1
3,000,000 Shares
GENZYME CORPORATION
Tissue Repair Division Common Stock
UNDERWRITING AGREEMENT
September __, 1995
CS First Boston Corporation
Xxxxx & Company
PaineWebber Incorporated,
As Representatives of the Several Underwriters,
c/o CS First Xxxxxx Xxxxxxxxxxx
Xxxx Xxxxxx Xxxxx
Xxx Xxxx, X.X. 00000
Dear Sirs:
1. Introductory. Genzyme Corporation, a
Massachusetts corporation ("Company"), proposes to issue and
sell to the Underwriters named in Schedule A (the
"Underwriters") 3,000,000 shares ("Firm Securities") of its
Tissue Repair Division Common Stock, par value $.01 per share
("Securities"), and also proposes to issue and sell to the
Underwriters, at the option of the Underwriters, an aggregate
of not more than additional shares ("Optional
Securities") of its Securities as set forth below. The Firm
Securities and the Optional Securities are herein collectively
called the "Offered Securities". The Company hereby agrees
with the several Underwriters as follows:
2. Representations and Warranties of the Company.
The Company represents and warrants to, and agrees with, the
several Underwriters that:
(a) The Company and the proposed offering of the
Firm Securities meet the requirements for use of Form S-3,
and a registration statement on Form S-3 (No. 33-61871)
relating to the Offered Securities, including a form of
prospectus, has been filed with the Securities and
Exchange Commission ("Commission") and either (i) has been
declared effective under the Securities Act of 1933
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("Act") and is not proposed to be amended or (ii) is
proposed to be amended by amendment or post-effective
amendment. If such registration statement ("initial
registration statement") has been declared effective,
either (i) an additional registration statement
("additional registration statement") relating to the
Offered Securities may have been filed with the Commission
pursuant to Rule 462(b) ("Rule 462(b)") under the Act and,
if so filed, has become effective upon filing pursuant to
such Rule and the Offered Securities all have been duly
registered under the Act pursuant to the initial
registration statement and, if applicable, the additional
registration statement or (ii) such an additional
registration statement may be proposed to be filed with
the Commission pursuant to Rule 462(b), if so filed, and
will become effective upon filing pursuant to such Rule
and upon such filing the Offered Securities will all have
been duly registered under the Act pursuant to the initial
registration statement and such additional registration
statement. If the Company does not propose to amend the
initial registration statement or if an additional
registration statement has been filed and the Company does
not propose to amend it and if any post-effective
amendment to either such registration statement has been
filed with the Commission prior to the execution and
delivery of this Agreement, the most recent amendment (if
any) to each such registration statement has been declared
effective by the Commission or has become effective upon
filing pursuant to Rule 462(c) ("Rule 462(c)") under the
Act or, in the case of the additional registration
statement, Rule 462(b). For purposes of this Agreement,
"Effective Time" with respect to the initial registration
statement or, if filed prior to the execution and delivery
of this Agreement, the additional registration statement
means (i) if the Company has advised the Representatives
that it does not propose to amend such registration
statement, the date and time as of which such registration
statement, or the most recent post-effective amendment
thereto (if any) filed prior to the execution and delivery
of this Agreement, was declared effective by the
Commission or has become effective upon filing pursuant to
Rule 462(c), or (ii) if the Company has advised the
Representatives that it proposes to file an amendment or
post-effective amendment to such registration statement,
the date and time as of which such registration statement,
as amended by such amendment or post-effective amendment,
as the case may be, is declared effective by the
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Commission. If an additional registration statement has
not been filed prior to the execution and delivery of this
Agreement but the Company has advised the Representatives
that it proposes to file one, "Effective Time" with
respect to such additional registration statement means
the date and time as of which such registration statement
is filed and becomes effective pursuant to Rule 462(b).
"Effective Date" with respect to the initial registration
statement or the additional registration statement (if
any) means the date of the Effective Time thereof. The
initial registration statement, as amended at its
Effective Time, including all material incorporated by
reference therein, including all information contained in
the additional registration statement (if any) and deemed
to be a part of the initial registration statement as of
the Effective Time of the additional registration
statement pursuant to the General Instructions of Form S-3
and including all information (if any) deemed to be a part
of the initial registration statement as of its Effective
Time pursuant to Rule 430A(b) ("Rule 430A(b)") under the
Act, is hereinafter referred to as the "Initial
Registration Statement". The additional registration
statement, as amended at its Effective Time, including the
contents of the initial registration statement and all
other information incorporated by reference therein and
including all information (if any) deemed to be a part of
the additional registration statement as of its Effective
Time pursuant to Rule 430A(b), is hereinafter referred to
as the "Additional Registration Statement". The Initial
Registration Statement and the Additional Registration
Statement are herein referred to collectively as the
"Registration Statements" and individually as a
"Registration Statement". The form of prospectus relating
to the Offered Securities, as first filed with the
Commission pursuant to and in accordance with Rule 424(b)
("Rule 424(b)") under the Act or (if no such filing is
required) as included in a Registration Statement,
including all material incorporated by reference in such
prospectus, is hereinafter referred to as the
"Prospectus". No document has been or will be prepared or
distributed in reliance on Rule 434 under the Act.
(b) If the Effective Time of the Initial
Registration Statement is prior to the execution and
delivery of this Agreement: (i) on the Effective Date of
the Initial Registration Statement, the Initial
Registration Statement conformed in all respects to the
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requirements of the Act and the rules and regulations of
the Commission ("Rules and Regulations") and did not
include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or
necessary to make the statements therein not misleading,
(ii) on the Effective Date of the Additional Registration
Statement (if any), each Registration Statement conformed,
or will conform, in all respects to the requirements of
the Act and the Rules and Regulations and did not include,
or will not include, any untrue statement of a material
fact and did not omit, or will not omit, to state any
material fact required to be stated therein or necessary
to make the statements therein not misleading and (iii) on
the date of this Agreement, the Initial Registration
Statement and, if the Effective Time of the Additional
Registration Statement is prior to the execution and
delivery of this Agreement, the Additional Registration
Statement each conform, and at the time of filing of the
Prospectus pursuant to Rule 424(b) or (if no such filing
is required) at the Effective Date of the Additional
Registration Statement in which the Prospectus is
included, each Registration Statement and the Prospectus
will conform, in all respects to the requirements of the
Act and the Rules and Regulations, and neither of such
documents includes, or will include, any untrue statement
of a material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary
to make the statements therein (in the case of the
Prospectus, in light of the circumstances under which they
are made) not misleading. If the Effective Time of the
Initial Registration Statement is subsequent to the
execution and delivery of this Agreement: on the
Effective Date of the Initial Registration Statement, the
Initial Registration Statement and the Prospectus will
conform in all respects to the requirements of the Act and
the Rules and Regulations, neither of such documents will
include any untrue statement of a material fact or will
omit to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading, and no Additional Registration Statement has
been or will be filed. The two preceding sentences do not
apply to statements in or omissions from a Registration
Statement or the Prospectus in reliance upon and in
conformity with written information relating to any
Underwriter furnished to the Company by such Underwriter
through the Representatives specifically for use therein,
it being understood and agreed that the only such
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information is that described as such in Section 7(b).
The documents which are or will be incorporated by
reference in a Registration Statement or the Prospectus or
from which information is or will be so incorporated by
reference, when they became or become effective or were or
are filed with the Commission, as the case may be,
complied or will comply in all material respects with the
requirements of the Act or the Securities Exchange Act of
1934, as amended ("Exchange Act"), the Rules and
Regulations and the rules and regulations under the
Exchange Act ("Exchange Act Rules and Regulations"), as
applicable.
(c) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of
the Commonwealth of Massachusetts, with power and
authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus; and
the Company is duly licensed or qualified to do business
as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property
or the conduct of its business requires such license or
qualification, except where the failure to be so licensed
or qualified would not have a material adverse effect on
the business, condition (financial or otherwise),
properties, prospects or results of operations of (i) the
Company and the Subsidiaries (as defined below) taken as a
whole (the "Business of the Company") or (ii) the
Company's Tissue Repair Division (the "Business of GTR").
(d) The only "significant subsidiaries" of the
Company, as defined in Rule 1-02(x) of the Commission's
Regulation S-X, that are corporations are the subsidiaries
of the Company listed on Schedule B hereto (the "Corporate
Subsidiaries"). The only other entities in which the
Company has a direct or indirect equity interest (other
than entities which are not "significant subsidiaries" of
the Company, as defined in Rule 1-02(x) of the
Commission's Regulation S-X) are those partnerships listed
on Schedule C hereto (the "Partnerships"). The Corporate
Subsidiaries and the Partnerships are hereinafter
collectively referred to as the "Subsidiaries". Each
Subsidiary has been duly incorporated or organized and is
existing in good standing under the laws of the
jurisdiction of its incorporation or formation, with power
and authority to own its properties and conduct its
business as described in the Prospectus; and each
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Subsidiary is duly licensed or qualified to do business as
a foreign corporation or other entity in good standing in
all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such
license or qualification, except where the failure to be
so licensed or qualified would not have a material adverse
effect on the Business of the Company or on the Business
of GTR; all of the issued and outstanding capital stock or
partnership interest of each Subsidiary has been duly
authorized and validly issued and, with respect to each
Corporate Subsidiary, is fully paid and nonassessable; and
the capital stock or partnership interest of each
Subsidiary owned by the Company, directly or through
subsidiaries, is owned free from liens, encumbrances and
defects.
(e) The Offered Securities and all other outstanding
shares of capital stock of the Company have been duly
authorized; all outstanding shares of capital stock of the
Company are, and, when the Offered Securities have been
delivered and paid for in accordance with this Agreement
on each Closing Date (as defined below), such Offered
Securities will have been, validly issued, fully paid and
nonassessable and will conform to the description thereof
contained in the Prospectus; and the stockholders of the
Company have no preemptive or similar rights with respect
to the Securities. Except as set forth in the Prospectus,
the Company does not have outstanding, and at the Closing
Date the Company will not have outstanding, any options to
purchase, or any rights or warrants to subscribe for, or
any securities or obligations convertible into, or any
contracts or commitments to issue or sell, (i) any shares
of Securities, or (ii) any shares of capital stock held by
it in any Subsidiary, or any such warrants, convertible
securities or obligations (except shares issued or
issuable pursuant to employee benefit plans after the date
as of which information with respect thereto is given in
the Prospectus).
(f) Except as disclosed in the Prospectus, there are
no contracts, agreements or understandings between the
Company and any person that would give rise to a valid
claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like payment
with respect to the Offered Securities.
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(g) No holder of securities of the Company has
rights to the registration of any securities of the
Company because of the filing of the Registration
Statement.
(h) The Company has filed a notification form
relating to the issuance of the Offered Securities with
the National Association of Securities Dealers, Inc.
("NASD") in accordance with Schedule D of the NASD
By-laws.
(i) No consent, approval, authorization, or order
of, or filing with, any governmental agency or body or any
court is required for the consummation by the Company of
the transactions contemplated by this Agreement in
connection with the issuance and sale of the Offered
Securities by the Company, except such as have been
obtained and made under the Act and such as may be
required under state securities laws.
(j) The execution, delivery and performance of this
Agreement, and the issuance and sale of the Offered
Securities, will not result in a breach or violation of
any of the terms and provisions of, or constitute a
default under, any statute, any rule, regulation or order
of any governmental agency or body or any court, domestic
or foreign, having jurisdiction over the Company or any
Subsidiary or any of their properties, or any agreement or
instrument to which the Company or any such Subsidiary is
a party or by which the Company or any such Subsidiary is
bound or to which any of the properties of the Company or
any such Subsidiary is subject, or the charter or by-laws
(or comparable instruments) of the Company or any such
Subsidiary, and the Company has full power and authority
to authorize, issue and sell the Offered Securities as
contemplated by this Agreement.
(k) This Agreement has been duly authorized,
executed and delivered by the Company.
(l) Except as disclosed in the Prospectus, the
Company and its Subsidiaries have good and marketable
title to all real properties and all other properties and
assets owned by them, in each case free from liens,
encumbrances and defects that would materially affect the
value thereof or materially interfere with the use made or
to be made thereof by them; and except as disclosed in the
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Prospectus, the Company and its Subsidiaries hold any
leased real or personal property under valid and
enforceable leases with no exceptions that would
materially interfere with the use made or to be made
thereof by them.
(m) The Company and its Subsidiaries possess
adequate certificates, authorities, licenses or permits
issued by appropriate governmental agencies or bodies
necessary to conduct the business now operated by them and
have not received any notice of proceedings relating to
the revocation or modification of any such certificate,
authority, licenses or permit that, if determined
adversely to the Company or any of its Subsidiaries, would
individually or in the aggregate have a material adverse
effect on the Business of the Company or on the Business
of GTR.
(n) No labor dispute with the employees of the
Company or any Subsidiary exists or, to the knowledge of
the Company, is imminent that might have a material
adverse effect on the Business of the Company or on the
Business of GTR.
(o) The Company and its Subsidiaries own, possess or
can acquire on reasonable terms adequate trademarks, trade
names and other rights to inventions, know-how, patents,
copyrights, confidential information and other
intellectual property (collectively, "intellectual
property rights") necessary to conduct the business now
operated by them, or presently employed by them, and have
not received any notice of infringement of or conflict
with asserted rights of others with respect to any
intellectual property rights that, if determined adversely
to the Company or any of its Subsidiaries, would
individually or in the aggregate have a material adverse
effect on the Business of the Company or on the Business
of GTR.
(p) Neither the Company nor any of its Subsidiaries
is in violation of any statute, any rule, regulation,
decision or order of any governmental agency or body or
any court, domestic or foreign, relating to the use,
disposal or release of hazardous or toxic substances or
relating to the protection or restoration of the
environment or human exposure to hazardous or toxic
substances (collectively, "environmental laws"), owns or
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operates any real property contaminated with any substance
that is subject to any environmental laws, is liable for
any off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to
any environmental laws, which violation, contamination,
liability or claim would individually or in the aggregate
have a material adverse effect on the Business of the
Company or on the Business of GTR; and the Company is not
aware of any pending investigation which might lead to
such a claim.
(q) Except as disclosed in the Prospectus, there are
no pending actions, suits or proceedings against or
affecting the Company, any of its Subsidiaries or any of
their respective properties that, if determined adversely
to the Company or any of its Subsidiaries, would
individually or in the aggregate have a material adverse
effect on the Business of the Company or on the Business
of GTR, or would materially and adversely affect the
ability of the Company to perform its obligations under
this Agreement, or which are otherwise material in the
context of the sale of the Offered Securities; and no such
actions, suits or proceedings are threatened or, to the
Company's knowledge, contemplated.
(r) The financial statements included or
incorporated in each Registration Statement and the
Prospectus present fairly the financial position of the
Company and its consolidated subsidiaries, the General
Division and the Tissue Repair Division as of the dates
shown and their results of operations and cash flows for
the periods shown, and such financial statements have been
prepared in conformity with generally accepted accounting
principles in the United States applied on a consistent
basis and the schedules included in each Registration
Statement present fairly the information required to be
stated therein. The pro forma financial data and other
pro forma financial information included or incorporated
in each Registration Statement and the Prospectus (i)
comply as to form in all material respects with applicable
requirements of Regulation S-X promulgated under the
Exchange Act, (ii) have been prepared in accordance with
the Commission's rules and guidelines with respect to pro
forma financial statements, and (iii) have been properly
computed on the bases described therein; the assumptions
used in the preparation of the pro forma financial data
and other pro forma financial information included or
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incorporated in each Registration Statement and the
Prospectus are reasonable and the adjustments used therein
are appropriate to give effect to the transactions or
circumstances referred to therein. No other financial
statements or schedules of the Company are required by the
Act, the Exchange Act, the Rules and Regulations or the
Exchange Act Rules and Regulations to be included or
incorporated in either Registration Statement or the
Prospectus. Coopers & Xxxxxxx L.L.P. and Price
Waterhouse, who have reported on certain of such financial
statements and schedules, are independent accountants as
required by the Act, the Rules and Regulations, the
Exchange Act and the Exchange Act Rules and Regulations.
(s) There is no document or contract of a character
required to be described in a Registration Statement or
the Prospectus or to be filed as an exhibit to a
Registration Statement which is not described or filed as
required. All contracts so described or filed to which
the Company or any Subsidiary is a party have been duly
authorized, executed and delivered by the Company or such
Subsidiary, constitute valid and binding agreements of the
Company or such Subsidiary and are enforceable against the
Company or such Subsidiary in accordance with the terms
thereof.
(t) Neither the Company nor any of the Subsidiaries
is in violation of its certificate of incorporation,
by-laws or partnership agreement or in default (nor has an
event occurred which with notice or lapse of time or both
would constitute a default or acceleration) in the
performance of any obligation, agreement or condition
contained in any indenture, mortgage, deed of trust,
voting trust agreement, loan agreement, bond, debenture,
note agreement or other evidence of indebtedness, lease,
contract or other agreement or instrument to which the
Company or any of the Subsidiaries is a party or by which
any of them or their respective properties is bound or
affected and neither the Company nor any of the
Subsidiaries is in violation of any judgment, ruling,
decree, order, franchise, license or permit known to such
counsel or any statute, rule or regulation applicable to
the business or properties of the Company or any of the
Subsidiaries, where such violation or default would have a
material adverse effect on the Business of the Company or
on the Business of XXX.
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(u) Except as disclosed in the Prospectus, since the
date of the latest audited financial statements included
or incorporated in the Prospectus there has been no
material adverse change, nor any development or event
involving a prospective material adverse change, in the
Business of the Company or in the Business of GTR and
there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its
capital stock.
(v) The Company is not and, after giving effect to
the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as defined
in the Investment Company Act of 1940, as amended.
(w) Neither the Company nor any of its affiliates
does business with the government of Cuba or with any
person or affiliate located in Cuba within the meaning of
Section 517.075, Florida Statutes and the Company agrees
to comply with such Section if prior to the completion of
the distribution of the Offered Securities it commences
doing such business.
(x) Certain holders of Securities, whose names have
been provided to the Representatives and who hold an
aggregate of shares of the Securities, have agreed
not to sell, exchange, transfer, pledge, dispose or
otherwise reduce the risk of ownership of their Securities
for 90 days after the Effective Date of the Initial
Registration Statement (or, if later, of the Additional
Registration Statement), without the prior consent of the
Company, provided that such holders may make bona fide
gifts or distributions without consideration or transfers
by operation of law, so long as any donee or transferee
agrees not to sell, transfer or otherwise dispose of
Securities except as provided above.
(y) The Company and its affiliates have not taken
and will not take, directly or indirectly, any action
designed to cause, or result in, or which has constituted
or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the
Securities to facilitate the sale or resale of the Offered
Securities.
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3. Purchase, Sale and Delivery of Offered
Securities. On the basis of the representations, warranties
and agreements herein contained, but subject to the terms and
conditions herein set forth, the Company agrees to sell to the
Underwriters, and the Underwriters agree, severally and not
jointly, to purchase from the Company, at a purchase price of
$ per share, the respective numbers of shares of Firm
Securities set forth opposite the names of the Underwriters in
Schedule A hereto.
The Company will deliver the Firm Securities to the
Representatives for the accounts of the Underwriters, against
payment of the purchase price by certified or official bank
check or checks in New York Clearing House (next day) funds
drawn to the order of the Company at the office of Xxxxxx
Xxxxxx & Xxxxxxx, 00 Xxxx Xxxxxx, XX, XX, at 9:00 A.M., New
York time, on , 1995, or at such
other time not later than seven full business days thereafter
as CS First Boston Corporation ("CS First Boston") and the
Company determine, such time being herein referred to as the
"First Closing Date". For purposes of Rule 15c6-1 under the
Exchange Act, the First Closing Date (if later than the
otherwise applicable settlement date) shall be the settlement
date for payment of funds and delivery of securities for all
the Offered Securities sold pursuant to the offering. The
certificates for the Firm Securities so to be delivered will be
in definitive form, in such denominations and registered in
such names as CS First Boston requests and will be made
available for checking and packaging at the office of CS First
Xxxxxx, Xxxx Xxxxxx Xxxxx, XX, XX 00000 at least 24 hours prior
to the First Closing Date.
In addition, upon written notice from CS First Boston
given to the Company from time to time not more than 30 days
subsequent to the date of the Prospectus, the Underwriters may
purchase all or less than all of the Optional Securities at the
purchase price per Security to be paid for the Firm Securities.
The Company agrees to sell to the Underwriters the number of
shares of Optional Securities specified in such notice and the
Underwriters agree, severally and not jointly, to purchase such
Optional Securities. Such Optional Securities shall be
purchased for the account of each Underwriter in the same
proportion as the number of shares of Firm Securities set forth
opposite such Underwriter's name bears to the total number of
shares of Firm Securities (subject to adjustment by CS First
Boston to eliminate fractions) and may be purchased by the
Underwriters only for the purpose of covering over-allotments
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made in connection with the sale of the Firm Securities. No
Optional Securities shall be sold or delivered unless the Firm
Securities previously have been, or simultaneously are, sold
and delivered. The right to purchase the Optional Securities
or any portion thereof may be exercised from time to time and
to the extent not previously exercised may be surrendered and
terminated at any time upon notice by CS First Boston to the
Company.
Each time for the delivery of and payment for the
Optional Securities, being herein referred to as an "Optional
Closing Date," which may be the First Closing Date (the First
Closing Date and each Optional Closing Date, if any, being
sometimes referred to as a "Closing Date"), shall be determined
by CS First Boston but shall be not later than five full
business days after written notice of election to purchase
Optional Securities is given. The Company will deliver the
Optional Securities being purchased on each Optional Closing
Date to the Representatives for the accounts of the several
Underwriters, against payment of the purchase price therefor by
certified or official bank check or checks in New York Clearing
House (next day) funds drawn to the order of the Company, at
the above office of Xxxxxx Xxxxxx & Xxxxxxx. The certificates
for the Optional Securities being purchased on each Optional
Closing Date will be in definitive form, in such denominations
and registered in such names as CS First Boston requests upon
reasonable notice prior to such Optional Closing Date and will
be made available for checking and packaging at the above
office of CS First Boston at a reasonable time in advance of
such Optional Closing Date.
4. Offering by Underwriters. It is understood that
the several Underwriters propose to offer the Offered
Securities for sale to the public as set forth in the
Prospectus.
5. Certain Agreements of the Company. The Company
agrees with the several Underwriters that:
(a) If the Effective Time of the Initial
Registration Statement is prior to the execution and
delivery of this Agreement, the Company will file the
Prospectus with the Commission pursuant to and in
accordance with subparagraph (1) (or, if applicable and if
consented to by CS First Boston, subparagraph (4)) of
Rule 424(b) not later than the earlier of (A) the second
business day following the execution and delivery of this
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Agreement or (B) the fifteenth business day after the
Effective Date of the Initial Registration Statement. The
Company will advise CS First Boston promptly of any such
filing pursuant to Rule 424(b). If the Effective Time of
the Initial Registration Statement is prior to the
execution and delivery of this Agreement and an additional
registration statement is necessary to register a portion
of the Offered Securities under the Act but the Effective
Time thereof has not occurred as of such execution and
delivery, the Company will transmit the additional
registration statement or, if filed, will transmit a
post-effective amendment thereto with the Commission
pursuant to and in accordance with Rule 462(b) on or prior
to 10:00 P.M., New York time, on the date of this
Agreement or, if earlier, on or prior to the time the
Prospectus is printed and distributed to any Underwriter,
or will make such filing at such later date as shall have
been consented to by CS First Boston.
(b) The Company will advise CS First Boston promptly
of any proposal to amend or supplement the initial or any
additional registration statement as filed or the related
prospectus or the Initial Registration Statement, the
Additional Registration Statement (if any) or the
Prospectus and will not effect such amendment or
supplementation without CS First Boston's consent; and the
Company will also advise CS First Boston promptly of the
effectiveness of each Registration Statement (if its
Effective Time is subsequent to the execution and delivery
of this Agreement) and of any amendment or supplementation
of a Registration Statement or the Prospectus and of the
institution by the Commission of any stop order
proceedings in respect of a Registration Statement and
will use its best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its
lifting, if issued.
(c) If, at any time when a prospectus relating to
the Offered Securities is required to be delivered under
the Act in connection with sales by any Underwriter or
dealer, any event occurs 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 to make the statements
therein, in the light of the circumstances under which
they were made, not misleading, or if it is necessary at
any time to amend the Prospectus to comply with the Act,
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the Company will promptly notify CS First Boston of such
event and will promptly prepare and file with the
Commission, at its own expense, an amendment or supplement
which will correct such statement or omission or an
amendment which will effect such compliance. Neither CS
First Boston's consent to, nor the Underwriters' delivery
of, any such amendment or supplement shall constitute a
waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will
make generally available to its securityholders an
earnings statement covering a period of at least 12 months
beginning after the Effective Date of the Initial
Registration Statement (or, if later, the Effective Date
of the Additional Registration Statement) which will
satisfy the provisions of Section 11(a) of the Act. For
the purpose of the preceding sentence, "Availability Date"
means the 45th day after the end of the fourth fiscal
quarter following the fiscal quarter that includes such
Effective Date, except that, if such fourth fiscal quarter
is the last quarter of the Company's fiscal year,
"Availability Date" means the 90th day after the end of
such fourth fiscal quarter.
(e) The Company will furnish to the Representatives
copies of each Registration Statement (four of which will
be copies of the signed documents certified as to the
authenticity of the signatures and will include all
exhibits), each related preliminary prospectus, and, so
long as delivery of a prospectus relating to the Offered
Securities is required to be delivered under the Act in
connection with sales by any Underwriter or dealer, the
Prospectus and all amendments and supplements to such
documents, in each case as soon as available and in such
quantities as CS First Boston requests. The Prospectus
shall be so furnished on or prior to 10:00 A.M., New York
time, on the business day following the later of the
execution and delivery of this Agreement or the Effective
Time of the Initial Registration Statement. All other
documents shall be so furnished as soon as available. The
Company will pay the expenses of printing and distributing
to the Underwriters all such documents.
(f) The Company will arrange for the qualification
of the Offered Securities for sale under the laws of such
jurisdictions as CS First Boston designates and will
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continue such qualifications in effect so long as required
for the distribution.
(g) During the period of five years hereafter, the
Company will furnish to the Representatives and, upon
request, to each of the other Underwriters, as soon as
practicable after the end of each fiscal year, a copy of
its annual report to stockholders for such year; and the
Company will furnish to the Representatives (i) as soon as
available, a copy of each report and any definitive proxy
statement of the Company filed with the Commission under
the Exchange Act or mailed to stockholders, and (ii) from
time to time, such other information concerning the
Company as CS First Boston may reasonably request.
(h) The Company will pay all expenses incident to
the performance of its obligations under this Agreement
and will reimburse the Underwriters (if and to the extent
incurred by them) for any filing fees and other expenses
(including fees and disbursements of counsel) incurred by
them in connection with qualification of the Offered
Securities for sale under the laws of such jurisdictions
as CS First Boston designates and the reproduction of
memoranda relating thereto, for the filing fee of the
National Association of Securities Dealers, Inc. relating
to the Offered Securities, for any travel expenses of the
Company's officers and employees and any other expenses of
the Company in connection with attending or hosting
meetings with prospective purchasers of the Offered
Securities and for expenses incurred in distributing
preliminary prospectuses and the Prospectus (including any
amendments and supplements thereto) to the Underwriters.
(i) For a period of 90 days after the Effective Date
of the Initial Registration Statement (or, if later, the
Additional Registration Statement), the Company will not
(i) offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, or file with the
Commission a registration statement under the Act relating
to, any additional shares of its Securities or securities
convertible into or exchangeable or exercisable for any
shares of its Securities, or publicly disclose the
intention to make any such offer, sale, pledge, disposal
or filing, without the prior written consent of CS First
Boston, except issuances of Securities pursuant to the
conversion or exchange of convertible or exchangeable
securities or the exercise of warrants or options, in each
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case outstanding on the date hereof, grants of employee
stock options pursuant to the terms of a plan in effect on
the date hereof or issuances of Securities pursuant to the
exercise of such options or (ii) consent to any sale,
exchange, transfer, pledge, disposition or other
transaction which would result in a reduction in the risk
of ownership of Securities held by the holders of
Securities referred to in Section 2(x) for which such
consent is required under the agreements referred to
therein, without the prior written consent of CS First
Boston.
6. Conditions of the Obligations of the
Underwriters. The obligations of the several Underwriters to
purchase and pay for the Firm Securities on the First Closing
Date and the Optional Securities to be purchased on each
Optional Closing Date will be subject to the accuracy of the
representations and warranties on the part of the Company
herein, to the accuracy of the statements of Company officers
made pursuant to the provisions hereof, to the performance by
the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) The Representatives shall have received a
letter, dated the date of delivery thereof (which, if the
Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement,
shall be on or prior to the date of this Agreement or, if
the Effective Time of the Initial Registration Statement
is subsequent to the execution and delivery of this
Agreement, shall be prior to the filing of the amendment
or post-effective amendment to the registration statement
to be filed shortly prior to such Effective Time), of
Coopers & Xxxxxxx L.L.P. confirming that they are
independent public accountants within the meaning of the
Act and the applicable published Rules and Regulations
thereunder and stating to the effect that:
(i) in their opinion the financial statements
and schedules examined by them and included or
incorporated in the Registration Statements (the
"Genzyme Financial Statements") comply as to form in
all material respects with the applicable accounting
requirements of the Act and the related published
Rules and Regulations;
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(ii) they have performed the procedures
specified by the American Institute of Certified
Public Accountants for a review of interim financial
information as described in Statement of Auditing
Standards No. 71, Interim Financial Information, on
the unaudited Genzyme Financial Statements (other
than the combined financial statements for the
General Division and the Tissue Repair Division at
and for the three months ended March 31, 1994 and for
the three and six months ended June 30, 1994)
included or incorporated in the Registration
Statements;
(iii) they have read the combined financial
statements for the General Division and the Tissue
Repair Division at and for the three months ended
March 31, 1994 and the three and six months ended
June 30, 1994 and agreed the amounts contained
therein with the Company's accounting records for the
three months ended March 31, 1994 and the three and
six month periods ended June 30, 1994 and they have
inquired of certain officials of the Company who have
responsibility for financial and accounting matters
whether the unaudited combined financial statements
for the General Division and the Tissue Repair
Division at and for the three months ended March 31,
1994 and the three and six months ended June 30, 1994
(1) are in conformity with generally accepted
accounting principles applies on a basis
substantially consistent with that of the audited
combined financial statements included or
incorporated in the Registration Statement, and (2)
comply as to form in all material respects with the
applicable accounting requirements of the Securities
Exchange Act of 1934 and the related published rules
and regulation promulgated thereunder;
(iv) on the basis of the review referred to in
clauses (ii) and (iii) above, a reading of the latest
available interim financial statements of the
Company, the General Division and the Tissue Repair
Division and inquiries of officials of the Company
who have responsibility for financial and accounting
matters and other specified procedures, nothing came
to their attention that caused them to believe that:
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(A) the unaudited Genzyme Financial
Statements included or incorporated in the
Registration Statements do not comply as to form
in all material respects with the applicable
accounting requirements of the Act and the
related published Rules and Regulations or any
material modifications should be made to such
unaudited financial statements for them to be in
conformity with generally accepted accounting
principles;
(B) at the date of the latest available
balance sheets read by such accountants, or at a
subsequent specified date not more than five
days prior to the date of this Agreement, there
was any change in the capital stock or any
increase in short-term indebtedness or long-term
debt of the Company and its consolidated
subsidiaries, the General Division or the Tissue
Repair Division or, at the date of the latest
available balance sheets read by such
accountants, there was any decrease in
consolidated net current assets or net assets,
as compared with amounts shown on the latest
balance sheets included or incorporated in the
Prospectus (other than changes due to option or
warrant exercises); or
(C) for the period from the closing date
of the latest statements of operations included
in the Prospectus to the closing date of the
latest available statements of operations read
by such accountants there were any decreases, as
compared with the corresponding period of the
previous year, in consolidated or combined (by
division) revenues, or operating income, or
income before income taxes, or in the total or
per share amounts of net income and net income
attributable to each division,
except in all cases set forth in clauses (iv)(B) and
(iv)(C) above for changes, increases or decreases
which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(v) they have compared specified dollar amounts
(or percentages derived from such dollar amounts) and
20
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other financial information contained in the
Registration Statements (in each case to the extent
that such dollar amounts, percentages and other
financial information are derived from the general
accounting records of the Company and its
subsidiaries, the General Division or the Tissue
Repair Division subject to the internal controls of
the Company's accounting system or are derived
directly from such records by analysis or
computation) with the results obtained from
inquiries, a reading of such general accounting
records and other procedures specified in such letter
and have found such dollar amounts, percentages and
other financial information to be in agreement with
such results, except as otherwise specified in such
letter.
For purposes of this subsection, (i) if the Effective Time
of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, "Registration
Statements" shall mean the initial registration statement
as proposed to be amended by the amendment or post-
effective amendment to be filed shortly prior to its
Effective Time, (ii) if the Effective Time of the Initial
Registration Statement is prior to the execution and
delivery of this Agreement but the Effective Time of the
Additional Registration is subsequent to such execution
and delivery, "Registration Statements" shall mean the
Initial Registration Statement and the additional
registration statement as proposed to be filed or as
proposed to be amended by the post-effective amendment to
be filed shortly prior to its Effective Time, and (iii)
"Prospectus" shall mean the prospectus included in the
Registration Statements. All financial statements and
schedules included in material incorporated by reference
into the Prospectus shall be deemed included in the
Registration Statements for purposes of this subsection.
(b) The Representatives shall have received a
letter, dated the date of delivery thereof (which, if the
Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement,
shall be on or prior to the date of this Agreement or, if
the Effective Time of the Initial Registration Statement
is subsequent to the execution and delivery of this
Agreement, shall be prior to the filing of the amendment
or post-effective amendment to the registration statement
21
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to be filed shortly prior to such Effective Time), of
Price Waterhouse confirming that they are independent
public accountants within the meaning of the Act and the
applicable Rules and Regulations thereunder and containing
statements and information satisfactory to the
Representatives with respect to the financial information
relating to BioSurface Technology, Inc. included or
incorporated in the Registration Statements.
(c) If the Effective Time of the Initial
Registration Statement is not prior to the execution and
delivery of this Agreement, such Effective Time shall have
occurred not later than 10:00 P.M., New York time, on the
date of this Agreement or such later date as shall have
been consented to by CS First Boston. If the Effective
Time of the Additional Registration Statement (if any) is
not prior the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than
10:00 P.M., New York time, on the date of this Agreement
or, if earlier, the time the Prospectus is printed and
distributed to any Underwriter, or shall have occurred at
such later date as shall have been consented to by CS
First Boston. If the Effective Time of the Initial
Registration Statement is prior to the execution and
delivery of this Agreement, the Prospectus shall have been
filed with the Commission in accordance with the Rules and
Regulations and Section 5(a) of this Agreement. Prior to
such Closing Date, no stop order suspending the effective-
ness of a Registration Statement shall have been issued
and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Company or the
Representatives, shall be contemplated by the Commission.
(d) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change,
or any development or event involving a prospective
change, in the Business of the Company or in the Business
of GTR which, in the judgment of a majority in interest of
the Underwriters including the Representatives, is
material and adverse and makes it impractical or
inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered
Securities; (ii) any downgrading in the rating of any debt
securities of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act), or any public announcement
that any such organization has under surveillance or
22
-22-
review its rating of any debt securities of the Company
(other than an announcement with positive implications of
a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any suspension or
limitation of trading in securities generally on the New
York Stock Exchange, or any setting of minimum prices for
trading on such exchange, or any suspension of trading of
any securities of the Company on any exchange or in the
over-the-counter market; (iv) any banking moratorium
declared by U.S. Federal or New York authorities; or
(v) any outbreak or escalation of major hostilities in
which the United States is involved, any declaration of
war by Congress or any other substantial national or
international calamity or emergency if, in the judgment of
a majority in interest of the Underwriters including the
Representatives, the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of
the public offering or the sale of and payment for the
Offered Securities.
(e) The Representatives shall have received an
opinion, dated such Closing Date, of Xxxxxx & Dodge,
counsel for the Company, to the effect that:
(i) Each of the Company and its Corporate
Subsidiaries incorporated in a state of the United
States (the "Domestic Corporate Subsidiaries") is a
corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of
its incorporation, and each of the Company's
subsidiaries that is a partnership (together with the
Domestic Corporate Subsidiaries, the "Domestic
Subsidiaries") is duly organized, validly existing
and in good standing under the laws of the
jurisdiction of its formation. Each of the Company
and the Domestic Subsidiaries is duly qualified to do
business as a foreign corporation or other entity in
good standing in all jurisdictions in which the
nature of the activities conducted by it or the
character of the assets owned or leased by it makes
such qualification necessary, except where the
failure to be so qualified would not have a material
adverse effect on the Business of the Company or on
the Business of GTR. Each of the Company and the
Domestic Subsidiaries has full power and authority to
own or lease all the assets owned or leased by it and
23
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to conduct its business as described in the
Prospectus.
(ii) The outstanding shares of the Company's
capital stock have been duly authorized and validly
issued and are fully paid and non-assessable and are
not subject to any preemptive or similar right.
(iii) The Offered Securities sold to the
Underwriters pursuant to this Agreement have been
duly authorized and validly issued by the Company and
upon issuance and delivery against payment therefor
as provided in this Agreement will be fully paid and
non-assessable; and no holder thereof is or will be
subject to personal liability by reason of being such
a holder.
(iv) The issuance of the Offered Securities by
the Company is not subject to preemptive rights of
any holder of securities of the Company.
(v) There are no contracts, agreements or
understandings known to such counsel between the
Company and any person granting such person the right
to require the Company to file a registration
statement under the 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 Act.
(vi) No consent, approval, authorization or
order of, or any filing or declaration with, any
court or governmental agency or body is required in
connection with the authorization, issuance,
transfer, sale or delivery of the Offered Securities
by the Company, in connection with the execution,
delivery and performance of this Agreement by the
Company or in connection with the taking by the
Company of any action contemplated thereby, except
such as have been obtained under the Act and the
Rules and Regulations and such as may be required
under state securities laws.
24
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(vii) The authorized capital stock of the Company
is as set forth in the Prospectus. The description
of the Securities contained in the Prospectus
conforms in all material respects to the terms
thereof contained in the Company's articles of
organization. Except as set forth on Schedule B
attached hereto, the Company is the sole record
owner, directly or indirectly, of all of the capital
stock of each of its Domestic Corporate Subsidiaries.
(viii) The Company and the offering of the Firm
Securities meet the requirements for the use of Form
S-3, and the Registration Statement (as amended on
the date of such opinion) and the Prospectus
(including any documents incorporated by reference
into the Prospectus, at the time they were filed)
comply or complied in all material respects as to
form with the requirements of the Act, the Rules and
Regulations, the Exchange Act and the Exchange Act
Rules and Regulations (except that such counsel need
express no opinion as to financial statements,
schedules and other financial and statistical data
contained in such Registration Statement or the
Prospectus or incorporated by reference therein).
(ix) Such counsel has participated in the
preparation of the Registration Statement and the
Prospectus. Except as explicitly provided in such
opinion, such counsel has not undertaken to verify
independently the facts disclosed in the Registration
Statement and the Prospectus (including any documents
incorporated by reference therein). However, in the
course of such participation nothing has come to such
counsel's attention which has caused them to believe
that, both as of the Effective Date of the Initial
Registration Statement (or, if later, of the
Additional Registration Statement) and as of the
First Closing Date and the Optional Closing Date,
either the Registration Statement or the Prospectus,
or any amendment or supplement thereto including any
documents incorporated by reference into the
Prospectus, contained or contains any untrue
statement of a material fact or omitted or omits to
state a material fact required to be stated therein
or necessary to make the statements therein, in light
of the circumstances in which they were made, not
misleading (except that such counsel need express no
25
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opinion as to financial statements, schedules and
other financial or statistical data contained in the
Registration Statement or the Prospectus or
incorporated by reference therein).
(x) The Initial Registration Statement was
declared effective under the Act as of the date and
time specified in such opinion, the Additional
Registration Statement (if any) was filed and became
effective under the Act as of the date and time (if
determinable) specified in such opinion, the
Prospectus either was filed with the Commission
pursuant to the subparagraph of Rule 424(b) specified
in such opinion on the date specified therein or was
included in the Initial Registration Statement or the
Additional Registration Statement (as the case may
be), and, to the best of such counsel's knowledge, no
order suspending the effectiveness of the
Registration Statement has been issued and no
proceeding for that purpose has been instituted or is
threatened, pending or contemplated.
(xi) Such counsel has reviewed all contracts or
other documents referred to in the Registration
Statement and the Prospectus (excluding any contracts
referred to in the documents incorporated by
reference therein) and the descriptions thereof
(insofar as such descriptions constitute a summary of
the legal matters referred to therein) are accurate
in all material respects. Such counsel does not know
of any contracts or other documents required to be so
summarized or disclosed or filed as an exhibit to the
Registration Statement or to any document
incorporated by reference therein which have not been
so summarized or disclosed or filed.
(xii) All descriptions in the Prospectus of
statutes and regulations (excluding statutes and
regulations relating to FDA matters and organ
transplant or tissue bank licensure laws) and, to the
best of such counsel's knowledge, of legal or
governmental proceedings are accurate and fairly
present the information required to be shown therein.
(xiii) The Company has full corporate power and
authority to enter into this Agreement, and this
26
-26-
Agreement has been duly authorized, executed and
delivered by the Company.
(xiv) The execution and delivery of this
Agreement by the Company, the consummation by the
Company of the transactions therein contemplated and
the compliance by the Company with the terms of this
Agreement do not and will not result in the creation
or imposition of any lien, charge or encumbrance upon
any of the assets of the Company or any of the
Subsidiaries pursuant to the terms or provisions of,
or result in a breach or violation of any of the
terms or provisions of, or constitute a default or
result in the acceleration of any obligation under,
the articles of organization or by-laws of the
Company or any of its Domestic Corporate
Subsidiaries, or, in the case of each of the
partnerships, its partnership agreement, or any
indenture, mortgage, deed of trust, voting trust
agreement, loan agreement, bond, debenture, note
agreement or other evidence of indebtedness, lease,
contract or other agreement or instrument known to us
to which the Company or any of the Company's Domestic
Subsidiaries is a party or by which any of the
Company's or any of the Company's Domestic
Subsidiaries' properties is bound or affected, or any
judgment, ruling, decree or order known to such
counsel or any statute, rule or regulation applicable
to the business or properties of the Company or any
of the Company's Domestic Subsidiaries (except that
such counsel need express no opinion as to the
securities or Blue Sky laws of any jurisdiction other
than the United States).
(xv) Delivery of certificates for the Offered
Securities will pass valid and marketable title
thereto free and clear of any liens, encumbrances or
claims to each Underwriter that has purchased such
Securities in good faith without knowledge or reason
to know of any adverse claims thereto and such
counsel is not aware, after due inquiry, of any
adverse claim with respect thereto.
(xvi) Except as disclosed in the Prospectus, such
counsel knows of no actions, suits or proceedings
pending or threatened against or affecting the
Company or any of its Subsidiaries or any of their
27
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respective properties wherein an unfavorable ruling,
decision or finding might individually or in the
aggregate materially and adversely affect the
Business of the Company or the Business of GTR, or
materially and adversely affect the ability of the
Company to perform its obligations under this
Agreement, or which are otherwise material in the
context of the sale of the Offered Securities.
(xvii) To the best of such counsel's knowledge,
neither the Company nor any of the Domestic
Subsidiaries is in violation of its certificate of
incorporation, by-laws or partnership agreement or in
default (nor has an event occurred which with notice
or lapse of time or both would constitute a default
or acceleration) in the performance of any
obligation, agreement or condition contained in any
indenture, mortgage, deed of trust, voting trust
agreement, loan agreement, bond, debenture, note
agreement or other evidence of indebtedness, lease,
contract or other agreement or instrument known to
such counsel to which the Company or any of the
Domestic Subsidiaries is a party or by which any of
them or their respective properties is bound or
affected and neither the Company nor any of the
Domestic Subsidiaries is in violation of any
judgment, ruling, decree, order, franchise, license
or permit known to such counsel or any statute, rule
or regulation applicable to the business or
properties of the Company or any of the Domestic
Subsidiaries, where such violation or default might
have a material adverse effect on the Business of the
Company or on the Business of GTR.
(xviii) The Company is not and, after giving effect
to the offering and sale of the Offered Securities
and the application of the proceeds thereof as
described in the Prospectus, will not be an
"investment company," as such term is defined in the
Investment Company Act of 1940, as amended.
(xix) The Offered Securities have been approved
for listing on the Nasdaq National Market subject to
notice of issuance.
In rendering the foregoing opinion, such counsel may
rely, to the extent they deem such reliance proper, on the
28
-28-
opinions (in form and substance reasonably satisfactory to
Underwriters' counsel) of other counsel reasonably
acceptable to Underwriters' counsel as to matters governed
by the laws of jurisdictions other than the United States,
the Commonwealth of Massachusetts or the General
Corporation Law of the State of Delaware, and as to
matters of fact, upon certificates of officers of the
Company and of government officials; provided that such
counsel shall state that the opinion of any other counsel
is in form satisfactory to such counsel and, in such
counsel's opinion, such counsel and the Representatives
are justified in relying on such opinions of other
counsel. Copies of all such opinions and certificates
shall be furnished to counsel to the Underwriters on the
Closing Date. Such counsel may state that they are not
passing on matters relating to patents and trademarks.
(f) The Representatives shall have received an
opinion, dated such Closing Date, of Xxxx X. Xxxxx, Esq.,
Senior Vice President and General Counsel of the Company,
to the effect that
(i) Such counsel has studied and agrees with
the statements in the Prospectus under the captions
"Risk Factors -- Uncertainty Regarding Patents and
Protection of Proprietary Technology," "Risk
Factors -- Government Regulation of Tissue Repair
Products," "Business -- Government Regulation" and
"Business -- Patents and Proprietary Rights" and in
the December 31, 1994 Annual Report on Form 10-K of
the Company under the captions "Business -- General
Division -- Patents and Proprietary Technology,"
"Business -- General Division -- Government
Regulation," "Business -- Tissue Repair Division --
Patents and Proprietary Rights," "Business -- Tissue
Repair Division -- Government Regulation" and "Legal
Proceedings."
(ii) Except as disclosed in the sections of the
Prospectus mentioned above and the documents
incorporated by reference in the Prospectus, such
counsel does not know of any pending or threatened
legal or governmental proceeding relating to patents
or proprietary know-how owned or used by the Company
or others, to which the Company or any of its
subsidiaries is a party or to which any of the
properties of the Company or any of its subsidiaries
29
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are subject which, if adversely decided, would have a
material adverse effect on the Business of the
Company or on the Business of GTR.
(iii) Except as disclosed in the sections of the
Prospectus mentioned above and the documents
incorporated by reference in the Prospectus, such
counsel has no knowledge of any infringement or
alleged infringement by the Company or any of its
Subsidiaries of patent rights of others which could
have a material adverse effect on the Business of the
Company or on the Business of GTR.
(iv) To the best of such counsel's knowledge,
each of the Company and its Subsidiaries possesses
all governmental licenses, permits, consents, orders,
approvals and other authorizations necessary to carry
on its business as described in the Prospectus,
except for those the absence of which do not have a
material adverse effect on the Business of the
Company or on the Business of GTR.
(v) Such counsel has reviewed all contracts or
other documents referred to in the Registration
Statement and the Prospectus (including any contracts
referred to in the documents incorporated by
reference therein) and the descriptions thereof
(insofar as such descriptions constitute a summary of
the legal matters referred to therein) are accurate
in all material respects. Such counsel does not know
of any contracts or other documents required to be so
summarized or disclosed or filed as an exhibit to the
Registration Statement or to any document
incorporated by reference therein which have not been
so summarized or disclosed or filed.
(g) The Representatives shall have received from
Xxxxxx Xxxxxx & Xxxxxxx, counsel for the Underwriters,
such opinion or opinions, dated such Closing Date, with
respect to the incorporation of the Company, the validity
of the Offered Securities delivered on such Closing Date,
the Registration Statements, the Prospectus and other
related matters as the Representatives may require, and
the Company shall have furnished to such counsel such
documents as they request for the purpose of enabling them
to pass upon such matters. In rendering such opinion,
Xxxxxx Xxxxxx & Xxxxxxx may rely as to the incorporation
30
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of the Company and all other matters governed by
Massachusetts law upon the opinion of Xxxxxx & Dodge
referred to above.
(h) The Representatives shall have received a
certificate, dated such Closing Date, of the President or
any Vice-President and a principal financial or accounting
officer of the Company in which such officers, to the best
of their knowledge after reasonable investigation, shall
state that: the representations and warranties of the
Company in this Agreement are true and correct; the
Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied
hereunder at or prior to such Closing Date; no stop order
suspending the effectiveness of any Registration Statement
has been issued and no proceedings for that purpose have
been instituted or are contemplated by the Commission; the
Additional Registration Statement (if any) satisfying the
requirements of subparagraphs (1) and (3) of Rule 462(b)
was filed pursuant to Rule 462(b), including payment of
the applicable filing fee in accordance with Rule 111(a)
or (b) under the Act, prior to the time the Prospectus was
printed and distributed to any Underwriter; as of such
date, there was no change in the capital stock of the
Company (including changes due to option or warrant
exercises) as compared with the amount shown on the latest
balance sheets included or incorporated in the Prospectus;
and, subsequent to the date of the most recent financial
statements included or incorporated in the Prospectus,
there has been no material adverse change, nor any
development or event involving a prospective material
adverse change, in the Business of the Company or in the
Business of GTR except as set forth in or contemplated by
the Prospectus or as described in such certificate.
(i) The Representatives shall have received (i) a
letter, dated such Closing Date, of Coopers & Xxxxxxx
L.L.P. which meets the requirements of subsection (a) of
this Section, except that the specified date referred to
in such subsection will be a date not more than five days
prior to such Closing Date for the purposes of this
subsection and (ii) a letter, dated such Closing Date, of
Price Waterhouse which meets the requirements of
subsection (b) of this Section.
The Company will furnish the Representatives with such
conformed copies of such opinions, certificates, letters and
31
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documents as the Representatives reasonably request. CS First
Boston may in its sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations
of the Underwriters hereunder, whether in respect of an
Optional Closing Date or otherwise.
7. Indemnification and Contribution. (a) The
Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under
the Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement
of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based
upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating
or defending any such loss, claim, damage, liability or action
as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement in
or omission or alleged omission from any of such documents in
reliance upon and in conformity with written information
relating to any Underwriter furnished to the Company by such
Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the
information described as such in subsection (b) below; and
provided, further, that with respect to any untrue statement or
omission or alleged untrue statement or omission made in any
preliminary prospectus the indemnity agreement contained in
this subsection (a) shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses,
claims, damages or liabilities purchased Offered Securities if
such untrue statement or omission or alleged untrue statement
or omission made in such preliminary prospectus is eliminated
or remedied in the Prospectus (as amended or supplemented if
the Company shall have furnished any amendments or supplements
thereto to the Underwriters) and such loss, claim, damage or
liability of such Underwriter results from the fact that there
was not furnished to such person, at or prior to the written
confirmation of the sale of such Offered Securities to such
32
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person, a copy of the Prospectus (as so amended or
supplemented) if the Company had previously furnished copies
thereof to such Underwriter.
(b) Each Underwriter will severally and not jointly
indemnify and hold harmless the Company against any losses,
claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any
Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in
conformity with written information relating to such
Underwriter furnished to the Company by such Underwriter
through the Representatives specifically for use therein, and
will reimburse any legal or other expenses reasonably incurred
by the Company in connection with investigating or defending
any such loss, claim, damage, liability or action as such
expenses are incurred, it being understood and agreed that the
only such information furnished by any Underwriter consists of
the following information in the Prospectus furnished on behalf
of each Underwriter: the last paragraph at the bottom of the
cover page concerning the terms of the offering by the
Underwriters, the legends concerning overallotments and
stabilizing and passive market making on the inside front cover
page and the concession and reallowance figures appearing in
the fourth paragraph under the caption "Underwriting" and the
information contained in the fifth paragraph under the caption
"Underwriting".
(c) Promptly after receipt by an indemnified party
under this Section of notice of the commencement of any action,
such indemnified party will, if a claim in respect thereof is
to be made against the indemnifying party under subsection (a)
or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party
will not relieve it from any liability which it may have to any
indemnified party otherwise than under subsection (a) or (b)
above. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the
33
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commencement thereof, the indemnifying party will be entitled
to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to
such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying
party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs
of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of
which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release
of such indemnified party from all liability on any claims that
are the subject matter of such action.
(d) If the indemnification provided for in this
Section is unavailable or insufficient to hold harmless an
indemnified party under subsection (a) or (b) above, then each
indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or
(b) above (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 from the offering of the
Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Underwriters on the other
in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities as well as any
other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on
the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total
underwriting discounts and commissions received by the
Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information
34
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supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result
of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection
(d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the
Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by
reason of such 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
Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (d) to contribute
are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this
Section shall be in addition to any liability which the Company
may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section shall be in addition to
any liability which the respective Underwriters may otherwise
have and shall extend, upon the same terms and conditions, to
each director of the Company, to each officer of the Company
who has signed a Registration Statement and to each person, if
any, who controls the Company within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or
Underwriters default in their obligations to purchase Offered
Securities hereunder on either the First or any Optional
Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the total
number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date, CS First Boston
may make arrangements satisfactory to the Company for the
purchase of such Offered Securities by other persons, including
any of the Underwriters, but if no such arrangements are made
35
-35-
by such Closing Date, the non-defaulting Underwriters shall be
obligated severally, in proportion to their respective
commitments hereunder, to purchase the Offered Securities that
such defaulting Underwriters agreed but failed to purchase on
such Closing Date. If any Underwriter or Underwriters so
default and the aggregate number of shares of Offered
Securities with respect to which such default or defaults occur
exceeds 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing
Date and arrangements satisfactory to CS First Boston and the
Company for the purchase of such Offered Securities by other
persons are not made within 36 hours after such default, this
Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Company, except as provided
in Section 9 (provided that if such default occurs with respect
to Optional Securities after the First Closing Date, this
Agreement will not terminate as to the Firm Securities or any
Optional Securities purchased prior to such termination). As
used in this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this Section.
Nothing herein will relieve a defaulting Underwriter from
liability for its default.
9. Survival of Certain Representations and
Obligations. The respective indemnities, agreements,
representations, warranties and other statements of the Company
or its officers and of the several Underwriters set forth in or
made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, the
Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery
of and payment for the Offered Securities. If this Agreement
is terminated pursuant to Section 8 or if for any reason the
purchase of the Offered Securities by the Underwriters is not
consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5
and the respective obligations of the Company and the
Underwriters pursuant to Section 7 shall remain in effect, and
if any Offered Securities have been purchased hereunder the
representations and warranties in Section 2 and all obligations
under Section 5 shall also remain in effect. If the purchase
of the Offered Securities by the Underwriters is not
consummated for any reason other than solely because of the
termination of this Agreement pursuant to Section 8 or the
occurrence of any event specified in clause (iii), (iv) or (v)
of Section 6(d), the Company will reimburse the Underwriters
36
-36-
for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in
connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be
in writing and, if sent to the Underwriters, will be mailed,
delivered or telegraphed and confirmed to the Representatives
c/o CS First Boston Corporation, Park Avenue Plaza, New York,
N.Y. 10055, Attention: Investment Banking Department --
Transactions Advisory Group, or, if sent to the Company, will
be mailed, delivered or telegraphed and confirmed to it at Xxx
Xxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000, Attention:
; provided, however, that any notice to an
Underwriter pursuant to Section 7 will be mailed, delivered or
telegraphed and confirmed to such Underwriter.
11. Successors. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and
controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
12. Representation of Underwriters. The
Representatives will act for the several Underwriters in
connection with this financing, and any action under this
Agreement taken by the Representatives jointly or by CS First
Boston will be binding upon all the Underwriters.
13. Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be
an original, but all such counterparts shall together
constitute one and the same Agreement.
14. Applicable Law. 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 laws.
The Company hereby submits to the non-exclusive
jurisdiction of the Federal and state courts in the Borough of
Manhattan in The City of New York in any suit or proceeding
arising out of or relating to this Agreement or the
transactions contemplated hereby.
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If the foregoing is in accordance with the
Representatives' understanding of our agreement, kindly sign
and return to the Company one of the counterparts hereof,
whereupon it will become a binding agreement between the
Company and the several Underwriters in accordance with its
terms.
Very truly yours,
GENZYME CORPORATION
By
[Insert title]
The foregoing Underwriting Agreement is
hereby confirmed and confirmed and
accepted as of the date first above
written.
CS FIRST BOSTON CORPORATION
XXXXX & COMPANY
PAINEWEBBER INCORPORATED
Acting on behalf of themselves and as
the Representatives of the several
Underwriters.
By CS FIRST BOSTON CORPORATION
By ____________________________
[Insert title]
38
SCHEDULE A
Number of
Underwriter Firm Securities
CS First Boston Corporation...........................
Xxxxx & Company.......................................
PaineWebber Incorporated..............................
Total.....................................
39
SCHEDULE B
[subsidiary information]
