DRAFT 12/23/97
2,000,000 SHARES
SURMODICS, INC.
COMMON STOCK
$0.05 PAR VALUE
UNDERWRITING AGREEMENT
_________________, 1998
Xxxx X. Xxxxxxx and Company, Incorporated
As Representative of the Several Underwriters
c/o Xxxx X. Xxxxxxx and Company, Incorporated
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Ladies and Gentlemen:
SurModics, Inc., a Minnesota corporation (the "Company"), hereby confirms
its agreement to issue and sell to the underwriters named in Schedule A attached
hereto (the "Underwriters"), for which you are acting as the representative (the
"Representative"), an aggregate of 2,000,000 shares (the "Firm Shares") of
authorized common stock, $0.05 par value, of the Company (the "Common Stock").
The Company also hereby confirms its agreement to issue and sell to the
Underwriters an aggregate of up to 300,000 additional shares of Common Stock
upon the request of the Representative solely for the purpose of covering
overallotments (the "Option Shares"). The Firm Shares and the Option Shares are
collectively referred to as the "Shares."
The Company hereby confirms the arrangements with respect to the purchase
of the Shares severally by each of the Underwriters. The Company has been
advised and hereby acknowledges that Xxxx X. Xxxxxxx and Company, Incorporated
has been duly authorized to act as the representative of the Underwriters. As
used in this Agreement, the term "Underwriter" refers to any individual member
of the underwriting syndicate and includes any party substituted for an
Underwriter under Section 9 hereof.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to and agrees with each of the several
Underwriters as follows:
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(a) A registration statement on Form SB-2 (Registration No.
___________) with respect to the Shares has been prepared by the Company in
conformity with the requirements of the Securities Act of 1933, as amended (the
"Act"), and the rules and regulations (the "Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") promulgated thereunder and
has been filed with the Commission under the Act. If the Company has elected to
rely upon Rule 462(b) under the Act to increase the size of the offering
registered under the Act, the Company will prepare and file with the Commission
a registration statement with respect to such increase pursuant to Rule 462(b).
Copies of the registration statement as amended to date have been delivered by
the Company to the Representative. Such registration statement, including a
registration statement (if any) filed pursuant to Rule 462(b) under the Act and
the information (if any) deemed to be part thereof pursuant to Rules 430A and
434(d) under the Act, and all prospectuses included as a part thereof, all
financial statements included in such registration statement, and all schedules
and exhibits thereto, as amended at the time when the registration statement
shall become effective, are herein referred to as the "Registration Statement,"
and the term "Prospectus" as used herein shall mean the final prospectus
included as a part of the Registration Statement on file with the Commission
when it becomes effective (except that if a prospectus is filed by the Company
pursuant to Rules 424(b) and 430A under the Act, the term "Prospectus" as used
herein shall mean the prospectus so filed pursuant to Rules 424(b) and 430A
(including any term sheet meeting the requirements of Rule 434 under the Act
provided by the Company for use with a prospectus subject to completion within
the meaning of Rule 434 in order to meet the requirements of Section 10(a) of
the Act)). The term "Preliminary Prospectus" as used herein means any
prospectus used prior to the Effective Date (as defined in Section 5(a) hereof)
and included as a part of the Registration Statement, prior to the time it
becomes or became effective under the Act and any prospectus subject to
completion as described in Rules 430A or 434 under the Act. Copies of the
Registration Statement, including all exhibits and schedules thereto, any
amendments thereto and all Preliminary Prospectuses have been delivered to you.
(b) The Registration Statement has been declared effective, and at
all times subsequent thereto up to each closing date, the Registration Statement
and Prospectus and all amendments thereof and supplements thereto, will comply
in all material respects with the provisions of the Act and the Rules and
Regulations. Neither the Commission nor any state securities division has
issued any order (i) preventing or suspending the use of any Preliminary
Prospectus, (ii) issuing a stop order with respect to the offering of the Shares
or (iii) requiring the recirculation of a Preliminary Prospectus. The
Registration Statement (as amended, if the Company shall have filed with the
Commission any post effective amendments thereto) does not and will not contain
any 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. Each
Preliminary Prospectus, at the time of filing thereof, the Registration
Statement as of the date declared effective and at all times subsequent thereto
up to each closing date, and the Prospectus (as amended or supplemented, if the
Company shall have filed with the Commission any amendment thereof or supplement
thereto) conformed and conforms in all material respects to the requirements of
the Act and the
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Rules and Regulations and did not, does not and will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading; provided, however,
that none of the representations and warranties in this Subsection 1(b) shall
apply to statements in, or omissions from, the Registration Statement or the
Prospectus or any amendment thereof or supplement thereto) which are based upon
and conform to information furnished to the Company by the Underwriters in
writing specifically for use in the preparation of the Registration Statement or
the Prospectus or any such amendment or supplement. There is no contract or
other document of the Company of a character required by the Act or the Rules
and Regulations to be described in the Registration Statement or Prospectus or
to be filed as an exhibit to the Registration Statement that has not been
described or filed as required.
(c) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Minnesota, with
full corporate power and authority, to own, lease and operate its properties and
conduct its business as described in the Registration Statement and Prospectus.
The Company is duly qualified to do business as a foreign corporation in good
standing in each jurisdiction in which the ownership or lease of its properties,
or the conduct of its business, requires such qualification and in which the
failure to be qualified or in good standing would have a material adverse effect
on the condition (financial or otherwise), results of operations, shareholders'
equity, business, property or prospects of the Company.
(d) The Company has no subsidiaries, is not affiliated with or
owns any stock or other equity interest, or any other company or business
entity.
(e) The Company has all necessary material authorizations,
licenses, approvals, consents, permits, certificates and orders of and from all
state, federal, foreign and other governmental or regulatory authorities to own
its properties and to conduct its business as described in the Registration
Statement and Prospectus, is conducting its business in substantial compliance
with all applicable laws, rules and regulations of the jurisdictions in which it
is conducting business, and has received no notice of nor has it knowledge of
any basis for any proceeding or action for the revocation or suspension of any
such authorizations, licenses, approvals, consents, permits, certificates or
orders.
(f) The Company is not in violation of or in default under
[AMENDED AND RESTATED] (i) its Articles of Incorporation or Bylaws, (ii) or in
default in the performance or observance of any material obligation, agreement,
covenant or condition contained in any bond, debenture, note or other evidence
of indebtedness or in any contract, license, indenture, bond mortgage, loan
agreement, joint venture or partnership agreement, lease, agreement or
instrument to which the Company is a party or by which the Company or any of its
properties are bound, (iii) any law, order, rule, regulation, writ, injunction
or decree of any government, governmental instrumentality or court, domestic or
foreign, which violation or default would have a material adverse effect on the
condition (financial or otherwise), results of operations, shareholders'
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equity, business, property or prospects of the Company or the ability of the
Company to consummate the transactions contemplated hereby.
(g) The Company has full requisite power and authority to enter
into this Agreement. This Agreement has been duly authorized, executed and
delivered by the Company and will be a valid and binding agreement on the part
of the Company, enforceable in accordance with its terms, if and when this
Agreement shall have become effective in accordance with Section 8, except as
enforceability may be limited by the application of bankruptcy, insolvency,
moratorium or similar laws affecting the rights of creditors generally and by
judicial limitations on the right of specific performance and other equitable
remedies, and except as the enforceability of the indemnification or
contribution provisions hereof may be affected by applicable federal or state
securities laws. The performance of this Agreement and the consummation of the
transactions herein contemplated will not result in a material breach or
violation of any of the terms and provisions of or constitute a material default
under (i) any bond, debenture, note or other evidence of indebtedness, or any
contract, license, indenture, mortgage, loan agreement, joint venture or
partnership agreement, lease, agreement or other instrument to which the Company
is a party or by which the property of the Company is bound, (ii) the Company's
[AMENDED AND RESTATED] Articles of Incorporation or Bylaws, or (iii) any statute
or any order, rule or regulation of any court, governmental agency or body
having jurisdiction over the Company. No consent, approval, authorization or
order of any court, governmental agency or body is required for the consummation
by the Company of the transactions on its part herein contemplated, except such
as may be required under the Act or under state or other securities laws.
(h) There are no actions, suits or proceedings pending before any
court or governmental agency, authority or body to which the Company is a party
or of which the business or property of the Company is the subject which (i)
might result in any material adverse change in the condition (financial or
otherwise), shareholders' equity, results of operations, business or prospects
of the Company, (ii) materially and adversely affect its properties or assets,
or (iii) prevent consummation of the transactions contemplated by this
Agreement. To the best of the Company's knowledge, no such actions, suits or
proceedings are threatened.
(i) The Company has the duly authorized and outstanding
capitalization set forth under the caption "Capitalization" in the Prospectus.
The outstanding shares of capital stock of the Company have been duly authorized
and validly issued, fully paid and nonassessable. The Shares conform in
substance to all documents relating thereto contained in the Registration
Statement and Prospectus. The Shares to be sold by the Company hereunder have
been duly authorized and, when issued and delivered pursuant to this Agreement,
will be validly issued, fully paid and nonassessable and will conform to the
description thereof contained in the Prospectus. No statutory preemptive rights
or similar rights to subscribe for or purchase shares of capital stock of any
security holders of the Company exist with respect to the issuance and sale of
the Shares by the Company. Except as described in the Prospectus, the Company
has no agreement with any security holder which gives such security holder the
right to require the Company to register under the Act any securities of any
nature owned or held by such person in connection with the transactions
contemplated by this Agreement. Except as described in the
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Prospectus, there are no outstanding options, warrants, agreements, contracts or
other rights to purchase or acquire from the Company any shares of its capital
stock. Except as described in the Prospectus, there are no agreements among the
Company's executive officers and directors and any other persons with respect to
the voting or transfer of the Company's capital stock or with respect to other
aspects of the Company's affairs. Upon payment for and delivery of the Shares
to be sold by the Company pursuant to this Agreement, the Underwriters will
acquire good and marketable title to such Shares, free and clear of all liens,
encumbrances or claims created by actions of the Company. The certificates
evidencing the Shares will comply as to form with all applicable provisions of
the laws of the State of Minnesota.
(j) The financial statements of the Company, together with the
related notes, included in the Registration Statement and Prospectus (the
"Financial Statements") fairly and accurately present the financial position,
the results of operations and changes in stockholder's equity and cash flows of
the Company at the dates and for the respective periods to which such Financial
Statements apply. The Financial Statements have been prepared in accordance
with generally accepted accounting principles, consistently applied throughout
the periods involved, and all adjustments necessary for a fair presentation of
results for such periods have been made, except as otherwise stated therein; and
the supporting schedules included in the Registration Statement present fairly
the information required to be stated therein. No other financial statements or
schedules are required to be included in the Registration Statement. The
summary and selected consolidated financial data included in the Registration
Statement present fairly the information shown therein on the basis stated in
the Registration Statement and have been compiled on a basis consistent with the
financial statements presented therein.
(k) Xxxxxx Xxxxxxxx, LLP, which has expressed its opinion with
respect to the financial statements filed with the Commission as part of the
Registration Statement, are independent public accountants as required by the
Act and the rules and regulations thereunder.
(l) Since the respective dates as of which information is given in
the Registration Statement and Prospectus, (i) there has not been any material
adverse change, or any development, event or occurrence in the business of the
Company that, taken together with other developments, events and occurrences
with respect to such business, would have or would reasonably be expected to
have a material adverse effect on the condition (financial or otherwise) of the
Company or the management, shareholders' equity, results of operations,
business, property or prospects of the Company, whether or not occurring in the
ordinary course of business, (ii) there has not been any transaction not in the
ordinary course of business entered into by the Company which is material to the
Company, other than transactions described or contemplated in the Registration
Statement, (iii) the Company has not incurred any material liabilities or
obligations, which are not in the ordinary course of business or which could
result in a material reduction in the future earnings of the Company, (iv) the
Company has not sustained any material loss or interference with its business or
properties from fire, flood, windstorm, accident or other calamity, whether or
not covered by insurance, (v) there has not been any change in the capital stock
of the Company (other than upon the exercise of options described in the
Registration Statement) or any material increase in the short-term or long-term
debt (including capitalized lease obligations) of the Company, (vi) there has
not been any declaration
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or payment of any dividends or any distributions of any kind with respect to the
capital stock of the Company, other than any dividends or distributions
described or contemplated in the Registration Statement, or (vii) there has not
been any issuance of warrants, options, convertible securities or other rights
to purchase or acquire capital stock of the Company.
(m) The Company has filed all necessary federal, state, local and
foreign income and franchise tax returns and paid all taxes shown as due
thereon. The Company has no knowledge of any tax deficiency which either has
been or might be asserted against it which would materially and adversely affect
the Company's business or properties.
(n) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in
accordance with management's general or specific authorizations and
(ii) transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(o) The Company has good and marketable title to all of the
property, real and personal, described in the Registration Statement or
Prospectus as being owned by the Company, free and clear of all liens,
encumbrances, equities, charges or claims, except as do not materially interfere
with the uses made and to be made by the Company of such property or as
disclosed in the Financial Statements. The Company has valid and binding leases
to the real and personal property described in the Registration Statement or
Prospectus as being under lease to the Company, except as to those leases which
are not material to the Company or the lack of enforceability of which would not
materially interfere with the use made and to be made by the Company of such
leased property.
(p) There has been no unlawful storage, treatment or disposal of
waste by the Company at any of the facilities owned or leased thereby, except
for such violations which would not have a material adverse effect on the
condition, (financial or otherwise) or the shareholders' equity, results of
operation, business, properties or prospects of the Company. There has been no
material spill, discharge, leak, emission, ejection, escape, dumping or release
of any kind onto the properties owned or leased by the Company, or into the
environment surrounding those properties, of any toxic or hazardous substances,
as defined under any federal, state or local regulations, laws or statutes,
except for those releases either permissible under such regulations, laws or
statutes or otherwise allowable under applicable permits or which would not have
a material adverse effect on the condition (financial or otherwise) or the
shareholders' equity, results of operation, business, properties or prospects of
the Company.
(q) Each employee benefit plan (as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"))
("Employee Benefit Plan"), and each bonus, retirement, pension, profit sharing,
stock bonus, thrift, stock option, stock purchase, incentive, severance,
deferred or other compensation or welfare benefit plan, program,
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agreement or arrangement of, or applicable to employees or former employees of,
the Company or with respect to which the Company could have any liability
("Benefit Plans"), was or has been established, maintained and operated in all
material respects in compliance with all applicable federal, state, and local
statutes, orders, governmental rules and regulations, including, but not limited
to, ERISA and the Internal Revenue Code of 1986, as amended (the "Code"). No
Benefit Plan is or was subject to Title IV of ERISA or Section 302 of ERISA or
Section 412 of the Code. The Company does not, either directly or indirectly as
a member of a controlled group within the meaning of Sections 414(b), (c), (m)
and (o) of the Code ("Controlled Group"), have any material liability that
remains unsatisfied or arising under Section 502 of ERISA, Subchapter D of
Chapter 1 of Subtitle A of the Code or under Chapter 43 of Subtitle D of the
Code. No action, suit, grievance, arbitration or other matter of litigation or
claim with respect to any Benefit Plan (other than routine claims for benefits
made in the ordinary course of plan administration for which plan administrative
procedures have not been exhausted) is pending or, to the Company's knowledge,
threatened or imminent against or with respect to any Benefit Plan, any member
of a Controlled Group that includes the Company, or any fiduciary within the
meaning of Section 3(21) of ERISA with respect to a Benefit Plan which, if
determined adversely to the Company, would have a material adverse effect on the
Company. Neither the Company nor any member of a Controlled Group that includes
the Company, has any knowledge of any facts that could give rise to any action,
suit, grievance, arbitration or any other manner of litigation or claim with
respect to any Benefit Plan.
(r) No labor disturbance or dispute by the employees or
consultants or contractors of the Company exists or, to the Company's knowledge,
is threatened which could reasonably be expected to have a material adverse
effect on the conduct of the business or the financial condition (financial or
otherwise), results of operations, properties or prospects of the Company.
(s) Except as disclosed in the Prospectus:
(i) The Company owns or possesses the full rights to use or
is licensed to use all patents, patent applications, inventions,
copyrights, trademarks, service marks, applications for registration
of trademarks and service marks, trade secrets, know-how and other
intellectual property proprietary information or know-how reasonably
necessary for the conduct of its present or intended business as
described in the Prospectus ("Proprietary Rights"); there are no
pending legal, governmental or administrative proceedings relating to
the Proprietary Rights to which the Company is a party or of which any
property of the Company is subject; and no such proceedings are, to
the best of the Company's knowledge, threatened or contemplated
against the Company by any governmental agency or authority or by
others;
(ii) The Company has not received any notice of conflict or
claim with asserted intellectual property rights of any third parties;
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(iii) To the best of the Company's knowledge, the Company
does not infringe upon the rights or claimed rights of any person
under or, with respect to, any of the Proprietary Rights referred to
in Section 1(s)(i) above; except as disclosed in the Prospectus, the
Company is not obligated nor is it under any liability whatsoever to
make any payments by way of royalties, fees or otherwise to any owner
of, licensor of, or other claimant to, any Proprietary Rights, with
respect to the use thereof or in connection with the conduct of its
business or otherwise; and to the best of the Company's knowledge, the
Company is not using any confidential information or trade secrets of
any other party in the conduct of its business;
(iv) The Company has not entered into any consent,
indemnification, forbearance to xxx or settlement agreement with
respect to the Proprietary Rights other than in the ordinary course of
business;
(v) To the best of the Company's knowledge, the Proprietary
Rights are valid and enforceable and no registration relating thereto
has lapsed, expired or been abandoned or canceled or is the subject of
cancellation or other adversarial proceedings, and all applications
therefor are pending and are in good standing;
(vi) The Company has complied in all material respects with
its respective contractual obligations relating to the protection of
any Proprietary Rights used pursuant to licenses; and
(vii) The Company owns and/or has the unrestricted right to
use all trade secrets, including know-how, customer lists, inventions,
designs, processes, computer programs and any other technical data or
information necessary to the development, manufacture, operation and
sale of all products sold or proposed to be sold by it, free and clear
of any rights, liens and claims of others.
(t) The Company maintains insurance, which is in full force and
effect, of the types and in the amounts reasonably adequate for its business
and, to the best of its knowledge, consistent with coverage comparable to the
insurance maintained by similar companies or businesses.
(u) The Company has not sold any securities in violation of
Section 5 of the Act.
(v) The conditions for use of a registration statement on Form
SB-2 for the distribution of the Shares have been satisfied with respect to the
Company.
(w) The Company intends to apply the proceeds from the sale of the
Shares by it to the purposes and substantially in the manner set forth in the
Prospectus.
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(x) No person is entitled, directly or indirectly, to compensation
from the Company or the Underwriters for services as a finder in connection with
the transactions contemplated by this Agreement.
(y) All material transactions between the Company and its
stockholders who beneficially own more than 5% of any class of the Company's
voting securities have been accurately disclosed in the Prospectus, and the
terms of each such transaction are fair to the Company and no less favorable to
the Company than the terms that could have been obtained from unrelated parties.
(z) The Company has not distributed and will not distribute any
prospectus or other offering material in connection with the offering and sale
of the Shares other than any Preliminary Prospectus or the Prospectus or other
materials permitted by the Act to be distributed by the Company.
(aa) The Company has not taken and will not take, directly or
indirectly, any action designed to, or which has constituted, or which might
reasonably be expected to cause or result in, stabilization or manipulation of
the price of the Common Stock.
(bb) The Company's application for listing on the Nasdaq National
Market ("Nasdaq") has been approved, and, on the date the Registration Statement
became effective, the Company's Registration Statement on Form 8-A or other
applicable form under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), became effective.
(cc) To the Company's knowledge, none of the Company's officers,
directors or security holders has any affiliations with the National Association
of Securities Dealers, Inc., except as set forth in the Registration Statement
or as otherwise disclosed in writing to the Representative.
(dd) The Company has obtained a written agreement, enforceable by
the Representative, from each officer and director of the Company and
shareholder who holds __% or more of the outstanding Common Stock of the Company
that for 180 days following the Effective Date, such person will not, without
the Representative's prior written consent, sell, transfer or otherwise dispose
of, or agree to sell, transfer or otherwise dispose of, other than by gift to
donees who agree to be bound by the same restriction or by will or the laws of
descent, any of his or her Common Stock, or any options, warrants or rights to
purchase Common Stock or any shares of Common Stock received upon exercise of
any options, warrants or rights to purchase Common Stock, which are beneficially
held by such persons during such 180 day period.
(ee) The Company is not, and upon completion of the sale of the
Shares contemplated hereby will not be, required to register as an "investment
company" under the Investment Company Act of 1940, as amended.
(ff) The Company has complied and will comply with all provisions
of Florida Statutes Section 517.075 (Chapter 92-198, Laws of Florida). Neither
the Company, nor any
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affiliate thereof, does business with the government of Cuba or with any person
of affiliate located in Cuba.
(gg) Other than as contemplated by this Agreement, the Company has
not incurred any liability for any finder's fee, broker's fee or other agent's
commission in connection with the execution and delivery of this Agreement or
the consummation of the transactions contemplated hereby.
(hh) Any certificate signed by any officer of the Company and
delivered to the Representative or counsel to the Underwriters shall be deemed
to be a representation and warranty of the Company to each Underwriter as to the
matters covered thereby.
2. PURCHASE, SALE, DELIVERY AND PAYMENT.
(a) 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 issue and sell to each of the Underwriters, and the
Underwriters agree, severally and not jointly, to purchase from the Company the
Firm Shares, at a purchase price equal to ____% of the per Share price to public
of $_____ (the "Offering Price"), the respective amount of Firm Shares set
forth opposite such Underwriter's name in Schedule A hereto. The Underwriters
will collectively purchase all of the Firm Shares if any are purchased.
(b) On the basis of the representations and warranties herein
contained, but subject to the terms and conditions herein set forth, the Company
hereby grants an option to the Underwriters to purchase an aggregate of up to
300,000 Option Shares at the same purchase price as the Firm Shares for use
solely in covering any overallotments made by the Underwriters in the sale and
distribution of the Firm Shares. The option granted hereunder may be exercised
at any time (but not more than once) within 30 days after the Effective Date (as
defined in Section 5(a) hereof) upon notice (confirmed in writing) by the
Representative to the Company setting forth the aggregate number of Option
Shares as to which the Underwriters are exercising the option and the date on
which certificates for such Option Shares are to be delivered. Option Shares
shall be purchased severally for the account of each Underwriter in proportion
to the number of Firm Shares set forth opposite the name of such Underwriter in
Schedule A hereto. The option granted hereby may be canceled by the
Representative upon notice to the Company as to the Option Shares for which the
option is unexercised at the time of expiration of the 30 day period.
(c) The Company will deliver the Firm Shares to the Representative
at the offices of Xxxxxxxxxxx Xxxxx & Xxxxxxxx, Plaza VII, 00 Xxxxx Xxxxxxx
Xxxxxx, Xxxxx 0000, Xxxxxxxxxxx, XX 00000, unless some other place is agreed
upon, at 10:00 a.m., Minneapolis time, against payment of the purchase price at
the same place, on the third full business day after trading of the Shares has
commenced, or, if the offering commences after 4:30 p.m., on the fourth full
business day after commencement of the offering, or such earlier time as may be
agreed upon between the Representative and the Company, such time and place
being herein referred to as the "First Closing Date."
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(d) The Company will deliver the Option Shares being purchased by
the Underwriters to the Representative at the above-referenced offices of
Xxxxxxxxxxx Xxxxx & Xxxxxxxx set forth in Section 2(c) above, unless some other
place is agreed, at 10:00 a.m., Minneapolis time, against payment of the
purchase price at such place, on the date determined by the Representative and
of which the Company has received notice as provided in Section 2(b), which
shall not be earlier than two nor later than five full business days after the
exercise of the option as set forth in Section 2(b), or at such other time not
later than ten full business days thereafter as may be agreed upon by the
Representative and the Company, such time and date being herein referred to as
the "Second Closing Date."
(e) Certificates for the Shares to be delivered will be registered
in such names and issued in such denominations as the Underwriters shall request
two business days prior to the First Closing Date or the Second Closing Date, as
the case may be. The certificates will be made available to the Underwriters in
definitive form for the purpose of inspection and packaging at least twenty-four
(24) hours prior to the respective closing dates.
(f) Payment for the Shares shall be made by wire transfer to a
designated account of the Company for the Shares to be sold by it or by
certified or official bank check or checks in Clearing House funds, payable to
the order of the Company for the Shares to be sold by it.
3. UNDERWRITERS' OFFERING TO THE PUBLIC.
(a) The Underwriters will make a public offering of the Shares
directly to the public (which may include selected dealers who are members in
good standing of the National Association of Securities Dealers, Inc. (the
"NASD") or foreign dealers not eligible for membership in the NASD but who have
agreed to abide by the interpretation of the NASD Board of Governor's with
respect to free-riding and withholding) as soon as the Underwriters deem
practicable after the Registration Statement becomes effective at the Offering
Price, subject to the terms and conditions of this Agreement and in accordance
with the Prospectus. Concessions from the Offering Price may be allowed
selected dealers who are members of the NASD as the Underwriters determine and
the Underwriters will furnish the Company with such information about the
distribution arrangements as may be necessary for inclusion in the Registration
Statement. It is understood that the Offering Price and such concessions may
vary after the public offering. The Underwriters shall offer and sell the
Shares only in jurisdictions in which the offering of Shares has been duly
registered or qualified, or is exempt from registration or qualification, and
shall take reasonable measures to effect compliance with applicable state and
local securities laws.
(b) It is understood that the Representative, individually and not
as a Representative, may (but shall not be obligated to) make payment on behalf
of any Underwriter or Underwriters for the Shares to be purchased by such
Underwriter or Underwriters. No such payment by the Representative shall
relieve such Underwriter or Underwriters from any of its or their other
obligations hereunder.
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4. COVENANTS OF THE COMPANY.
The Company hereby covenants and agrees with each of the several
Underwriters as follows:
(a) If the Company has elected to rely on Rule 430A under the Act,
the Company will prepare and file a Prospectus (or term sheet within the meaning
of Rule 434 under the Act) containing the information omitted therefrom pursuant
to Rule 430A under the Act with the Commission within the time period required
by, and otherwise in accordance with the provisions of, Rules 424(b), 430A and
434, if applicable, under the Act; if the Company has elected to rely upon Rule
462(b) under the Act to increase the size of the offering registered under the
Act, the Company will prepare and file a registration statement with respect to
such increase with the Commission within the time period required by, and
otherwise in accordance with the provisions of, Rule 462(b) under the Act; the
Company will prepare and file with the Commission, promptly upon the request of
the Representative, any amendments or supplements to the Registration Statement
or Prospectus (including any term sheet within the meaning of Rule 434 under the
Act) that, in the opinion of the Representative, may be necessary or advisable
in connection with distribution of the Securities by Underwriters; and the
Company will not file any amendment or supplement to the Registration Statement
or Prospectus (including any term sheet within the meaning of Rule 434 under the
Act) to which the Representative shall reasonably object by notice to the
Company after having been furnished with a copy a reasonable time prior to the
filing.
(b) The Company will advise the Representatives promptly of (i)
any request of the Commission for amendment of the Registration Statement or for
supplement to the Prospectus or for any additional information, (ii) the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the use of the Prospectus, (iii) the suspension of the
qualification of the Shares for offering or sale in any jurisdiction, or (iv)
the institution or threatening of any proceedings for that purpose, and the
Company will use its best efforts to prevent the issuance of any such stop order
preventing or suspending the use of the Prospectus or suspending such
qualification and to obtain as soon as possible the lifting thereof, if issued.
(c) The Company will promptly prepare and file at its own expense
with the Commission any amendments of, or supplements to, the Registration
Statement and the Prospectus which may be necessary in connection with the
distribution of the Shares by the Underwriters. During the period when a
Prospectus relating to the Shares is required to be delivered under the Act, the
Company will promptly file any amendments of, or supplements to, the
Registration Statement and the Prospectus which may be necessary to correct any
untrue statement of a material fact or any omission to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. The Company will not file any amendment
of, or supplement to, the Registration Statement or Prospectus, after the
Effective Date, which shall not previously have been submitted to the
Representative and its counsel a reasonable time prior to such proposed filing
or to which the Representative shall have reasonably objected. In case any
Underwriter is required to deliver a
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prospectus in connection with sales of any Shares at any time nine months or
more after the effective date of the Registration Statement, upon the request of
the Representative but at the expense of such Underwriter, the Company will
prepare and deliver to such Underwriter as many copies as the Representative may
request of an amended or supplemented Prospectus complying with Section 10(a)(3)
of the Act.
(d) The Company will endeavor to qualify the Shares for sale under
the securities laws of such jurisdictions as the Representative may reasonably
designate and the Company will file such consents to service of process or other
documents necessary or appropriate in order to effect such qualification or
registration. In each jurisdiction in which the Shares shall have been
qualified or registered as above provided, the Company will continue such
qualifications or registrations in effect for so long as may be required for
purposes of the distribution of the Shares and make and file such statements and
reports in each year as are or may be reasonably required by the laws of such
jurisdiction to permit secondary trading of the same; provided, however, that in
no event shall the Company be obligated to qualify to do business in any
jurisdiction where it is not now so qualified or to take any action which would
subject it to the service of process in suits, other than those arising out of
the offering or sale of the Shares.
(e) The Company will furnish to the Representative, as soon as
available, copies of the Registration Statement and all amendments (two of which
will be signed and which shall include all exhibits), each Preliminary
Prospectus, if any, the Prospectus and any amendments or supplements to such
documents including any prospectus prepared to permit compliance with Section
10(a)(3) of the Act, all in such quantities as the Representative may from time
to time reasonably request. The Company specifically authorizes the
Underwriters and all dealers to whom any of the Shares may be sold by the
Underwriters to use and distribute copies of such Preliminary Prospectuses and
Prospectuses in connection with the sale of the Shares as and to the extent
permitted by the federal and applicable state and local securities laws.
(f) The Company will make generally available to its security
holders an earnings statement, in a form complying with requirements of Section
11(a) of the Act and Rule 158 thereunder, as soon as practicable and in any
event not later than 45 days after the end of its fiscal quarter in which occurs
the first anniversary date of the Effective Date, meeting the requirements of
Section 11(a) of the Act covering a period of at least 12 consecutive months
beginning after the Effective Date, and will advise you in writing when such
statement has been so made available.
(g) The Company will, for such period up to five years from the
First Closing Date, deliver to the Representatives copies of its annual report
and copies of all other documents, and information furnished by the Company to
its security holders or filed with any securities exchange pursuant to the
requirements of such exchange or with the Commission pursuant to the Act or the
Exchange Act, or any state securities commission by the Company. The Company
will deliver to the Representatives similar reports with respect to significant
subsidiaries, if any, as that term is defined in the rules and regulations under
the Act, which are not consolidated in the Company's financial statements.
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(h) The Company will not, without the prior written consent of the
Representative, offer, sell or otherwise dispose of any capital stock of the
Company or warrants, options, convertible securities or other rights to assign
any shares of capital stock (other than pursuant to employee stock options, the
conversion of convertible securities outstanding on the date of this Agreement,
or currently outstanding options and warrants) for a period of 180 days after
the Effective Date.
(i) The Company shall be responsible for and pay all costs and
expenses incident to the performance of its obligations under this Agreement
including, without limiting the generality of the foregoing, (i) all costs and
expenses in connection with the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits),
Preliminary Prospectuses, if any, the Prospectus and any amendments thereof or
supplements to any of the foregoing; (ii) the issuance and delivery of the
Shares, including taxes, if any; (iii) the cost of all certificates representing
the Shares; (iv) the fees and expenses of the Transfer Agent for the Shares; (v)
the fees and disbursements of counsel for the Company; (vi) all fees and other
charges of the independent public accountants of the Company; (vii) the cost of
furnishing and delivering to the Underwriters and dealers participating in the
offering copies of the Registration Statement (including appropriate exhibits),
Preliminary Prospectuses, the Prospectus and any amendments of, or supplements
to, any of the foregoing; (viii) the NASD filing fee; (ix) all fees and expenses
of counsel for the Representative incurred in qualifying the Shares for sale
under the laws of such jurisdictions designated by the Representative (including
filing fees).
(j) The Company will not take, and will use its best efforts to
cause each of its officers and directors not to take, directly or indirectly,
any action designed to or which might reasonably be expected to cause or result
in the stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares and will not effect any sales of
any security of the Company which are required to be disclosed in response to
Item 701 of Regulation S-X of the Commission which have not been so disclosed in
the Registration Statement.
(k) Upon completion of this offering, the Company will use its
best efforts to maintain the listing of its Common Stock on the National
Association of Securities Dealers Automated Quotation System (Nasdaq) National
Market or any other national securities exchange.
(l) The Company will apply the net proceeds from the sale of the
Shares substantially in the manner set forth in the Prospectus.
(m) During the period ending 270 days from the Effective Date, the
Company agrees that it will issue press releases, make public statements and
respond to inquiries of the press and securities analysts only after conferring
with its counsel and with the Representative.
(n) Prior to or as of either closing date, the Company shall have
performed each condition to closing required to be performed by the Company
pursuant to Section 5 hereof.
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5. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS.
The respective obligations of the Underwriters to purchase and pay for the
Shares as provided herein shall be subject to the accuracy of the
representations and warranties of the Company, in the case of the Firm Shares as
of the date hereof and the First Closing Date (as if made on and as of the First
Closing Date), and in the case of the Option Shares, as of the date hereof and
the Second Closing Date (as if made on and as of the Second Closing Date), to
the performance by the Company of its obligations hereunder, and to the
satisfaction of the following additional conditions on or before the First
Closing Date in the case of the Firm Shares and on or before the Second Closing
Date in the case of the Option Shares:
(a) The Registration Statement has been declared effective as of
_________.m Minneapolis time on ____________, 1998 (the "Effective Date"). All
filings required by Rules 424, 430A and 434 under the Act shall have been timely
made. No stop order suspending the effectiveness thereof shall have been issued
and no proceeding for that purpose shall have been initiated or, to the
knowledge of the Company or the Representative, threatened by the Commission or
any state securities commission or similar regulatory body. Any request of the
Commission for additional information (to be included in the Registration
Statement or the Prospectus or otherwise) shall have been complied with to the
satisfaction of the Underwriters and their legal counsel.
(b) The Representative shall not have advised the Company that the
Registration Statement or Prospectus, or any amendment thereof or supplement
thereto, contains any untrue statement of a fact which is material or omits to
state a fact which is material and is required to be stated therein or is
necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that this Section 5(b) shall not apply to statements in, or omissions from, the
Registration Statement or Prospectus or any amendment thereof or supplement
thereto, which are based upon and conform to written information furnished to
the Company by any of the Underwriters specifically for use in the preparation
of the Registration Statement or the Prospectus, or any such amendment or
supplement.
(c) Subsequent to the Effective Date, and except as contemplated
or referred to in the Prospectus, the Company shall not have incurred any direct
or contingent liabilities or obligations material to the Company, or entered
into any material transactions, except liabilities, obligations or transactions
in the ordinary course of business, or declared or paid any dividends or made
any distribution of any kind with respect to its capital stock; and there shall
not have been any change in the capital stock (other than a change in the number
of outstanding shares of Common Stock due to the exercise of options or warrants
described in the Registration Statement and the Prospectus), or any change in
the short-term debt or long-term debt (including capitalized lease obligations)
of the Company, or any issuance of options, warrants, convertible securities or
other rights to purchase the capital stock of the Company or any change or any
development involving a prospective change in or affecting the general affairs,
management, financial position, shareholders' equity or results of operations of
the Company, otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in the judgment of the Representatives
-15-
makes it impracticable or inadvisable to proceed with the public offering or the
delivery of the Shares being delivered.
(d) The Representative shall have received the opinion of
Xxxxxxxxxx & Xxxxx, P.A., counsel for the Company, dated the First Closing Date
or the Second Closing Date, as the case may be, addressed to the Underwriters
covering certain corporate matters to the effect that:
(i) The Company as been duly incorporated and is validly
existing in good standing under the laws of the State of Minnesota;
has the corporate power to own, lease and operate its properties and
conduct its businesses as described in the Prospectus; and is duly
qualified to do business as a foreign corporation in good standing in
all jurisdictions where the ownership or leasing of its properties or
the conduct of its business requires such qualification and in which
the failure to be so qualified or in good standing would have a
material adverse effect on condition (financial or otherwise),
shareholders' equity, results of operations, business, properties or
prospects of the Company.
(ii) The Company has the number of authorized and
outstanding shares of capital stock of the Company as set forth under
the caption "Capitalization" of the Prospectus, and all issued and
outstanding capital stock of the Company has been duly authorized and
is validly issued, fully paid and nonassessable. There are no
statutory preemptive rights, or to the best knowledge of such counsel,
no similar subscription or purchase rights of securities holders of
the Company with respect to issuance or sale of the Shares by the
Company pursuant to this Agreement, and no rights to require
registration of shares of Common Stock or other securities of the
Company because of the filing of the Registration Statement exist.
The Shares conform as to matters of law in all material respects to
the description of such made in the Prospectus, and such description
accurately sets forth the material legal provisions thereof required
to be set forth in the Prospectus.
(iii) The Shares have been duly authorized and, upon delivery
to the Underwriters against payment therefor, will be validly issued,
fully paid and nonassessable.
(iv) The certificates evidencing the Shares comply as to
form with the applicable provisions of the laws of the State of
Minnesota.
(v) The Registration Statement has become effective under
the Act and, to the knowledge of such counsel, no stop orders
suspending the effectiveness of the Registration Statement have been
issued and no proceedings for that purpose have been instituted or are
pending or, to the knowledge of such counsel, contemplated under the
Act.
(vi) To such counsel's knowledge, there are not material
legal or
-16-
governmental proceedings, pending or threatened, before any court or
administrative body or regulatory agency, to which the Company or its
affiliates is a party or to which any of the properties of the Company
or its affiliates are subject that are required to be disclosed in the
Registration Statement or Prospectus that are not so described, or
statutes, regulations, or legal or governmental proceedings that are
required to be described in the Registration Statement or Prospectus
that are not so described.
(vii) To such counsel's knowledge, there are no franchises,
leases, contracts, agreements or documents of a character required to
be disclosed in the Registration Statement or Prospectus or to be
filed as exhibits to the Registration Statement or required to be
incorporated by reference into the Prospectus which are not disclosed
or filed or incorporated by reference, as required.
(viii) No authorization, approval or consent of any
governmental authority or agency is necessary in connection with the
issuance and sale of the Shares as contemplated under this Agreement,
except such as may be required under the Act or under state or other
securities laws in connection with the purchase and distribution of
the Shares by the Underwriters.
(ix) The Registration Statement and the Prospectus and any
amendments thereof or supplements thereto (other than the financial
statements and schedules and supporting financial and statistical data
and information included or incorporated therein, as to which such
counsel need express no opinion) conform in all material respects with
the requirements of the Act and the Rules and Regulations, and the
conditions for use of a registration statement on Form SB-2 for the
distribution of the Shares have been satisfied with respect to the
Company.
(x) The statements (i) in the Prospectus under the caption
"Risk Factors -- Government Regulation," "-- Hazardous Materials,"
"--Anti-Takeover Laws," "-- Potential Adverse Market Impact of Shares
Eligible for Future Sale," "Business -- Current Licensing
Arrangements," "-- Government Regulation," "-- Facilities," "-- Legal
Proceeding," "Management - Stock Option Plan," "Description of Capital
Stock," "Shares Eligible for Future Sale" and (ii) in the Registration
Statement in Item 14 insofar as such statements constitute a summary
of statutes, legal and governmental proceeding contracts and other
documents, are accurate summaries and fairly present the information
called for with respect to such matters.
(xi) Such counsel does not know of any contracts,
agreements, documents or instruments required to be filed as exhibits
to the Registration Statement or described in the Registration
Statement or the Prospectus which are not so filed or described as
required, and does not know of any amendment to the Registration
Statement required to be filed that has not been filed; and insofar as
-17-
any statements in the Registration Statement or the Prospectus
constitute summaries of any contract, agreement, document or
instrument to which the Company is a party, such statements are
accurate summaries and fairly present the information called for with
respect to such matters.
(xii) To such counsel's knowledge, there are no defects in
title or leasehold interests, or any liens, encumbrances, equities,
charges or claims, not disclosed in the Registration Statement or
Prospectus which would materially affect the present occupancy or use
of any of the real or personal property owned or leased by the
Company.
(xiii) The Company has the corporate power and authorization
to enter this Agreement and to authorize, issue and sell the Shares as
contemplated hereby. This Agreement has been duly authorized,
executed and delivered by, and is a valid and binding agreement of the
Company, enforceable in accordance with its terms, except as
enforceability may be limited by the application of bankruptcy,
insolvency, moratorium or similar laws affecting the rights of
creditors generally and judicial limitations on the right of specific
performance and other equitable remedies and except as the
enforceability of indemnification or contribution provisions hereof
may be limited by action of a court interpreting or applying federal
or state securities laws or equitable principles.
(xiv) The performance of this Agreement and the consummation
of the transactions described herein will not result in a violation of
or default under, the Company's [AMENDED AND RESTATED] Articles of
Incorporation, Bylaws or other governing documents. To the best of
such counsel's knowledge, (a) the Company is not in violation of, or
in default under, its [AMENDED AND RESTATED] Articles of
Incorporation, Bylaws or other governing documents; and (b) the
performance of this Agreement and the consummation of the transactions
described herein will not result in a material violation of, or a
material default under, the terms or provisions of (A) any bond,
debenture, note, or other evidence of indebtedness or any contract,
license, indenture, mortgage, loan agreement, joint venture or
partnership agreement, lease, agreement or instrument to which the
Company is a party or by which the Company or any of its properties is
bound, or (B) any law, order, rule, regulation, writ, injunction, or
decree known to such counsel of any government, governmental agency or
court having jurisdiction over the Company or any of its properties.
(xv) To such counsel's knowledge, sales of unregistered
securities by the Company prior to the Effective Date were exempt from
registration requirements of the Act and are not required to be
integrated, under Rule 502(a) of Regulation D of the Act, with the
public offering contemplated hereby.
-18-
(xvi) The Company is not, and immediately upon completion of
the sale of the Shares contemplated hereby will not be required to
register as an "investment company" under the Investment Company Act
of 1940, as amended.
(xvii) To the best of such counsel's knowledge, the Company is
not engaged in any negotiations regarding any form of business
combination with an other entity.
In expressing the foregoing opinion, as to matters of fact relevant to
conclusions of law, counsel may rely, to the extent that they deem proper, upon
certificates of public officials and of the officers of the Company, and
opinions of other legal counsel to the Company, provided that copies of all such
certificates and opinions are attached to the opinion.
In addition to the matters set forth above, such opinion shall also
include a statement to the effect that, although such counsel cannot guarantee
the accuracy, completeness or fairness of any of the statements contained in the
Registration Statement or Prospectus, in connection with such counsel's
representation, investigation and due inquiry of the Company in the preparation
of the Registration Statement and Prospectus, such counsel has no reason to
believe that, (i) as of its Effective Date, the Registration Statement or any
further amendment thereto (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion) made by the
Company prior to the First Closing Date or the Second Closing Date, as the case
may be, 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 (ii), as of its date, the Prospectus or any further
amendment or supplement thereto (other than the financial statements and related
schedules therein, as to which such counsel need express no opinion) made by the
Company prior to the First Closing Date or the Second Closing Date, as the case
may be, contained an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading or (iii), as of the First
Closing Date or the Second Closing Date, as the case may be, either the
Registration Statement or the Prospectus or any further amendment or supplement
thereto (other than the financial statements and related schedules therein, as
to which such counsel need express no opinion) made by the Company prior to the
First Closing Date or the Second Closing Date, as the case may be, contains an
untrue statement of a material fact or omits to state a material fact necessary
to make the statements therein, in light of the circumstances in which they were
made, not misleading.
(e) The Representative shall have received on the First Closing
Date or the Second Closing Date, as the case may be, the opinion of Xxxxxxxxxx &
Xxxxx, P.A., intellectual property counsel for the Company, dated the First
Closing Date or the Second Closing Date, as the case may be, addressed to the
Underwriters, covering matters relating to the patents and other intellectual
property owned or licensed by the Company as set forth in Schedule D.
(f) The Representative shall have received from Xxxxxxxxxxx Xxxxx
& Xxxxxxxx, its counsel, such opinion or opinions as the Representative may
reasonably require, dated the First Closing Date or the Second Closing Date, as
the case may be, with respect to the
-19-
sufficiency of corporate proceedings and other legal matters relating to this
Agreement and the transactions contemplated hereby, and other related matters as
the Representative may reasonably request; and the Company and its counsel shall
have furnished to said counsel such documents as they may have reasonably
requested for the purpose of enabling them to pass upon such matters. In
connection with such opinion, as to matters of fact relevant to conclusions of
law, such counsel may rely, to the extent that they deem proper, upon
representations or certificates of public officials and of responsible officers
of the Company.
(g) The Representative and the Company shall have received
letters, dated the date hereof and the First Closing Date and the Second Closing
Date, as the case may be, from Xxxxxx Xxxxxxxx LLP, to the effect that they are
independent public accountants with respect to the Company within the meaning of
the Act and the related rules and regulations, stating that in their opinion the
financial statements and schedules examined by them an included in the
Registration Statement comply in form in all material respects with the
applicable accounting requirements of the Act and the related rules and
regulations, and containing such other statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters with
respect to the financial statements and certain financial information contained
in the Registration Statement and the Prospectus.
(h) The Representative shall have received from the Company a
certificate, dated as of each Closing Date, of the Chief Executive Officer and
the Chief Financial Officer of the Company to the effect that as of the First
Closing Date and the Second Closing Date:
(i) The representations and warranties of the Company in
this Agreement are true and correct as if made on and as of each
Closing Date. The Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied
at, or prior to, each such Closing Date.
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceeding for that
purpose has been instituted or is pending or to the best knowledge of
such officers contemplated under the Act.
(iii) Neither the Registration Statement nor the Prospectus
nor any amendment thereof or supplement thereto includes any untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not
misleading, and, since the Effective Date, there has occurred no event
required to be set forth in an amended or supplemented prospectus
which has not been so set forth; provided, however, that such
certificate does not require any representation concerning statements
in, or omissions from, the Registration Statement or Prospectus or any
amendment thereof or supplement thereto, which are based upon and
conform to written information furnished to the Company by any of the
Underwriters specifically for use in the preparation of the
Registration Statement or the Prospectus or any such amendment or
supplement.
-20-
(iv) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus
and except as contemplated or referred to in the Prospectus, the
Company has not incurred any direct or contingent liabilities or
obligations material to the Company, or entered into any material
transactions, except liabilities, obligations or transactions in the
ordinary course of business, or declared or paid any dividend or made
any distribution of any kin with respect to its capital stock, and
there has not been any change in the capital stock (other than a
change in the number of outstanding shares of Common Stock due to the
exercise of options or warrants described in the Registration
Statement and the Prospectus) and there has not been any material
adverse change in the capital stock, short-term debt, or long-term
debt (including capitalized lease obligations) of the Company, or any
material adverse change or any development involving a prospective
material adverse change (whether or not arising in the ordinary course
of business) in or affecting the general affairs, condition (financial
or otherwise), business, key personnel, property, prospects,
shareholders' equity or results of operations of the Company.
(v) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
the Company has not sustained any material loss of, or damage to, its
properties, whether or not insured.
(vi) Except as is otherwise expressly stated in the
Registration Statement and Prospectus there are no material actions,
suits or proceedings pending before any court or governmental agency,
authority or body, or, to the best of such officer's knowledge,
threatened, to which the Company is a party or of which the business
or property of the Company is the subject.
(i) The Representative shall have received, dated as of each
Closing Date, from the Secretary of the Company a certificate of incumbency
certifying the names, titles and signatures of the officers authorized to
execute the resolutions of the Board of Directors of the Company authorizing and
approving the execution, delivery and performance of this Agreement, a copy of
such resolutions to be attached to such certificate, certifying such resolutions
and certifying that the [AMENDED AND RESTATED] Articles of Incorporation and the
Bylaws of the Company have been validly adopted and have not been amended or
modified, except as described in the Prospectus.
(j) The Representative shall have received a written agreement,
enforceable by the Representative, from each of officer and director of the
Company and each shareholder who holds _____ % or more of the outstanding Common
Stock of Company, that for 180 days following the Effective Date, such person
will not, without the Representative's prior written consent, sell, transfer or
otherwise dispose of, or agree to sell, transfer or otherwise dispose of, other
than by gift to donees who agree to be bound by the same restriction or by will
or the laws of descent, any of his or her Common Stock, or any options, warrants
or rights to purchase Common Stock or any shares of Common Stock received upon
exercise of any options, warrants
-21-
or rights to purchase Common Stock, all of which are beneficially held by such
persons during the 180 day period.
(k) The Company's Common Stock shall have been approved for
listing on the Nasdaq National Market.
(l) The Company shall have furnished to the Underwriters, dated as
of the date of each Closing Date, such further certificates and documents as the
Underwriters shall have reasonably required.
(m) All such opinions, certificates, letters and documents will be
in compliance with the provisions hereof only if they are reasonably
satisfactory to the Representative and their legal counsel. All statements
contained in any certificate, letter or other document delivered pursuant hereto
by, or on behalf of, the Company shall be deemed to constitute representations
and warranties of the Company.
(n) The Representative may waive in writing the performance of any
one or more of the conditions specified in this Section 5 or extend the time for
their performance.
(o) If any of the conditions specified in this Section 5 shall not
have been fulfilled when and as required by this Agreement to be fulfilled, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, each closing date by the Representative. Any such
cancellation shall be without liability of the Underwriters to the Company or to
any other party, and shall not relieve the Company of its obligations under
Section 4(h) hereof. Notice of such cancellation shall be given to the Company
at the address specified in Section 11 hereof in writing, or by facsimile or
telephone and confirmed in writing.
6. INDEMNIFICATION.
(a) The Company hereby agrees to indemnify and hold harmless each
Underwriter, each officer and director thereof, and each person, if any, who
controls any Underwriter within the meaning of the Act, against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter or
each such person may become subject, under the Act, the Exchange Act, the common
law or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof), arise out of, or are based upon, (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, any Preliminary Prospectus or the Prospectus including
any amendment thereof, or (ii) the omission or alleged omission to state in the
Registration Statement, any Preliminary Prospectus or Prospectus including any
amendment thereof 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; or (iii) any untrue statement or alleged untrue statement
of a material fact contained in any application or other statement executed by
the Company or based upon written information furnished by the Company filed in
any jurisdiction in order to quality the Shares under, or exempt the Shares or
the sale thereof from qualification under, the securities laws of such
jurisdiction, or the omission or alleged omission to state in such application
or statement a
-22-
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; and the Company will reimburse each Underwriter and each such
controlling person for any legal or other expenses reasonably incurred by such
Underwriter or controlling person (subject to the limitation set forth in
Section 6(c) hereof, in connection with investigating or defending against 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, any untrue statement, or alleged untrue statement, omission or alleged
omission, made in reliance upon and in conformity with information furnished to
the Company by, or on behalf of, any Underwriter in writing specifically for use
in the preparation of the Registration Statement or any such post effective
amendment thereof, any such Preliminary Prospectus or the Prospectus or any such
amendment thereof or supplement thereto; and provided further, that the
foregoing indemnity agreement is subject to the condition that, insofar as it
relates to any untrue statement, alleged untrue statement, omission or alleged
omission made in any Preliminary Prospectus but eliminated, remedied or
corrected in the Prospectus (or any amendment or supplement thereto) such
indemnity agreement shall not inure to the benefit of any Underwriter (or to the
benefit of any person who controls such Underwriter), if the person asserting
any loss, claim, damage or liability as a result of such untrue statement or
omission purchased the Shares from such Underwriter and was not sent or given a
copy of the Prospectus with, or prior to, the written confirmation of the sale
of such Shares to such person by such Underwriter unless such failure to deliver
the Prospectus (as amended or supplemented) was the result of noncompliance by
the Company with Section 4(c). This indemnity agreement is in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally, but not jointly, agrees to
indemnify and hold harmless the Company, each of the Company's directors, each
of the Company's officers who has signed the Registration Statement and each
person who controls the Company within the meaning of the Act against any
losses, claims, damages or liabilities to which the Company or any such
director, officer, or controlling person may become subject, under the Act, the
Exchange Act, the common law, or otherwise, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of, or are
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, any Preliminary Prospectus or
Prospectus, including any amendment thereof, (ii) the omission or alleged
omission to state in the Registration Statement, any Preliminary Prospectus or
Prospectus including any amendment thereof 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; or (iii) any untrue
statement or alleged untrue statement of a material fact contained in any
application or other statement executed by the Company or by any Underwriter and
filed in any jurisdiction in order to qualify the Shares under, or exempt the
Shares or the sale thereof from qualification under, the securities laws of such
jurisdiction, or the omission or alleged omission to state in such application
or statement 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; in each of the above cases to the extent, but only the
extent, that such untrue statement, alleged untrue statement, omission or
alleged omission, was made in reliance upon and in conformity with information
furnished to the Company by, or on behalf of, any
-23-
Underwriter in writing specifically for use in the preparation of the
Registration Statement or any such post effective amendment thereof, any such
Preliminary Prospectus or the Prospectus or any such amendment thereof or
supplement thereto, or in any application or other statement executed by the
Company or by any Underwriter and filed in any jurisdiction; and each
Underwriter will reimburse any legal or other expenses reasonably incurred by
the Company or any such director, officer or controlling person in connection
with investigating or defending against any such loss, claim, damage, liability
or action as such expenses are incurred. This indemnity agreement is in
addition to any liability which the Underwriters may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action or proceeding (including
any governmental investigation), such indemnified party will, if a claim in
respect thereof is to be made against any indemnifying party under this Section
6, notify in writing the indemnifying party of the commencement thereof. The
failure to so notify the indemnifying party will not relieve such party from any
liability under this Section 6 as to the particular item for which
indemnification is then being sought, unless such failure so to notify
prejudices the indemnifying party's ability to defend such action. In case any
such action is brought against any indemnified party and the indemnified party
notifies an indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein and, to the extent that it may
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel who shall be reasonably satisfactory to such
indemnified 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 6 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; provided, however, that if, in the reasonable judgment
of the indemnified party, it is advisable for such parties and controlling
persons to be represented by separate counsel, any indemnified party shall have
the right to employ separate counsel to represent it and all other parties and
their controlling persons who may be subject to liability arising out of any
claim in respect of which indemnity may be sought by the Underwriters against
the Company or by the Company against the Underwriters hereunder, in which event
the fees and expenses of such separate counsel shall be borne by the
indemnifying party; provided, however, if the indemnified party shall have
reasonably concluded that there may be legal defenses available to it and/or
other indemnified parties which are different from or additional to those
available to the indemnifying party, or the indemnified and indemnifying parties
may have conflicting interests which would make it inappropriate for the same
counsel to represent both of them, the indemnified party shall have the right to
select separate counsel to assume such defense and to otherwise participate in
the defense of such action on behalf of such indemnified party and all other
parties and their controlling persons. Any such indemnifying party shall not be
liable to any such indemnified party on account of any settlement of any claim
or action effected without the consent of such indemnifying party.
7. CONTRIBUTION.
(a) If the indemnification provided for in Section 6 is
unavailable or insufficient to hold harmless any indemnified party in respect of
any losses, claims, damages or
-24-
liabilities referred to therein, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities in such proportion as is appropriate to
reflect the relative benefits received by the Company and the Underwriters from
the offering of the Shares. In the event that the allocation provided by the
immediately preceding sentence is not permitted by applicable law, then each
indemnifying party shall contribute in such proportion as is appropriate to
reflect not only the relative benefits referred to above but also the relative
fault of the Company and the Underwriters 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 Company and the
Underwriters agree that contribution determined by per capita allocation (even
if the Underwriters were considered a single person) would not be equitable.
The respective 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 (a)
in the case of the Company, as the total price paid to the Company for the
Shares by the Underwriters (net of underwriting discount received but before
deducting expenses) bears to the aggregate Offering Price of the Shares, and (b)
in the case of the Underwriters, as the aggregate underwriting discount received
by them bears to the aggregate Offering Price of the Shares, in each case as
reflected in the Prospectus. The relative fault of the Company and the
Underwriters shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses,
claims, damages and liabilities 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 action or claim. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Shares
underwritten by it were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of any
untrue or alleged untrue statement or omission or alleged omission in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto. The Underwriters' obligation to contribute
pursuant to this Section 7 is several and not joint. No person guilty of
fraudulent misrepresentation (within the meaning of the Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person who controls an
Underwriter within the meaning of the Act or the Exchange Act shall have the
same rights to contribution as such Underwriter, each person who controls the
Company within the meaning of the Act or the Exchange Act shall have the same
rights to contribution as the Company and each officer of the Company who shall
have signed the Registration Statement and each director of the Company shall
have the same rights to contribution as the Company.
(b) Promptly after receipt by a party to this Agreement of notice
of the commencement of any action, suit, or proceeding, such person will, if a
claim for contribution in respect thereof is to be made against another party
(the "Contributing Party"), notify the Contributing Party of the commencement
thereof, but the failure to so notify the Contributing Party will not relieve
the Contributing Party from any liability which it may have to any party
-25-
other than under this Section 7, unless such failure to so notify prejudices the
Contributing Party's ability to defend such action. Any notice given pursuant to
Section 6 hereof shall be deemed to be like notice hereunder. In case any such
action, suit or proceeding is brought against any party, and such person
notifies a Contributing Party of the commencement thereof, the Contributing
Party will be entitled to participate therein with the notifying party and any
other Contributing Party similarly notified.
(c) The obligations of the Company under this Section 7 shall be
in addition to any liability which the Company may otherwise have, and the
obligations of the Underwriter under this Section 7 shall be in addition to any
liability which the Underwriters may otherwise have.
8. EFFECTIVE DATE AND TERMINATION.
(a) This Agreement shall become effective at the later of (i) the
day upon which this Agreement shall have been executed and delivered by the
parties hereto, or (ii) (ii) at 10:00 a.m. Minneapolis time, on the first full
business day following the Effective Date, or at such earlier time after the
Effective Date as the Representative in its discretion shall first release the
Shares for offering to the public. For purposes of this Section 8, the Shares
shall be deemed to have been released to the public upon release by the
Representative of the publication of a newspaper advertisement relating to the
Shares or upon release of a telegram or a letter offering the Shares for sale to
securities dealers, whichever shall first occur.
(b) The Representative shall have the right to terminate this
Agreement by giving notice to the Company as hereinafter specified at any time
prior to the First Closing Date, and the option referred to in Section 2(b), if
exercised, may be canceled at any time by the Representative by giving such
notice to the Company at any time prior to the Second Closing Date, if (i) the
Company shall have failed, refused or been unable, at or prior to the First
Closing Date, to perform any material agreement on its part to be performed
hereunder; (ii) any other condition of the Underwriters' obligations hereunder
is not fulfilled; (iii) trading in securities generally on the New York Stock
Exchange, American Stock Exchange or the Nasdaq Stock Market shall have been
suspended, or minimum or maximum prices for trading shall have been required or
established by the Commission or by any such exchange or the Nasdaq Stock
Market; (iv) a banking moratorium shall have been declared by federal, New York
or Minnesota authorities; (v) there shall have been such a material adverse
change in general economic, monetary, political or financial conditions, or the
effect of international conditions on the financial markets in the United States
shall be such as, in the judgment of the Representative, makes it impracticable
or inadvisable to proceed with the completion of the sale of and payment for the
Shares; (vi) there shall have been the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order of any
court or other governmental authority, which in the judgment of the
Representative materially and adversely affects or will materially and adversely
affect the business or operations of the Company; or (vii) there shall be an
outbreak of major hostilities (or an escalation thereof) in which the United
States is involved or a formal declaration of war by the United States of
America shall have occurred or any other substantial national or international
calamity or any other event or
-26-
occurrence of a similar character shall have occurred since the execution of
this Agreement that, in the judgment of the Representative, makes it
impracticable or inadvisable to proceed with the completion of the sale of and
payment for the Shares. Any such termination shall be without liability of any
party to any other party, except as provided in Sections 6 and 7 hereof;
provided, however, that the Company shall remain obligated to pay costs and
expenses to the extent provided in Section 4(i) hereof.
(c) If the Representative elects to prevent this Agreement from
becoming effective or to terminate this Agreement as provided in this Section 8,
it shall notify the Company promptly by telecopy or telephone, confirmed by
letter sent to the address specified in Section 11 hereof. If the Company shall
elect to prevent this Agreement from becoming effective, it shall notify the
Representative promptly by telecopy or telephone, confirmed by letter sent to
the address specified in Section 11 hereof.
(d) If the Company shall fail at the First Closing Date to sell
and deliver the number of Shares which it is obligated to sell hereunder, then
this Agreement shall terminate without any liability on the part of any
Underwriter. No action taken pursuant to this Section 8(d) shall relieve the
Company from liability, if any, in respect of such default.
9. DEFAULT OF UNDERWRITER.
If on the First Closing Date or the Second Closing Date, as the case may
be, any Underwriter shall fail to purchase and pay for the portion of the Shares
which such Underwriter has agreed to purchase and pay for on such date
(otherwise than by reason of any default on the part of the Company), you, as
Representative of the Underwriters, shall use your best efforts to procure
within 36 hours thereafter one or more of the other Underwriters, or any others,
to purchase from the Company such amounts as may be agreed upon, and upon the
terms set fort herein, of the Firm Shares or Option Shares, as the case may be,
which the defaulting Underwriter or Underwriters failed to purchase. If during
such 36 hours you, as Representative, shall not have procured such other
Underwriters, or any others, to purchase the Firm Shares or Option Shares, as
the case may be, agreed to be purchased by the defaulting Underwriter or
Underwriters, then (i) if the aggregate number of Shares with respect to which
such default shall occur does no exceed 10% of the Firm Shares or Option Shares,
as the case may be, covered hereby the other Underwriters shall be obligated,
severally, in proportion to the respective numbers of Firm Shares or Option
Shares, as the case may be, which they are obligated to purchase hereunder, to
purchase the Firm Shares or Option Shares, as the case may be, which such
defaulting Underwriter or Underwriters failed to purchase or (ii) if the
aggregate number of shares of Firm Shares or Option Shares, as the case may be,
with respect to which such default shall occur exceeds 10% of the Firm Shares or
Option Shares, as the case may be, covered hereby, the Company or you as the
Representative of the Underwriters will have the right, by written notice given
within the next 36-hour period to the parties to this Agreement, to terminate
this Agreement without liability on the part of the non-defaulting Underwriters
or of the Company except for expenses to be borne by the Company and the
Underwriters as provided in Section 4(i) hereof and the indemnity and
contribution agreements in Sections 6 and 7 hereof. In
-27-
the event of a default by any Underwriter or Underwriters, as set forth in this
Section 9, the First Closing Date or Second Closing Date, as the case may be,
may be postponed for such period, not exceeding seven days, as you, as
Representatives, may determine in order that the required changes, not including
a reduction in the number of Firm Shares, in the Registration Statement or in
the Prospectus or in any other documents or arrangements may be effected. The
term "Underwriter" includes any person substituted for a defaulting Underwriter.
Any action taken under this Section 9 shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
10. SURVIVAL.
The respective indemnity and contribution agreements of the Company and the
Underwriters contained in Sections 6 and 7, respectively, the representations
and warranties of the Company set forth in Section 1 hereof and the covenants of
the Company set forth in Section 4 hereof shall remain operative and in full
force and effect, regardless of any investigation made by, or on behalf of, the
Underwriters, the Company, any of its officers and directors or any controlling
person referred to in Sections 6 and 7 and shall survive the delivery of and
payment for the Shares. The aforesaid indemnity and contribution agreements
shall also survive any termination or cancellation of this Agreement. Any
successor of any party or of any such controlling person, or any legal
representative of such controlling person, as the case may be, shall be entitled
to the benefit of the respective indemnity and contribution agreements.
11. NOTICES.
All notices or communications hereunder, except as herein otherwise
specifically provided, shall be in writing and, if sent to the Representative or
any of the Underwriters, shall be mailed, delivered, or telecopied and
confirmed, to Xxxx X. Xxxxxxx and Company, Incorporated, 000 Xxxxxx Xxxxxx
Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxx, with a copy to
D. Xxxxxxx Xxxxxxx, Esq., Xxxxxxxxxxx Xxxxx & Xxxxxxxx, Plaza VII, 00 Xxxxx
Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxx, Xxxxxxxxx 00000; or, if sent to the
Company, shall be mailed, delivered, or telegraphed, and confirmed, to
SurModics, Inc., 0000 Xxxx 00xx Xxxxxx, Xxxx Xxxxxxx, Xxxxxxxxx 00000,
Attention: Xxxx X. Xxxxxx, with a copy to Xxxxx X. Xxxxx, Esq., Xxxxxxxxxx &
Xxxxx, P.A., 000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxxxxxx, Xxxxxxxxx 00000.
12. INFORMATION FURNISHED BY THE UNDERWRITER.
The statements relating to the stabilization activities of the Underwriters
and the statements in paragraphs ___ and ___ under the caption "Underwriting" in
any Preliminary Prospectus and in the Prospectus constitute the information
furnished by, or on behalf of, the Underwriters in writing specifically for use
with reference to the Underwriters referred to in Section 1(b) and Section 6
hereof.
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13. PARTIES.
This Agreement shall inure to the benefit of and be binding upon each of
the Underwriters and the Company, their respective successors and assigns and
the officers, directors and controlling persons referred to in Sections 6 and 7.
Nothing expressed in this Agreement is intended or shall be construed to give
any person or corporation, other than the parties hereto, their respective
successors and assigns and the controlling persons, officers and directors
referred to in Sections 6 and 7 any legal or equitable right, remedy or claim
under, or in respect of, this Agreement or any provision herein contained, this
Agreement and all conditions and provisions hereof being intended to be and
being for the sole and exclusive benefit of the parties hereto and their
respective executors, administrators, successors, assigns and such controlling
persons, officers and directors, and for the benefit of no other person or
corporation. No purchaser of any Shares from the Underwriters shall be
construed to be a successor or assign merely by reason of such purchase.
14. GOVERNING LAW.
This Agreement shall be construed and enforced in accordance with the laws
of the State of Minnesota, without regard to conflict of law provisions.
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed counterpart of this Agreement,
whereupon it will become a binding agreement between the Company and each of the
several Underwriters in accordance with its terms.
Very truly yours,
SURMODICS, INC.
By
---------------------------------
Its
----------------------------
The foregoing Underwriting Agreement
is hereby confirmed and accepted by us
for itself and as Representative of the
several Underwriters referred to in the
foregoing Agreement as of the date
first above written.
XXXX X. XXXXXXX
AND COMPANY, INCORPORATED
By
---------------------------------
Its
--------------------------------
-29-
SCHEDULE A
NAME OF UNDERWRITER NUMBER OF FIRM SHARES
Xxxx X. Xxxxxxx and Company, Incorporated
Total 2,000,000
-30-
SCHEDULE B
LIST OF PATENTS
-31-
SCHEDULE C
LIST OF PATENT APPLICATIONS
-32-
SCHEDULE D
FORM OF OPINION OF PATENT COUNSEL
-33-
