TREX MEDICAL CORPORATION
4,500,000 SHARES*
COMMON STOCK
($.01 PAR VALUE)
UNDERWRITING AGREEMENT
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New York, New York
, 1998
Xxxxxxx Xxxxx Xxxxxx
Xxxxx Xxxxxx Inc.
Xxxxxx Brothers Inc.
As Representatives of the several Underwriters
c/o Xxxxx Xxxxxx Inc
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Trex Medical Corporation, a Delaware corporation (the "Company"), proposes
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to sell to the several underwriters named in Schedule I hereto (the
"Underwriters"), for whom you (the "Representatives") are acting as
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representatives, 4,500,000 shares of Common Stock, $.01 par value ("Common
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Stock"), of the Company (said shares to be issued and sold by the Company being
hereinafter called the "Underwritten Securities"). The Company also proposes to
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grant to the Underwriters an option to purchase up to 675,000 additional shares
of Common Stock (the "Option Securities"; the Option Securities, together with
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the Underwritten Securities, being hereinafter called the "Securities"). To the
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extent there are no additional Underwriters listed on Schedule I other than you,
the terms "Representatives" as used herein shall me you, as Underwriters, and
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the terms "Representatives" and "Underwriters" shall mean either the singular or
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plural as the context requires. Any reference herein to the Registration
Statement, a Preliminary Prospectus or the Prospectus, including use of the
words, "appear in,' "contained in," "contemplated by," "described in,"
"disclosed in," "included in" or "set forth in" any of the foregoing documents,
or words of similar effect, shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue
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* Plus an option to purchase from Trex Medical Corporation up to 675,000
additional shares to cover over-allotments.
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date of such Preliminary Prospectus or the Prospectus, as the case may be; and
any reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the filing of any document
under the Exchange Act after the Effective Date of the Registration Statement,
or the issue date of any Preliminary Prospectus or the Prospectus, as the case
may be, deemed to be incorporated therein by reference. Certain terms used
herein are defined in Section 15 hereof.
The Company currently is a majority-owned subsidiary of ThermoTrex
Corporation, a Delaware corporation ("ThermoTrex"), which is, in turn, a
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majority-owned subsidiary of Thermo Electron Corporation, a Delaware corporation
("Thermo Electron"). To the extent provided herein and for good and valuable
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consideration, Thermo Electron has become a party to this Underwriting
Agreement.
1. Representations and Warranties. The Company and Thermo Electron,
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jointly and severally, represent and warrant to, and agree with, each
Underwriter as set forth below in this Section 1. The following
representations, warranties and agreements shall be deemed to apply to each
Subsidiary (as defined in Section 15) of the Company, unless the context does
not permit. Any certificate signed by any officer of the Company and delivered
to the Representatives or counsel for the Underwriters shall be deemed a
representation and warranty by the Company, as to matters covered thereby, to
each Underwriter.
(a) The Company meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission a registration statement
(File Number 333- ) on Form S-1, including a related preliminary prospectus, for
the registration under the Act of the offering and sale of the Securities. The
Company may have filed one or more amendments thereto, including the related
preliminary prospectus, each of which has previously been furnished to you. The
Company will next file with the Commission either (1) prior to the Effective
Date of such registration statement, a further amendment to such registration
statement (including the form of final prospectus) or (2) after the Effective
Date of such registration statement, a final prospectus in accordance with Rules
430A and 424(b). In the case of clause (2), the Company has included in such
registration statement, as amended at the Effective Date, all material
information (other than Rule 430A Information) required by the Act and the rules
thereunder to be included in such registration statement and the Prospectus. As
filed, such amendment and form of final prospectus, or such final prospectus,
shall contain all Rule 430A Information, together with all other such required
information, and, except to the extent the Representatives shall agree in
writing to a modification, shall be in all substantive respects in the form
furnished to you prior to the Execution Time or, to the extent not completed at
the Execution Time, shall contain only such specific additional information and
other changes (beyond that contained in the latest Preliminary Prospectus) as
the Company has advised you, prior to the Execution Time, will be included or
made therein. Upon your request, but not without your agreement, the Company
also will file a Rule 462(b) Registration Statement in accordance with Rule
462(b). To the extent applicable, the copies of the Registration Statement and
each amendment thereto (including all exhibits filed therewith), any Preliminary
Prospectus or Prospectus (in each case, as amended or supplemented) furnished to
the Underwriters have
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been and will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to the Commission's Electronic Data
Gathering, Analysis and Retrieval System ("XXXXX"), except to the extent
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permitted by Regulation S-T.
(b) On the Effective Date, the Registration Statement did or will, and when
the Prospectus is first filed (if required) in accordance with Rule 424(b) and
on the Closing Date and on any date on which Option Securities are purchased, if
such date is not the Closing Date (a "settlement date"), the Prospectus (and any
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supplements thereto) will, comply in all material respects with the applicable
requirements of the Act and the Exchange Act and the respective rules
thereunder; on the Effective Date and at the Execution Time, the Registration
Statement did not or will not contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and, on the Effective Date,
the Prospectus, if not filed pursuant to Rule 424(b), will not, and on the date
of any filing pursuant to Rule 424(b) and on the Closing Date and any settlement
date, the Prospectus (together with any supplement thereto) will not, include
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that the Company and Thermo Electron make no representations or warranties as to
the information contained in or omitted from the Registration Statement or the
Prospectus (or any supplement thereto) in reliance upon and in conformity with
information furnished herein or in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for inclusion in the
Registration Statement or the Prospectus (or any supplement thereto).
(c) The accounting firm(s) whose report(s) appear in the Prospectus are
independent certified public accountants as required by the Act and the rules
thereunder. The financial statements and schedules (including the related
notes) included in the Registration Statement, any Preliminary Prospectus or the
Prospectus present fairly, in all material respects, the financial condition,
results of operations and cash flows of the entities purported to be shown
thereby at the dates and for the periods indicated, comply as to form with the
applicable accounting requirements of the Act and have been prepared in
accordance with generally accepted accounting principles applied on a consistent
basis throughout the periods involved (except as otherwise noted therein).
(d) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with full corporate power and authority to own or lease its
properties and conduct its business as described in the Prospectus, and is duly
qualified to do business and is in good standing in each jurisdiction in which
the character of the business conducted by it or the location of the properties
owned or leased by it makes such qualification necessary except where the
failure to so qualify or be in good standing would not have a Material Adverse
eEffect; and, except as described in the Prospectus, the Company holds all
material licenses, certificates and permits from governmental authorities
necessary for the conduct of its business as described in the Prospectus.
(e) All of the outstanding shares of Common Stock have been, and the
Securities,
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upon issuance and delivery and payment therefor in the manner herein described,
will be, duly authorized, validly issued, fully paid and nonassessable. Other
than as described in the Prospectus, there are no preemptive rights or other
rights to subscribe for or to purchase, or any restriction upon the voting or
transfer of, any shares of Common Stock pursuant to the Company's corporate
charter, by-laws or other governing documents or any agreement or other
instrument to which the Company is a party or by which it may be bound. Neither
the filing of the Registration Statement nor the offering or sale of the
Securities as contemplated by this Agreement gives rise to any rights, other
than those which have been waived or satisfied and other than as described in
the Prospectus, for or relating to the registration of any shares of Common
Stock or other securities of the Company. The capitalization of the Company as
of _________________ is as set forth in the Prospectus, and the Common Stock
conforms, in all material respects, to the description thereof contained in the
Prospectus. Except as set forth in or contemplated by the Prospectus, no
options, warrants or other rights to purchase, agreements or other obligations
to issue, or rights to convert any obligations into or exchange any securities
for, shares of capital stock or or ownership interests in the Company are
outstanding. Except as described in the Prospectus, all of the outstanding
shares of capital stock of each Subsidiary of the Company have been duly
authorized and validly issued, are fully paid and nonassessable and are owned
directly or indirectly by the Company, free and clear of any claim, lien,
encumbrance, security interest, restriction upon voting or transfer or any other
claim of any third party.
(f) Except as described in or contemplated by the Registration Statement
and the Prospectus, there has not been any Material Adverse Change or any
adverse development which has a Material Adverse Effect from the date as of
which information is given in the Prospectus.
(g) The Company is not, and would not be with the giving of notice or lapse
of time or both, in violation of or in default under, nor will the execution or
delivery hereof or consummation of the transactions contemplated hereby result
in a violation of, or constitute a default under, the corporate charter, by-laws
or other governing documents of the Company, or any material agreement,
indenture or other instrument to which the Company is a party or by which it is
bound, or to which any of its properties is subject, nor will the performance by
the Company of its obligations hereunder violate any existing law, rule,
administrative regulation or decree of any court or any governmental agency or
body having jurisdiction over the Company or any of its properties, or result in
the creation or imposition of any lien, charge, claim or encumbrance upon any
property or asset of the Company, which would be material to the Company and its
Subsidiaries taken as a whole. Except for permits and similar authorizations
required under the Act and the securities or "Blue Sky" laws of certain
jurisdictions and for such permits and authorizations as have been obtained, no
consent, approval, authorization or order of, or filing with, any court,
governmental agency or body or any financial institution is required in
connection with the consummation by the Company of the transactions contemplated
by this Agreement.
(h) This Agreement has been duly authorized, executed and delivered by the
Company.
(i) The Company owns, or has valid rights to use, all items of real and
personal
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property which are material to the business of the Company and its Subsidiaries
taken as a whole, free and clear of all liens, encumbrances and claims which may
materially interfere with the business, properties, financial condition or
results of operations of the Company on a consolidated basis.
(j) Except as described in the Prospectus, there is no action, suit or
proceeding to which the Company is a party or to which any property of the
Company is subject or which is pending or, to the knowledge of the Company or
Thermo Electron, contemplated against the Company that is required to be
disclosed in the Prospectus and that is not so disclosed.
(k) There is no franchise, contract or other document of a character
required to be described in the Registration Statement or Prospectus, or to be
filed as an exhibit thereto, which is not described or filed as required; and
the statements in the Prospectus under the headings "Description of Capital
Stock" and "Shares Eligible for Future Sale" fairly summarize the matters
therein described.
(k) The Company is not in violation of any law, ordinance, governmental
rule or regulation or court decree to which it is subject, which violation could
reasonably be expected to have a Material Adverse Effect.
(l) The Company possesses all licenses, certificates, permits and other
authorizations issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct its business, and the Company has not received
any notice of proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a Material
Adverse Effect, except as set forth in or contemplated in the Prospectus.
(m) No Subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on such subsidiary's capital stock, from repaying to the Company
any loans or advances to such subsidiary from the Company or from transferring
any of such subsidiary's property or assets to the Company or any other
subsidiary of the Company, except as described in or contemplated by the
Prospectus.
(n) Except as disclosed in the Prospectus, the Company owns or possesses
adequate licenses or other rights to use all intellectual property rights,
including patents, trademarks, service marks, trade names, copyrights or know-
how, necessary to conduct its business as described or referred to in the
Prospectus, except where such failure, singularly or in the aggregate, would not
have a Material Adverse Effect and, except as disclosed in the Prospectus,
neither Thermo Electron nor the Company has received any notice of infringement
of or conflict with (or knows of any such infringement of or conflict with)
rights or claims of others with respect to any patents, trademarks, service
marks, trade names, copyrights or know-how, that if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse
Effect, and, except as disclosed in the Prospectus, all products or processes
referred to in the Prospectus and relating to the business of the Company now
conducted by it do not infringe upon or conflict with any right or patent, or
with any discovery, invention, product or process which is
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the subject of any patent application known to the Company or Thermo Electron,
in a manner which would have a Material Adverse Effect.
(o) The Company has not taken and shall not take, directly or indirectly,
any action designed to cause or result in, or which has constituted or which
might reasonably be expected to constitute, the stabilization or manipulation of
the price of the shares of Common Stock to facilitate the sale or resale of the
Securities in violation of the Commission's rules and regulations.
(p) The Securities have been approved for listing on the American Stock
Exchange, subject only to official notice of issuance.
1A. Representations and Warranties of Thermo Electron. Thermo Electron
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represents and warrants to, and agree with, each Underwriter that:
(a) Thermo Electron has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with full power and authority (corporate and other) to own or
lease its properties and conduct its business, and is duly qualified to do
business and is in good standing in each jurisdiction in which the character of
the business conducted by it or the location of the properties owned or leased
by it makes such qualification necessary, except where the failure to so qualify
or be in good standing would not have a Material Adverse Effect with respect to
Thermo Electron.
(b) There has not been any Material Adverse Change with respect to Thermo
Electron from the date as of which information is given in the most recent
quarterly or annual report filed by Thermo Electron pursuant to the Exchange
Act, except any as may have been disclosed to the public.
(c) Except as may be described in its filings under the Exchange Act,
Thermo Electron is not, nor with the giving of notice or lapse of time or both
would Thermo Electron be, in violation of or in default under, nor will the
execution or delivery hereof or consummation of the transactions contemplated
hereby result in a violation of, or constitute a default under, the corporate
charter, by-laws or other governing documents of Thermo Electron, or any
material agreement, indenture or other instrument to which Thermo Electron is a
party or by which it is bound, or to which any of its properties is subject, nor
will the performance by Thermo Electron of its obligations hereunder violate any
existing law, rule, administrative regulation or decree of any court or any
governmental agency or body having jurisdiction over Thermo Electron or any of
their its properties, or result in the creation or imposition of any lien,
charge, claim or encumbrance upon any property or asset of Thermo Electron,
which would be material to Thermo Electron and its Subsidiaries taken as a
whole. Except for permits and similar authorizations required under the
Securities Act and the securities or "Blue Sky" laws of certain jurisdictions
and for such permits and authorizations as have been obtained, no consent,
approval, authorization or order of any court, governmental agency or body or
financial institution is required in connection with the consummation by Thermo
Electron of the transactions contemplated by this Agreement.
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(d) This Agreement has been duly authorized, executed and delivered by
Thermo Electron.
(e) ThermoTrex owns, and will own as of each Closing Date (as defined
below), of record and beneficially, the number of shares of Common Stock of the
Company set forth in the Prospectus, free and clear of any liens, encumbrances,
claims or restrictions, except that certain of such shares are reserved for
issuance pursuant to stock option and other benefit plans under which options to
purchase Common Stock of the Company owned by ThermoTrex are granted to certain
employees, directors or consultants of Thermo Electron and its Subsidiaries.
(f) The most recent Annual Report on Form 10-K of Thermo Electron and any
subsequent reports filed pursuant to the Exchange Act complied as of the date
thereof in all material respects with the Exchange Act and the rules and
regulations thereunder.
(g) Neither Thermo Electron nor any Subsidiary of Thermo Electron has taken
and none of such companies shall take, directly or indirectly, any action
designed to cause or result in, or which has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of the shares of Common Stock to facilitate the sale or resale of the
Securities in violation of the Commission's rules and regulations.
2. Purchase and Sale.
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(a) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company agrees to sell to
each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at a purchase price of $_____ per share, the amount
of the Underwritten Securities set forth opposite such Underwriter's name in
Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up to
675,000 Option Securities at the same purchase price per share as the
Underwriters shall pay for the Underwritten Securities. Said option may be
exercised only to cover over-allotments in the sale of the Underwritten
Securities by the Underwriters. Said option may be exercised in whole or in
part at any time (but not more than once) on or before the 30th day after the
date of the Prospectus upon written or telegraphic notice by the Representatives
to the Company setting forth the number of Option Securities as to which the
several Underwriters are exercising the option and the settlement date.
Delivery of certificates for the Option Securities by the Company, and payment
therefor to the Company, shall be made as provided in Section 3 hereof. The
number of Option Securities to be purchased by each Underwriter shall be the
same percentage of the total number of Option Securities to be purchased by the
several Underwriters as such Underwriter is purchasing of the Underwritten
Securities, subject to such adjustments as you in your absolute discretion shall
make to eliminate any fractional shares.
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3. Delivery and Payment. Delivery of and payment for the Underwritten
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Securities and the Option Securities (if the option provided for in Section 2(b)
hereof shall have been exercised on or before the second Business Day prior to
the Closing Date) shall be made at 10:00 AM, Eastern time, on ________________,
1998, or at such time on such later date not more than three Business Days after
the foregoing date as the Representatives shall designate, which date and time
may be postponed by agreement among the Representatives and the Company or as
provided in Section 9 hereof (such date and time of delivery and payment for the
Securities being herein called the "Closing Date"). Delivery of the Securities
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shall be made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the respective aggregate purchase prices of the Securities
being sold by the Company to or upon the order of the Company by wire transfer
payable in same-day funds to the account specified by the Company. Delivery of
the Underwritten Securities and the Option Securities shall be made through the
facilities of The Depository Trust Company unless the Representatives shall
otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after the
second Business Day prior to the Closing Date, the Company will deliver the
Option Securities (at the expense of the Company) to the Representatives on the
date specified by the Representatives (which shall be within three Business Days
after exercise of said option), for the respective accounts of the several
Underwriters, against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to the account specified by
the Company. If settlement for the Option Securities occurs after the Closing
Date, the Company will deliver to the Representatives on the settlement date for
the Option Securities, and the obligation of the Underwriters to purchase the
Option Securities shall be conditioned upon receipt of, supplemental opinions,
certificates and letters confirming as of such date the opinions, certificates
and letters delivered on the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
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Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
5. Agreements. The Company and Thermo Electron, jointly and severally,
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agree with the several Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment thereof, to
become effective. Prior to the termination of the offering of the Securities,
the Company will not file any amendment of the Registration Statement,
supplement to the Prospectus or any Rule 462(b) Registration Statement unless
the Company has furnished you a copy for your review prior to filing and will
not file any such proposed amendment, supplement or registration statement to
which you reasonably object. Subject to the foregoing sentence, if the
Registration Statement has become or becomes effective pursuant to Rule 430A, or
filing of the Prospectus is otherwise required under Rule 424(b), the Company
will cause the Prospectus, properly completed, and any supplement thereto to be
filed with the Commission pursuant to the applicable paragraph of Rule 424(b)
within the time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing.
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Upon your request, the Company will cause the Rule 462(b) Registration
Statement, completed in compliance with the Act and the applicable rules and
regulations thereunder, to be filed with the Commission pursuant to Rule 462(b)
and will provide evidence satisfactory to the Representatives of such filing.
The Company will promptly advise the Representatives (1) when the Registration
Statement, if not effective at the Execution Time, shall have become effective,
(2) when the Prospectus or any supplement thereto or any Rule 462(b)
Registration Statement shall have been filed (if required) with the Commission
pursuant to Rule 424(b) or when any Rule 462(b) Registration Statement shall
have been filed with the Commission, (3) when, prior to termination of the
offering of the Securities, any amendment to the Registration Statement shall
have been filed or become effective, (4) of any request by the Commission or its
staff for any amendment of the Registration Statement or any Rule 462(b)
Registration Statement or any supplement to the Prospectus or for any additional
information, (5) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or, to the
Company's knowledge, threatening of any proceeding for that purpose and (6) of
the receipt by the Company of any notification with respect to the suspension of
the qualification of the Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. The Company will
use its best efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were made
not misleading, or if it shall be necessary to amend the Registration Statement
or supplement the Prospectus to comply with the Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (1) notify the
Representatives of any such event; (2) prepare and file with the Commission,
subject to the second sentence of paragraph (a) of this Section 5, an amendment
or supplement which will correct such statement or omission or effect such
compliance; and (3) supply any supplemented Prospectus to you in such quantities
as you may reasonably request.
(c) As soon as practicable, the Company will make generally available to
its security holders and to the Representatives an earnings statement or
statements of the Company and its Subsidiaries which will satisfy the provisions
of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for the
Underwriters, without charge, signed copies of the Registration Statement
(including exhibits thereto) and to each other Underwriter a copy of the
Registration Statement (without exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as many
copies of each Preliminary Prospectus and the Prospectus and any supplement
thereto as the Representatives may reasonably request.
(e) The Company will arrange, if necessary, for the qualification of the
Securities for
9
sale under the laws of such jurisdictions as you may designate and will maintain
such qualifications in effect so long as required for the distribution of the
Securities; provided 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 that would subject it to service of process in suits, other than
those arising out of the offering or sale of the Securities, in any jurisdiction
where it is not now so subject.
(f) The Company and Thermo Electron shall not, during the 180-day period
following the Execution Time, without the prior written consent of Xxxxxxx Xxxxx
Xxxxxx, offer, sell or contract to sell, or otherwise dispose of (or enter into
any transaction which is designed to, or might reasonably be expected to, result
in the disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company, Thermo Electron
or any affiliate of the Company or any person in privity with the Company,
Thermo Electron or any affiliate of the Company) directly or indirectly, or
announce the offering of, any other shares of Common Stock or any securities
convertible into, or exchangeable for, shares of Common Stock (except for the
issuance of shares of Common Stock pursuant to existing stock option, purchase
and compensation plans, or upon conversion of any currently outstanding
convertible securities described in the Prospectus or the issuance of shares of
Common Stock as consideration for the acquisition of one or more businesses
provided that such Common Stock may not be resold prior to the expiration of the
180-day period referenced above, or sales of shares of Common Stock by the
Company to ThermoTrex), or sell or grant options, rights or warrants with
respect to any shares of Common Stock (other than the grant of options pursuant
to existing stock option, purchase and compensation plans), otherwise than in
accordance with this Agreement or as contemplated in the Prospectus, including
but not limited to options to be granted under the ThermoTrex stock option plan
described in the Prospectus.
(g) The Company and Thermo Electron will not take, and Thermo Electron
cause its other Subsidiaries not to take, directly or indirectly, any
action designed to or which has constituted or which might reasonably be
expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(h) The Company agrees to pay the costs and expenses relating to the
following matters: (i) the preparation, printing or reproduction and filing
with the Commission of the Registration Statement (including financial
statements and exhibits thereto), each Preliminary Prospectus, the Prospectus,
any Rule 462(b) Registration Statement, and each amendment or supplement to any
of them; (ii) the printing (or reproduction) and delivery (including postage,
air freight charges and charges for counting and packaging) of such copies of
the Registration Statement, each Preliminary Prospectus, the Prospectus, any
Rule 462(b) Registration Statement, and all amendments or supplements to any of
them, as may, in each case, be reasonably requested for use in connection with
the offering and sale of the Securities; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the Securities,
including any stamp or transfer taxes in connection with the original issuance
and sale of the Securities; (iv) the printing (or reproduction) and delivery of
this Agreement, any blue sky memorandum and all
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other agreements or documents printed (or reproduced) and delivered in
connection with the offering of the Securities; (v) the registration of the
Securities under the Exchange Act and the listing of the Securities on the
American Stock Exchange; (vi) any registration or qualification of the
Securities for offer and sale under the securities or blue sky laws of the
several states (including filing fees and the reasonable fees and expenses of
counsel for the Underwriters relating to such registration and qualification);
(vii) any filings required to be made with the National Association of
Securities Dealers, Inc. (including filing fees and the reasonable fees and
expenses of counsel for the Underwriters relating to such filings); (viii) the
transportation and other expenses incurred by or on behalf of Company
representatives in connection with presentations to prospective purchasers of
the Securities; (ix) the fees and expenses of the Company's accountants and the
fees and expenses of counsel (including local and special counsel) for the
Company; and (x) all other costs and expenses incident to the performance by the
Company of its obligations hereunder.
6. Conditions to the Obligations of the Underwriters. The obligations of
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the Underwriters to purchase the Underwritten Securities and the Option
Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company and Thermo Electron
contained herein as of the Execution Time, the Closing Date and any settlement
date pursuant to Section 3 hereof, to the accuracy of the statements of the
Company and Thermo Electron made in any certificates pursuant to the provisions
hereof, to the performance by the Company and Thermo Electron of their
respective obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the
Execution Time, unless the Representatives agree in writing to a later time, the
Registration Statement will become effective not later than (i) 6:00 PM Eastern
time on the date of determination of the public offering price, if such
determination occurred at or prior to 3:00 PM Eastern time on such date, or (ii)
12:00 Noon on the Business Day following the day on which the public offering
price was determined, if such determination occurred after 3:00 PM Eastern time
on such date; if filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such supplement, will
be filed in the manner and within the time period required by Rule 424(b); and
no stop order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been instituted
or threatened.
(b) The Company shall have furnished to the Representatives the opinion of
Xxxx X. Xxxxxxxxx, General Counsel of the Company, ThermoTrex and Thermo
Electron, dated the Closing Date, to the effect that:
(i) Each of the Company and its Significant Subsidiaries has been duly
organized and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, with full corporate power and
authority to own or lease its properties and conduct its business as described
in the Prospectus, and is duly qualified to do business and is in good standing
in each jurisdiction in which the character of the business conducted by it or
the location of the properties owned or leased by it makes such qualification
11
necessary, except where the failure to so qualify or be in good standing would
not have a Material Adverse Effect.
(ii) Each of Thermo Electron and its Significant Subsidiaries (as
defined in Section 15) has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with full corporate power and authority to own or lease its
properties and conduct its business as described in the Prospectus;
(iii) the Company's authorized capital stock and outstanding
capital stock as of ___________, 1998 is as set forth in the Prospectus
under the caption "Description of Capital Stock"; the capital stock of the
Company conforms as to legal matters in all material respects to the
description thereof contained in the Prospectus; the outstanding shares of
Common Stock have been duly and validly authorized and issued and are fully
paid and nonassessable; the Securities have been duly and validly
authorized, and, when issued and delivered to and paid for by the
Underwriters pursuant to this Agreement, will be fully paid and
nonassessable; the Securities are duly authorized for listing, subject to
official notice of issuance, on the American Stock Exchange; the
certificates for the Securities are in valid and sufficient form; there are
no preemptive or other rights to subscribe for or to purchase, or any
restriction upon the voting or transfer of, any of the Securities pursuant
to the Company's corporate charter, by-laws, other governing documents, or
any agreement or other instrument known to such counsel to which the
Company or a Subsidiary thereof is a party or by which the Company or a
Subsidiary thereof may be bound or to which any of their respective
properties is subject; and, to such counsel's knowledge, neither the filing
of the Registration Statement nor the offering or sale of the Securities as
contemplated by this Agreement gives rise to any rights for or relating to
the registration of any shares of Common Stock except such as have been
waived or satisfied; except as set forth in the Prospectus, no options,
warrants or other rights to purchase, agreements or other obligations to
issue, or rights to convert any obligations into or exchange any securities
for, shares of capital stock of or ownership interests in the Company are
outstanding; and all of the outstanding shares of capital stock of each
Significant Subsidiary of the Company have been duly and validly authorized
and issued and are fully paid and nonassessable and are owned directly or
indirectly by the Company free and clear of any claim, lien, encumbrance or
security interest known to such counsel (except for certain obligations of
the Company pursuant to stock and employee benefit plans maintained for the
benefit of employees, officers, directors and consultants of the Company
and its Subsidiaries);
(iv) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or governmental agency,
authority or body or any arbitrator involving the Company or any Subsidiary
required to be disclosed in the Registration Statement which is not so
disclosed, and there is no franchise, contract or other document required to be
described in the Registration Statement or Prospectus, or to be filed as an
exhibit, which is not described or filed as required;
(v) the Registration Statement has become effective under the Act; any
12
required filing of the Prospectus, and any supplements thereto, pursuant to Rule
424(b) has been made in the manner and within the time period required by Rule
424(b); to the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued, no proceedings for
that purpose have been instituted or threatened and the Registration Statement
as of the Effective Date and the Prospectus as of its date (other than the
financial statements and schedules and other financial, statistical and
accounting information contained therein as to which such counsel need express
no opinion) complied as to form in all material respects with the applicable
requirements of the Act and the rules thereunder;
(vi) this Agreement has been duly authorized, executed and delivered
by the Company and Thermo Electron;
(vii) to the knowledge of such counsel, no consent, approval,
authorization, filing with or order of any court or governmental agency or body
is required for the consummation by the Company of the transactions contemplated
herein, except such as have been obtained under the Act, such as may be required
under the blue sky and state securities laws of any jurisdiction applicable to
the offering and sale of the Securities by the Underwriters and such as may be
required for the clearance of the underwriting arrangements relating to such
offering and sale with the NASD (as to which such counsel need express no
opinion), and such other approvals (specified in such opinion) as have been
obtained; and
(viii) neither the issue and sale of the Securities, nor the
consummation of any other of the transactions herein contemplated nor the
fulfillment of the terms hereof will conflict with, result in a breach or
violation of, or constitute a default under any law or the charter or by-laws of
the Company (or any of its Significant Subsidiaries), ThermoTrex or Thermo
Electron, or the terms of any indenture or other agreement or instrument known
to such counsel and to which the Company (or any of its Significant
Subsidiaries), ThermoTrex or Thermo Electron, is a party or bound or any
statute, law, rule, regulation, judgment, order or decree applicable to the
Company (or any of its Significant Subsidiaries) or to ThermoTrex or Thermo
Electron of any court, regulatory body, administrative agency, governmental
body, arbitrator or other authority having jurisdiction over the Company or any
of such entities or any of its or their respective properties.
In addition, such counsel shall state that they have participated in
conferences with officers and other representatives of the Company,
representatives of the independent accountants of the Company, representatives
of the Underwriters and representatives of counsel for the Underwriters, at
which the contents of the Registration Statement and the Prospectus and related
matters were discussed and, although such counsel need not pass upon, and need
not assume any responsibility for, the accuracy, completeness or fairness of any
statement contained in the Registration Statement or the Prospectus (except for
those statements referred to in the opinions expressed in the first two clauses
of subsection (iii) above) and has made no independent check or verification
thereof, such counsel shall state that on the basis of the foregoing, no facts
have come to such counsel's attention that has led such counsel to believe that
the Registration Statement, on the Effective Date or at the Execution Time,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated
13
therein or necessary to make the statements therein not misleading or that the
Prospectus, as of its date or the date of such opinion, included or includes any
untrue statement of a material fact or omitted or omits to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that such counsel need
express no opinion or belief with respect to the financial statements, financial
statement schedules and other financial, accounting and statistical data
included therein.
In rendering such opinion, such opinion shall be limited to matters
involving the application of laws of the Commonwealth of Massachusetts, the
United States or the General Corporation Law of the State of Delaware and
further such counsel may rely as to matters of fact, to the extent such counsel
deems proper, on certificates of officers of the Company and public officials.
References to the Prospectus in this paragraph (b) include any supplements
thereto.
(c) The Representatives shall have received from Xxxxx, Xxxxxxx &
Xxxxxxxxx, LLP, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date, with respect to the issuance and sale of the Securities, the
Registration Statement, the Prospectus (together with any supplement thereto)
and other related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a certificate
of the Company, signed by the Chairman of the Board, Chief Executive Officer,
the President or a vice president and the Treasurer or Secretary of the Company,
dated the applicable Settlement Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the Prospectus,
any supplements to the Prospectus and this Agreement and that, to the best of
such person's knowledge:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the date of the certificate
with the same effect as if made on the date of the certificate, and 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 the
Closing Date or the settlement date;
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to such person's knowledge, threatened; and
(iii) since the date of the most recent financial statements included
in the Prospectus (exclusive of any supplement thereto), there has been no
Material Adverse Change, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto).
(e) Thermo Electron shall have furnished to the Representatives a
certificate of Thermo Electron, signed by its President or a Vice President and
by its Treasurer or Secretary,
14
dated the applicable Settlement Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the Prospectus,
any supplements to the Prospectus and this Agreement and that, to the best of
such person's knowledge:
(i) the representations and warranties of Thermo Electron in this
Agreement are true and correct on and as of the date of the certificate
with the same effect as if made on the date of the certificate, and Thermo
Electron has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date or the settlement date;
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the best of such person's knowledge, threatened; and
(iii) since the date of the most recent financial statements included
in the Prospectus (exclusive of any supplement thereto), there has been no
Material Adverse Change, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto).
(f) On the date of this Agreement, the Closing Date and any settlement date
you shall have received a letter from each accounting firm whose report appears
in the Prospectus, dated the date of this Underwriting Agreement, the Closing
Date or the settlement date, as the case may be, and addressed to you,
confirming that they are independent certified public accountants within the
meaning of the Act and the rules thereunder, and stating, as of the date of such
letter (or, with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in the
Prospectus, as of a date not more than five days prior to the date of each such
letter), the conclusions and findings of each such firm with respect to the
financial information and other matters covered by its letter delivered to you
concurrently with the execution of this Agreement, and with respect to each
letter delivered on the Closing Date or the settlement date confirming the
conclusions and findings set forth in such prior letter.
(g) Subsequent to the Execution Time or, if earlier, the dates as of which
information is given in the Registration Statement (exclusive of any amendment
thereof) and the Prospectus (exclusive of any supplement thereto), there shall
not have been (i) any change or decrease specified in the letter or letters
referred to in paragraph (g) of this Section 6 or (ii) any change, or any
development involving a prospective change, in or affecting the
condition,(financial or otherwise), earnings, business or properties of the
Company and its Subsidiaries as a whole, whether or not from transactions
arising in the ordinary course of business, the effect of which, in any case
referred to in clause (i) or (ii) above, is, in the judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Registration Statement (exclusive of any amendment thereof)
and the Prospectus (exclusive of any supplement thereto).
15
(h) The Securities shall have been listed and admitted and authorized
for trading on the American Stock Exchange, and satisfactory evidence of such
actions shall have been provided to the Representatives.
(i) At the Execution Time, the Company shall have furnished to the
Representatives a letter substantially in the form of Exhibit A hereto from
---------
ThermoTrex addressed to the Representatives.
(j) Prior to the Closing Date or the settlement date, as applicable,
the Company shall have furnished to the Representatives such further
information, certificates and documents as the Representatives may
reasonably request.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be delivered
at the office of Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP, , counsel for the
Underwriters, at 000 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, on the Closing Date or
the settlement date, as applicable.
7. Reimbursement of Underwriters' Expenses. If the sale of the Securities
---------------------------------------
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 6 hereof is not satisfied, because of
any termination pursuant to Section 10 hereof or because of any refusal,
inability or failure on the part of the Company or Thermo Electron to perform
any agreement herein or comply with any provision hereof other than by reason of
a default by any of the Underwriters, the Company (or Thermo Electron) will
reimburse the Underwriters severally through Xxxxx Xxxxxx upon demand for all
out-of-pocket expenses (including reasonable fees and disbursements of counsel)
that shall have been incurred by them in connection with the proposed purchase
and sale of the Securities.
8. Indemnification and Contribution. (a) The Company and Thermo
--------------------------------
Electron, jointly and severally, agree to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each Underwriter
and each person who controls any Underwriter within the meaning of either the
Act or the Exchange Act against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or other Federal or state statutory law or
regulation, at 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 made by the Company or
Thermo Electron in Section 1 hereof or by Thermo Electron in Section 1A hereof,
(ii) any untrue statement or alleged untrue statement of a material fact
contained in the registration statement for the registration of the Securities
as originally filed or in any
16
amendment thereof, or in any Preliminary Prospectus or the Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
(iii) any act or failure to act or any alleged act or failure to act by any
Underwriter in connection with, or relating in any manner to, the Securities or
the offering contemplated hereby, and which is included as part of or referred
to in any loss, claim, damage, liability or action arising out of or based upon
matters covered by clause (i) or (ii) above (provided that the Company and
Thermo Electron shall not be liable under this clause (iii) to the extent that
it is determined in a final judgment by a court of competent jurisdiction that
such loss, claim, damage, liability or action resulted directly or indirectly
from any such acts or failures to act undertaken or omitted to be taken by such
Underwriter through its gross negligence or willful misconduct); and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that (i) the Company and Thermo Electron 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 such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
the Representatives specifically for inclusion therein and (ii) with respect to
any untrue statement or omission of a material fact made in any Preliminary
Prospectus, the indemnity agreement contained in this Section 8(a) shall not
inure to the benefit of any Underwriter (or any of the directors, officers,
employees and agents of such Underwriter or any controlling person of such
Underwriter) from whom the person asserting any such loss, claim, damage or
liability purchased the Securities concerned, to the extent that any such loss,
claim, damage or liability of such Underwriter occurs under the circumstances
where it shall have been determined by a court of competent jurisdiction by
final and nonappealable judgment that (w) the Company had previously furnished
copies of the Prospectus to the Underwriters, (x) delivery of the Prospectus was
required by the Act to be made to such person, (y) the untrue statement or
omission of a material fact contained in the Preliminary Prospectus was
corrected in the Prospectus and (z) there was not sent or given to such person,
at or prior to the written confirmation of the sale of such Securities to such
person, a copy of the Prospectus. This indemnity agreement will be in addition
to any liability which the Company or Thermo Electron may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, and Thermo Electron and its employees and agents and
each person who controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the Company and
Thermo Electron to each Underwriter, but only with reference to written
information relating to such Underwriter furnished to the Company by or on
behalf of such Underwriter through the Representatives specifically for
inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any Underwriter
may otherwise have. The Company and Thermo Electron acknowledge that the
statements set forth in the last paragraph of the cover page, the paragraph
containing stabilization information on the inside front cover page and the
sentences related to concessions and reallowances and the paragraph relating to
stabilization, syndicate covering transactions and
17
penalty bids under the heading "Underwriting" in any Preliminary Prospectus and
the Prospectus constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in any Preliminary Prospectus
or the Prospectus, and you, as the Representatives, confirm that such statements
are correct.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of any claim or the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Section 8, notify the indemnifying party in writing of such
claim or commencement; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel (including local counsel), and
the indemnifying party shall bear the reasonable fees, costs and expenses of one
such separate counsel for all indemnified parties if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party would
present such counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified party
and the indemnifying party and 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, (iii) the indemnifying party shall not have employed
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize the indemnified party
to employ separate counsel at the expense of the indemnifying party. An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company Thermo Electron and the
Underwriters agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which the
------
Company and one or more of the Underwriters may be subject in such proportion as
is appropriate to reflect
18
the relative benefits received by the Company and
Thermo Electron on the one hand, and by the Underwriters severally on the other,
from the offering of the Securities; provided, however, that in no case shall
any Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
Thermo Electron, on the one hand, and the Underwriters on the other, shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and Thermo Electron
on the one hand, and of the Underwriters on the other, in connection with the
statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company and Thermo
Electron shall be deemed to be equal to the total net proceeds from the offering
(before deducting expenses), and benefits received by the Underwriters shall be
deemed to be equal to the total underwriting discounts and commissions, in each
case as set forth on the cover page of the Prospectus. Relative fault shall be
determined by reference to, among other things, whether any untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information provided by the Company or Thermo Electron
on the one hand, or the Underwriters on the other, the intent of the parties and
their relative knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and Thermo Electron and
the Underwriters agree that it would not be just and equitable if contribution
were determined by pro rata allocation or any other method of allocation which
does not take account of the equitable considerations referred to above.
Notwithstanding the provisions of this paragraph (d), no person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company, as well as Thermo Electron, shall have the same rights
to contribution as the Company, subject in each case to the applicable terms and
conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall fail
-------------------------
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not
19
purchase all the Securities, this Agreement will terminate without liability to
any nondefaulting Underwriter or the Company. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be postponed
for such period, not exceeding five Business Days, as the Representatives shall
determine in order that the required changes in the Registration Statement and
the Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Company and any nondefaulting Underwriter for
damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in the
-----------
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if at any time prior to such time
(i) trading in the Company's Common Stock shall have been suspended by the
Commission or the American Stock Exchange or trading in securities generally on
the New York Stock Exchange or the American Stock Exchange shall have been
suspended or limited or minimum prices shall have been established on either the
New York Stock Exchange or the American Stock Exchange, (ii) a banking
moratorium shall have been declared either by Federal, New York State or
Massachusetts authorities or (iii) there shall have occurred any outbreak or
escalation of hostilities, declaration by the United States of a national
emergency or war or other calamity or crisis the effect of which on financial
markets is such as to make it, in the sole judgment of the Representatives,
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Prospectus (exclusive of any supplement
thereto).
11. Representations and Indemnities to Survive. The respective
------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Company or its officers, or Thermo Electron, and of the Underwriters set forth
in or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
Company or any of the officers, directors or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Securities.
The provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed (fax. no. ) care of Xxxxxxx Xxxxx Xxxxxx, at
Seven Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, attention: Legal
Department; or, if sent to the Company, will be mailed, delivered or telefaxed
(fax no. ) at Trex Medical Corporation, 00 Xxxxx Xxxxx Xxxx,
Xxxxxxx, XX 00000, attention: President, with a copy to Xxxx X. Xxxxxxxxx, Esq.,
c/o Thermo Electron Corporation, 00 Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxxxxx 02254-
9046.
13. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and no
other person will have any right or obligation hereunder.
14. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
--------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
20
15. Definitions. The terms which follow, when used in this
-----------
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
---
and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
------------
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City or Boston,
Massachusetts.
"Commission" shall mean the Securities and Exchange Commission.
----------
"Effective Date" shall mean each date that the Registration Statement,
--------------
any post-effective amendment or amendments thereto and any Rule 462(b)
Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
------------
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
--------------
executed and delivered by the parties hereto.
"Material Adverse Change" or "Material Adverse Effect" shall mean any
----------------------- -----------------------
material adverse change in, or material adverse effect upon, the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company and its Subsidiaries taken as a whole, or of Thermo Electron
and its Subsidiaries taken as a whole, as the case may be, whether or not
arising from transactions arising in the ordinary course of business.
"Preliminary Prospectus" shall mean any preliminary prospectus
----------------------
referred to in paragraph 1(a) above and any preliminary prospectus included
in the Registration Statement at the Effective Date that omits Rule 430A
Information.
"Prospectus" shall mean the prospectus relating to the Securities
----------
that is first filed pursuant to Rule 424(b) after the Execution Time or, if
no filing pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Securities included in the Registration
Statement at the Effective Date.
"Registration Statement" shall mean the registration statement
----------------------
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in the
event any post-effective amendment thereto or any Rule 462(b) Registration
Statement becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information
deemed to be included therein at the Effective Date as provided by Rule
430A.
21
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under
-------- --------- --------
the Act.
"Rule 430A Information" shall mean information with respect to the
---------------------
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
----------------------------------
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the initial registration statement (file number
333- ). For purposes of this Agreement, all references to the
Registration Statement, any Preliminary Prospectus, the Prospectus, or any
amendment or supplement to any of the foregoing, shall be deemed to include
the respective copies thereof filed with the Commission pursuant to XXXXX..
"Xxxxxxx Xxxxx Xxxxxx" shall mean Xxxxx Xxxxxx Inc. or Salomon
--------------------
Brothers Inc to the extent that either such party is a signatory to this
Agreement.
Significant Subsidiary" shall have the meaning set forth in Item 1-02
----------------------
of Regulation S-X under the Act.
"Subsidiary" shall have the meaning set forth in Rule 405 under the
----------
Act.
"Rule 430A Information" means information with respect to the
----------------------
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration statement
-----------------------------------
and any amendments thereto filed pursuant to Rule 462(b) relating to the
offering covered by the initial registration statement
[Remainder of page intentionally left blank]
22
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
Trex Medical Corporation
By:
----------------------------
Name:
Title:
Thermo Electron Corporation
By:
----------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Xxxxx Xxxxxx Inc.
Xxxxxx Brothers Inc.
By: Xxxxx Xxxxxx Inc.
By:
----------------------------
Name:
Title:
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
23
SCHEDULE I
Number of Shares of
Underwritten Securities
Underwriters To Be Purchased
------------ -----------------------
Xxxxx Xxxxxx Inc. .............................
Xxxxxx Brothers Inc. ..........................
TOTAL.......................................... 4,500,000
=========
24
EXHIBIT A
---------
Trex Medical Corporation
------------------------
Public Offering of Common Stock
-------------------------------
, 1998
Xxxxx Xxxxxx Inc.
Xxxxxx Brothers Inc.
As Representatives of the several Underwriters,
c/o Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), between Trex Medical
----------------------
Corporation, a Delaware corporation (the "Company"), and each of you as
-------
representatives of a group of Underwriters named therein, relating to an
underwritten public offering of Common Stock of the Company.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned will not, without the prior written
consent of Xxxxx Xxxxxx Inc., offer, sell, contract to sell, pledge or otherwise
dispose of, or file (or participate in the filing of) a registration statement
with the Securities and Exchange Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Securities and Exchange
Commission promulgated thereunder with respect to, any shares of capital stock
of the Company or any securities convertible into or exercisable or exchangeable
for such capital stock, or publicly announce an intention to effect any such
transaction, for a period of 180 days after the date of this Agreement.
If for any reason the Underwriting Agreement shall be terminated prior
to the Closing Date (as defined in the Underwriting Agreement), the agreement
set forth above shall likewise be terminated.
Yours very truly,
[Signature of officer, director or major
stockholder]
[Name and address of officer, director or major
stockholder]
25
