WF&G DRAFT
1/15/98
3,500,000 Shares
VYSIS, INC.
(a Delaware corporation)
Common Shares
($0.001 Par Value)
UNDERWRITING AGREEMENT
[________], 0000
XXXXXX XXXX LLC
DEUTSCHE XXXXXX XXXXXXXX INC.
EVEREN SECURITIES, INC.
As representatives of the
several Underwriters
c/o Xxxxxx Xxxx LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Ladies and Gentlemen:
SECTION 1. INTRODUCTION.
Vysis, Inc., a Delaware corporation (the "Company"), proposes to issue and
sell to the several Underwriters named in Schedule I hereto (the
"Underwriters"), acting severally and not jointly, for which Xxxxxx Xxxx LLC,
Deutsche Xxxxxx Xxxxxxxx Inc. and EVEREN Securities, Inc. are acting as
representatives (the "Representatives"), an aggregate of 3,500,000 shares of the
Company's common stock, $0.001 par value (the "Common Shares"). The 3,500,000
Common Shares to be purchased by the Underwriters are referred to herein as the
"Initial Shares." The Company also proposes to issue and sell to the several
Underwriters, acting severally and not jointly, an aggregate of not more than
525,000 additional Common Shares (the "Additional Shares"), if requested by the
Underwriters in accordance with Section 4 ("Over-Allotment") hereof. The
Initial Shares and the Additional Shares are collectively referred to herein as
the "Shares." The words "you" and "your" refer to the Representatives of the
Underwriters.
The Company hereby agrees with the several Underwriters as follows:
SECTION 2. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents, warrants and agrees with each of the
Underwriters that:
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. A registration state-
ment on Form S-1 (File No. 333-38109 under the Securities Act of 1933, as
amended (the "1933 Act"), with respect to the Shares, including a form of
prospectus subject to completion, has been prepared by the Company in
conformity with the requirements of the 1933 Act and the rules and
regulations of the Securities and Exchange Commission (the "Commission")
thereunder (the "1933 Act Regulations"). Such registration statement has
been filed with the Commission under the 1933 Act, and one or more
amendments to such registration statement may also have been so filed.
Promptly after execution and delivery of this Agreement, the Company will
either (i) prepare and file a prospectus in accordance with the provisions
of Rule 430A ("Rule 430A") of the 1933 Act Regulations and paragraph (b) of
Rule 424 ("Rule 424(b)") of the 1933 Act Regulations or (ii) if the Company
has elected to rely upon Rule 434 ("Rule 434") of the 1933 Act Regulations,
prepare and file a term sheet (a "Term Sheet") in accordance with the
provisions of Rule 434 and Rule 424(b). The information included in such
prospectus or in such Term Sheet, as the case may be, that was omitted from
such registration statement at the time it became effective but that is
deemed to be part of such registration statement at the time it became
effective (a) pursuant to paragraph (b) of Rule 430A is referred to as
"Rule 430A Information" or (b) pursuant to paragraph (d) of Rule 434 is
referred to as "Rule 434 Information." Each prospectus used before such
registration statement became effective, and any prospectus that omitted,
as applicable, the Rule 430A Information or the Rule 434 Information, that
was used after such effectiveness and prior to the execution and delivery
of this Agreement, is herein called a "Preliminary Prospectus." Such
registration statement, including the exhibits and any schedules, at the
time it became effective and including the Rule 430A Information and the
Rule 434 Information, as applicable, is herein called the "Registration
Statement." Any registration statement filed pursuant to Rule 462(b) of
the 1933 Act Regulations is herein referred to as the "Rule 462(b)
Registration Statement," and after such filing the term "Registration
Statement" shall include the Rule 462(b) Registration Statement. The final
prospectus in the form first furnished to the Underwriters for use in
connection with the offering of the Shares is herein called the
"Prospectus." If Rule 434 is relied on, the term "Prospectus" shall refer
to the Preliminary Prospectus dated January 6, 1998 together with the Term
Sheet and all references in this Agreement to the date of the Prospectus
shall mean the date of the Term Sheet. For purposes of this Agreement, all
references to the Registration Statement, any Preliminary Prospectus, the
Prospectus or any Term Sheet or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("XXXXX").
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(ii) NO SUSPENSION ORDERS. The Commission has not issued any order
preventing or suspending the use of any Preliminary Prospectus and has not
instituted or threatened to institute any proceedings with respect to such
order. When any Preliminary Prospectus delivered to you for dissemination
in connection with the offering was filed with the Commission it (A)
contained all statements required to be stated therein in accordance with,
and complied in all material respects with the requirements of, the 1933
Act and the 1933 Act Regulations and (B) did not include any untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein not misleading, in the light of the
circumstances under which they were made. When the Registration Statement,
any Rule 462(b) Registration Statement or any amendment thereto was or is
declared effective, it (A) contained or will contain all statements
required to be stated therein in accordance with, and complied or will
comply in all material respects with the requirements of, the 1933 Act and
the 1933 Act Regulations and (B) did not or will not include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein not misleading. When the Prospectus or any
amendment or supplement thereto is filed with the Commission pursuant to
Rule 424(b) (or, if the Prospectus or such amendment or supplement is not
required to be so filed, when the Registration Statement or any amendment
thereto containing such amendment or supplement to the Prospectus was or is
declared effective) and on the Closing Date (as defined in Section 3
hereof: "Purchase, Sale and Delivery of the Shares") and the Option Closing
Date (as defined in Section 4 hereof: "Over-Allotment"), the Prospectus, as
amended or supplemented at any such time, (A) contained or will contain all
statements required to be stated therein in accordance with, and complied
or will comply in all material respects with the requirements of, the 1933
Act and the 1933 Act Regulations and (B) did not or will not include any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If Rule 434 is
used, the Company will comply with the requirements of Rule 434 and the
Prospectus shall not be "materially different," as such term is used in
Rule 434, from the Prospectus included in the Registration Statement at the
time it became effective. The foregoing provisions of this paragraph (ii)
shall not apply to statements or omissions made in any Preliminary
Prospectus, the Registration Statement or any amendment thereto or the
Prospectus or any amendment or supplement thereto in reliance upon, and in
conformity with, information furnished in writing to the Company by or on
behalf of the Underwriters through the Representatives expressly for use
therein.
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(iii) GOOD STANDING OF THE COMPANY AND SUBSIDIARIES. Each of
the Company and its subsidiaries (the "Subsidiaries") (A) is a duly
incorporated and validly existing corporation in good standing under the
laws of its jurisdiction of incorporation, with full power and authority
(corporate and other) to own or lease its properties and to conduct its
business as described in the Registration Statement and the Prospectus (or,
if the Prospectus is not in existence, the most recent Preliminary
Prospectus); and (B) is duly qualified to do business as a foreign
corporation in each jurisdiction (x) in which the conduct of its business
requires such qualification (except for those jurisdictions in which the
failure so to qualify has not had and will not have a Material Adverse
Effect (as hereinafter defined) and (y) in which it owns or leases
property. "Material Adverse Effect" means, when used in connection with
the Company or its Subsidiaries, any development, change or effect that is
materially adverse to the business, properties, assets, net worth,
condition (financial or other), results of operations or prospects of the
Company and its Subsidiaries taken as a whole.
(iv) CAPITALIZATION. The Company has the duly authorized and
validly outstanding capitalization set forth under the caption
"Capitalization" in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) and will have the
adjusted capitalization set forth therein on the Closing Date and the
Option Closing Date, based on the assumptions set forth therein. The
securities of the Company conform to the descriptions thereof contained in
the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus). The outstanding Common Shares have been duly
authorized and validly issued by the Company and are fully paid and
nonassessable. Except as created hereby or referred to in the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus) or in the Registration Statement, there are no outstanding
options, warrants, rights or other arrangements requiring the Company or
any Subsidiary, if not wholly-owned at any time, to issue any capital
stock. No holders of outstanding shares of capital stock of the Company
are entitled as such to any preemptive or other rights to subscribe for any
of the Shares and neither the filing of the Registration Statement or the
offering or sale of the Shares as contemplated by this Agreement gives rise
to any rights, other than those which have been waived or satisfied, for or
relating to, the registration of any securities of the Company. The Shares
have been duly authorized; and on the Closing Date or the Option Closing
Date (as the case may be), after payment therefor in accordance with the
terms of this Agreement, the Initial Shares and the Additional Shares to be
sold by the Company hereunder will be validly issued, fully paid and
nonassessable, and good and marketable title
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to such Shares will pass to the Underwriters on the Closing Date or the
Option Closing Date (as the case may be) free and clear of any lien,
encumbrance, security interest, claim or other restriction whatsoever
(other than any lien, encumbrance, security interest, claim or other
restriction created by any Underwriter). All the outstanding shares of
capital stock of each Subsidiary have been duly authorized and validly
issued, are fully paid and nonassessable. All of the outstanding shares
of capital stock of each Subsidiary are owned directly or indirectly by
the Company, free and clear of any lien, encumbrance, security interest,
claim or other restriction whatsoever. The Company has received, subject
to notice of issuance, approval to have the Shares quoted on the National
Market System of the National Association of Securities Dealers'
Automated Quotation System ("Nasdaq NMS") and the Company knows of no
reason or set of facts which is likely to adversely affect such approval.
(v) FINANCIAL STATEMENTS. The financial statements and the related
notes and schedules thereto included in the Registration Statement and the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) fairly present the financial condition, results of
operations, shareholders' equity and cash flows of the Company and its
Subsidiaries at the dates and for the periods specified therein. Such
financial statements and the related notes and schedules thereto have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved (except as otherwise
noted therein) and have been examined by Price Waterhouse LLP, who are
independent public accountants within the meaning of the 1933 Act and the
1933 Act Regulations, as indicated in their reports filed therewith. The
selected financial information and statistical data set forth under the
caption "Selected Financial Data" in the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus) are prepared
on a basis consistent with the financial statements of the Company and its
Subsidiaries.
(vi) TAX COMPLIANCE. The Company and each of its Subsidiaries have
filed all necessary federal, state and local income and franchise tax
returns and have paid all taxes shown as due thereunder, except for such
taxes that the payment of which is being contested in good faith, and the
Company has no knowledge of any tax deficiency which might be assessed
against the Company which, if so assessed, may have a Material Adverse
Effect.
(vii) INSURANCE. The Company and each of its Subsidiaries
maintains insurance of the types and in amounts which they reasonably
believe to be adequate for their business and in such amounts and with such
deductibles as is
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customary for companies in the same or similar business, all of which
insurance is in full force and effect.
(viii) ABSENCE OF PROCEEDINGS. Except as disclosed in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), there is no pending or, to the best of the
Company's knowledge, threatened action, suit, proceeding or investigation
before or by any court, regulatory body or administrative agency or any
other governmental agency or body, domestic or foreign, which (A) questions
the validity of the capital stock of the Company or this Agreement or of
any action taken or to be taken by the Company pursuant to or in connection
with this Agreement, (B) is required to be disclosed in the Registration
Statement which is not so disclosed (and such proceedings, if any, as are
summarized in the Registration Statement are accurately summarized in all
material respects), or (C) may have a Material Adverse Effect.
(ix) AUTHORIZATION OF AGREEMENT. The Company has full legal right,
power and authority to enter into this Agreement and to consummate the
transactions provided for herein. This Agreement has been duly authorized,
executed and delivered by the Company and, assuming it is a binding
agreement of yours, constitutes a legal, valid and binding agreement of the
Company enforceable against the Company in accordance with its terms
(except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws of general application
relating to or affecting the enforcement of creditors' rights and the
application of equitable principles relating to the availability of
remedies and except as rights to indemnity or contribution may be limited
by federal or state securities laws and the public policy underlying such
laws), and none of the Company's execution or delivery of this Agreement,
its performance hereunder or its consummation of the transactions
contemplated herein conflicts or will conflict with or results or will
result in any breach or violation of any of the terms or provisions of, or
constitutes or will constitute a default under, or result in the creation
or imposition of any material lien, charge or encumbrance upon, any
property or assets of the Company or any of its Subsidiaries pursuant to
the terms of (A) the certificate of incorporation or bylaws of the Company
or any of its Subsidiaries, (B) any indenture, shareholders' agreement,
note agreement or other agreement or instrument to which the Company or any
of its Subsidiaries is a party or by which any of them are or may be bound
or to which any of their respective property is or may be subject or (C)
any statute, judgment, decree, order, rule or regulation applicable to the
Company or any of its Subsidiaries of any arbitrator, court, regulatory
body or administrative agency or other governmental agency or body,
domestic or foreign, having jurisdiction over the Company,
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any of its Subsidiaries or any of their respective activities or
properties.
(x) ACCURACY AND VALIDITY OF EXHIBITS. All executed agreements or
copies of executed agreements filed as exhibits to the Registration
Statement to which the Company or any of its Subsidiaries is a party or by
which any of them are or may be bound or to which any of their assets,
properties or businesses is or may be subject have been duly and validly
authorized, executed and delivered by the Company or such Subsidiary, as
the case may be, and assuming such agreements are binding agreements of the
other parties thereto, constitute the legal, valid and binding agreements
of the Company or such Subsidiary, as the case may be, enforceable against
each of them in accordance with their respective terms (except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws relating to enforcement of creditors'
rights generally, and general equitable principles relating to the
availability of remedies, and except as rights to indemnity or contribution
may be limited by federal or state securities laws and the public policy
underlying such laws). The descriptions in the Registration Statement of
contracts and other documents are accurate and fairly present the
information required to be shown with respect thereto by Form S-1 and there
are no contracts or other documents which are required by the 1933 Act or
such Form to be described in the Registration Statement or filed as
exhibits to the Registration Statement which are not described or filed as
required, and the exhibits which have been filed are complete and correct
copies of the documents of which they purport to be copies.
(xi) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Subsequent to the most
recent respective dates as of which information is given in the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus), and except as expressly contemplated therein, neither the
Company nor any of its Subsidiaries has incurred, other than in the
ordinary course of its business, any material liabilities or obligations,
direct or contingent, purchased any of its outstanding common shares, paid
or declared any dividends or other distributions on its common shares or
entered into any material transactions not in the ordinary course of
business, and there has been no material change in capital stock or debt or
any material adverse change in the condition (financial or other), net
worth or results of operations of the Company and its Subsidiaries taken as
a whole. Neither the Company nor any of its Subsidiaries is in breach or
violation of, or in default under, any term or provision of (A) its
certificate of incorporation, or bylaws, (B) any indenture, mortgage, deed
of trust, voting trust agreement, stockholders' agreement, note agreement
or other agreement or instrument
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to which it is a party or by which it is or may be bound or to which any
of its property is or may be subject, or any indebtedness, the effect of
which breach or default may have a Material Adverse Effect, or (C) any
statute, judgment, decree, order, rule or regulation applicable to the
Company or any of its Subsidiaries or of any arbitrator, court, regulatory
body, administrative agency or any other governmental agency or body,
domestic or foreign, having jurisdiction over the Company or any of its
Subsidiaries or any of their respective activities or properties and the
effect of which breach or default may have a Material Adverse Effect.
(xii) ABSENCE OF LABOR DISPUTE. No labor disturbance by the
employees of the Company or any of its Subsidiaries exists or to the best
of the Company's knowledge, is imminent which may have a Material Adverse
Effect.
(xiii) NO MATERIAL LIABILITIES UNDER THE 1933 ACT. Since its
inception, the Company has not incurred any material liability arising
under or as a result of the application of the provisions of the 1933 Act.
(xiv) [Intentionally omitted].
(xv) NO CONSENTS REQUIRED. No consent, approval,
authorization or order of any court, regulatory body, administrative
agency or any other governmental agency or body, domestic or foreign, is
required for the performance of this Agreement or the consummation of the
transactions contemplated hereby, except such as have been or may be
obtained under the 1933 Act or may be required under state securities,
Blue Sky laws or the rules and regulations of the National Association of
Securities Dealers, Inc. ("NASD") in connection with the Underwriters'
purchase and distribution of the Shares.
(xvi) REGISTRATION RIGHTS. There are no contracts, agreements
or understandings between the Company and any person granting such person
the right to require the Company to file a registration statement under the
1933 Act with respect to any securities of the Company owned or to be owned
by such person or to require the Company to include such securities under
the Registration Statement (other than those that have been disclosed in
the Prospectus or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), that have not been waived with respect to the
Registration Statement.
(xvii) NO PRICE STABILIZATION OR MANIPULATION. Neither the
Company nor any of its officers, directors or affiliates (within the
meaning of the 1933 Act Regulations) has taken, directly or indirectly, any
action designed to stabilize or manipulate the price of any security of the
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Company, or which has constituted or which might in the future reasonably
be expected to cause or result in stabilization or manipulation of the
price of any security of the Company, to facilitate the sale or resale of
the Shares or otherwise.
(xviii) TITLE TO PROPERTY. Each of the Company and its
Subsidiaries has good and marketable title to, or valid and enforceable
leasehold interests in, all tangible properties and assets owned or leased
by it free and clear of all liens, encumbrances, security interests,
restrictions, equities, claims and defects, except (A) such as are
described in the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus), or such as do not materially adversely
affect the value of any of such properties or assets taken as a whole and
do not interfere with the use made and proposed to be made of any of such
properties or assets, and (B) liens for taxes not yet due and payable as to
which appropriate reserves have been established and reflected on the
financial statements included in the Registration Statement. The Company
owns or leases all such properties as are necessary to its operations as
now conducted, and as proposed to be conducted as set forth in the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus); and the properties and
business of the Company and its Subsidiaries conform in all material
respects to the descriptions thereof contained in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus). All the material leases and
subleases of the Company and its Subsidiaries, and under which the Company
or any Subsidiary holds properties or assets as lessee or sublessee,
constitute valid leasehold interests of the Company or such Subsidiary free
and clear of any lien, encumbrance, security interest, restriction, equity,
claim or defect, are in full force and effect, and neither the Company nor
any Subsidiary is in default in respect of any of the material terms or
provisions of any such material leases or subleases, and neither the
Company nor any Subsidiary has notice of any claim which has been asserted
by anyone adverse to the Company's or any of its Subsidiary's rights as
lessee or sublessee under either the material lease or sublease, or
affecting or questioning the Company's or any Subsidiary's right to the
continued possession of the leased or subleased premises under any such
material lease or sublease, which may have a Material Adverse Effect.
(xix) COMPLIANCE WITH ENVIRONMENTAL, SAFETY AND HEALTH LAWS, AND
ERISA. Neither the Company nor any Subsidiary has violated any applicable
environmental, safety, health or similar law applicable to the business of
the Company, nor any federal or state law relating to discrimination in the
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hiring, promotion, or pay of employees, nor any applicable federal or state
wages and hours law, nor any provisions of ERISA or the rules and
regulations promulgated thereunder, the consequences of which violation may
have a Material Adverse Effect.
(xx) LICENSES AND PERMITS. Each of the Company and its Subsidiaries
holds all franchises, licenses, permits, certificates and other
authorizations from federal, state and other regulatory authorities
necessary to the ownership, leasing and operation of its properties or
required for the present conduct of its business, and such franchises,
licenses, permits and other governmental authorizations are in full force
and effect and the Company is in compliance therewith in all material
respects except where the failure so to obtain, maintain or comply with
would not have a Material Adverse Effect.
(xxi) INTELLECTUAL PROPERTY. Except as set forth in the
Prospectus, each of the Company and its Subsidiaries owns, or is licensed
or otherwise has sufficient right to use, the proprietary knowledge,
confidential information, inventions, patents, trademarks, service marks,
trade names, logo marks and copyrights used in or necessary for the conduct
of its business, including, without limitation, its FISH technology, its
CGH and gCGH technology and its Q-beta replicase technology, each as
described in the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus), and neither the Company nor any of the
Subsidiaries has received notice of, or is otherwise aware of, infringement
of, or conflict with, asserted rights of others with respect to the
foregoing which infringement or conflict could reasonably be expected to
have a Material Adverse Effect. All patents and applications therefor,
trademark registrations and applications therefor, and registered
copyrights, which are owned by the Company or its Subsidiaries, have been
duly registered in, filed in, or issued by, the United States Patent and
Trademark Office, the United States Register of Copyrights, or the
corresponding offices of other jurisdictions, as the case may be, and have
been properly maintained and renewed in accordance with all applicable
provisions of law and administrative regulations of the United States and
each such jurisdiction, except for any failure to so register, file, issue,
maintain or renew that would not have a Material Adverse Effect.
(xxii) SUBSIDIARY DIVIDENDS. No Subsidiary of the Company is
currently prohibited, directly or indirectly, by the terms of its
organizational documents or any agreement to which it is a party 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
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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 (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus).
(b) OFFICER'S CERTIFICATES. Any certificate signed by any officer of the
Company or of any Subsidiary and delivered to the Representatives or to counsel
for the Underwriters shall be deemed a representation and warranty by the
Company to each Underwriter as to the matters covered thereby.
SECTION 3. PURCHASE, SALE AND DELIVERY OF THE INITIAL SHARES.
On the basis of the representations, warranties, covenants and agreements
herein contained, but subject to the terms and conditions herein set forth, the
Company agrees to sell to each Underwriter and each Underwriter, severally and
not jointly, agrees to purchase from the Company at a purchase price of $_______
per Share, the number of Initial Shares set forth opposite the name of such
Underwriter in Schedule I hereto.
Delivery of certificates, and payment of the purchase price, for the
Initial Shares shall be made at the offices of Xxxxx, Xxxxx & Xxxxx, 000 Xxxxx
XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, or such other location as such be agreed upon
by the Company and the Representatives. Such delivery and payment shall be made
at 10:00 a.m., New York City time, on the third (fourth, if the pricing occurs
after 4:30 PM Eastern Standard Time on any given day) business day after the
date hereof (unless postponed in accordance with the provisions of Section 12
("Substitution of Underwriters"), or at such other time and date not more than
ten business days thereafter as shall be agreed upon by the Representatives and
the Company. The time and date of such delivery and payment are herein called
the "Closing Date." Delivery of the certificates for the Initial Shares 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 purchase price for the Initial Shares by wire transfer of
immediately available funds to a bank account designated by the Company in
writing to the Representatives at least two business days prior to the Closing
Date or by certified or official bank checks in same day funds drawn to the
order of the Company. The certificates for the Shares to be so delivered will
be in definitive, fully registered form, will bear no restrictive legends and
will be in denominations and registered in such names as the Representatives
shall request, not less than two full business days prior to the Closing Date.
The certificates for the Initial Shares will be made available to the
Representatives at such office or such other place as the Representatives may
designate for inspection, checking and packaging not later than 9:30 a.m., New
York City time, on the business day prior to the Closing Date.
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SECTION 4. OVER-ALLOTMENT.
At any time during a period of 30 days from the date of the Prospectus, the
Underwriters, by no less than two business days' prior notice to the Company may
designate a closing (which may be concurrent with, and part of, the closing on
the Closing Date with respect to the Common Shares or may be a second closing
held on a date subsequent to the Closing Date, either case such date shall be
referred to herein as the "Option Closing Date") at which the Underwriters may
purchase all or less than all of the Additional Shares in accordance with the
provisions of this Section 4 ("Over-Allotment") at the purchase price per share
to be paid for the Initial Shares. In no event shall the Option Closing Date be
later than 10 business days after written notice of election to purchase
Additional Shares is given.
The Company agrees to sell to the several Underwriters on the Option
Closing Date the number of Additional Shares specified in such notice and the
Underwriters agree, severally and not jointly, to purchase such Additional
Shares on the Option Closing Date. Such Additional Shares shall be purchased
for the account of each Underwriter in the same proportion as the number of
Initial Shares set forth opposite such Underwriter's name bears to the total
number of Initial Shares (subject to adjustment by you to eliminate fractions)
and may be purchased by the Underwriters only for the purpose of covering
over-allotments made in connection with the sale of the Initial Shares.
No Additional Shares shall be sold or delivered unless the Initial Shares
previously have been, or simultaneously are, sold and delivered. The right to
purchase the Additional Shares or any portion thereof may be surrendered and
terminated at any time upon notice by you to the Company.
Delivery of the certificates, and payment of the purchase price, for the
Additional Shares shall be made on the Option Closing Date at the offices of
Xxxxx, Xxxxx & Xxxxx, 000 Xxxxx XxXxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx, or such other
location as shall be agreed upon by the Company and the Representatives.
Delivery of the certificates for the Additional Shares shall be made to the
Representatives for the accounts of the several Underwriters against payment of
the purchase price therefor by wire transfer of immediately available funds to a
bank account designated by the Company in writing to the Representatives at
least two business days prior to the Option Closing Date or by certified or
official bank checks in same day funds drawn to the order of the Company. The
certificates for the Additional Shares to be so delivered will be in definitive,
fully registered form, will bear no restrictive legends and will be in such
denominations and registered in such names as you request, not less than two
full business days prior to the Option Closing Date. The certificates for the
Additional Shares will be made
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available to the Representatives at such office or such other place as the
Representatives may designate for inspection, checking and packaging not
later than 9:30 a.m., New York City time, on the business day prior to the
Option Closing Date. Except to the extent waived by the Underwriters, all
the provisions of this Agreement applicable with respect to the transactions
contemplated on the Closing Date shall apply to such Option Closing Date,
MUTATIS MUTANDIS, and the Additional Shares purchased at such closing
hereunder shall be deemed Shares for all purposes of this Agreement.
SECTION 5. PUBLIC OFFERING OF THE SHARES.
As soon after the Registration Statement becomes effective as the
Representatives deem advisable, the Underwriters propose to make a public
offering of the Shares (other than to residents of or in any jurisdiction in
which qualification of the Shares is required and has not become effective) at
the price and upon the other terms set forth in the Prospectus.
SECTION 6. COVENANTS OF THE COMPANY.
The Company covenants and agrees with each of the Underwriters that:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS.
The Company, subject to Section 6(b) hereof ("Filing of Amendments"), will
comply with the requirements of Rule 430A and will notify the
Representatives immediately, and confirm the notice in writing, (i) when
any post-effective amendment to the Registration Statement shall become
effective, or any supplement to the Prospectus or any amended Prospectus
shall have been filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or
for additional information, and (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or of any order preventing or suspending the use of any Preliminary
Prospectus, or of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, or of the initiation or threatening
of any proceedings for any of such purposes. The Company will promptly
effect the filings necessary pursuant to Rule 424(b) and will take such
steps as it deems necessary to ascertain promptly whether the form of
prospectus transmitted for filing under Rule 424(b) was received for filing
by the Commission and, in the event that it was not, it will promptly file
such prospectus. The Company will make every reasonable effort to prevent
the issuance of any stop order and, if any stop order is issued,
-13-
to obtain the lifting thereof at the earliest possible moment.
(b) FILING OF AMENDMENTS. The Company will give the Representatives
notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)), any Term
Sheet or any amendment, supplement or revision to either the prospectus
included in the Registration Statement at the time it became effective or
to the Prospectus, will furnish the Representatives with copies of any such
documents a reasonable amount of time prior to such proposed filing or use,
as the case may be, and will not file or use any such document to which the
Representatives or counsel for the Underwriters shall reasonably object.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Company has furnished
or will deliver to the Representatives and counsel for the Underwriters,
without charge, signed copies of the Registration Statement as originally
filed and of each amendment thereto (including exhibits filed therewith or
incorporated by reference therein) and signed copies of all consents and
certificates of experts, and will also deliver to the Representatives,
without charge, a conformed copy of the Registration Statement as
originally filed and of each amendment thereto (without exhibits) for each
of the Underwriters. If applicable, the copies of the Registration
Statement and each amendment thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation
S-T.
(d) DELIVERY OF PROSPECTUSES. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus
as such Underwriter reasonably requested, and the Company hereby consents
to the use of such copies for purposes permitted by the 1933 Act. The
Company will furnish to each Underwriter, without charge, during the period
when the Prospectus is required to be delivered under the 1933 Act or the
Securities Exchange Act of 1934 (the "1934 Act"), such number of copies of
the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request. If applicable, the Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company will
comply with the 1933 Act and the 1933 Act Regulations so as to permit the
completion of the distribution of the Shares as contemplated in this
Agreement and in the Prospectus. If at any time when a prospectus is
-14-
required by the 1933 Act to be delivered in connection with sales of the
Shares, any event shall occur or condition shall exist as a result of which
it is necessary, in the opinion of counsel for the Underwriters or for the
Company, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include any untrue
statements of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to
amend the Registration Statement or amend or supplement the Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly prepare and file with the
Commission, subject to Section 6(b) hereof ("Filing of Amendments"), such
amendment or supplement as may be necessary to correct such statement or
omission or to make the Registration Statement or the Prospectus comply
with such requirements, and the Company will furnish to the Underwriters
such number of copies of such amendment or supplement as the Underwriters
may reasonably request.
(f) BLUE SKY QUALIFICATIONS. The Company will use its best efforts,
in cooperation with the Underwriters, to qualify the Shares for offering
and sale under the applicable securities laws of such states and other
jurisdictions (domestic or foreign) as the Representatives may reasonably
designate and to maintain such qualifications in effect for a period of not
less than one year from the later of the effective date of the Registration
Statement and any Rule 462(b) Registration Statement; provided, however,
that the Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise so subject. In each jurisdiction in which the
Shares have been so qualified, the Company will file such statements and
reports as may be required by the laws of such jurisdiction to continue
such qualification in effect for a period of not less than one year from
the effective date of the Registration Statement and any Rule 462(b)
Registration Statement.
(g) RULE 158. The Company will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
security holders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
-15-
(h) USE OF PROCEEDS. The Company will use the net proceeds received
by it from the sale of the Shares in the manner specified in the Prospectus
under "Use of Proceeds."
(i) LISTING. The Company will use its best efforts to effect and
maintain, until the completion of the distribution of the Shares (including
any Additional Shares), the quotation of the Shares on the Nasdaq NMS and
will file with the Nasdaq NMS all documents and notices required by the
Nasdaq NMS of companies that have securities that are traded in the
over-the-counter market and quotations for which are reported by the
Nasdaq NMS.
(j) RESTRICTION ON SALE OF SHARES. During a period of 180 days from
the date of the Prospectus, the Company will not, without the prior written
consent of Xxxxxx Xxxx LLC, (i) offer, pledge, sell, contract to sell, sell
any option or contract to purchase, purchase any option or contract to
sell, grant any option, right or warrant to purchase or otherwise transfer
or dispose of, directly or indirectly, any Common Shares or any securities
convertible into or exercisable or exchangeable for Common Shares or file
any registration statement under the 1933 Act with respect to any of the
foregoing or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or indirectly,
the economic consequence of ownership of the Common Shares, whether any
such swap or transaction described in clause (i) or (ii) above is to be
settled by delivery of Common Shares or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the Shares to be
sold hereunder, (B) any Common Shares issued by the Company upon the
exercise of an option or warrant or the conversion of security outstanding
on the date hereof and referred to in the Prospectus, (C) any Common Shares
issued or options to purchase Common Shares granted pursuant to existing
employee benefit plans of the Company referred to in the Prospectus or
pursuant to any new employee benefit plan of the Company created subsequent
to the date of this Agreement, provided that any such Common Shares or
options issued or granted pursuant to any such new employee benefit plan,
in each case, may not be sold or exercised, as the case may be, during the
period of 180 days from the date of the Prospectus, (D) any Common Shares
issued pursuant to any non-employee director stock plan or (E) any Common
Shares issued pursuant to agreements referenced in the Registration
Statement. In addition, the Company shall exercise its rights under the
Vysis, Inc. 1996 Stock Incentive Plan (and under each agreement entered
into thereunder providing for the granting of any option or other purchase
right) to cause each recipient of any options or purchase rights granted
thereunder to desist from selling or otherwise transferring any Common
Shares acquired by such person upon exercise of any such option or purchase
right for a period of 180 days from the date of the Prospectus, and the
Company agrees not
-16-
to grant any waiver therefrom without the prior written consent of Xxxxxx
Xxxx LLC.
(k) REPORTING REQUIREMENTS. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant
to the 1934 Act within the time periods required by the 1934 Act and the
rules and regulations of the Commission under the 1934 Act.
(l) [Intentionally omitted.]
(m) During a period of five years after the date hereof, the Company
will furnish to its shareholders, as soon as practicable, annual reports
(including financial statements audited by independent public accountants)
and will deliver to the Representatives:
(i) as soon as they are available, copies of all reports
(financial or other) mailed to shareholders;
(ii) as soon as they are available, copies of all reports and
financial statements furnished to or filed with the Commission, the
NASD or any securities exchange;
(iii) every material press release and every material news
item or article of interest to the financial community in respect of
the Company or its affairs which was released or prepared by the
Company; and
(iv) any additional information of a public nature concerning the
Company or its business which the Representatives may reasonably
request.
During such five-year period, if the Company has active subsidiaries,
the foregoing financial statements will be on a consolidated basis to the
extent that the accounts of the Company and its subsidiaries are
consolidated, and will be accompanied by similar financial statements for
any significant subsidiary which is not so consolidated.
(n) TRANSFER AGENT. For so long as the Company is required to file
periodic reports with the Commission pursuant to the 1934 Act, the Company
will maintain a Transfer Agent and, if necessary under the jurisdiction of
incorporation of the Company, a Registrar (which may be the same entity as
the Transfer Agent) for its Common Shares.
(o) NO PRICE STABILIZATION. The Company shall not take, and shall
use its best reasonable efforts to prevent any of its officers or
directors, and affiliates of any of them (within the meaning of the 1933
Act Regulations), directly or indirectly, from taking any action designed
to, or which might in the future reasonably be expected to cause or result
in, stabilization or manipulation of the price of
-17-
any securities of the Company during any period in which the distribution
of any Initial Shares or any Additional Shares is continuing.
SECTION 7. EXPENSES.
(a) Regardless of whether the transactions contemplated in this Agreement
are consummated, and regardless of whether for any reason this Agreement is
terminated, the Company will pay, and hereby agrees to indemnify each
Underwriter against, all fees and expenses incident to the performance of the
obligations of the Company under this Agreement, including, but not limited to,
(i) fees and expenses of accountants and counsel for the Company, (ii) all costs
and expenses incurred in connection with the preparation, printing, duplication,
filing, delivery and shipping of copies of the Registration Statement and any
pre-effective or post-effective amendments thereto, any Preliminary Prospectus
and the Prospectus and any amendments or supplements thereto (including postage
costs related to the delivery by the Underwriters of any Preliminary Prospectus
or Prospectus, or any amendment or supplements thereto), this Agreement, the
Agreement Among Underwriters, any Selected Dealer Agreement, Underwriters'
Questionnaire, Underwriters' Power of Attorney, and all other documents in
connection with the transactions contemplated herein, including the cost of all
copies thereof, (iii) fees and expenses relating to qualification of the Shares
under state securities or Blue Sky laws, including the cost of preparing and
mailing the preliminary and final Blue Sky memoranda and filing fees and
disbursements and fees and disbursements of counsel to the Underwriters and
other related expenses, if any, in connection therewith, (iv) filing fees of the
Commission and of the NASD relating to the Shares, including the fees and
disbursements of counsel to the Underwriters, (v) any fees and expenses in
connection with the quotation of the Shares on the Nasdaq NMS, and (vi) costs
and expenses incident to the preparation, issuance and delivery to the
Underwriters of any certificates evidencing the Shares, including transfer
agent's and registrar's fees and any applicable transfer taxes incurred in
connection with the delivery to the Underwriters of the Shares to be sold by the
Company pursuant to this Agreement; PROVIDED that, the Company's obligation
pursuant to this Section 7 with respect to (A) the fees (but not disbursements)
of counsel to the Underwriters described in clause (iii) of this Section 7 and
(B) the fees (but not disbursements) of such counsel relating to filing with the
NASD shall be limited to a maximum aggregate of $10,000.
(b) If the purchase of the Shares as herein contemplated is not
consummated for any reason other than the Underwriters' default under this
Agreement, the Company shall reimburse the several Underwriters for their
out-of-pocket expenses (including reasonable counsel fees and disbursements) in
connection with any investigation made by them, and any preparation made by them
in
-18-
respect of marketing of the Shares or in contemplation of the performance by
them of their obligations hereunder.
SECTION 8. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS.
The obligation of each Underwriter to purchase and pay for the Shares set
forth opposite the name of such Underwriter in Schedule I is subject to the
continuing accuracy of the representations and warranties of the Company herein
as of the date hereof and as of the Closing Date as if they had been made on and
as of the Closing Date; the accuracy on and as of the Closing Date of the
statements of officers of the Company made pursuant to the provisions hereof;
the performance by the Company on and as of the Closing Date of its covenants
and agreements hereunder; and the following additional conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. If the Registration
Statement, including any Rule 462(b) Registration Statement, or any amendment
thereto filed prior to the Closing Date, has not been declared effective as of
the time of execution hereof, the Registration Statement or such amendment shall
have been declared effective not later than 11:00 A.M., New York City time, on
the date on which the amendment to the registration statement originally filed
with respect to the Shares or the Registration Statement (containing the
information omitted therefrom pursuant to Rule 430A under the 1933 Act included
in the Prospectus), as the case may be, containing information regarding the
initial public offering price of the Shares has been filed with the Commission,
or such later time and date as shall have been consented to by the
Representatives; if required, the Prospectus and any amendment or supplement
thereto shall have been filed with the Commission in the manner and within the
time period required by Rule 424(b) under the 1933 Act; no stop order suspending
the effectiveness of the Registration Statement or any amendment thereto shall
have been issued, and no proceedings for that purpose shall have been instituted
or threatened or, to the knowledge of the Company or the Representatives, shall
be contemplated by the Commission; and the Company shall have complied with any
request of the Commission for additional information (to be included in the
Registration Statement or the Prospectus or otherwise).
(b) [Intentionally omitted.]
(c) OPINION OF COUNSEL TO THE UNDERWRITERS. On or prior to the Closing
Date, the Representatives shall have received from Xxxxxxx Xxxx & Xxxxxxxxx,
counsel to the Underwriters, such opinion or opinions with respect to the
issuance and sale of the Initial Shares, the Registration Statement and the
Prospectus and such other related matters as the Representatives reasonably may
request, and such counsel shall have received such documents and other
information as they request to enable them to pass upon such matters.
-19-
(d) OPINION OF COUNSEL TO THE COMPANY. On the Closing Date, the
Underwriters shall have received the opinion, dated the Closing Date, of Xxxxx,
Xxxxx & Xxxxx, counsel to the Company, to the effect set forth below:
(i) Each of the Company and each of its domestic Subsidiaries (A) is
a duly incorporated and validly existing corporation in good standing under
the laws of its jurisdiction of incorporation with full corporate power and
authority to own or lease its properties and to conduct its business as
described in the Prospectus, and (B) to the best of such counsel's
knowledge, is duly qualified to do business as a foreign corporation in
each jurisdiction (x) in which the conduct of its business requires such
qualification (except for those jurisdictions in which the failure so to
qualify can be cured without having a Material Adverse Effect) and (y) in
which it owns or leases real property;
(ii) The Company has authorized capital stock as set forth in the
Prospectus; the capital stock of the Company conforms in all material
respects to the description thereof contained in the Prospectus; the
outstanding Common Shares have been duly authorized and validly issued by
the Company, are fully paid and nonassessable, and to the best of such
counsel's knowledge, are free of any preemptive or other rights to
subscribe for any of the Shares; the Company has duly authorized the
issuance and sale of the Shares to be sold by it hereunder; such Shares,
when issued by the Company and paid for in accordance with the terms
hereof, will be validly issued, fully paid and nonassessable and will
conform in all material respects to the description thereof contained in
the Prospectus; and the Shares have been duly authorized for quotation on
the Nasdaq NMS;
(iii) The Registration Statement is effective under the 1933
Act; any required filing of the Prospectus pursuant to Rule 424(b) has been
made in the manner and within the time period required by Rule 424(b); and
to the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement or any amendment thereto has
been issued, and no proceedings for that purpose have been instituted or
are pending or threatened or contemplated under the 1933 Act; the
Registration Statement and the Prospectus and, if any, each amendment and
supplement thereto (except for the financial statements, schedules and
other financial and statistical data included therein, as to which such
counsel need not express any opinion), as of their respective effective or
issue dates, complied as to form in all material respects to the
requirements of the 1933 Act and the 1933 Act Regulations; the descriptions
contained and summarized in the Registration Statement and the Prospectus
of written and/or other material contracts to which the Company or its
-20-
Subsidiaries are parties and which are filed as exhibits to the
Registration Statement, are accurate and fairly represent in all material
respects the information required to be shown by Form S-1; to the best
knowledge of such counsel, there are no contracts or documents which are
required by the 1933 Act to be described in the Registration Statement or
the Prospectus or to be filed as exhibits to the Registration Statement
which are not described or filed as required; and, to the best knowledge of
such counsel, there is not pending or threatened against the Company any
action, suit, proceeding or investigation before or by any court,
regulatory body, or administrative agency or any other governmental agency
or body, domestic or foreign, of a character required to be disclosed in
the Registration Statement or the Prospectus which is not so disclosed
therein;
(iv) The Company has the corporate power and authority to enter into
this Agreement and to consummate the transactions provided for herein; this
Agreement has been duly authorized, executed and delivered by the Company;
and this Agreement, assuming due authorization, execution and delivery by
each other party hereto, is a valid and binding agreement of the Company,
enforceable in accordance with its terms, except as limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws now or
hereafter in effect relating to or affecting creditors' rights generally or
by general principles of equity relating to the availability of remedies
and except as rights to indemnity and contribution may be limited by
federal or state securities laws or the public policy underlying such laws.
None of the Company's execution or delivery of this Agreement, its
performance hereof or its consummation of the transactions contemplated
herein, will conflict with or result in any breach or violation of any of
the terms or provisions of, or constitute a default under, or result in the
creation or imposition of any material lien, charge or encumbrance upon,
any property or assets of the Company pursuant to the terms of the
certificate or articles of incorporation or bylaws of the Company or any of
its Subsidiaries; the terms of any executed agreement filed as an exhibit
to the Registration Statement to which the Company or any of its
Subsidiaries is a party or by which it or any of its Subsidiaries is or may
be bound or to which any of their respective properties may be subject; any
statute, rule or regulation of any domestic regulatory body or
administrative agency or other domestic governmental agency or body that is
normally applicable to transactions of the type contemplated by this
Agreement; or any judgment, decree or order, known to such counsel after
reasonable investigation, of any domestic court, regulatory body or
administrative agency or other domestic governmental agency or body having
such jurisdiction over the Company or any of its Subsidiaries or any of
their respective activities or
-21-
properties; and no consent, approval, authorization or order of any
domestic court, regulatory body or administrative agency or other
domestic governmental agency or body has been or is required for the
Company's performance of this Agreement or the consummation of the
transactions contemplated hereby, except such as have
been obtained or may be obtained under the 1933 Act or may be required
under state securities or Blue Sky laws in connection with the purchase and
distribution by the Underwriters of the Shares; and
(v) The issued shares of capital stock of each of the domestic
Subsidiaries have been duly authorized validly issued, are fully paid and
nonassessable and are owned by the Company free and clear of any perfected
security interests or, to the best knowledge of such counsel, any other
liens, encumbrances, claims or security interests.
In addition, such counsel shall state that in the course of the preparation
of the Registration Statement and the Prospectus, such counsel has participated
in conferences with officers and representatives of the Company, representatives
of the Company's independent public accountants, and with your representatives
and your counsel at which conferences such counsel made inquiries of such
officers, representatives and accountants and discussed the contents of the
Registration Statement and the Prospectus and (without taking any further action
to verify independently the statements made in the Registration Statement and
the Prospectus and, except as stated in the foregoing opinion, without assuming
responsibility for the accuracy, completeness or fairness of such statements)
nothing has come to such counsel's attention that causes such counsel to believe
that either the Registration Statement or the Prospectus contains any untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading (it
being understood that such counsel need not express any opinion with respect to
the financial statements, schedules and other financial and statistical data
included in the Registration Statement or the Prospectus).
In rendering such opinion, such counsel may rely on the following: (A) as
to matters involving the application of laws other than the federal laws of the
United States and the law of the jurisdiction in which they are admitted, to the
extent such counsel deem proper and to the extent specified in such opinion,
upon an opinion or opinions (in form and substance reasonably satisfactory to
Underwriters' counsel) of other counsel familiar with applicable laws; (B) as to
matters of fact, to the extent they deem proper, on certificates of responsible
officers of the Company and certificates or other written statements of officers
or departments of various jurisdictions having custody of documents respecting
the corporate existence or good standing of the Company; and (C) if written
confirmation of the Commission is not available at the time such opinion is
rendered, upon the oral
-22-
representations of members of the Commission's staff with respect to the
Registration Statement or any amendment thereto having become effective and
the lack of issuance of a stop order or institution or contemplation of
proceedings for that purpose.
References to the Registration Statement and the Prospectus in this
paragraph (d) shall include any amendment or supplement thereto at the date of
such opinion.
(e) OPINION OF IN-HOUSE COUNSEL. On the Closing Date, the Underwriters
shall have received the opinion, dated the Closing Date, of Xxxxxxx X. Xxxxxx,
Esq., general counsel to the Company, to the effect set forth below:
(i) Each of the Company and each of its Subsidiaries (A) is a duly
incorporated and validly existing corporation in good standing under the
laws of its jurisdiction of incorporation with full corporate power and
authority to own or lease its properties and to conduct its business as
described in the Prospectus, and (B) to the best of such counsel's
knowledge, is duly qualified to do business as a foreign corporation in
each jurisdiction (x) in which the conduct of its business requires such
qualification (except for those jurisdictions in which the failure so to
qualify can be cured without having a Material Adverse Effect) and (y) in
which it owns or leases real property;
(ii) The Company has authorized capital stock as set forth in the
Prospectus; the capital stock of the Company conforms in all material
respects to the description thereof contained in the Prospectus; the
outstanding Common Shares have been duly authorized and validly issued by
the Company, are fully paid and nonassessable, and to the best of such
counsel's knowledge, are free of any preemptive or other rights to
subscribe for any of the Shares; the Company has duly authorized the
issuance and sale of the Shares to be sold by it hereunder; such Shares,
when issued by the Company and paid for in accordance with the terms
hereof, will be validly issued, fully paid and nonassessable and will
conform in all material respects to the description thereof contained in
the Prospectus; and the Shares have been duly authorized for quotation on
the Nasdaq NMS;
(iii) To the best of such counsel's knowledge, the Company and
its Subsidiaries are not in violation of any federal, state or local
statute, administrative regulation or other law of general application to
corporations in the conduct of their businesses, which violation is likely
to have a Material Adverse Effect; and each of the Company and its
Subsidiaries has obtained all licenses, permits, franchises, certificates
and other authorizations from state, federal and other regulatory
authorities as are necessary or required for the ownership, leasing and
operation of its properties and the conduct of its business
-23
as presently conducted and as contemplated in the Prospectus, except when
a failure to obtain such authorizations would not have a Material Adverse
Effect;
(iv) To the best of such counsel's knowledge, no Subsidiary of the
Company is currently prohibited by the terms of its organizational
documentation or by any agreement to which it is a party 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;
(v) To the best of such counsel's knowledge, except as described in
the Prospectus, no claims have been asserted against the Company or any of
its Subsidiaries by any person relating to the use of any proprietary
knowledge, inventions, patents, trademarks, service marks, trade names,
logo marks or copyrights used in or necessary for the conduct of the
Company's business (collectively "Rights") or challenging or questioning
the validity or effectiveness of any such Rights, except for such claims as
could not reasonably be expected to have a Material Adverse Effect. The
use, in connection with the business and operations of the Company and its
Subsidiaries, of such Rights does not, to the best of such counsel's
knowledge, infringe on the rights of any person, except for any potential
infringement as is disclosed in the Prospectus; and
(vi) the Company has a legal, valid and binding right under the terms
of the Vysis 1996 Stock Incentive Plan (and under each agreement entered
into thereunder providing for the grant of options or other purchase
rights) to require that each holder of any option or other purchase right
granted pursuant thereto desist from selling any Common Shares acquired
upon exercise thereof for a period of at least 180 days from the date of
the Prospectus.
Such counsel shall also make the statements described in the last three
paragraphs of paragraph (d) of this Section 8 ("Conditions of the Underwriters'
Obligations").
(f) OPINIONS OF SPECIAL COUNSELS. At the time that this Agreement is
executed by the Company, the Underwriters shall have received (i) the opinion of
Xxxxx & Xxxxxxx, special regulatory counsel to the Company and (ii) the opinion
of McCutchen, Doyle, Xxxxx & Xxxxxxx LLP, special patent counsel to the Company,
each in form and substance satisfactory to the Representatives. McCutchen,
Doyle, Xxxxx & Xxxxxxx LLP shall have consented to being named as an expert in
the Registration Statement.
(g) ACCOUNTANTS' COMFORT LETTER. At the time that this Agreement is
executed by the Company the Underwriters shall have
-24-
received from Price Waterhouse LLP a letter as of the date this Agreement is
executed by the Company in form and substance satisfactory to you (the
"Original Letter"), and on the Closing Date the Underwriters shall have
received from such firm a letter dated the Closing Date stating that, as of a
specified date not earlier than three (3) days prior to the Closing Date,
nothing has come to the attention of such firm to suggest that the statements
made in the Original Letter are not true and correct.
(h) OFFICER'S CERTIFICATE. On the Closing Date, the Underwriters shall
have received a certificate, dated the Closing Date, of the principal executive
officer and the principal financial or accounting officer of the Company to the
effect that each of such persons has carefully examined the Registration
Statement and the Prospectus and any amendments or supplements thereto and this
Agreement, and that:
(i) The representations and warranties of the Company in this
Agreement are true and correct, as if made on and as of the Closing Date,
and the Company has complied with all agreements and covenants and
satisfied all conditions contained in this Agreement on its part to be
performed or satisfied at or prior to the Closing 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 are pending or, to the best knowledge of each of such
persons, are contemplated or threatened under the 1933 Act and any and all
filings required by Rule 424 and Rule 430A have been timely made;
(iii) The Registration Statement and Prospectus and, if any,
each amendment and each supplement thereto, contain all statements and
information required to be included therein, and none of the Registration
Statement nor any amendment 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 not misleading and
neither the Prospectus (or any supplement thereto) or any Preliminary
Prospectus delivered to you for dissemination in connection with the
offering included any untrue statement of a material fact or omitted to
state any 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
(iv) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus up to and including
the Closing Date (and except as disclosed in or contemplated by the
Prospectus), neither the Company nor any of the Subsidiaries has incurred,
other than in the ordinary course of its business, any material liabilities
or obligations, direct or contingent; neither
-25-
the Company nor any of its Subsidiaries has purchased any of its
outstanding capital stock or paid or declared any dividends or other
distributions on its capital stock; neither the Company nor any of the
Subsidiaries has entered into any transactions not in the ordinary course
of business; and there has not been any change in the capital stock or
consolidated long-term debt or any increase in the consolidated short-term
borrowings (other than any increase in short-term borrowings in the
ordinary course of business) of the Company or any material adverse change
to the business, properties, assets, net worth, condition (financial or
other), results of operations or prospects of the Company and its
Subsidiaries taken as a whole; neither the Company nor any of the
Subsidiaries has sustained any material loss or damage to its property
or assets, whether or not insured; there is no litigation which is
pending or threatened against the Company or any of its Subsidiaries which
is required to be set forth in an amended or supplemented Prospectus which
has not been set forth; and there has not occurred any event required to be
set forth in an amended or supplemented Prospectus which has not been set
forth.
References to the Registration Statement and the Prospectus in this
paragraph (h) are to such documents as amended and supplemented at the date of
the certificate.
(i) NO CHANGES IN BUSINESS. Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus up to and
including the Closing Date there has not been (i) any material change or
decrease specified in the letter or letters referred to in paragraph (g) of this
Section 8 ("Conditions of the Underwriters' Obligations") or (ii) any change, or
any development involving a prospective change, in the business or properties of
the Company or its Subsidiaries (in either case, other than those changes or
developments disclosed in or contemplated by the Prospectus) which material
change or decrease in the case of clause (i) makes it impractical or inadvisable
in the Representatives' judgment to proceed with the public offering or the
delivery of the Shares as contemplated by the Prospectus, or which change or
development in the case of clause (ii) is reasonably likely to have a Material
Adverse Effect.
(j) NO SUSPENSION ORDERS. No order suspending the sale of the Shares
prior to the Closing Date in any jurisdiction designated by you pursuant to
Section 6(f) hereof ("Covenants of the Company--Blue Sky Qualifications") hereof
has been issued on or prior to the Closing Date and no proceedings for that
purpose have been instituted or, to your knowledge or that of the Company, have
been or are contemplated.
(k) ADDITIONAL DOCUMENTS. The Company shall have furnished the
Underwriters with such further opinions, letters,
-26-
certificates or documents as you or counsel for the Underwriters may
reasonably request. All opinions, certificates, letters and documents to be
furnished by the Company will comply with the provisions hereof only if they
are reasonably satisfactory in all material respects to the Underwriters and
to counsel for the Underwriters. The Company shall furnish the Underwriters
with conformed copies of such opinions, certificates, letters and documents
in such quantities as you reasonably request. The certificates delivered
under this Section 8 ("Conditions of the Underwriters' Obligations") shall
constitute representations, warranties and agreements of the Company as to
all matters set forth therein as fully and effectively as if such matters had
been set forth in Section 2 ("Representations and Warranties") of this
Agreement.
(l) APPROVAL OF LISTING. At the Closing Date the Securities shall have
been approved for inclusion in the Nasdaq NMS, subject only to official notice
of issuance.
(m) LOCK-UP AGREEMENT. At the date of this Agreement, the Representatives
shall have received an agreement substantially in the form of Exhibit A hereto
signed by Amoco Corporation.
(n) CONDITIONS TO PURCHASE OF ADDITIONAL SHARES. In the event that the
Underwriters exercise their option provided in Section 4 hereof
("Over-Allotment") to purchase all or any portion of the Additional Shares,
the representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company hereunder shall be
true and correct as of the Option Closing Date and, on the Option Closing
Date, the Representatives shall have received:
(i) OFFICER'S CERTIFICATE. A certificate, dated the Option Closing
Date, of the President or a Vice President of the Company and of the chief
financial or chief accounting officer of the Company confirming that the
certificate delivered at the Closing Date pursuant to Section 8(h) hereof
("Officer's Certificate") remains true and correct as of the Option Closing
Date.
(ii) OPINION OF COUNSEL TO THE COMPANY. The favorable opinion of
Xxxxx, Xxxxx & Xxxxx, counsel to the Company, in form and substance
satisfactory to Xxxxxxx Xxxx & Xxxxxxxxx, counsel to the Underwriters,
dated the Option Closing Date, relating to the Additional Shares to be
purchased on the Option Closing Date and otherwise to the same effect as
the opinion required by Section 8(d) hereof ("Opinion of Counsel to the
Company").
(iii) OPINION OF COUNSEL TO THE UNDERWRITERS. The favorable
opinion of Xxxxxxx Xxxx & Xxxxxxxxx, counsel to the Underwriters, dated the
Option Closing Date, relating to the Additional Shares to be purchased on
the Option Closing Date and otherwise to the same effect as the opinion
required by Section 8(c) hereof ("Opinion of Counsel to the Underwriters").
-27-
(iv) BRING-DOWN COMFORT LETTER. A letter from Price Waterhouse LLP,
in form and substance satisfactory to the Representatives and dated the
Option Closing Date, substantially in the same form and substance as the
letter furnished to the Representatives pursuant to Section 8(g) hereof
("Accountants' Comfort Letter"), except that the "specified date" on the
letter furnished pursuant to this paragraph shall be a date not more than
five days prior to the Option Closing Date.
(o) TERMINATION OF AGREEMENT. If any condition specified in this Section
shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of Additional Shares
on an Option Closing Date which is after the Closing Date, the obligations of
the several Underwriters to purchase the relevant Additional Shares, may be
terminated by the Representatives by notice to the Company at any time at or
prior to Closing Date or Option Closing Date, as the case may be, and such
termination shall be without liability of any party to any other party except as
provided in Section 7 hereof ("Expenses") and except that Section 2
("Representations and Warranties"), Section 9 ("Indemnification") and
specifically Section 9(d) ("Contribution") shall survive any such termination
and remain in full force and effect.
SECTION 9. INDEMNIFICATION.
(a) INDEMNIFICATION OF THE UNDERWRITERS. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act, against any and all losses, claims, damages, expenses or
liabilities, joint or several (and actions in respect thereof), to which such
Underwriter or such controlling person may become subject, under the 1933 Act or
other federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, claims, damages, expenses, liabilities or actions arise
out of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement or the Prospectus or any
Preliminary Prospectus, or any amendment or supplement thereto, or any Blue Sky
application or other document executed by the Company specifically for the
purpose of qualifying, or based upon written information furnished by the
Company filed in any state or other jurisdiction in order to qualify, any or all
of the Shares under the securities or Blue Sky laws thereof (any such
application, document or information being hereinafter called a "Blue Sky
Application"), 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, in light of the circumstances under which they
were made, not misleading and will reimburse, as incurred, such Underwriter or
such controlling persons for any reasonable legal or other expenses incurred by
such Underwriter or such controlling persons in connection with
-28-
investigating, defending or appearing as a third party witness in connection
with any such loss, claim, damage, liability or action; PROVIDED, HOWEVER,
that the Company will not be liable in any such case to the extent that any
such loss, claim, damage, liability or action arises out of or is based upon
any untrue statement or alleged untrue statement or omission or alleged
omission made in any of such documents in reliance upon and in conformity
with written information furnished to the Company by such Underwriter
expressly for use therein, and PROVIDED, FURTHER, that such indemnity with
respect to any Preliminary Prospectus shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such Underwriter)
from whom the person asserting any such loss, claim, damage or liability
purchased Shares which are the subject thereof if such Underwriter failed to
send or give a copy of the Prospectus (as amended or supplemented) to such
person at or prior to the confirmation of the sale of such Shares to such
person in any case where such delivery is required by the 1933 Act and the
untrue statement or omission (or the alleged untrue statement or omission) of
a material fact contained in such Preliminary Prospectus was corrected in the
Prospectus (as amended and supplemented), unless such failure resulted from
non-compliance by the Company with Section 6(d) hereof ("Delivery of
Prospectuses.
The indemnity agreement in this paragraph (a) shall be in addition to any
liability which the Company may have at common law or otherwise.
(b) INDEMNIFICATION OF THE COMPANY. Each of the Underwriters agrees
severally, but not jointly, to indemnify and hold harmless the Company, each of
its directors, each of its officers who has signed the Registration Statement,
each person, if any, who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act, against any and all losses,
claims, damages, expenses or liabilities (and actions in respect thereof) to
which the Company or any director, officer, or controlling person may become
subject, under the 1933 Act or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages,
expenses, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in the
Registration Statement or the Prospectus or any Preliminary Prospectus, or any
amendment or supplement thereto or in any Blue Sky Application, or arise out of
or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements,
in light of the circumstances under which they were made, not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished by that Underwriter
through the Representatives expressly for use therein; and will reimburse, as
incurred, all legal or other
-29-
expenses reasonably incurred by the Company or any director, officer,
controlling person in connection with investigating or defending any such
loss, claim, damage, liability or action. The Company acknowledges that (i)
the statements with respect to the public offering of the Shares set forth
under the heading "Underwriting" (A) in the third, fourth and fifth sentences
of the second paragraph thereof, (B) in the fourth paragraph thereof and (C)
in the eighth paragraph thereof and (ii) the stabilization legend in the
Prospectus, have been furnished by the Underwriters expressly for use therein
and constitute the only information furnished in writing by or on behalf of
the Underwriters for inclusion in the Prospectus. The indemnity agreement
contained in this subsection (b) shall be in addition to any liability which
the Underwriters may have at common law or otherwise.
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Promptly after receipt by an
indemnified party under this Section 9 of notice of the commencement of any
action, such indemnified party will, if a claim in respect thereof is to be made
against one or more indemnifying parties under this Section 9, notify such
indemnifying party or parties of the commencement thereof; but the omission so
to notify the indemnifying party will not relieve it from any liability which it
may have to any indemnified party otherwise than under subsection (a) or (b) of
this Section 9 or to the extent that the indemnifying party was not adversely
affected by such omission. In case any such action is brought against an
indemnified party and it notifies an indemnifying party or parties of the
commencement thereof, the indemnifying party or parties against which a claim is
to be made will be entitled to participate therein and, to the extent that it or
they may wish, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party; PROVIDED, HOWEVER, that if the
defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party has 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, the
indemnified party or parties shall have the right to select separate counsel to
assume such legal defenses and otherwise to participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party
under this Section 9 for any legal or other expenses (other than the reasonable
costs of investigation) subsequently incurred by such indemnified party in
connection with the defense thereof unless (i) the indemnified party has
employed such counsel in connection with the assumption of such different or
additional legal defenses in accordance with the proviso to the immediately
preceding sentence, (ii) the indemnifying party has not employed counsel
reasonably satisfactory to the indemnified party to
-30-
represent the indemnified party within a reasonable time after notice of
commencement of the action, or (iii) the indemnifying party has authorized in
writing the employment of counsel for the indemnified party at the expense of
the indemnifying party. In no event shall the indemnifying party be liable
for fees and expenses of more than one counsel (in addition to any local
counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances. The indemnified party shall not agree to settle any action or
claim for which it intends to seek indemnification hereunder without the
prior written consent of the indemnifying party.
(d) CONTRIBUTION. If the indemnification provided for in this Section 9
is unavailable to hold harmless an indemnified party under paragraph (a) or (b)
above in respect of any losses, claims, damages, expenses or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying party
shall contribute to the amount paid as a result of such losses, claims, damages,
expenses or liabilities (or actions in respect thereof) (i) in such proportion
as is appropriate to reflect the relative benefits received by each of the
contributing parties, on the one hand, and the party to be indemnified on the
other hand, from the offering of the Shares or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of each of the contributing parties, on the
one hand, and the party to be indemnified on the other hand in connection with
the statements or omissions that resulted in such losses, claims, damages,
expenses or liabilities, as well as any other relevant equitable considerations.
In any case where the Company is the contributing party and the Underwriters are
the indemnified party, the relative benefits received by the Company, on the one
hand, and the Underwriters, on the other, shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Shares (before
deducting expenses) bear to the total underwriting discounts received by the
Underwriters hereunder, in each case as set forth in the table on the Cover Page
of the Prospectus. Relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters, and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, expenses or
liabilities (or actions in respect thereof) referred to above in this
subdivision (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
paragraph (d), the
-31-
Underwriters shall not be required to contribute any amount in excess of the
underwriting discount applicable to the Shares purchased by the Underwriters
hereunder. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 0000 Xxx) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. For
purposes of this paragraph (d), (i) each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter
and each director of the Company, each officer of the Company who has signed
the Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934
Act shall have the same rights to contribution as the Company, subject in
each case to this subparagraph (d). Any party entitled to contribution will,
promptly after receipt of notice of commencement of any action, suit or
proceeding against such party in respect to which a claim for contribution
may be made against another party or parties under this subparagraph (d),
notify such party or parties from whom contribution may be sought, but the
omission so to notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any other obligation it or
they may have hereunder or otherwise than under this subparagraph (d), or to
the extent that such party or parties were not adversely affected by such
omission. The contribution agreement set forth above shall be in addition to
any liabilities which any indemnifying party may have at common law or
otherwise.
SECTION 10. REPRESENTATIONS, ETC. TO SURVIVE DELIVERY.
The respective representations, warranties, agreements,
covenants, indemnities and statements of, and on behalf of, the Company and its
officers and the Underwriters, respectively, 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 the Underwriters, and will survive
delivery of and payment for the Shares.
SECTION 11. TERMINATION.
(a) This Agreement, except for the provisions of Sections 7 ("Expenses")
and 9 ("Indemnification") hereof, may be terminated by the Representatives by
written notice to the Company in the event that the Company has failed to comply
in any material respect with any of the provisions of this Agreement to be
performed at or prior to the Closing Date or the Option Closing Date, or if any
of the representations or warranties of the Company are not accurate in any
material respect or the covenants, agreements or conditions of, or applicable to
the Company herein contained have not been complied with in any material respect
or satisfied within the time specified at or prior to the Closing Date or the
Option Closing Date,
-32-
respectively, or if prior to the Closing Date or the Option Closing Date:
(i) the Company or any of its Subsidiaries shall have sustained a
loss by strike, fire, flood, accident or other calamity of such a character
as to interfere materially with the conduct of the business and operations
of the Company and its Subsidiaries taken as a whole regardless of whether
or not such loss was insured;
(ii) trading in the Common Stock shall have been suspended by the
Commission or the Nasdaq NMS, or trading in securities generally on the
Nasdaq NMS shall have been suspended or minimum or maximum prices shall
have been established on such market system;
(iii) a banking moratorium shall have been declared by New York
or United States authorities;
(iv) there shall have been an outbreak or escalation of hostilities
between the United States and any foreign power or an outbreak or
escalation of any other insurrection or armed conflict involving the United
States that, in each case, in the Representatives' judgment makes it
impracticable or inadvisable to make or consummate a public offering of the
Shares; or
(v) there shall have been a material adverse change in (A) general
economic, political or financial conditions or (B) the present or
prospective business or condition (financial or other) of the Company and
its Subsidiaries taken as a whole that, in each case, in the
Representatives' judgment makes it impracticable or inadvisable to make or
consummate a public offering of the Shares.
(b) Termination of this Agreement under this Section 11 or Section 12
("Substitution of Underwriters") after the Initial Shares have been purchased by
the Underwriters hereunder shall be applicable only to the Additional Shares.
Termination of this Agreement shall be without liability of any party to any
other party other than as provided in Section 7 ("Expenses") and Section 9
("Indemnification") hereof.
SECTION 12. SUBSTITUTION OF UNDERWRITERS.
If one or more of the Underwriters shall fail or refuse (otherwise than for
a reason sufficient to justify the termination of this Agreement under the
provisions of Section 8 ("Conditions of the Underwriters' Obligations") or
Section 11 ("Termination") hereof) to purchase and pay for (a) in the case of
the Closing Date, the number of Initial Shares agreed to be purchased by such
Underwriter or Underwriters upon tender to you of such Initial Shares in
accordance with the terms hereof or (b)
-33-
in the case of the Option Closing Date, the number of Additional Shares
agreed to be purchased by such Underwriter or Underwriters upon tender to you
of such Additional Shares in accordance with the terms hereof, and the number
of such Shares shall not exceed 10% of the Initial Shares or Additional
Shares required to be purchased on the Closing Date or the Option Closing
Date, as the case may be, then, each of the non-defaulting Underwriters shall
purchase and pay for (in addition to the number of such Shares which it has
severally agreed to purchase hereunder) that proportion of the number of
Shares which the defaulting Underwriter or Underwriters shall have so failed
or refused to purchase on such Closing Date or Option Closing Date, as the
case may be, which the number of Shares agreed to be purchased by such
non-defaulting Underwriter bears to the aggregate number of Shares so agreed
to be purchased by all such non-defaulting Underwriters on such Closing Date
or Option Closing Date, as the case may be. In such case, you shall have the
right to postpone the Closing Date specified in Section 3 ("Purchase, Sale
and Delivery of the Shares") and Section 4 ("Over-Allotment") hereof to a
date not exceeding seven days after the date originally fixed as such Closing
Date pursuant to said Sections 3 and 4 in order that any necessary changes in
the Registration Statement, the Prospectus or any other documents or
arrangements may be made.
If one or more of the Underwriters shall fail or refuse (otherwise than
for a reason sufficient to justify the termination of this Agreement under
the provisions of Section 8--"Conditions of the Underwriters' Obligations" or
Section 11--"Termination" hereof) to purchase and pay for (a) in the case of
the Closing Date, the number of Initial Shares agreed to be purchased by such
Underwriter or Underwriters upon tender to you of such Initial Shares in
accordance with the terms hereof or (b) in the case of the Option Closing
Date, the number of Additional Shares agreed to be purchased by such
Underwriter or Underwriters upon tender to you of such Additional Shares in
accordance with the terms hereof, and the number of such Shares shall exceed
10% of the Initial Shares or Additional Shares required to be purchased by
all the Underwriters on the Closing Date or the Option Closing Date, as the
case may be, then (unless within 48 hours after such default arrangements to
your satisfaction shall have been made for the purchase of the defaulted
Shares by an Underwriter or Underwriters) and subject to the provisions of
Section 11(b) ("Termination") hereof, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or on the part of the
Company except as otherwise provided in Section 7 ("Expenses") and Section 9
("Indemnification") hereof. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
paragraph. Nothing in this Section 12, and no action taken hereunder, shall
relieve any defaulting Underwriter from liability in respect of any default
of such Underwriter under this Agreement.
-34-
SECTION 13. NOTICES.
All communications hereunder shall be in writing and if sent to the
Representatives shall be mailed or delivered or telegraphed and confirmed to x/x
Xxxxxx Xxxx LLC at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Syndicate Department, with a copy to Xxxxxxx X. Xxxxx, Xx., Esq., Xxxxxxx Xxxx &
Xxxxxxxxx, 000 X. 00xx Xxxxxx, Xxx Xxxx, XX 00000, or, if sent to the Company,
shall be mailed or delivered or telegraphed and confirmed to Xxxx X. Xxxxxx,
President and Chief Executive Officer, Vysis, Inc., 0000 Xxxxxxxxx Xxxxx,
Xxxxxxx Xxxxx, Xxxxxxxx 00000, with a copy to Xxxxx X. Xxxxxxxx, Esq., Xxxxx,
Xxxxx & Xxxxx, 000 X. XxXxxxx Xxxxxx, Xxxxxxx, XX 00000.
SECTION 14. SUCCESSORS.
This Agreement shall inure to the benefit of and be binding upon the
Company and each Underwriter and the Company's and each Underwriter's respective
successors and legal representatives, and nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person any legal
or equitable right, remedy or claim under or in respect of this Agreement, or
any provisions herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person, except that the
representations, warranties, indemnities and contribution agreements of the
Company contained in this Agreements shall also be for the benefit of any person
or persons, if any, who control any Underwriter within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act, and except that the Underwriters'
indemnity and contribution agreements shall also be for the benefit of the
directors of the Company, the officers of the Company who have signed the
Registration Statement, and any person or persons, if any, who control the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act. No purchaser of Shares from the Underwriters will be deemed a
successor because of such purchase.
SECTION 15. APPLICABLE LAW; JURISDICTION.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York, without giving effect to the choice of law or
conflict of law principles thereof.
SECTION 16. COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original, and all of which together shall be deemed to
be one and the same instrument.
-35-
If the foregoing correctly sets forth our understanding, please
indicate the Underwriters' acceptance thereof in the space provided below for
that purpose, whereupon this letter shall constitute a binding agreement between
us.
Very truly yours,
VYSIS, INC.
By: ____________________________
Name:
Title:
Accepted as of the date first
above written:
XXXXXX XXXX LLC
DEUTSCHE XXXXXX XXXXXXXX INC.
EVEREN SECURITIES, INC.
By: XXXXXX XXXX LLC
By: __________________________
Name:
Title:
For themselves and as Representatives
of the other Underwriters named in
Schedule I hereto
-36-
SCHEDULE I
NUMBER OF INITIAL
NAME OF UNDERWRITER SHARES TO BE PURCHASED
Xxxxxx Xxxx
LLC ____________
Deutsche Xxxxxx
Xxxxxxxx Inc. ____________
EVEREN
Securities, Inc. ____________
[ ] ____________
Total............. ____________
============
[Form of lock-up from Amoco Corporation pursuant to Section 8(m) of the
Underwriting Agreement: "Conditions of Underwriters' Obligations--Lock-Up
Agreements"]
EXHIBIT A
[______], 0000
XXXXXX XXXX LLC
DEUTSCHE XXXXXX XXXXXXXX INC.
EVEREN SECURITIES, INC.
as Representatives of the several
Underwriters named in the
within-mentioned Underwriting Agreement
x/x Xxxxxx Xxxx LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: PROPOSED PUBLIC OFFERING BY VYSIS, INC.
Dear Ladies and Gentlemen:
The undersigned, a shareholder of VYSIS, INC., a Delaware corporation (the
"Company"), understands that you propose to enter into an Underwriting Agreement
(the "Underwriting Agreement") with the Company providing for the public
offering of shares (the "Shares") of the Company's common stock, $0.001 par
value (the "Common Shares"). In recognition of the benefit that such an
offering will confer upon the undersigned as a shareholder of the Company, and
for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the undersigned agrees with each underwriter to be
named in the Underwriting Agreement that, during a period of one year from the
date of the Underwriting Agreement, the undersigned will not, without the prior
written consent of Xxxxxx Xxxx LLC, directly or indirectly, (i) offer, pledge,
sell, contract to sell, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option for the sale of, or otherwise
dispose of or transfer any shares of the Company's Common Shares or any
securities convertible into or exchangeable or exercisable for Common Shares,
whether now owned or hereafter acquired by the undersigned or with respect to
which the undersigned has or hereafter acquires the power of disposition, or
cause the Company to file any registration statement under the Securities Act of
1933, as amended, with respect to any of the foregoing or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole or in
part, the Common Shares, whether any such swap or transaction described
directly or indirectly, the economic consequence of ownership of in clause (i)
or (ii) above is to be settled by delivery of Common Shares or other securities,
in cash or otherwise.
Very truly yours,
AMOCO CORPORATION
By:________________________
Name:
Title:
-2-
