Draft -- March 6, 1997
Vista Medical Technologies, Inc.
Common Stock
($.01 par value per share)
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Underwriting Agreement
, 1997
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Xxxxxxx, Xxxxx & Co.,
Salomon Brothers Inc
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Vista Medical Technologies, Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate
of _________ shares (the "Firm Shares") and, at the election of the
Underwriters, up to _______ additional shares (the "Optional Shares") of common
stock, $.01 par value per share (the "Common Stock"), of the Company (the Firm
Shares and the Optional Shares that the Underwriters elect to purchase pursuant
to Section 2 hereof being collectively called the "Shares").
1. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-....) (the "Initial
Registration Statement") in respect of the Shares has been filed with the
Securities and Exchange Commission (the "Commission"); the Initial Registration
Statement and any post-effective amendment thereto, each in the form heretofore
delivered to you, and, excluding exhibits thereto, to you for each of the other
Underwriters, have been declared effective by the Commission in such form; other
than a registration statement, if any, increasing the size of the offering (a
"Rule 462(b) Registration Statement") filed pursuant to Rule 462(b) under the
Securities Act of 1933, as amended (the "Act"), which became effective upon
filing, no other
document with respect to the Initial Registration Statement has heretofore
been filed with the Commission; and no stop order suspending the
effectiveness of the Initial Registration Statement, any post-effective
amendment thereto or the Rule 462(b) Registration Statement, if any, has been
issued and no proceeding for that purpose has been initiated or threatened by
the Commission (any preliminary prospectus included in the Initial
Registration Statement or filed with the Commission pursuant to Rule 424(a)
of the rules and regulations of the Commission under the Act, is hereinafter
called a "Preliminary Prospectus"; the various parts of the Initial
Registration Statement, and the Rule 462(b) Registration Statement, if any,
including all exhibits thereto and including the information contained in the
form of final prospectus filed with the Commission pursuant to Rule 424(b)
under the Act in accordance with Section 5(a) hereof and deemed by virtue of
Rule 430A under the Act to be part of the Initial Registration Statement at
the time it was declared effective, each as amended at the time such part of
the Initial Registration Statement became effective or such part of the Rule
462(b) Registration Statement, if any, became or hereafter becomes effective,
is hereinafter collectively called the "Registration Statement"; and such
final prospectus, in the form first filed pursuant to Rule 424(b) under the
Act, is hereinafter called the "Prospectus");
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary Prospectus,
at the time of filing thereof, conformed in all material respects to the
requirements of the Act and the rules and regulations of the Commission
thereunder, and did not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; PROVIDED, HOWEVER, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through Xxxxxxx, Sachs & Co. expressly for use therein;
(c) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the Act
and the rules and regulations of the Commission thereunder and do not and will
not, as of the applicable effective date as to the Registration Statement and
any amendment thereto, and as of the applicable filing date as to the Prospectus
and any amendment or supplement thereto, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; PROVIDED, HOWEVER, that
this representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in writing to
the Company by an Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use
therein;
(d) The Company has not sustained since the date of the latest audited
financial statements included in the Prospectus any material loss or
interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as of which
information is given in the Registration Statement and the Prospectus, there has
not been any change in the capital stock or long-term debt of the Company or any
of its subsidiaries, if any, material adverse change, or any development
involving a prospective material adverse change, in or affecting the general
affairs, management, financial position, stockholders' equity or results of
operations of the Company, or any of its subsidiaries, if any, otherwise than as
set forth or contemplated in the Prospectus;
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(e) The Company does not own any real property; the Company has good and
marketable title to all personal property owned thereby, free and clear of all
liens, encumbrances and defects except such as are described in the Prospectus
or such as do not materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the
Company; and any real property and buildings held under lease by the Company are
held thereby under valid, subsisting and enforceable leases with such exceptions
as are not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company;
(f) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus, and has been duly qualified as a
foreign corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases properties
or conducts any business so as to require such qualification, or is subject to
no material liability or disability by reason of the failure to be so qualified
in any such jurisdiction;
(g) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued, are fully paid and non-assessable
and conform to the description of the Common Stock contained in the Prospectus;
and the Company has no subsidiaries;
(h) The unissued Shares to be issued and sold by the Company to the
Underwriters hereunder have been duly and validly authorized and, when issued
and delivered against payment therefor as provided herein, will be duly and
validly issued and fully paid and non-assessable and will conform to the
description of the Common Stock contained in the Prospectus;
(i) The issue and sale of the Shares by the Company and the compliance by
the Company with all of the provisions of this Agreement and the consummation of
the transactions herein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company is a party or by which the Company
is bound or to which any of the property or assets of the Company is subject,
nor will such action result in any violation of the provisions of the Second
Restated Certificate of Incorporation (the "Certificate of Incorporation") or
By-laws, as amended (the "By-laws"), of the Company or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties; and no consent,
approval, authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the issue and sale of
the Shares or the consummation by the Company of the transactions contemplated
by this Agreement, except the registration under the Act of the issuance of the
Shares and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the Underwriters;
(j) The Company is not in violation of its Certificate of Incorporation or
By-laws or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or instrument
to which it is a party or by which it or any of its properties may be bound;
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(k) The statements set forth in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to constitute a summary
of the terms of the capital Stock of the Company and under the caption
"Underwriting", insofar as they purport to describe the provisions of the laws
and documents referred to therein, are accurate, complete and fair;
(l) Each of the License and Development Agreement by and between Xxxxx X.
XxXxxxxx ("XxXxxxxx"), XxXxxxxx Optics, Inc. ("MOI") and American Surgical
Technologies Corporation ("AST"), dated December 18, 1991, and the Non-
Competition, Non-Disclosure and Patent and Invention Assignment Agreement by and
between XxXxxxxx, MOI and AST, dated December 18, 1991, in each case as amended
by that certain letter agreement between MOI and AST, dated June 28, 1994, as
further amended by that certain Agreement to Amend License and Development
Agreement by and between MOI, XxXxxxxx and the Company, dated September 15,
1995, relating to technology developed by MOI and XxXxxxxx for use in endoscopes
incorporating a stereo objective lens for medical purposes; the Consulting
Agreement by and between XxXxxxxx and the Company, dated September 15, 1995;the
License Agreement by and between Xxxxx Xxxxxx and the Company, dated September
2, 1994, as amended by that certain Amendment to License Agreement by and
between the Company and Xxxxx Xxxxxx, dated December 13, 1996, relating to
specific medical instruments employing advanced optical technologies; the
License Agreement by and between the Company and Kaiser Aerospace and
Electronics Corporation ("Kaiser"), dated February 9, 1995, relating to the
technology of an optical collimating apparatus; and the License Agreement by and
between the Company and Fuji Photo Optical Lab Co. Ltd., dated June 25, 1996,
relating to an imaging system with a varifocal lens for use in endoscopes
(collectively, the "License Agreements"); is in full force and effect and
constitutes a valid and binding agreement between the parties thereto,
enforceable in accordance with its terms, and there has not occurred any default
under any License Agreement or any event that with the giving of notice or lapse
of time would constitute a default thereunder;
(m) Each of the Sales Agreement by and between the Company and Medtronic,
Inc. ("Medtronic"), dated November 29, 1996, relating to the sale and/or
distribution of the Company's Series 8000 in North America, Europe, the Middle
East and Africa; the License Agreement by and between the Company and Urohealth
Systems, Inc. ("Urohealth"), dated December 13, 1996, relating to the license by
the Company to Urohealth of visual instrument technology developed for the
gynecology field; the Memorandum of Understanding between the Company and Cogent
Light Technologies, Inc. ("Cogent"), dated March 26, 1996, relating to the
development and marketing of Company products which incorporate Cogent's single
fiber light technologies; the Agreement between the Company and GDE Systems,
Inc., dated February 28, 1997, relating to the granting to the Company of a
worldwide exclusive license to certain software, documentation and trademarks of
GDE used in the medical field; and the Supply and Services Agreement by and
between the Company and Heartport, Inc. ("Heartport"), dated February 22, 1997,
relating to the Company's sale and subsequent maintenance of Series 8000 systems
to Heartport (collectively, the "Alliance Agreements"); is in full force and
effect and constitutes a valid and binding agreement between the parties
thereto, enforceable in accordance with its terms, and there has not occurred
any default under any Alliance Agreement or any event that with the giving of
notice or lapse of time would constitute a default thereunder;
(n) The Company is conducting business in compliance with all applicable
statutes, rules, regulations and orders administered or issued by any
governmental or regulatory authority in the jurisdictions in which it is
conducting business, including, without limitation, the United States Food and
Drug Administration;
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(o) Except as disclosed in the Prospectus, the Company is not in violation
of any statute, or any rule, regulation, decision or order of any governmental
agency or body or any court relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or restoration of
the environment or human exposure to hazardous or toxic substances
(collectively, "environmental laws"), does not own or operate any real property
contaminated with any substance that is subject to any environmental laws, is
not liable for any off-site disposal or contamination pursuant to any
environmental laws, and is not subject to any claim relating to any
environmental laws; and the Company is not aware of any pending investigation
which could reasonably be expected to lead to such a claim;
(p) Except as disclosed in the Prospectus, the Company owns or possesses
valid, binding, enforceable licenses or other rights to use any patents, patent
licenses, trademarks, service marks, trade names, service names, copyrights,
mask works, technology, know-how and other proprietary intellectual property
rights ("Intellectual Property") necessary to conduct the business now or
proposed to be conducted by it as described in the Prospectus and the Company
has not received any notice of infringement of or conflict with (and knows of no
such infringement of or conflict with) asserted rights of others with respect to
any patents, trademarks, service marks, trade names, copyrights, mask works,
technology or know-how which could result in any material adverse effect on the
current or future financial position, stockholders' equity or results of
operations of the Company; the Company or its assignor has duly and properly
filed with the U.S. Patent and Trademark Office the pending patent applications
referred to in the Prospectus (the "Patent Applications"); the information
contained in the Registration Statement and Prospectus concerning the Patent
Applications and patents owned by or licensed to the Company is accurate in all
material respects; and the discoveries, inventions, products or processes owned
or licensed by the Company referred to in the Prospectus do not, to the
knowledge of the Company, infringe or conflict, and the Company has not received
any notice that its Intellectual Property or activities infringe or conflict
with any right or patent, or any discovery, invention, product or process which
is the subject of a patent application known to the Company;
(q) The Company holds all material licenses, certificates and permits from
state, federal and other regulatory authorities which are necessary for the
conduct of its business.
(r) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company is a party or of which any
property of the Company is the subject which, if determined adversely to the
Company, would individually or in the aggregate have a material adverse effect
on the current or future financial position, stockholders' equity or results of
operations of the Company; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(s) The Company is not and, after giving effect to the offering and sale
of the Shares, will not be an "investment company" or an entity "controlled" by
an "investment company", as such terms are defined in the Investment Company Act
of 1940, as amended (the "Investment Company Act");
(t) Neither the Company nor any of its affiliates does business with the
government of Cuba or with any person or affiliate located in Cuba within the
meaning of Section 517.075, Florida Statutes; and
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(u) Ernst & Young LLP, who have certified certain financial statements of
the Company, are independent public accountants as required by the Act and the
rules and regulations of the Commission thereunder.
2. Subject to the terms and conditions herein set forth (a) the Company
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a purchase price per share of $___________, the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereto and (b) in the event
and to the extent that the Underwriters shall exercise the election to purchase
Optional Shares as provided below, the Company agrees to issue and sell to each
of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company, at the purchase price per share set forth
in clause (a) of this Section 2, that portion of the number of Optional Shares
as to which such election shall have been exercised (to be adjusted by you so as
to eliminate fractional shares) determined by multiplying such number of
Optional Shares by a fraction, the numerator of which is the maximum number of
Optional Shares which such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule I hereto and the denominator
of which is the maximum number of Optional Shares that all of the Underwriters
are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to _________________ Optional Shares, at the purchase price
per share set forth in the paragraph above, for the sole purpose of covering
overallotments in the sale of the Firm Shares. Any such election to purchase
Optional Shares may be exercised only by written notice from you to the Company,
given within a period of 30 calendar days after the date of this Agreement,
setting forth the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as determined by you but
in no event earlier than the First Time of Delivery (as defined in Section 4
hereof) or, unless you and the Company otherwise agree in writing, earlier than
two or later than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Xxxxxxx, Xxxxx & Co. may request upon at least forty-eight hours' prior
notice to the Company shall be delivered by or on behalf of the Company to
Xxxxxxx, Sachs & Co., for the account of such Underwriter, against payment by or
on behalf of such Underwriter of the purchase price therefor by certified or
official bank check or checks, payable to the order of the Company in
immediately available funds. The Company will cause the certificates
representing the Shares to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery (as defined below) with respect
thereto at the offices of Xxxxxxx, Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (the "Designated Office"). The time and date of such delivery and
payment shall be, with respect to the Firm Shares, 9:30 a.m., New York City
time, on _______ 1997, or such other time and date as Xxxxxxx, Sachs & Co. and
the Company may agree upon in writing, and, with respect to the Optional Shares,
9:30 a.m., New York City time, on the date specified by Xxxxxxx, Xxxxx & Co. in
the written notice given by Xxxxxxx, Sachs & Co. of the Underwriters election to
purchase such Optional Shares, or such other time and date as Xxxxxxx, Xxxxx &
Co. and the Company may agree upon in writing.
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Such time and date for delivery of the Firm Shares is herein called the "First
Time of Delivery", such time and date for delivery of the Optional Shares, if
not the First Time of Delivery, is herein called the "Second Time of Delivery",
and each such time and date for delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by or on behalf
of the parties hereto pursuant to Section 7 hereof, including the cross receipt
for the Shares and any additional documents requested by the Underwriters
pursuant to Section 7(j) hereof, will be delivered at the offices of XxXxxxxxx,
Will & Xxxxx, [2049 Xxxxxxx Xxxx Xxxx, Xxxxx 0000, Xxx Xxxxxxx, XX 00000-0000]
(the "Closing Location"), and the Shares will be delivered at the Designated
Office, all at such Time of Delivery. A meeting will be held at the Closing
Location at ______ p.m., Los Angeles time, on the New York Business Day (as such
term is hereinafter defined) next preceding such Time of Delivery, at which
meeting the final drafts of the documents to be delivered pursuant to the
preceding sentence will be available for review by the parties hereto. For the
purposes of this Section 4, "New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York are generally authorized or obligated by law or
executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file such
Prospectus pursuant to Rule 424(b) under the Act not later than the Commission's
close of business on the second business day following the execution and
delivery of this Agreement, or, if applicable, such earlier time as may be
required by Rule 430A(a)(3) under the Act; to make no further amendment or any
supplement to the Registration Statement or Prospectus which shall be
disapproved by you promptly after reasonable notice thereof; to advise you,
promptly after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any supplement to
the Prospectus or any amended Prospectus has been filed and to furnish you with
copies thereof; to advise you, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or prospectus, of the
suspension of the qualification of the Shares for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or supplementing
of the Registration Statement or Prospectus or for additional information; and,
in the event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or prospectus or suspending any
such qualification, promptly to use its best efforts to obtain the withdrawal of
such order;
(b) Promptly from time to time to take such action as you may reasonably
request to qualify the Shares for offering and sale under the securities laws of
such jurisdictions as you may request and to comply with such laws so as to
permit the continuance of sales and dealings therein in such jurisdictions for
as long as may be necessary to complete the distribution of the Shares, provided
that in connection therewith the Company shall not be required to qualify as a
foreign corporation or to file a general consent to service of process in any
jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York Business Day
next succeeding the date of this Agreement, and from time to time, to furnish
the Underwriters with copies of the Prospectus in New York City in such
quantities as you may reasonably request, and, if the delivery of a prospectus
is required at any time prior to the expiration of nine months after the time of
issue of the Prospectus in
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connection with the offering or sale of the Shares and if at such time any event
shall have occurred as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be necessary
during such period to amend or supplement the Prospectus in order to comply with
the Act, to notify you and upon your request to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many copies as you
may from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or omission or
effect such compliance, and in case any Underwriter is required to deliver a
prospectus in connection with sales of any of the Shares at any time nine months
or more after the time of issue of the Prospectus, upon your request but at the
expense of such Underwriter, to prepare and deliver to such Underwriter as many
copies as you may request of an amended or supplemented Prospectus complying
with Section 10(a)(3) of the Act;
(d) If the Company elects to rely upon Rule 462(b), the Company shall file
a Rule 462(b) Registration Statement with the Commission in compliance with Rule
462(b) by 10:00 p.m. Washington, D.C. time, on the date of this Agreement, and
the Company shall at the time of filing either pay to the Commission the filing
fee for the Rule 462(b) Registration Statement or give irrevocable instructions
for the payment of such fee pursuant to Rule 111(b) under the Act.
(e) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the effective
date of the Registration Statement (as defined in Rule 158(c) under the Act), an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11(a) of the Act and the rules and regulations
thereunder (including, at the option of the Company, Rule 158);
(f) During the period beginning from the date hereof and continuing to and
including the date 180 days after the date of the Prospectus, not to offer,
sell, contract to sell or otherwise dispose of, except as provided hereunder,
any securities of the Company that are substantially similar to the Shares,
including, but not limited, to, any securities that are convertible into or
exchangeable for, or that represent the right to receive, Stock or any such
substantially similar securities (other than pursuant to employee stock option
plans existing on, or upon the conversion or exchange of convertible or
exchangeable securities outstanding as of, the date of this Agreement), without
the prior written consent of Xxxxxxx, Sachs & Co.;
(g) To furnish to its stockholders as soon as practicable after the end of
each fiscal year an annual report (including a balance sheet and statements of
income, stockholders' equity and cash flows of the Company and any of its
subsidiaries, if any, certified by independent public accountants) and, as soon
as practicable after the end of each of the first three quarters of each fiscal
year (beginning with the fiscal quarter ending after the effective date of the
Registration Statement), consolidated summary financial information of the
Company, and any of its subsidiaries, if any, for such quarter in reasonable
detail;
(h) During a period of five years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial or other) furnished to stockholders, and to deliver to
you (i) as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national securities
exchange on which any class of
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securities of the Company is listed; and (ii) such additional information
concerning the business and financial condition of the Company as you may from
time to time reasonably request;
(i) To use the net proceeds received by it from the sale of the Shares
pursuant to this Agreement in the manner specified in the Prospectus under the
caption "Use of Proceeds";
(j) To use its best efforts to list for quotation the Shares on the Nasdaq
National Market ("NNM"); and
(k) To file with the Commission such reports on Form SR as may be required
by Rule 463 under the Act.
6. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, the Blue Sky Memorandum,
closing documents (including any compilations thereof) and any other documents
in connection with the offering, purchase, sale and delivery of the Shares;
(iii) all expenses in connection with the qualification of the Shares for
offering and sale under state securities laws as provided in Section 5(b)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky survey;
(iv) all fees and expenses in connection with listing the Shares on the NNM; (v)
the filing fees incident to, and the fees and disbursements of counsel for the
Underwriters in connection with, securing any required review by the National
Association of Securities Dealers, Inc. of the terms of the sale of the Shares;
(vi) the cost of preparing stock certificates; (vii) the cost and charges of any
transfer agent or registrar; and (viii) all other costs and expenses incident to
the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section. It is understood, however, that,
except as provided in this Section, and Sections 8 and 11 hereof, the
Underwriters will pay all of their own costs and expenses, including the fees
and disbursements of their counsel, stock transfer taxes on resale of any of the
Shares by them, and any advertising expenses connected with any offers they may
make.
7. The obligations of the Underwriters hereunder, as to the Shares to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company herein are, at and as of such Time of Delivery, true and correct,
the condition that the Company shall have performed all of its obligations
hereunder theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant to
Rule 424(b) within the applicable time period prescribed for such filing by the
rules and regulations under the Act and in accordance with Section 5(a) hereof;
if the Company has elected to rely upon Rule 462(b), the Rule 462(b)
Registration Statement shall have become effective by 10:00 p.m. Washington,
D.C. time, on the date of this Agreement; no stop order suspending the
effectiveness of the Registration Statement or any part thereof shall have been
issued and no proceeding for that purpose shall have been initiated or
threatened by the
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Commission; and all requests for additional information on the part of the
Commission shall have been complied with to your reasonable satisfaction;
(b) XxXxxxxxx, Will & Xxxxx, counsel for the Underwriters, shall have
furnished to you such opinion or opinions (a draft of each such opinion is
attached as Annex II(a) hereto), dated such Time of Delivery, with respect
to the matters covered in paragraphs (i), (ii), (vi), (xiii) and (xv) of
subsection (c) below as well as such other related matters as you may
reasonably request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to pass upon such
matters;
(c) Xxxxxxx, Xxxxxxx and Xxxxxxxx LLP, counsel for the Company, shall have
furnished to you their written opinion (a draft of each such opinion is attached
as Annex II(b) hereto), dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of Delaware, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company (including the Shares being delivered at such Time of Delivery)
have been duly and validly authorized and issued and are fully paid and
non-assessable; and the Shares conform to the description of the Stock
contained in the Prospectus;
(iii) The Company has been duly qualified as a foreign corporation
for the transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties or conducts
any business so as to require such qualification or is subject to no
material liability or disability by reason of failure to be so qualified in
any such jurisdiction (such counsel being entitled to rely in respect of
the opinion in this clause upon opinions of local counsel and in respect of
matters of fact upon certificates of officers of the Company, provided that
such counsel shall state that they believe that both you and they are
justified in relying upon such opinions and certificates);
(iv) The real property and buildings held under lease by the Company
are held by them under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the use made and
proposed to be made of such property and buildings by the Company (in
giving the opinion in this clause, such counsel may state that they are
relying upon opinions of counsel to the lessors of such property and, in
respect to matters of fact, upon certificates of officers of the Company,
provided that such counsel shall state that they believe that both you and
they are justified in relying upon such opinions, abstracts, reports,
policies and certificates);
(v) To the best of such counsel's knowledge and other than as set
forth in the Prospectus, there are no legal or governmental proceedings
pending to which the Company is a party or of which any property of the
Company is the subject which, if determined adversely to the Company would
individually or in the aggregate have a material adverse effect on the
current or
-10-
future consolidated financial position, stockholders' equity or results of
operations of the Company and, to the best of such counsel's knowledge, no
such proceedings are threatened or contemplated by governmental authorities
or threatened by others;
(vi) This Agreement has been duly authorized, executed and delivered
by the Company;
(vii) The issue and sale of the Shares being delivered at such Time
of Delivery by the Company and the compliance by the Company with all of
the provisions of this Agreement and the consummation of the transactions
herein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company is a
party or by which the Company is bound or to which any of the property or
assets of the Company is subject, nor will such action result in any
violation of the provisions of the Certificate of Incorporation or By-laws
of the Company or any statute or any order, rule or regulation known to
such counsel of any court or governmental agency or body having
jurisdiction over the Company or any of its properties;
(viii) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Shares or the consummation by the
Company of the transactions contemplated by this Agreement, except the
registration under the Act of the Shares, and such consents, approvals,
authorizations, registrations or qualifications as may be required under
state securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters;
(ix) The Company is not in violation of its Certificate of
Incorporation or By-laws or in default in the performance or observance of
any material obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which it is a party or by which it or any of its
properties may be bound;
(x) Each of the License Agreements is in full force and effect and
constitutes a valid and binding agreement between the parties thereto,
enforceable in accordance with its terms, subject as to enforcement to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; and the statements in the Prospectus under the captions
["Risk Factors - Uncertainty Regarding Patents and Protection of
Proprietary Technology; Risk of Future Litigation" and "Business -
Strategic Alliances and Patents, Trade Secrets and Proprietary Rights,"]
insofar as they purport to describe the provisions of the License
Agreements, are accurate, complete and fair summaries thereof in all
material respects;
-11-
(xi) Each of the Alliance Agreements is in full force and effect and
constitutes a valid and binding agreement between the parties thereto,
enforceable in accordance with its terms, subject as to enforcement to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; and the statements in the Prospectus under the captions
"Risk Factors - Reliance on Strategic Relationships" and "Business -
Strategic Alliances and Patents and Proprietary Rights", insofar as they
purport to describe the provisions of the Alliance Agreements, are
accurate, complete and fair summaries thereof in all material respects;
(xii) The statements set forth in the Prospectus under the captions
"Risk Factors - Shares Eligible for Future Sale; Registration Rights" and
"Shares Eligible for Future Sale", insofar as such statements purport to
describe the provisions of the laws and documents referred to therein, are
accurate, complete and fair summaries thereof in all material respects;
(xiii) The statements set forth in the Prospectus under the caption
"Description of Capital Stock", insofar as they purport to constitute a
summary of the terms of the Stock, and under the caption "Underwriting",
insofar as they purport to describe the provisions of the laws and
documents referred to therein, are accurate, complete and fair;
(xiv) The Company is not an "investment company" or an entity
"controlled" by an "investment company", as such terms are defined in the
Investment Company Act; and
(xv) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to such Time
of Delivery (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) comply as to
form in all material respects with the requirements of the Act and the
rules and regulations thereunder; although they do not assume any
responsibility for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus, except for those
referred to in the opinion in subsections (x), (xi), (xii) and (xiii) of
this section 7(c), they have no reason to believe that, as of its effective
date, the Registration Statement or any further amendment thereto made by
the Company prior to such Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel need
express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that, as of its date, the
Prospectus or any further amendment or supplement thereto made by the
Company prior to such Time of Delivery (other than the financial statements
and related schedules therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading or
that, as of such Time of Delivery, either the Registration Statement or the
Prospectus or any further amendment or supplement thereto made by the
Company prior to such Time of Delivery (other than the financial statements
and related schedules therein, as to which such counsel need express no
opinion) contains an untrue statement
-12-
of a material fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and they do not know of any amendment to the
Registration Statement required to be filed or of any contracts or other
documents of a character required to be filed as an exhibit to the
Registration Statement or required to be described in the Registration
Statement or the Prospectus which are not filed or described as required;
(d) Each of Xxxxxxxxx & Xxxxxxxxx, Fish & Richardson, Arant, Xxxxxxxxx,
Xxxxxx & Ram, Weingarten, Schurgin, Xxxxxxxx & Xxxxx and Xxxxxx & Xxxxxx, patent
and/or trademark counsel for the Company, shall have furnished to you their
written opinions (a draft of each such opinion is attached hereto as Annex
II(c), II(d), II(e), II(f), II(g), respectively), dated such Time of Delivery,
in form and substance satisfactory to you;
(e) __________________, regulatory counsel for the Company, shall have
furnished to you their written opinion (a draft of such opinion is attached
hereto as Annex II(h) hereto) dated such Time of Delivery, in form and substance
satisfactory to you to the effect that it has examined the Registration
Statement and;
(i) The statements under the caption "Risk Factors - No Assurance of
Regulatory Clearance or Approval; Significant Domestic and International
Regulation" and "Business - Government Regulation" in the Prospectus, are,
in all material respects, accurate and fair statements or summaries of
applicable federal law and regulation as applied by the FDA, subject to the
qualifications set forth therein;
(ii) No facts have come to the attention of such counsel that lead it to
believe that the information contained under the captions "Risk Factors -
No Assurance of Regulatory Clearance or Approval; Significant Domestic and
International Regulation" and "Business - Government Regulation" (a) in the
Registration Statement, at the time the Registration Statement became
effective, contained 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 not misleading, or (b) in the Prospectus, at the
time the Prospectus was issued or at the date hereof, contained 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
(iii) Such counsel has no actual knowledge of any action, suit or
proceeding pending or threatened by the FDA against the Company seeking
limitation, suspension, or revocation of any license, permit, approval or
authorization required by the Company to conduct its business as described
in the Registration Statement and the Prospectus;
-13-
(f) On the date of the Prospectus at a time prior to the execution of this
Agreement, at 9:30 a.m., [New York City time], on the effective date of any
post-effective amendment to the Registration Statement filed subsequent to the
date of this Agreement and also at each Time of Delivery, Ernst & Young, LLP,
shall have furnished to you a letter or letters, dated the respective dates of
delivery thereof, in form and substance satisfactory to you (the executed copy
of the letter delivered prior to the execution of this Agreement is attached as
Annex I(a) hereto and a draft of the form of letter to be delivered on the
effective date of any post-effective amendment to the Registration Statement and
as of each Time of Delivery is attached as Annex I(b) hereto);
(g) (i) The Company shall not have sustained since the date of the latest
audited financial statements included in the Prospectus any loss or interference
with its business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Prospectus,
and (ii) since the respective dates as of which information is given in the
Prospectus there shall not have been any change in the capital stock or
long-term debt of the Company or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company,
otherwise than as set forth or contemplated in the Prospectus, the effect of
which, in any such case described in Clause (i) or (ii), is in the judgment of
the Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares
being delivered at such Time of Delivery on the terms and in the manner
contemplated in the Prospectus;
(h) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange or on the NNM; (ii) a
suspension or material limitation in trading of the Company's securities on
NMM; (iii) a general moratorium on commercial banking activities declared by
either Federal, New York or California State authorities; or (iv) the
outbreak or escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or war, if the
effect of any such event specified in this Clause (iv) in the judgment of the
Representatives makes it impracticable or inadvisable to proceed with the
public offering or the delivery of the Shares being delivered at such Time of
Delivery on the terms and in the manner contemplated in the Prospectus;
(i) The Shares to be sold at such Time of Delivery shall have been duly
listed for quotation on the NNM; and
(j) The Company has obtained and delivered to the Underwriters executed
copies of an agreement from each of the executive officers, directors,
stockholders, option holders and warrant holders listed on Schedule 7(j)
attached hereto, substantially to the effect set forth in Subsection 5(f) hereof
in form and substance satisfactory to you;
-14-
(k) The Company shall have complied with the provisions of Subsection 5(c)
hereof with respect to the furnishing of prospectuses on the New York Business
Day next succeeding the date of this Agreement.
(l) The Company shall have furnished or caused to be furnished to you at
such Time of Delivery certificates of officers of the Company satisfactory to
you as to the accuracy of the representations and warranties of the Company
herein at and as of such Time of Delivery, as to the performance by the Company
of all of its obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (e) of this Section
and as to such other matters as you may reasonably request; and
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or any amendment or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each Underwriter for any legal or
other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; PROVIDED, HOWEVER, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through Xxxxxxx, Xxxxx & Co. expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, 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 any Preliminary
Prospectus, the Registration Statement or the Prospectus or any such amendment
or supplement in reliance upon and in conformity with written information
furnished to the Company by such Underwriter through Xxxxxxx, Sachs & Co.
expressly for use therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made
-15-
against the indemnifying party under such subsection, notify the indemnifying
party in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Shares. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the indemnified
party failed to give the notice required under subsection (c) above, then each
indemnifying party shall contribute to such amount paid or payable by such
indemnified party in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand and
the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or the Underwriters on the other and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
subsection (d) were determined by PRO RATA allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to above in this subsection (d). The amount paid or
-16-
payable by an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this subsection
(d) shall be deemed to include any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section 8 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 8 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer and director of the Company (including any
person who, with his or her consent, is named in the Registration Statement as
about to become a director of the Company) and to each person, if any, who
controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Shares which it has agreed to purchase hereunder at a Time of Delivery, you may
in your discretion arrange for you or another party or other parties to purchase
such Shares on the terms contained herein. If within thirty-six hours after
such default by any Underwriter you do not arrange for the purchase of such
Shares, then the Company shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties satisfactory to you
to purchase such Shares on such terms. In the event that, within the respective
prescribed periods, you notify the Company that you have so arranged for the
purchase of such Shares, or the Company notifies you that it has so arranged for
the purchase of such Shares, you or the Company shall have the right to postpone
such Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments to the Registration Statement or
the Prospectus which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased does not exceed one-eleventh of the aggregate number of all
the Shares to be purchased at such Time of Delivery, then the Company shall have
the right to require each non-defaulting Underwriter to purchase the number of
shares which such Underwriter agreed to purchase hereunder at such Time of
Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Shares which such
Underwriter agreed to purchase
-17-
hereunder) of the Shares of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased exceeds one-eleventh of the aggregate number of all the
Shares to be purchased at such Time of Delivery, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Shares of a defaulting Underwriter or Underwriters,
then this Agreement (or, with respect to the Second Time of Delivery, the
obligations of the Underwriters to purchase and of the Company to sell the
Optional Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the expenses to be borne
by the Company and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and the several Underwriters, as set forth
in this Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company shall not then be under any liability to any Underwriter except as
provided in Sections 6 and 8 hereof; but, if for any other reason, any Shares
are not delivered by or on behalf of the Company as provided herein, the Company
will reimburse the Underwriters through you for all out-of-pocket expenses
approved in writing by you, including fees and disbursements of counsel,
reasonably incurred by the Underwriters in making preparations for the purchase,
sale and delivery of the Shares not so delivered, but the Company shall then be
under no further liability to any Underwriter except as provided in Sections 6
and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Xxxxxxx, Xxxxx & Co. on behalf of you as the
Representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of Xxxxxxx, Sachs &
Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration
Department; and if to the Company shall be delivered or sent by mail to the
address of the Company set forth in the Registration Statement, Attention:
Secretary; provided, however, that any notice to an Underwriter pursuant to
Section 8(c) hereof shall be delivered or sent by mail, telex or facsimile
-18-
transmission to such Underwriter at its address set forth in its Underwriters'
Questionnaire, or telex constituting such Questionnaire, which address will be
supplied to the Company by you upon request. Any such statements, requests,
notices or agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and, to the extent provided in Sections 8 and
10 hereof, the officers and directors of the Company and each person who
controls the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. No purchaser of any of the
Shares from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us [one for the Company and each of the Representatives plus one for
each counsel] counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement between each of the Underwriters and the Company.
It is understood that your acceptance of this letter on behalf of each of the
Underwriters is pursuant to the authority set forth
-19-
in a form of Agreement among Underwriters, the form of which shall be submitted
to the Company for examination upon request, but without warranty on your part
as to the authority of the signers thereof.
Very truly yours,
VISTA MEDICAL TECHNOLOGIES, INC.
By:
-------------------------------
Name:
Title:
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
Name(s) of Co-Representative
By:
--------------------------------
Name:
Title:
Salomon Brothers Inc
Name(s) of Co-Representative
By:
--------------------------------
Name:
Title:
On behalf of each of the Underwriters
-20-
SCHEDULE I
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
----------- --------------- ---------
Xxxxxxx, Xxxxx & Co.
Salomon Brothers Inc
Total
-21-
ANNEX I
Pursuant to Section 7(f) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with respect to
the Company within the meaning of the Act and the applicable published
rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules (and, if applicable, financial
forecasts and/or pro forma financial information) examined by them and
included in the Prospectus or the Registration Statement comply as to form
in all material respects with the applicable accounting requirements of the
Act and the related published rules and regulations thereunder; and, if
applicable, they have made a review in accordance with standards
established by the American Institute of Certified Public Accountants of
the unaudited consolidated interim financial statements, selected financial
data, pro forma financial information, financial forecasts and/or condensed
financial statements derived from audited financial statements of the
Company for the periods specified in such letter, as indicated in their
reports thereon, copies of which have been separately furnished to the
representatives of the Underwriters (the "Representatives");
(iii) They have made a review in accordance with standards established
by the American Institute of Certified Public Accountants of the unaudited
condensed consolidated statements of income, consolidated balance sheets
and consolidated statements of cash flows included in the Prospectus as
indicated in their reports thereon copies of which have been separately
furnished to the Representatives and on the basis of specified procedures
including inquiries of officials of the Company who have responsibility for
financial and accounting matters regarding whether the unaudited condensed
consolidated financial statements referred to in paragraph (vi)(A)(i) below
comply as to form in all material respects with the applicable accounting
requirements of the Act and the related published rules and regulations,
nothing came to their attention that cause them to believe that the
unaudited condensed consolidated financial statements do not comply as to
form in all material respects with the applicable accounting requirements
of the Act and the related published rules and regulations;
(iv) The unaudited selected financial information with respect to the
consolidated results of operations and financial position of the Company
and its subsidiaries for the three most recent fiscal years included in the
Prospectus agrees with the corresponding amounts (after restatements where
applicable) in the audited consolidated financial statements for such three
fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K and on
the basis of limited procedures specified in such letter nothing came to
their attention as a result of the foregoing procedures that caused them to
believe that this information does not conform in all material respects
with the disclosure requirements of Items 301, 302, 402 and 503(d),
respectively, of Regulation
S-K;
-22-
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company since the date of the latest audited financial
statements included in the Prospectus, inquiries of officials of the
Company responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing came
to their attention that caused them to believe that:
(A) any unaudited income statement data and balance sheet items
included in the Prospectus do not agree with the corresponding items
in the unaudited consolidated financial statements from which such
data and items were derived, and any such unaudited data and items
were not determined on a basis substantially consistent with the basis
for the corresponding amounts in the audited consolidated financial
statements included in the Prospectus;
(B) the unaudited financial statements which were not included in the
Prospectus but from which were derived any unaudited condensed
financial statements referred to in Clause (A) and any unaudited
income statement data and balance sheet items included in the
Prospectus and referred to in Clause (A) were not determined on a
basis substantially consistent with the basis for the audited
consolidated financial statements included in the Prospectus;
(C) any unaudited pro forma consolidated condensed financial
statements included in the Prospectus do not comply as to form in all
material respects with the applicable accounting requirements of the
Act and the published rules and regulations thereunder or the pro
forma adjustments have not been properly applied to the historical
amounts in the compilation of those statements;
(D) as of a specified date not more than five days prior to the date
of such letter, there have been any changes in the capital stock
(other than issuances of capital stock upon exercise of options and
stock appreciation rights, upon earn-outs of performance shares and
upon conversions of convertible securities, in each case which were
outstanding on the date of the latest financial statements included in
the Prospectus) or any increase in the long-term debt of the Company
or any decreases in net current assets or stockholders= equity or
other items specified by the Representatives, or any increases in any
items specified by the Representatives, in each case as compared with
amounts shown in the latest balance sheet included in the Prospectus,
except in each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are described
in such letter; and
(E) for the period from the date of the latest financial statements
included in the Prospectus to the specified date referred to in Clause
(D) there were any decreases in net revenues or operating profit or
the total or per share amounts of net income or other items specified
by the Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable period
of the preceding year and with any other period of corresponding
length specified by the Representatives, except in each case for
decreases or increases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
-23-
(vii) In addition to the examination referred to in their report(s)
included in the Prospectus and the limited procedures, inspection of minute
books, inquiries and other procedures referred to in paragraphs (iii) and
(vi) above, they have carried out certain specified procedures, not
constituting an examination in accordance with generally accepted auditing
standards, with respect to certain amounts, percentages and financial
information specified by the Representatives, which are derived from the
general accounting records of the Company and its subsidiaries, which
appear in the Prospectus, or in Part II of, or in exhibits and schedules
to, the Registration Statement specified by the Representatives, and have
compared certain of such amounts, percentages and financial information
with the accounting records of the Company and its subsidiaries and have
found them to be in agreement.
-24-
ANNEX II(a)
[Form Of Opinion - XxXxxxxxx, Will & Xxxxx]
-1-
ANNEX II(b)
[Form Of Opinion - Xxxxxxx, Xxxxxxx & Xxxxxxxx]
-1-
ANNEX II(c)
[Letterhead of Xxxxxxxxx & Xxxxxxxxx]
March ___, 1997
Xxxxxxx, Sachs & Co.
SALOMON BROTHERS INC
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
We have acted as patent counsel to Vista Medical Technologies, Inc. ("the
Company"), a Delaware corporation, with respect to the patent matters reflected
on Schedule A attached hereto (the "Relevant Patent Matters") and in connection
with the sale of __________ shares of common stock of the Company, par value
$.01 per share, pursuant to a Registration Statement on Form S-1. This opinion
is rendered to you pursuant to Section 7(g) of the Underwriting Agreement, dated
March ___, 1997, between you and the Company. It is our opinion, as patent
counsel for the Company, that:
A. The Company owns or possesses adequate patents, patent licenses,
licenses or other rights to use all trademarks, service marks, trade names,
service names, copyrights, mask works, technology, know-how and other
proprietary intellectual property rights ("Intellectual Property") necessary to
conduct the business presently and as proposed to be conducted by the Company as
described in the Registration Statement and the Prospectus, and, except as
described in the Registration Statement and the Prospectus, the Company has not
received any notice of infringement of or conflict with, and does not otherwise
know of any basis for, notice of any such infringement of or conflict with,
asserted rights of others;
(ii) Except as set forth in Schedule B to this letter or as described in
the Registration Statement and the Prospectus, insofar as the Relevant Patent
Matters are concerned, the Company's discoveries, inventions, products or
processes referred to in the Registration Statement and the Prospectus do not,
to my knowledge, infringe or conflict with any right which is the subject of a
patent known to the Company, which infringement or conflict could result in any
material adverse effect upon the Company's business, financial condition and
results of operations; and
-1-
(iii) To the extent that the statements contained in the Prospectus under
the sub-heading "Business--Patents and Proprietary Rights" refer to our opinions
on matters of law or purport to summarize the status of litigation or the
provisions of statutes, regulations, contracts, agreements or other documents in
respect of the Relevant Patent Matters, such statements (A) have been prepared
or reviewed by me and accurately reflect the status of any such litigation, the
provisions purported to be summarized and any such opinions of ours, and (B) are
correct and complete.
In connection with the opinion expressed in paragraph (i), we have relied,
with your consent, on the legal opinions of Fish & Richardson, Weingarten,
Schurgin, Xxxxxxxx & Hayes, Arant, Xxxxxxxxx, Xxxxxx & Ram and Xxxxxx & Xxxxxx
dated today and addressed to you. We have reviewed such legal opinions as to
scope and form and we believe that you and we are justified in relying thereon.
-2-
ANNEX II(d)
[Letterhead of Arant, Kleinberg, Xxxxxx & Ram]
March ___, 1997
Xxxxxxx, Xxxxx & Co.
XXXXXXX XXXXXXXX INC
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
We have acted as trademark counsel to Vista Medical Technologies, Inc.
("the Company"), a Delaware corporation, with respect to the trademark matters
reflected on Schedule A attached hereto (the "Relevant Trademark Matters").
This opinion is rendered to you pursuant to Section 7(g) of the Underwriting
Agreement, dated March ___, 1997, between you and the Company entered into in
connection with the sale of __________ shares of common stock of the Company,
par value $.01 per share, pursuant to a Registration Statement on Form S-1. It
is our opinion, as trademark counsel for the Company, that:
A. Insofar as the Relevant Trademark Matters are concerned, the Company
owns or possesses adequate licenses or other rights to use all trademarks,
service marks, trade names and service names ("Intellectual Property") necessary
to conduct the business presently and as proposed to be conducted by the Company
as described in the Registration Statement and the Prospectus, and, except as
described in the Registration Statement and the Prospectus, the Company has not
received any notice of infringement of or conflict with, and does not otherwise
know of any basis for, notice of any such infringement of or conflict with,
asserted rights of others with respect to the Relevant Trademark Matters;
(ii) Except as set forth in Schedule B to this letter or as described in
the Registration Statement and the Prospectus, insofar as the Relevant Trademark
Matters are concerned, the Company's trademarks referred to in the Registration
Statement and the Prospectus do not, to my knowledge, infringe or conflict with
any right which is the subject of a trademark known to the Company, which
infringement or conflict could result in any material adverse effect upon the
Company's business, financial condition and results of operations; and
-1-
(iii) To the extent that the statements contained in the Prospectus under
the sub-heading "Business--Patents and Proprietary Rights" refer to our opinions
on matters of law or purport to summarize the status of litigation or the
provisions of statutes, regulations, contracts, agreements or other documents in
respect of the Relevant Trademark Matters, such statements (A) have been
prepared or reviewed by us and accurately reflect the status of any such
litigation, the provisions purported to be summarized and any such opinions of
ours, and (B) are correct and complete.
-2-
ANNEX II(e)
[Letterhead of Fish & Xxxxxxxxxx]
March ___, 1997
Xxxxxxx, Xxxxx & Co.
XXXXXXX XXXXXXXX INC
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
We have acted as patent and trademark counsel to Vista Medical
Technologies, Inc. ("the Company"), a Delaware corporation, with respect to the
patent and trademark matters reflected on Schedule A attached hereto (the
"Relevant Intellectual Property Matters"). This opinion is rendered to you
pursuant to Section 7(g) of the Underwriting Agreement, dated March ___, 1997,
between you and the Company, entered into in connection with the sale of
__________ shares of common stock of the Company, par value $.01 per share,
pursuant to a Registration Statement on Form S-1. It is our opinion, as patent
and trademark counsel for the Company, that:
A. Insofar as the Relevant Intellectual Property Matters are concerned,
the Company owns or possesses adequate patents, patent licenses, licenses or
other rights to use all trademarks, service marks, trade names, service names,
copyrights, mask works, technology, know-how and other proprietary intellectual
property rights ("Intellectual Property") necessary to conduct the business
presently and as proposed to be conducted by the Company as described in the
Registration Statement and the Prospectus, and, except as described in the
Registration Statement and the Prospectus, the Company has not received any
notice of infringement of or conflict with, and does not otherwise know of any
basis for, notice of any such infringement of or conflict with, asserted rights
of others with respect to the Relevant Intellectual Property Matters;
(ii) Except as set forth in Schedule B to this letter or as described in
the Registration Statement and the Prospectus, insofar as the Relevant
Intellectual Property Matters are concerned, the Company's discoveries,
inventions, products, processes or trademarks referred to in the Registration
Statement and the Prospectus do not, to our knowledge, infringe or conflict with
any right which is the subject of a patent or trademark known to the Company,
which infringement or conflict could result in any material adverse effect upon
the Company's business, financial condition and results of operations; and
-1-
(iii) Insofar as the Relevant Intellectual Property Matters are concerned,
to the extent that the statements contained in the Prospectus under the sub-
heading "Business--Patents and Proprietary Rights" refer to our opinions on
matters of law or purport to summarize the status of litigation or the
provisions of statutes, regulations, contracts, agreements or other documents in
respect of the Relevant Intellectual Property Matters, such statements (A) have
been prepared or reviewed by me and accurately reflect the status of any such
litigation, the provisions purported to be summarized and any such opinions of
ours, and (B) are correct and complete.
-2-
ANNEX II(f)
[Letterhead of Weingarten, Schurgin, Xxxxxxxx & Xxxxx]
March ___, 1997
Xxxxxxx, Sachs & Co.
SALOMON BROTHERS INC
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
We have acted as patent counsel to Vista Medical Technologies, Inc. ("the
Company"), a Delaware corporation, with respect to the patent matters reflected
on Schedule A attached hereto (the "Relevant Patent Matters"). This opinion is
rendered to you pursuant to Section 7(g) of the Underwriting Agreement, dated
March ___, 1997, between you and the Company, entered into in connection with
the sale of __________ shares of common stock of the Company, par value $.01 per
share, pursuant to a Registration Statement on Form S-1. It is our opinion, as
patent counsel for the Company, that:
A. Insofar as the Relevant Patent Matters are concerned, the Company owns
or possesses adequate patents, patent licenses, licenses or other rights to use
all trademarks, service marks, trade names, service names, copyrights, mask
works, technology, know-how and other proprietary intellectual property rights
("Intellectual Property") necessary to conduct the business presently and as
proposed to be conducted by the Company as described in the Registration
Statement and the Prospectus, and, except as described in the Registration
Statement and the Prospectus, the Company has not received any notice of
infringement of or conflict with, and does not otherwise know of any basis for,
notice of any such infringement of or conflict with, asserted rights of others
with respect to the Relevant Patent Matters;
(ii) Except as set forth in Schedule B to this letter or as described in
the Registration Statement and the Prospectus, insofar as the Relevant Patent
Matters are concerned, the Company's discoveries, inventions, products or
processes referred to in the Registration Statement and the Prospectus do not,
to our knowledge, infringe or conflict with any right which is the subject of a
patent known to the Company, which infringement or conflict could result in any
material adverse effect upon the Company's business, financial condition and
results of operations; and
-1-
(iii) Insofar as the Relevant Patent Matters are concerned, to the extent
that the statements contained in the Prospectus under the sub-heading "Business-
-Patents and Proprietary Rights" refer to our opinions on matters of law or
purport to summarize the status of litigation or the provisions of statutes,
regulations, contracts, agreements or other documents in respect of the Relevant
Patent Matters, such statements (A) have been prepared or reviewed by us and
accurately reflect the status of any such litigation, the provisions purported
to be summarized and any such opinions of ours, and (B) are correct and
complete.
-2-
ANNEX II(g)
[Letterhead of Xxxxxx & Xxxxxx]
March ___, 1997
XXXXXXX, SACHS & CO.
SALOMON BROTHERS INC
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Gentlemen:
We have acted as patent counsel to Xxxxx X. XxXxxxxx ("XxXxxxxx") and
XxXxxxxx Optics, Inc. ("XxXxxxxx Optics") with respect to the patent matters
reflected on Schedule A attached hereto (the "Relevant Patent Matters") and with
respect to the licensing agreements reflected on Schedule B hereto (the
"Relevant License Agreements"). This opinion is rendered to you at the request
of XxXxxxxx and XxXxxxxx Optics pursuant to Section 7(g) of the Underwriting
Agreement, dated March ____, 1997, between you and the Vista Medical
Technologies, Inc. ("the Company"), entered into in connection with the sale of
_________ shares of common stock of the Company, par value $.01 per share,
pursuant to a Registration Statement on Form S-1. . It is our opinion, as
intellectual property counsel for XxXxxxxx, that:
(i) Each of the Relevant License Agreements is in full force and effect
and constitutes a legal, valid and binding obligation of each of XxXxxxxx Optics
and XxXxxxxx, enforceable in accordance with its terms against each of them,
subject to the effect of (i) bankruptcy, insolvency, reorganization, moratorium
and other similar laws now or hereafter in effect affecting creditors' rights
generally, and (ii) general principles of equity, including, without limitation,
concepts of materiality, reasonableness, public policy, good faith and fair
dealing (regardless of whether considered in a proceeding in equity or at law).
(ii) Each of XxXxxxxx and XxXxxxxx Optics owns certain patents,
technology and know-how, and other proprietary intellectual property rights
("Intellectual Property") as described in the Relevant License Agreements and on
Schedule A hereto, and neither XxXxxxxx nor XxXxxxxx Optics has received any
notice of infringement of or conflict with, and does not otherwise know of any
basis for, notice of any such infringement of or conflict with, asserted rights
of others regarding such Intellectual Property;
(iii) The Company is the sole and exclusive licensee of the technology set
forth in Appendix A to the License Agreement (as defined on Schedule B) and no
other person or entity has been granted any rights in, to or under such
technology.
(iv) The patent applications referred to in the Relevant Patent Matters
were prepared and submitted in accordance with all applicable legal and
procedural requirements, all annuity, maintenance and other necessary fees have
been timely paid and we are not aware of any facts which could form a basis for
a successful challenge to the validity or enforceability of any patent issued
from such patent applications. The patents referred to in the Relevant Patent
Matters were obtained in accordance with all applicable legal and procedural
requirements, all annuity, maintenance and other necessary fees have been timely
paid and we are not aware of any facts which could form a basis for a successful
challenge to the validity or enforceability of such patents;
-1-
(v) Except as set forth in Schedule C to this letter, the discoveries,
inventions, products, processes, technology and know-how which are a part of the
Relevant Patent Matters and Relevant License Agreements do not, to our knowledge
after due inquiry, infringe or conflict with any right which is the subject of a
patent known to XxXxxxxx or XxXxxxxx Optics, which infringement or conflict
could result in any material adverse effect upon the Company's ability to
utilize and enjoy the benefits and rights provided to the Company under the
Relevant License Agreements; and
(vi) We have reviewed the statements contained in the Prospectus under
the sub-heading "Business--Patents and Proprietary Rights" and insofar as such
statements relate to the Relevant Patent Matters or the Relevant License
Agreements, such statements are correct and complete.
-2-
SCHEDULE B
1. License and Development Agreement (the "License Agreement"), dated December
18, 1991, as amended.
2. Non-Competition, Non-Disclosure and Patent and Invention Assignment
Agreement, as amended.
3. Agreement to Amend License and Development Agreement, dated September 15,
1995, as amended.
4. Consulting Agreement, dated September 15, 1995, as amended.
-3-
ANNEX II(h)
[Form Of Opinion - "Company Regulatory Counsel"]
-1-
SCHEDULE 7(j)
LOCK-UP AGREEMENT
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Xxxxxxxx Inc.
As Representatives of the Several Underwriters
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned understands that you, as representatives of the several
underwriters (the "Representatives"), propose to enter into an Underwriting
Agreement with Vista Medical Technologies, Inc. (the "Company") providing for
the public offering (the "Public Offering") by the several underwriters,
including yourselves, of the common stock (the "Common Stock"), $.01 par value
per share, of the Company. The undersigned recognizes that the Public Offering
will benefit the Company by, among other things, raising additional capital for
product introduction, marketing and general corporate purposes.
In consideration of the underwriters' agreement to purchase shares of
Common Stock and conduct the Public Offering, and for other good and valuable
consideration, the receipt and adequacy of which is hereby acknowledged, the
undersigned irrevocably agrees that, without the prior written consent of the
Representatives, the undersigned will not, directly or indirectly, offer, sell,
contract to sell, grant any option to purchase, make any short sale, or
otherwise dispose of any Common Stock of the Company, or other securities of the
Company that are substantially similar to Common Stock (including, without
limitation, any securities that are convertible into or exchangeable for, or
that represent the right to receive upon exercise or otherwise, Common Stock or
any substantially similar securities), or any Common Stock of the Company which
may be deemed to be beneficially owned by the undersigned in accordance with the
rules and regulations of the Securities and Exchange Commission, for a period of
180 days from and after the date of the final Prospectus covering the public
offering of shares of the Common Stock. The undersigned acknowledges that you
and the Company are relying on the agreements of the undersigned contained
herein in carrying out the Public Offering and in entering into underwriting
arrangements with respect thereto.
The foregoing restriction is expressly agreed to preclude the undersigned
from engaging in any hedging or other transaction which is designed to or
reasonably expected to lead to or result in a sale or disposition of the shares
of Common Stock even if such shares of Common Stock would be disposed of by
someone other than the undersigned. Such prohibited hedging or other
transactions would include without limitation any short sale or any purchase,
sale or grant of any right (including without limitation any put or call option)
with respect to any of the shares of Common Stock or with respect to any
security that includes, relates to, or derives any significant part of its value
from such shares.
-1-
The Company and _________________, the Company's Transfer Agent, are hereby
authorized to enforce this Lock-Up Agreement by refusing to permit transfers
which the Company believes may violate this agreement. The undersigned
understands that this Lock-Up Agreement is irrevocable and shall be binding upon
the undersigned's heirs, legal representatives, successors and assigns.
Sincerely,
--------------------------
Signature
--------------------------
Name (Print or Type)
--------------------------
Date
-2-
