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EXHIBIT 1.1
Xxxxxxx Xxxxxxx, Inc.
$
Zero Coupon Convertible Senior Notes Due 0000
Xxxxxxxxxxxx Xxxxxxxxx
Xxx Xxxx, Xxx Xxxx
June __, 2001
Xxxxxxx Xxxxx Barney Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Credit Suisse First Boston Corporation
As Representatives of the several Underwriters,
c/o Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Xxxxxxx Xxxxxxx, Inc., a corporation organized under the laws of
Delaware (the "Company"), proposes to sell to the several underwriters
named in Schedule I hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, $ principal
amount at maturity of its Zero Coupon Convertible Senior Notes Due 2021
(the "Underwritten Securities") guaranteed by Hybritech Incorporated, a
California corporation, and Xxxxxxx Corporation, a Delaware corporation,
(together, the "Guarantors"), to be issued under a senior indenture
dated as of April 25, 2001, as supplemented by a supplemental indenture
to be dated as of June , 2001 (collectively, the "Indenture"), among
the Company, the Guarantors and Citibank, N.A., as trustee (the
"Trustee"). The Company also proposes to grant to the Underwriters an
option to purchase its Zero Coupon Convertible Senior Notes Due 2021
with an aggregate principal amount at maturity of up to $ to cover
over-allotments (the "Option Securities"; the Option Securities,
together with the Underwritten Securities, being hereinafter called the
"Securities"). To the extent there are no additional Underwriters listed
on Schedule I other than you, the term Representatives as used herein
shall mean you, as Underwriters, and the terms Representatives and
Underwriters shall mean either the singular or plural
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as the context requires. Any reference herein to the Registration
Statement, the Basic Prospectus, any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 which
were filed under the Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Basic Prospectus, any
Preliminary Prospectus or the Prospectus, as the case may be; and any
reference herein to the terms "amend", "amendment" or "supplement" with
respect to the Registration Statement, the Basic Prospectus, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement, or the issue date of the
Basic Prospectus, any Preliminary Prospectus or the Prospectus, as the
case may be, deemed to be incorporated therein by reference. Certain
terms used herein are defined in Section 17 hereof.
1. Representations and Warranties. The Company and the Guarantors
represent and warrant to, and agree with, each Underwriter as set forth below in
this Section 1.
(a) The Company and the Guarantors meet the requirements for use of Form
S-3 under the Act and have prepared and filed with the Commission the
Registration Statement (file number 333-58968) on Form S-3, including a
related basic prospectus, for registration under the Act of the offering and
sale of the Securities and the shares of Common Stock issuable upon
conversion of the Securities. The Registration Statement has become
effective; no stop order suspending the effectiveness of the Registration
Statement is in effect, and no proceedings for such purpose are pending
before or, to the knowledge of the Company and the Guarantors, threatened by
the Commission. The Company and the Guarantors may have filed one or more
amendments thereto, including a Preliminary Prospectus filed in accordance
with Rules 415 and 424(b), each of which has previously been furnished to
you. The Company and the Guarantors will next file with the Commission the
Prospectus in accordance with Rules 415 and 424(b). As filed, such
Prospectus shall contain all Rule 430A Information, together with all other
such required information, and, except to the extent the Representatives
shall agree in writing to a modification, shall be in all substantive
respects in the form furnished to you prior to the Execution Time or, to the
extent not completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the Basic
Prospectus and any Preliminary Prospectus) as the Company and the Guarantors
have advised you, prior to the Execution Time, will be included or made
therein. The Registration Statement, at the Execution Time, meets the
requirements set forth in Rule 415(a)(1)(x).
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(b) (i) Each document, if any, filed or to be filed pursuant to the
Exchange Act, and incorporated by reference in the Prospectus, complied or
will comply when so filed in all material respects with the Exchange Act and
the applicable rules and regulations of the Commission thereunder; (ii) on
the Effective Date, the Registration Statement did or will, and when the
Prospectus is first filed (if required) in accordance with Rule 424(b) and
on the Closing Date (as defined herein) and on any date on which Option
Securities are to be purchased, if such date is not the Closing Date (a
"settlement date"), the Prospectus (and any supplement thereto) will, comply
in all material respects with the applicable requirements of the Act, the
Exchange Act and the Trust Indenture Act and the respective rules
thereunder; (iii) on the Effective Date and at the Execution Time, the
Registration Statement did not and will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading;
(iv) on the Effective Date, on the Closing Date and on any settlement date
the Indenture did and will comply in all material respects with the
applicable requirements of the Trust Indenture Act and the rules thereunder;
and (v) on the Effective Date, the Prospectus, if not filed pursuant to Rule
424(b), will not, and on the date of any filing pursuant to Rule 424(b) and
on the Closing Date and any settlement date, the Prospectus (together with
any supplement thereto) will not, include any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; except that the representations and warranties set
forth in this paragraph do not apply to (i) that part of the Registration
Statement which shall constitute the Statement of Eligibility and
Qualification (Form T-1) under the Trust Indenture Act of the Trustee or
(ii) the information contained in the Registration Statement, or the
Prospectus (or any supplement thereto) in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf of any
Underwriter through the Representatives specifically for inclusion in the
Registration Statement or the Prospectus (or any supplement thereto).
(c) Each of the Company and its subsidiaries has been duly incorporated
and is validly existing as a corporation in good standing under the laws of
the jurisdiction in which it is chartered or organized with full corporate
power and authority to own or lease, as the case may be, and to operate its
properties and conduct its business as described in the Prospectus, and is
duly qualified to do business as a foreign corporation and is in good
standing under the laws of each jurisdiction which requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in
the ordinary course of business (a "Material Adverse Effect").
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(d) All the outstanding shares of capital stock of each subsidiary have
been duly and validly authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in the Prospectus or
disclosed in writing to the Underwriters, all outstanding shares of capital
stock of the subsidiaries are owned by the Company either directly or
through wholly owned subsidiaries free and clear of any perfected security
interest or any other security interests, claims, liens or encumbrances.
(e) The Company's authorized equity capitalization is as set forth in
the Prospectus; the Securities conform in all material respects to the
description thereof contained in the Prospectus; and as of the Closing Date
the Common Stock issuable upon conversion of the Securities will be admitted
and authorized for trading, subject to official notice of issuance, on the
New York Stock Exchange.
(f) There is no franchise, contract or other document of a character
required to be described in the Registration Statement or Prospectus, or to
be filed as an exhibit thereto, which is not described or filed as required;
and the statements in the Prospectus under the heading "Certain United
States Federal Income Tax Considerations", and the information in the
Company's Annual Report on Form 10-K, incorporated by reference in the
Prospectus, under the captions "Business -- Patents and Trademarks",
"Business -- Government Regulations", "Business -- Environmental Matters",
"Legal Proceedings" insofar as such statements summarize legal matters,
agreements, documents or proceedings discussed therein, are accurate and
fair summaries of such legal matters, agreements, documents or proceedings.
(g) This Agreement has been duly authorized, executed and delivered by
the Company and the Guarantors, and constitutes a valid and binding
obligation of the Company and the Guarantors enforceable in accordance with
its terms (subject, as to the enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect and to general
principles of equity); the Indenture has been duly authorized and, assuming
due authorization, execution and delivery thereof by the Trustee, when
executed and delivered by the Company and the Guarantors, will constitute a
legal, valid and binding instrument enforceable against the Company and the
Guarantors in accordance with its terms (subject, as to the enforcement of
remedies, to applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally from time to time in
effect and to general principles of equity); the Securities have been duly
authorized, and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the
Underwriters, will have been duly executed and delivered by the Company and
the Guarantors, and will constitute the legal, valid and binding obligations
of
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the Company and the Guarantors entitled to the benefits of the Indenture
(subject, as to the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting creditors'
rights generally from time to time in effect and to general principles of
equity) and will be convertible into Common Stock in accordance with their
terms.
(h) The shares of Common Stock outstanding on the date hereof have been
duly authorized and are validly issued.
(i) The shares of Common Stock initially issuable upon conversion of the
Securities when issued upon conversion in accordance with the terms of the
Indenture and the Securities, will be validly issued, fully paid and
nonassessable; the Board of Directors of the Company has duly and validly
adopted resolutions reserving such shares of Common Stock for issuance upon
conversion of the Securities; and the holders of the outstanding shares of
capital stock of the Company are not entitled to any preemptive or other
rights to subscribe for the Securities or the shares of the Common Stock
issuable upon conversion thereof; except as set forth in the Prospectus or
otherwise disclosed in writing to the Underwriters, no options, warrants or
other rights to purchase, agreements or other obligations to issue, or
rights to convert any obligations into or exchange any securities for,
shares of capital stock of or ownership interests in the Company are
outstanding; and there are no transfer taxes or other similar fees or
charges under Federal law or the laws of any state, or any political
subdivision thereof, required to be paid in connection with the execution
and delivery of this Agreement or the conversion of the Securities and
issuance by the Company of the resulting Common Stock.
(j) (1) The rights to be attached to the shares of Common Stock
initially issuable upon conversion of the Securities have been duly
authorized and, when such shares of Common Stock have been duly and validly
issued in accordance with the terms of the Securities, will be validly
issued.
(2) The rights attached to the shares of Common Stock outstanding on the
date hereof have been duly authorized and are validly issued.
(k) Neither the Company nor either of the Guarantors is and, after
giving effect to the offering and the sale of the Securities and the
application of the proceeds thereof as described in the Prospectus, neither
the Company nor either of the Guarantors will be an "investment company" as
defined in the Investment Company Act of 1940, as amended.
(l) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with
transactions contemplated herein, except such as have been obtained under
the Act and the Trust Indenture Act and such as may be required under the
blue sky laws of any
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jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters in the manner contemplated herein and in the
Prospectus.
(m) Neither the issue and sale of the Securities nor the consummation of
any other of the transactions herein contemplated nor the fulfillment of the
terms hereof will conflict with, result in a breach or violation or
imposition of any lien, charge or encumbrance upon any property or assets of
the Company or any of its subsidiaries pursuant to, (i) the charter or
by-laws of the Company or any of its subsidiaries, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument
to which the Company or any of its subsidiaries is a party or bound or to
which its or their property is subject, or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or any of
its subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over
the Company or any of its subsidiaries or any of its or their properties,
except, in the case of clause (ii) or (iii), as would not have a Material
Adverse Effect.
(n) No holders of securities of the Company and the Guarantors have
rights to the registration of such securities under the Registration
Statement.
(o) The consolidated historical financial statements and schedules of
the Company and its consolidated subsidiaries included in the Prospectus and
the Registration Statement present fairly in all material respects the
financial condition, results of operations and cash flows of the Company as
of the dates and for the periods indicated, comply as to form with the
applicable accounting requirements of the Act and have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved (except as otherwise noted
therein). The summary financial data set forth under the caption "Prospectus
Supplement Summary -- Summary Financial Data" in, and the selected financial
data incorporated by reference in Item 7 of the Company's Annual Report on
Form 10-K into, the Prospectus and Registration Statement fairly present, on
the basis stated in the Prospectus and the Registration Statement, the
information included therein.
(p) Except as set forth in the Prospectus (exclusive of any supplement
thereto), no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property is pending or,
to the best knowledge of the Company and the Guarantors, threatened that (i)
could reasonably be expected to have a material adverse effect on the
performance of this Agreement or the consummation of any of the transactions
contemplated hereby or (ii) could reasonably be expected to have a Material
Adverse Effect.
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(q) The Company and each of its subsidiaries owns or leases all such
properties as are necessary to the conduct of its operations as presently
conducted.
(r) Neither the Company nor any subsidiary is in violation or default of
(i) any provision of its charter or bylaws, (ii) the terms of any indenture,
contract, lease, mortgage, deed of trust, note agreement, loan agreement or
other agreement, obligation, condition, covenant or instrument to which it
is a party or bound or to which its property is subject, or (iii) any
statute, law, rule, regulation, judgment, order or decree of any court,
regulatory body, administrative agency, governmental body, arbitrator or
other authority having jurisdiction over the Company or such subsidiary or
any of its properties, as applicable, except, in the case of clause (ii) or
(iii), for any such default that would not result in a Material Adverse
Effect.
(s) KPMG LLP, who have certified certain financial statements of the
Company and its consolidated subsidiaries and delivered their report with
respect to the audited consolidated financial statements and schedules
included in the Prospectus, are independent public accountants with respect
to the Company within the meaning of the Act and the applicable published
rules and regulations thereunder.
(t) Except as set forth in or contemplated in the Prospectus (exclusive
of any supplement thereto), the Company and each of the Guarantors has filed
all foreign, federal, state and local tax returns that are required to be
filed or has requested extensions thereof (except in any case in which the
failure so to file would not have a Material Adverse Effect) and has paid
all taxes required to be paid by it and any other assessment, fine or
penalty levied against it, to the extent that any of the foregoing is due
and payable, except for any such assessment, fine or penalty that is
currently being contested in good faith or as would not have a Material
Adverse Effect.
(u) Except as set forth in or contemplated in the Prospectus (exclusive
of any supplement thereto), no labor problem or dispute with the employees
of the Company or any of its subsidiaries exists or is threatened or
imminent, and the Company and the Guarantors are not aware of any existing
or imminent labor disturbance by the employees of any of its or its
subsidiaries' principal suppliers, contractors or customers, that could have
a Material Adverse Effect.
(v) Except as set forth in or contemplated in the Prospectus (exclusive
of any supplement thereto), the Company and each of its subsidiaries are
insured by insurers of recognized financial responsibility against such
losses and risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; all policies of insurance insuring the
Company or any of its subsidiaries or their respective businesses, assets,
employees, officers and directors are in full force and effect; the Company
and its subsidiaries are in compliance with the
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terms of such policies and instruments in all material respects; and there
are no claims by the Company or any of its subsidiaries under any such
policy or instrument as to which any insurance company is denying liability
or defending under a reservation of rights clause that could reasonably be
expected to have a Material Adverse Effect; neither the Company nor any such
subsidiary has been refused any insurance coverage sought or applied for;
and neither the Company nor any such subsidiary has any reason to believe
that it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar
insurers as may be necessary to continue its business at a cost that would
not have a Material Adverse Effect.
(w) No subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on such subsidiary's capital stock, from repaying to the
Company any loans or advances to such subsidiary from the Company or from
transferring any of such subsidiary's property or assets to the Company or
any other subsidiary of the Company, except as described in or contemplated
by the Prospectus.
(x) Except as set forth in or contemplated in the Prospectus (exclusive
of any supplement thereto), the Company and its subsidiaries possess all
licenses, certificates, permits and other authorizations issued by the
appropriate federal, state or foreign regulatory authorities necessary to
conduct their respective businesses, and neither the Company nor any such
subsidiary has received any notice of proceedings relating to the revocation
or modification of any such certificate, authorization or permit which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a Material Adverse Effect.
(y) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
(z) The Company and the Guarantors have not taken, directly or
indirectly, any action designed to or that would constitute or that might
reasonably be expected to cause or result in, under the Exchange Act or
otherwise, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
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(aa) The Company and its subsidiaries are (i) in compliance with any and
all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received and are in compliance with all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) have not
received notice of any actual or potential liability for the investigation
or remediation of any disposal or release of hazardous or toxic substances
or wastes, pollutants or contaminants, except where such non-compliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals, or liability would not, individually or in the aggregate, have a
Material Adverse Effect, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto). Except as set forth in the
Prospectus, or disclosed in writing to the Underwriters, neither the Company
nor any of the subsidiaries has been named as a "potentially responsible
party" under the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended.
(bb) In the ordinary course of its business, the Company periodically
reviews the effect of Environmental Laws on the business, operations, and
properties of the Company and its subsidiaries. In the course of those
reviews, the Company attempts to identify and to evaluate any costs and
liabilities (including, without limitation, any capital or operating
expenditures required for remediation of environmental contamination
required by those Environmental Laws, compliance with those Environmental
Laws, costs of obtaining permits, licenses or approvals required by those
Environmental Laws, and constraints on operating activities resulting from
those Environmental Laws) that could be incurred as a result of those
Environmental Laws. On the basis of such review, the Company has reasonably
concluded that such costs and liabilities would not, singly or in the
aggregate, have a Material Adverse Effect, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement thereto).
(cc) Each of the Company and its subsidiaries has fulfilled its
obligations, if any, under the minimum funding standards of Xxxxxxx 000 xx
xxx Xxxxxx Xxxxxx Employee Retirement Income Security Act of 1974 ("ERISA")
and the regulations and published interpretations thereunder with respect to
each "plan" (as defined in Section 3(3) of ERISA and such regulations and
published interpretations) in which employees of the Company and its
subsidiaries are eligible to participate and each such plan is in compliance
in all material respects with the presently applicable provisions of ERISA
and such regulations and published interpretations. The Company and its
subsidiaries have not incurred any unpaid liability to the Pension Benefit
Guaranty Corporation (other than for the payment of premiums in the ordinary
course) or to any such plan under Title IV of ERISA.
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(dd) The subsidiaries listed on Exhibit 21 to the Company's Annual
Report on Form 10-K for the year ended December 31, 2000, are the only
Significant Subsidiaries of the Company.
(ee) The Company and its subsidiaries own, possess, license or have
other rights to use, on reasonable terms, all patents, patent applications,
trade and service marks, trade and service xxxx registrations, trade names,
copyrights, licenses, inventions, trade secrets, technology, know-how and
other intellectual property (collectively, the "Intellectual Property")
necessary for the conduct of the Company's and the Guarantors' business as
now conducted or as proposed in the Prospectus to be conducted except as
would not have a Material Adverse Effect. Except as set forth in the
Prospectus (exclusive of any supplement thereto) and as included or
incorporated by reference in the Company's Annual Report on Form 10-K for
the year ended December 31, 2000, (a) to the Company's knowledge there are
no rights of third parties to any such Intellectual Property; (b) to the
Company's knowledge there is no material infringement by third parties of
any such Intellectual Property; (c) there is no pending or to the Company's
knowledge threatened action, suit, proceeding or claim by others challenging
the Company's and the Guarantors' rights in or to any such Intellectual
Property, and the Company and the Guarantors are unaware of any facts which
would form a reasonable basis for any such claim; (d) there is no pending or
to the Company's knowledge threatened action, suit, proceeding or claim by
others challenging the validity or scope of any such Intellectual Property,
and the Company and the Guarantors are unaware of any facts which would form
a reasonable basis for any such claim; (e) there is no pending or to the
Company's knowledge threatened action, suit, proceeding or claim by others
that the Company or either Guarantor infringes or otherwise violates any
patent, trademark, copyright, trade secret or other proprietary rights of
others, and the Company and the Guarantors are unaware of any other fact
which would form a reasonable basis for any such claim; (f) to the Company's
knowledge there is no U.S. patent or published U.S. patent application which
contains claims that dominate or may dominate any Intellectual Property
described in the Prospectus as being owned by or licensed to the Company or
either Guarantor or that interferes with the issued or pending claims of any
such Intellectual Property; and (g) there is no prior art of which the
Company or either Guarantor is aware that may render any U.S. patent held by
the Company or either Guarantor invalid or any U.S. patent application held
by the Company unpatentable which has not been disclosed to the U.S. Patent
and Trademark Office except in each case such as if determined adversely to
the Company would not have a Material Adverse Effect.
(ff) Neither the Company nor any of its subsidiaries nor any of its or
their properties or assets has any immunity from such proper and lawful
jurisdiction as any court of the United States or New York may otherwise
have or from any proper and lawful legal process of such court (whether
through service or notice,
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attachment prior to judgment, attachment in aid of execution or otherwise)
under the laws of the United States of America or the laws of New York
State.
(gg) There has not occurred any material adverse change, or any
development, involving insofar as can reasonably be foreseen a prospective
material adverse change, in the condition, financial or otherwise, or in the
earnings, business or operations of the Company and its subsidiaries, taken
as a whole, from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this Agreement).
(hh) Each Preliminary Prospectus filed as part of the registration
statement for the registration of the Securities as originally filed or as
part of any amendment thereto, or filed pursuant to Rule 424 under the Act,
complied when so filed in all material respects with the Act and the
applicable rules and regulations of the Commission thereunder.
Any certificate signed by any officer of the Company and delivered to
the Representatives in connection with the offering of the Securities shall
be deemed a representation and warranty by the Company, as to matters
covered thereby, to each Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter agrees,
severally and not jointly, to purchase from the Company, at a purchase price
of % of the principal amount at maturity thereof, plus amortization of
original issue discount, if any, on the Securities from , 2001, to the
Closing Date, the principal amount at maturity of the Securities set forth
opposite such Underwriter's name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants
an option to the several Underwriters to purchase, severally and not
jointly, Option Securities with an aggregate principal amount at maturity of
up to the aggregate principal amount at maturity set forth in Schedule I
hereto at the same purchase price per Security as the Underwriters shall pay
for the Underwritten Securities. Said option may be exercised only to cover
over-allotments in the sale of the Underwritten Securities by the
Underwriters. Said option may be exercised in whole or in part at any time
(but not more than once) on or before the 30th day after the date of this
Agreement upon written or telegraphic notice by the Representatives to the
Company setting forth the aggregate principal amount at maturity of the
Option Securities as to which the several Underwriters are exercising the
option and the settlement date. The aggregate principal amount at maturity
of the Option Securities to be purchased by each Underwriter shall be the
same percentage of the total aggregate principal amount at maturity of the
Option
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Securities to be purchased by the several Underwriters as such Underwriter
is purchasing of the Underwritten Securities, subject to such adjustments as
you in your absolute discretion shall make to eliminate any fractional
shares.
3. Delivery and Payment. Delivery of and payment for the Underwritten
Securities and the Option Securities (if the option provided for in Section
2(b) hereof shall have been exercised on or before the third Business Day
prior to the Closing Date) shall be made at 10:00 AM, New York City time, on
, 2001, or at such time on such later date not more than three
Business Days after the foregoing date as the Representatives shall
designate, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such
date and time of delivery and payment for the Securities being herein called
the "Closing Date"). Delivery of the Securities shall be made to the
Representatives for the respective accounts of the several Underwriters
against payment by the several Underwriters through the Representatives of
the purchase price thereof to or upon the order of the Company by wire
transfer payable in same-day funds to an account specified by the Company.
Delivery of the Underwritten Securities and the Option Securities shall be
made through the facilities of The Depository Trust Company unless the
Representatives shall otherwise instruct.
If the option provided for in Section 2(b) hereof is exercised after the
third Business Day prior to the Closing Date, the Company will deliver the
Option Securities (at the expense of the Company) to the Representatives, at 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the date specified by the
Representatives (which shall be within three Business Days after exercise of
said option) for the respective accounts of the several Underwriters, against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by wire transfer payable in
same-day funds to an account specified by the Company. If settlement for the
Option Securities occurs after the Closing Date, the Company will deliver to the
Representatives on the settlement date for the Option Securities, and the
obligation of the Underwriters to purchase the Option Securities shall be
conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set
forth in the Prospectus.
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5. Agreements.
The Company agrees with the several Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective. Prior to the termination of the offering of
the Securities, the Company will not file any amendment of the Registration
Statement or supplement to the Prospectus or any Rule 462(b) Registration
Statement unless the Company has furnished you a copy for your review prior
to filing and will not file any such proposed amendment or supplement to
which you reasonably object. Subject to the foregoing sentence, if the
Registration Statement has become or becomes effective pursuant to Rule
430A, or filing of the Prospectus is otherwise required under Rule 424(b),
the Company will cause the Prospectus, properly completed, and any
supplement thereto to be filed with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to the Representatives of such timely
filing. The Company will promptly advise the Representatives (1) when the
Registration Statement, if not effective at the Execution Time, shall have
become effective, (2) when the Prospectus, and any supplement thereto, shall
have been filed (if required) with the Commission pursuant to Rule 424(b) or
when any Rule 462(b) Registration Statement shall have been filed with the
Commission, (3) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been
filed or become effective, (4) of any request by the Commission or its staff
for any amendment of the Registration Statement, or any Rule 462(b)
Registration Statement, or for any supplement to the Prospectus or for any
additional information, (5) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (6) of the
receipt by the Company of any notification with respect to the suspension of
the qualification of the Securities for sale in any jurisdiction or the
institution or threatening of any proceeding for such purpose. The Company
will use its best efforts to prevent the issuance of any such stop order or
the suspension of any such qualification and, if issued, to obtain as soon
as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then supplemented would include any untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were
made not misleading, or if it shall be necessary to amend the Registration
Statement or supplement the Prospectus to comply with the Act or the
Exchange Act or the respective rules thereunder, the Company promptly will
(1) notify the Representatives of such event, (2) prepare and file with the
Commission, subject to the second sentence of
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paragraph (a) of this Section 5, an amendment or supplement which will
correct such statement or omission or effect such compliance, and (3) supply
any supplemented Prospectus to you in such quantities as you may reasonably
request.
(c) As soon as practicable, the Company will make generally available to
its security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for the
Underwriters, without charge, photocopies of the signed Registration
Statement (including exhibits thereto) and to each other Underwriter a
photocopy of the executed Registration Statement (without exhibits thereto)
and, so long as delivery of a prospectus by an Underwriter or dealer may be
required by the Act, as many copies of each Preliminary Prospectus and the
Prospectus and any supplement thereto as the Representatives may reasonably
request. The Company will pay the expenses of printing or other production
of all documents relating to the offering.
(e) The Company will arrange, if necessary, for the qualification of the
Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in effect
so long as required for the distribution of the Securities and will pay any
fee of the National Association of Securities Dealers, Inc., in connection
with its review of the offering; provided that in no event shall the Company
be obligated to qualify to do business in any jurisdiction where it is not
now so qualified or to take any action that would subject it to service of
process in suits, other than those arising out of the offering or sale of
the Securities, or to general taxation, in any jurisdiction where it is not
now so subject.
(f) The Company will not, without the prior written consent of Xxxxxxx
Xxxxx Xxxxxx Inc., offer, sell, contract to sell, pledge, or otherwise
dispose of, (or enter into any transaction which is designed to, or might
reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the Company or any affiliate of the Company or any person in
privity with the Company or any affiliate of the Company), directly or
indirectly, including the filing (or participation in the filing) of a
registration statement with the Commission in respect of, or establish or
increase a put equivalent position or liquidate or decrease a call
equivalent position within the meaning of Section 16 of the Exchange Act, of
any shares of capital stock of the Company or any securities convertible or
exercisable or exchangeable for such capital securities (other than the
Securities) or publicly announce an intention to effect any such
transaction, for a period of 90 days after the date of the Underwriting
Agreement. The restrictions described in this
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paragraph do not apply to: (a) the issuance of Common Stock upon the
exercise of an option or a warrant, the conversion of any Securities or the
conversion of a security outstanding on the date hereof; (b) grants of stock
options pursuant to the Company's stock option plans in existence on the
date hereof; (c) the issuance of Common Stock to employees under the
Company's 401(k) plans in existence on the date hereof; and (d) the issuance
of Common Stock pursuant to the Company's employee stock purchase plans in
existence on the date hereof.
(g) The Company will reserve and keep available at all times, free of
preemptive rights, the full number of shares of Common Stock issuable upon
conversion of the Securities.
(h) The Company will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected to
cause or result in, under the Exchange Act or otherwise, stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Securities.
6. Conditions to the Obligations of the Underwriters. The obligations of
the Underwriters to purchase the Underwritten Securities and the Option
Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company and the Guarantors
contained herein as of the Execution Time, Closing Date and any settlement
date pursuant to Section 3 hereof, to the accuracy of the statements of the
Company and the Guarantors made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective prior to the
Execution Time, unless the Representatives agree in writing to a later time,
the Registration Statement will become effective not later than (i) 6:00 PM
New York City time, on the date of determination of the public offering
price, if such determination occurred at or prior to 3:00 PM New York City
time on such date or (ii) 9:30 AM on the Business Day following the day on
which the public offering price was determined, if such determination
occurred after 3:00 PM New York City time on such date; if filing of the
Prospectus, or any supplement thereto, is required pursuant to Rule 424(b),
the Prospectus, and any such supplement, will be filed in the manner and
within the time period required by Rule 424(b); and no stop order suspending
the effectiveness of the Registration Statement shall have been issued and
no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx & Xxxxxxx,
counsel for the Company and the Guarantors, to have furnished to the
Representatives their opinion, dated the Closing Date and addressed to the
Representatives, in substantially the form attached as Annex A.
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(c) The Company shall have requested and caused Xxxxxxx Xxx, the Vice
President, General Counsel and Secretary of the Company to have furnished to
the Representatives his opinion, dated the Closing Date and addressed to the
Representatives, in substantially the form attached as Annex B.
(d) The Representatives shall have received from Cleary, Gottlieb, Xxxxx
& Xxxxxxxx, counsel for the Underwriters, such opinion or opinions, dated
the Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the Securities, the Indenture, the Registration
Statement, the Prospectus (together with any supplement thereto) and other
related matters as the Representatives may reasonably require, and the
Company shall have furnished to such counsel such documents as they request
for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished to the Representatives a
certificate of the Company and the Guarantors, signed by the respective
Chairman of the Board or President of the Company and each Guarantor and the
respective principal financial or accounting officer of the Company and each
Guarantor, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Prospectus, any supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company and the
Guarantors in this Agreement are true and correct on and as of the
Closing Date with the same effect as if made on the Closing Date and the
Company and each Guarantor have complied with all the agreements and
satisfied all the conditions on their part to be performed or satisfied
at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the knowledge of the Company and the Guarantors,
threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Prospectus (exclusive of
any supplement thereto), there has been no material adverse effect on
the condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(f) The Company shall have requested and caused KPMG LLP to have
furnished to the Representatives, at the Execution Time and at the Closing
Date,
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letters, dated respectively as of the Execution Time and as of the Closing
Date, in substantially the form attached as Annex C.
(g) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement thereto),
there shall not have been (i) any change or decrease specified in the letter
or letters referred to in paragraph (f) of this Section 6 or (ii) any
change, or any development involving a prospective change, in or affecting
the condition (financial or otherwise), earnings, business or properties of
the Company and its subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set forth in
or contemplated in the Prospectus (exclusive of any supplement thereto) the
effect of which, in any case referred to in clause (i) or (ii) above, is, in
the sole judgment of the Representatives, so material and adverse as to make
it impractical or inadvisable to proceed with the offering or delivery of
the Securities as contemplated by the Registration Statement (exclusive of
any amendment thereof) and the Prospectus (exclusive of any supplement
thereto).
(h) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any such
rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company and the Guarantors shall have
furnished to the Representatives such further information, certificates and
documents as the Representatives may reasonably request.
(j) The "lock-up" agreements, between you and the Chief Executive
Officer, Chief Financial Officer, Controller and directors of the Company
relating to sales and certain other dispositions of shares of Common Stock
or certain other securities, delivered to you on or before the date hereof,
shall be in full force and effect on the Closing Date.
(k) The Company's authorized equity capitalization shall be as set forth
in the Prospectus; the Securities shall conform in all material respects to
the description thereof contained in the Prospectus; and the Common Stock
issuable upon conversion of the Securities shall be admitted and authorized
for trading, subject to official notice of issuance, on the New York Stock
Exchange.
If any of the conditions specified in this Section 6 shall not have been
fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in
this Agreement shall not be in all material respects reasonably satisfactory
in form and substance
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to the Representatives and counsel for the Underwriters, this Agreement and
all obligations of the Underwriters hereunder may be canceled at, or at any
time prior to, the Closing Date by the Representatives. Notice of such
cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Cleary, Gottlieb, Xxxxx & Xxxxxxxx, counsel for
the Underwriters, at Xxx Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx, xx the Closing
Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to
the obligations of the Underwriters set forth in Section 6 hereof is not
satisfied, because of any termination pursuant to Section 10 hereof or
because of any refusal, inability or failure on the part of the Company or
either Guarantor to perform any agreement herein or comply with any
provision hereof other than by reason of a default by any of the
Underwriters, the Company and the Guarantors will reimburse the Underwriters
severally through Xxxxxxx Xxxxx Barney Inc. on demand for all reasonable
out-of-pocket expenses (including reasonable fees and disbursements of
counsel) that shall have been incurred by them in connection with the
proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company and each Guarantor,
jointly and severally, agree to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the meaning
of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement for the registration
of the Securities as originally filed or in any amendment thereof, or in the
Basic Prospectus, any Preliminary Prospectus or the Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company and the Guarantors
will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any such untrue statement
or alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written
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information furnished to the Company by or on behalf of any Underwriter
through the Representatives specifically for inclusion therein; provided
further, that with respect to any untrue statement or omission of material
fact made in any Preliminary Prospectus, the indemnity agreement contained
in this Section 8(a) shall not inure to the benefit of any Underwriter from
whom the person asserting any such loss, claim, damage or liability
purchased the Securities concerned, to the extent that any such loss, claim,
damage or liability of such Underwriter occurs under the circumstance where
it shall have been determined by a court of competent jurisdiction by final
and nonappealable judgment that (w) the Company hand previously furnished
copies of the Prospectus to the Representatives, (x) delivery of the
Prospectus was required by the Act to be made to such person, (y) the untrue
statement or omission of a material fact contained in the Preliminary
Prospectus was corrected in the Prospectus and (z) there was not sent or
given to such person, at or prior to the written confirmation of the sale of
such Securities to such person, a copy of the Prospectus. This indemnity
agreement will be in addition to any liability which the Company and the
Guarantors may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless the Company and each Guarantor, each of their directors, each
of their officers who signs the Registration Statement, and each person who
controls the Company or either Guarantor within the meaning of either the
Act or the Exchange Act, to the same extent as the foregoing indemnity from
the Company and each Guarantor to each Underwriter, but only with reference
to written information relating to such Underwriter furnished to the Company
by or on behalf of such Underwriter through the Representatives specifically
for inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have. The Company and the Guarantors acknowledge
that the statements set forth (i) in the last paragraph of the cover page
regarding delivery of the Securities and, (ii) under the heading
"Underwriting", (A) the list of Underwriters and their respective
participation in the sale of the Securities following the first paragraph
and (B) the ninth paragraph, related to stabilization, syndicate covering
transactions and penalty bids, in any Preliminary Prospectus and the
Prospectus constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in any Preliminary
Prospectus or the Prospectus.
(c) Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action, such indemnified party will, if
a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a) or (b) above
unless and to the extent it did not otherwise learn
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of such action and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in
any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to
appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the
indemnified party. Notwithstanding the indemnifying party's election to
appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel (including
local counsel), and the indemnifying party shall bear the reasonable fees,
costs and expenses of such separate counsel if (i) the use of counsel chosen
by the indemnifying party to represent the indemnified party would present
such counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it and/or
other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not
have employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution
of such action or (iv) the indemnifying party shall authorize the
indemnified party to employ separate counsel at the expense of the
indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent
to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties
are actual or potential parties to such claim or action) unless such
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action, suit
or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company, the Guarantors and the
Underwriters severally agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably
incurred in connection with investigating or defending same) (collectively
"Losses") to which the Company, each Guarantor and one or more of the
Underwriters may be subject in such proportion as is appropriate to reflect
the relative benefits received by the Company and the Guarantors on the one
hand and by the Underwriters on the other from the offering of the
Securities; provided, however, that in no case shall any
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Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. If the allocation
provided by the immediately preceding sentence is unavailable for any
reason, the Company, the Guarantors and the Underwriters severally shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company and the
Guarantors on the one hand and of the Underwriters on the other in
connection with the statements or omissions which resulted in such Losses as
well as any other relevant equitable considerations. Benefits received by
the Company and the Guarantors shall be deemed to be equal to the total net
proceeds from the offering (before deducting expenses) received by the
Company, and benefits received by the Underwriters shall be deemed to be
equal to the total underwriting discounts and commissions, in each case as
set forth on the cover page of the Prospectus. Relative fault shall be
determined by reference to, among other things, whether any untrue or any
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information provided by the
Company or either Guarantor on the one hand or the Underwriters on the
other, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Company, the Guarantors and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person
who controls an Underwriter within the meaning of either the Act or the
Exchange Act and each director, officer, employee and agent of an
Underwriter shall have the same rights to contribution as such Underwriter,
and each person who controls the Company or either Guarantor within the
meaning of either the Act or the Exchange Act, each officer of the Company
or either Guarantor who shall have signed the Registration Statement and
each director of the Company or either Guarantor shall have the same rights
to contribution as the Company and the Guarantors, subject in each case to
the applicable terms and conditions of this paragraph (d).
(e) Without limitation of and in addition to its obligations under the
other paragraphs of this Section 8, the Company and the Guarantors also
agree to indemnify and hold harmless Xxxxxx Xxxxxxx & Co. Incorporated
("Xxxxxx Xxxxxxx") and its directors, officers, employees and agents and
each person who controls Xxxxxx Xxxxxxx within the meaning of either the Act
or the Exchange Act, from and against any and all losses, claims, damages or
liabilities, joint or several, to which they or any of them may become
subject, insofar as such losses,
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claims, damages or liabilities (or action in respect thereof) arise out of
or are based upon Xxxxxx Xxxxxxx'x participation as a "qualified independent
underwriter" within the meaning of Rule 2720 of the National Association of
Securities Dealers' Conduct Rules in connection with the offering of the
Securities, except for any losses, claims, damages or liabilities resulting
from Xxxxxx Xxxxxxx'x willful misconduct. Notwithstanding anything contained
herein to the contrary, if indemnity may be sought pursuant to this Section
8(e) in respect of such action or proceeding, then in addition to the
separate firm for the indemnified parties referenced in Section 8(c), the
indemnifying party shall be liable for the reasonable fees and expenses of
not more than one separate firm (in addition to any local counsel) for
Xxxxxx Xxxxxxx in its capacity as a "qualified independent underwriter", its
directors, officers, employees and agents and all persons who control Xxxxxx
Xxxxxxx within the meaning of either the Act or the Exchange Act.
9. Default by an Underwriter. If any one or more Underwriters shall fail
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under
this Agreement, the remaining Underwriters shall be obligated severally to
take up and pay for (in the respective proportions which the principal
amount at maturity of Securities set forth opposite their names in Schedule
I hereto bears to the aggregate principal amount at maturity of Securities
set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but
failed to purchase; provided, however, that in the event that the aggregate
principal amount at maturity of Securities which the defaulting Underwriter
or Underwriters agreed but failed to purchase shall exceed 10% of the
aggregate principal amount at maturity of Securities set forth in Schedule I
hereto, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Securities, and if
such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter,
the Company or either Guarantor. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be
postponed for such period, not exceeding five Business Days, as the
Representatives shall determine in order that the required changes in the
Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall
relieve any defaulting Underwriter of its liability, if any, to the Company,
the Guarantors and any nondefaulting Underwriter for damages occasioned by
its default hereunder.
10. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if at any time prior to
such time
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(i) trading in the Company's Common Stock shall have been suspended by the
Commission or the New York Stock Exchange or trading in securities generally
on the New York Stock Exchange shall have been suspended or limited or
minimum prices shall have been established on such Exchange, (ii) a banking
moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or
war, or other calamity or crisis the effect of which on financial markets is
such as to make it, in the sole judgment of the Representatives, impractical
or inadvisable to proceed with the offering or delivery of the Securities as
contemplated by the Prospectus (exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of
the Company and the Guarantors or their officers and of the Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any
Underwriter or the Company or either Guarantor or any of the officers,
directors, employees, agents or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 7 and 8 hereof shall survive the termination or
cancellation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be
mailed, delivered or telefaxed to the Xxxxxxx Xxxxx Barney Inc. General
Counsel (fax no.: (000) 000-0000) and confirmed to the General Counsel,
Xxxxxxx Xxxxx Xxxxxx Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx,
00000, Attention: General Counsel; or, if sent to the Company, will be
mailed, delivered or telefaxed to Xxxxxxx Xxxxxxx, Inc. 0000 X. Xxxxxx Xxxx.
Xxxxxxxxx XX 00000 (fax no.: (000) 000-0000 and confirmed to it at (714)
773-6907), attention of the General Counsel.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to
in Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
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16. Headings. The section headings used herein are for convenience only
and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this Agreement,
shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Basic Prospectus" shall mean the prospectus referred to in paragraph
1(a) above contained in the Registration Statement at the Effective Date
including any Preliminary Prospectus.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Common Stock" shall mean the Company's common stock, par value $.10 per
share.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean any preliminary prospectus referred
to in paragraph 1(a) above and any preliminary prospectus included in the
Registration Statement at the Effective Date that omits Rule 430A
Information.
"Prospectus" shall mean the prospectus supplement relating to the
Securities that was first filed pursuant to Rule 424(b) after the Execution
Time, together with the Basic Prospectus.
"Registration Statement" shall mean the registration statement referred
to in paragraph 1(a) above, including exhibits and financial statements, as
amended at the Execution Time (or, if not effective at the Execution Time,
in the form in which it shall become effective) and, in the event any
post-effective amendment
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thereto or any Rule 462(b) Registration Statement becomes effective prior to
the Closing Date, shall also mean such registration statement as so amended
or such Rule 462(b) Registration Statement, as the case may be. Such term
shall include any Rule 430A Information deemed to be included therein at the
Effective Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to such rules
under the Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration statement
and any amendments thereto filed pursuant to Rule 462(b) relating to the
offering covered by the registration statement referred to in Section 1(a)
hereof.
"Significant Subsidiary" shall mean each subsidiary of the Company that
as of the date of this Agreement is a "significant subsidiary" for purposes
of Rule 1-02 of regulation S-X under the Act.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
26
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding
agreement among the Company, the Guarantors and the several Underwriters.
Very truly yours,
Xxxxxxx Xxxxxxx, Inc.
By:
--------------------------------
Name:
Title:
Hybritech, Incorporated
By:
--------------------------------
Name:
Title:
Xxxxxxx Corporation
By:
--------------------------------
Name:
Title:
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The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Xxxxxxx Xxxxx Xxxxxx Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Credit Suisse First Boston Corporation
By: Xxxxxxx Xxxxx Barney Inc.
By:
------------------------------
Name:
Title:
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
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SCHEDULE I
Principal amount at
maturity of
Underwritten Securities
Underwriters to be Purchased
------------ -----------------------
Xxxxxxx Xxxxx Xxxxxx Inc........................... $
Xxxxxx Xxxxxxx & Co. Incorporated..................
Credit Suisse First Boston Corporation.............
-------------
Total...................................... $
Maximum aggregate principal amount at maturity of Option Securities: $
29
ANNEX A
L&W OPINION
ANNEX B
OPINION OF W. MAY
ANNEX C
COMFORT LETTER
