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EXHIBIT 1.1
Cepheid
[_____] Shares
Common Stock
(No Par Value)
UNDERWRITING AGREEMENT
[_____], 2000
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UNDERWRITING AGREEMENT
[_____], 2000
UBS Warburg LLC
Prudential Vector Healthcare
Invemed Associates LLC
As representatives of the several Underwriters
named in Schedule A hereto
c/o UBS Warburg LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Cepheid, a California corporation (the "Company"), proposes to
issue and sell to the Underwriters named in Schedule A annexed hereto (the
"Underwriters") an aggregate of [_____] shares (the "Firm Shares") of Common
Stock, no par value (the "Common Stock"), of the Company. In addition, solely
for the purpose of covering over-allotments, the Company proposes to grant to
the Underwriters the option to purchase from the Company up to an additional
[_____] shares of Common Stock (the "Additional Shares"). The Firm Shares and
the Additional Shares are hereinafter collectively sometimes referred to as the
Shares. The Shares are described in the Prospectus which is referred to below.
The Company hereby acknowledges that in connection with the
proposed offering of the Shares, it has requested UBS Warburg LLC ("UBSW") to
administer a directed share program (the "Directed Share Program") under which
up to [_____] shares of the Firm Shares to be purchased by you (the "Reserved
Shares") shall be reserved for sale by you at the initial public offering price
to [the Company's officers, directors, employees, and consultants and others
having a business relationship with the Company] (the "Directed Share
Participants") as part of the distribution of the Shares by the Underwriters,
subject to the terms of this Agreement, the applicable rules, regulations and
interpretations of the National Association of Securities Dealers, Inc. and all
other applicable laws, rules and regulations. The number of Shares available for
sale to the general public will be reduced to the extent that Directed Share
Participants purchase Reserved Shares. You may offer any Reserved Shares not
purchased by Directed Share Participants to the general public on the same basis
as the other Shares being issued and sold hereunder. The Company has supplied
UBSW with the names, addresses and telephone numbers of the individuals or other
entities which the Company has designated to be participants in the Directed
Share Program. It is understood
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that any number of those designated to participate in the Directed Share Program
may decline to do so.
The Company has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively called the "Act"), with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-1 (File No. 333-34340)
including a prospectus, relating to the Shares. The Company has furnished to
you, for use by the Underwriters and by dealers, copies of one or more
preliminary prospectuses (each thereof being herein called a "Preliminary
Prospectus") relating to the Shares. Except where the context otherwise
requires, the registration statement, as amended when it becomes effective,
including all documents filed as a part thereof, and including any information
contained in a prospectus subsequently filed with the Commission pursuant to
Rule 424(b) under the Act and deemed to be part of the registration statement at
the time of effectiveness pursuant to Rule 430(A) under the Act, and also
including any registration statement filed pursuant to Rule 462(b) under the
Act, is herein called the Registration Statement, and the prospectus, in the
form filed by the Company with the Commission pursuant to Rule 424(b) under the
Act on or before the second business day after the date hereof (or such earlier
time as may be required under the Act) or, if no such filing is required, the
form of final prospectus included in the Registration Statement at the time it
became effective, is herein called the Prospectus.
The Company and the Underwriters agree as follows:
1. Sale and Purchase. Upon the basis of the representations and
warranties and subject to the terms and conditions herein set forth, the Company
agrees to sell to the respective Underwriters and each of the Underwriters,
severally and not jointly, agrees to purchase from the Company the aggregate
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule A attached hereto in each case at a purchase price of $[_____] per
Share. The Company is advised by you that the Underwriters intend (i) to make a
public offering of their respective portions of the Firm Shares as soon after
the effective date of the Registration Statement as in your judgment is
advisable and (ii) initially to offer the Firm Shares upon the terms set forth
in the Prospectus. You may from time to time increase or decrease the public
offering price after the initial public offering to such extent as you may
determine.
In addition, the Company hereby grants to the several
Underwriters the option to purchase, and upon the basis of the representations
and warranties and subject to the terms and conditions herein set forth, the
Underwriters shall have the right to purchase, severally and not jointly, from
the Company, ratably in accordance with the number of Firm Shares to be
purchased by each of them, all or a portion of the Additional Shares as may be
necessary to cover over-allotments made in connection with the offering of the
Firm Shares, at the same purchase price per share to be paid by the Underwriters
to the Company for the Firm Shares. This option may be exercised by you on
behalf of the several Underwriters at any time and
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from time to time on or before the thirtieth day following the date hereof, by
written notice to the Company. Such notice shall set forth the aggregate number
of Additional Shares as to which the option is being exercised, and the date and
time when the Additional Shares are to be delivered (such date and time being
herein referred to as the additional time of purchase); provided, however, that
the additional time of purchase shall not be earlier than the time of purchase
(as defined below) nor earlier than the second business day (1) after the date
on which the option shall have been exercised nor later than the tenth business
day after the date on which the option shall have been exercised. The number of
Additional Shares to be sold to each Underwriter shall be the number which bears
the same proportion to the aggregate number of Additional Shares being purchased
as the number of Firm Shares set forth opposite the name of such Underwriter on
Schedule A hereto bears to the total number of Firm Shares (subject, in each
case, to such adjustment as you may determine to eliminate fractional shares).
2. Payment and Delivery. Payment of the purchase price for the
Firm Shares shall be made to the Company by Federal Funds wire transfer, against
delivery of the certificates for the Firm Shares to you through the facilities
of the Depository Trust Company ("DTC") for the respective accounts of the
Underwriters. Such payment and delivery shall be made at 10:00 A.M., New York
City time, on [_____], 2000 (unless another time shall be agreed to by you and
the Company or unless postponed in accordance with the provisions of Section 8
hereof). The time at which such payment and delivery are actually made is
hereinafter sometimes called the time of purchase. Certificates for the Firm
Shares shall be delivered to you in definitive form in such names and in such
denominations as you shall specify on the second business day preceding the time
of purchase. For the purpose of expediting the checking of the certificates for
the Firm Shares by you, the Company agrees to make such certificates available
to you for such purpose at least one full business day preceding the time of
purchase.
Payment of the purchase price for the Additional Shares shall be
made at the additional time of purchase in the same manner and at the same
office as the payment for the Firm Shares. Certificates for the Additional
Shares shall be delivered to you in definitive form in such names and in such
denominations as you shall specify no later than the second business day
preceding the additional time of purchase. For the purpose of expediting the
checking of the certificates for the Additional Shares by you, the Company
agrees to make such certificates available to you for such purpose at least one
full business day preceding the additional time of purchase.
Deliveries of the documents described in Section 6 below
with respect to the purchase of the Shares shall be made at the offices of Xxxxx
Xxxxxxxxxx LLP, 1301 Avenue of
--------
(1) As used herein "business day" shall mean a day on which the New
York Stock Exchange is open for trading.
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the Americas, New York, New York at 9:00 a.m., New York time, on the date of the
closing of the purchase of the Firm Shares or the Additional Shares, as the case
may be.
3. Representations and Warranties. The Company represents and
warrants to each of the Underwriters that:
(a) the Company has not received, and has no notice of, any
order of the Commission preventing or suspending the use of any
Preliminary Prospectus, or instituting proceedings for that purpose, and
each Preliminary Prospectus, at the time of filing thereof, conformed in
all material respects to the requirements of the Act; and when the
Registration Statement became or becomes effective, the Registration
Statement and the Prospectus complied or will comply fully in all
material respects with the provisions of the Act, and the Registration
Statement did not or will 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 not misleading, and the
Prospectus did not or will 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 light of the circumstances
under which they were made, not misleading and the Prospectus, any
Preliminary Prospectus and any supplement thereto or prospectus wrapper
prepared in connection therewith, at their respective times of issuance
and at the time of closing, complied and will comply in all material
respects with any applicable laws or regulations of jurisdictions in
which the Prospectus and such preliminary prospectus, as amended or
supplemented, if applicable, are distributed in connection with the
offer and sale of Reserved Shares, provided, however, that the Company
makes no warranty or representation with respect to any statement
contained in the Registration Statement or the Prospectus in reliance
upon and in conformity with information concerning the Underwriters and
furnished in writing by or on behalf of any Underwriter through you to
the Company expressly for use in the Registration Statement or the
Prospectus; and the Company has not distributed directly or indirectly
any offering material in connection with the offering or sale of the
Shares other than the Registration Statement, the Preliminary
Prospectus, the Prospectus or any other materials, if any, permitted by
the Act;
(b) as of the date of this Agreement, the Company has authorized
and outstanding capital stock as set forth under the heading entitled
"Actual" in the section of the Registration Statement and the Prospectus
entitled "Capitalization" and, as of the time of purchase, and assuming
the receipt and application of the net proceeds as described under the
section of the Registration Statement and the Prospectus entitled "Use
of Proceeds," the Company shall have an authorized and outstanding
capital stock as set forth under the heading entitled "Pro Forma As
Adjusted" in the section of the Registration Statement and the
Prospectus entitled "Capitalization"; all of the shares of capital stock
will be duly and validly authorized and issued, fully paid and
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non-assessable, will have been issued in compliance with all federal and
state securities laws and will not have been issued in violation of any
preemptive right, resale right, right of first refusal or similar right;
(c) the Company has been duly organized and is validly existing
as a corporation and is in good standing under the laws of the State of
California, with full power and authority to own, lease and operate its
properties and conduct its business as described in the Registration
Statement;
(d) the Company is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction in which the
ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to so qualify
would not individually or in the aggregate have a material adverse
effect on the business, prospects, properties, condition (financial or
otherwise) or results of operation of the Company (a "Material Adverse
Effect"); the Company does not have any subsidiaries (as defined in the
Act); the Company does not own, directly or indirectly, any shares of
stock or any other equity or long-term debt securities of any
corporation or have any equity interest in any firm, partnership,
limited liability company, joint venture, association or other entity
except as set forth in the Registration Statement and the Prospectus;
complete and correct copies of the certificate of incorporation and
bylaws or other organizational documents of the Company and all
amendments thereto have been delivered to you, and except as set forth
in the exhibits to the Registration Statement no changes therein will be
made subsequent to the date hereof and prior to the time of purchase or,
if later, the additional time of purchase;
(e) the Company is not in breach of, or in default under (and no
event has occurred which with notice, lapse of time, or both would
result in any breach of, or constitute a default under), its charter or
bylaws or other organizational documents or in the performance or
observance of any obligation, agreement, covenant or condition contained
in any indenture, mortgage, deed of trust, bank loan or credit agreement
or other evidence of indebtedness, or any lease, contract or other
agreement or instrument to which the Company is a party or by which it
or any of its properties is bound the effect of which would individually
or in the aggregate have a Material Adverse Effect, and the execution,
delivery and performance of this Agreement, the issuance and sale of the
Shares contemplated hereby and by the Registration Statement will not
conflict with, or result in any breach of or constitute a default under
(nor constitute any event which with notice, lapse of time, or both
would result in any breach of, or constitute a default under), any
provisions of the charter or bylaws or other organizational documents of
the Company or under any provision of any license, permit, franchise,
indenture, mortgage, deed of trust, bank loan or credit agreement or
other evidence of indebtedness, or any lease, contract or other
agreement or instrument to which the
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Company is a party or by which it or its properties may be bound or
affected, or under any federal, state, local or foreign law, regulation
or rule or any decree, judgment or order applicable to the Company the
result of which would individually or in the aggregate have a Material
Adverse Effect;
(f) this Agreement has been duly authorized, executed and
delivered by the Company and is a legal, valid and binding agreement of
the Company, enforceable in accordance with its terms;
(g) the capital stock of the Company, including the Shares,
conforms in all material respects to the description thereof contained
in the Registration Statement and Prospectus; the certificates for the
Shares are in due and proper form; and the holders of the Shares will
not be subject to personal liability by reason of being such holders;
(h) the Shares have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will
be duly and validly issued, fully paid and non-assessable;
(i) no approval, authorization, consent or order of or filing
with any national, state or local governmental or regulatory commission,
board, body, authority or agency is required in connection with the
execution, delivery and performance by the Company of this Agreement,
the issuance and sale of the Shares contemplated hereby and by the
Registration Statement, other than registration of the Shares under the
Act, which has been or will be effected by the Company, and any
necessary qualification under the securities or blue sky laws of the
various jurisdictions in which the Shares are being offered by the
Underwriters or under the rules and regulations of the National
Association of Securities Dealers, Inc. ("NASD");
(j) except as set forth in the Registration Statement and the
Prospectus: (i) no person has the right, contractual or otherwise, to
cause the Company to issue to it, or register pursuant to the Act, any
shares of capital stock or other equity interests; and (ii) no person
has any preemptive rights, co-sale rights, rights of first refusal or
other rights to purchase any shares of Common Stock of the Company.
(k) Ernst & Young LLP, whose report on the financial statements
of the Company are filed with the Commission as part of the Registration
Statement and Prospectus, are independent public accountants as required
by the Act;
(l) the Company has all necessary licenses, permits, franchises,
authorizations, consents and approvals, and made all necessary filings
required under any federal, state, local or foreign law, regulation or
rule, and has obtained all necessary authorizations, consents and
approvals from other persons, in order to conduct its business; the
Company is not in violation of, or in default under, any such
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license, permit, franchise, authorization, consent or approval or any
federal, state, local or foreign law, regulation or rule or any decree,
order or judgment applicable to the Company, the effect of which could
individually or in the aggregate have a Material Adverse Effect;
(m) all legal or governmental proceedings, all statutes and
regulations and all contracts, leases or documents of a character
required to be described in the Registration Statement or the Prospectus
or to be filed as an exhibit to the Registration Statement have been so
described or filed as required;
(n) there are no private or governmental actions, suits, claims,
investigations or proceedings pending, threatened or, to the knowledge
of the Company, contemplated, to which the Company or any of its
officers is subject or of which any of its properties is subject,
whether at law, in equity or before or by any federal, state, local or
foreign governmental or regulatory commission, board, body, authority or
agency;
(o) the audited financial statements of the Company included in
the Registration Statement and the Prospectus present fairly the
financial position and results of operations of the Company as of the
dates and for the periods indicated; such financial statements have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis during the periods involved; the pro forma
financial data included in the Registration Statement and the Prospectus
comply as to form in all material respects with the applicable
accounting requirements of Regulation S-X of the Securities Act, and the
pro forma adjustments have been properly applied to the historical
amounts in the compilation of those statements; and the other financial
and statistical data set forth in the Registration Statement and the
Prospectus are accurately presented and prepared on a basis consistent
with such financial statements and the books and records of the Company;
(p) subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been (i) any material adverse change, or any development involving a
prospective material adverse change, in the business, prospects,
properties, condition (financial or otherwise) or results of operations
of the Company, (ii) any transaction which is material to the Company,
(iii) the incurrence by the Company of any obligation, direct or
contingent, and whether or not in the ordinary course of business, which
is material to the Company, (iv) any change in the capital stock or
other equity interest or outstanding indebtedness of the Company or (v)
any dividend or distribution of any kind declared, paid or made on the
capital stock or other equity interest of the Company. The Company does
not have any material contingent obligations which are not disclosed in
the Registration Statement;
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(q) the Company has obtained the agreement of each of its
executive officers, directors and holders of Common Stock and securities
convertible into or exchangeable or exercisable for Common Stock not to
sell, offer to sell, contract to sell, hypothecate, pledge, grant any
option to sell or otherwise dispose of, directly or indirectly, any
shares of Common Stock or securities convertible into or exchangeable or
exercisable for Common Stock or warrants or other rights to purchase
Common Stock for a period of 180 days after the date of the Prospectus
without the prior written consent of UBSW;
(r) the Company has good and marketable title to all property
(real and personal) described in the Prospectus as being owned by it,
free and clear of all liens, claims, security interests or other
encumbrances except such as are described in the Registration Statement
and the Prospectus and except as would not individually or in the
aggregate have a Material Adverse Effect. All the property described in
the Prospectus as being held under lease by the Company is held thereby
under valid, subsisting and enforceable leases;
(s) the Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amount as are
customary in the business in which it is engaged; all policies of
insurance insuring the Company or any of its businesses, assets,
employees, officers and directors are in full force and effect, and the
Company is in compliance with the terms of such policies in all material
respects; there are no claims by the Company under any such policy or
instrument as to which any insurance company is denying liability or
defending under a reservation of rights clause;
(t) the Company has not either sent or received any notice of
termination of any of the contracts or agreements referred to or
described in, or filed as an exhibit to, the Registration Statement, and
no such termination has been threatened by the Company or any other
party to any such contract or agreement;
(u) all statistical and market-related data included in the
Prospectus are based on or derived from sources that the Company
believes to be reliable and accurate, and the Company has obtained the
written consent to the use of such data from such sources to the extent
required;
(v) neither the Company nor any of its affiliates has taken,
directly or indirectly, any action designed to or which has constituted
or which might reasonably be expected to cause or result, under the
Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (collectively called the "Exchange Act") or
otherwise, in stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Shares;
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(w) other than as set forth in the Prospectus, the Company will
own, possess, license or have other rights to use all patents,
trademarks, servicemarks, trade names, copyrights, trade secrets,
information, proprietary rights and processes ("Intellectual Property")
necessary for its business as described in the Prospectus (including the
offer and sale of those products and services, both currently marketed
and under development, described in the Prospectus), without, to the
Company's knowledge, any conflict with or infringement of the interests
of others, and has taken all reasonable steps necessary to secure
interests in such Intellectual Property; except as disclosed in the
Prospectus, the Company is not aware of outstanding options, licenses or
agreements of any kind relating to the Intellectual Property of the
Company which are required to be disclosed in the Prospectus, and,
except as disclosed in the Prospectus the Company is not a party to or
bound by any options, licenses or agreements with respect to the
Intellectual Property of any other person or entity which are required
to be disclosed in the Prospectus; none of the technology employed by
the Company has been obtained or is being used by the Company in
violation of any contractual obligation binding on the Company or any of
its directors or executive officers or, to the Company's knowledge, any
employees of the Company or otherwise in violation of the rights of any
persons; except as disclosed in the Prospectus, the Company has not
received any communications alleging that the Company has violated,
infringed or conflicted with, or, by conducting its business as
described in the Prospectus, would violate, infringe or conflict with
any of the Intellectual Property of any other person or entity other
than any such violation, infringement or conflict which would not
individually or in the aggregate have a Material Adverse Effect;
(x) the Company has not 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
disclosed in the Prospectus or other than any loss or interference which
individually or in the aggregate would not have a Material Adverse
Effect;
(y) the Company has not violated any foreign, federal, state or
local law or regulation relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants, nor any federal or state law relating to
discrimination in the hiring, promotion or pay of employees nor any
applicable federal or state wages and hours laws, nor any provisions of
the Employee Retirement Income Security Act or the rules and regulations
promulgated thereunder, which individually or in the aggregate might
result in a Material Adverse Effect;
(z) the Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are
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recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with existing assets
at reasonable intervals and appropriate action is taken with respect to
any differences;
(aa) the Company has filed all federal, state, local and foreign
tax returns and tax forms required to be filed. Such returns and forms
are complete and correct in all material respects, and all taxes shown
by such returns or otherwise assessed that are due or payable have been
paid, except such taxes as are being contested in good faith and as to
which adequate reserves have been provided. All payroll withholdings
required to be made by the Company with respect to employees have been
made. The charges, accruals and reserves on the books of the Company in
respect of any tax liability for any year not finally determined are
adequate to meet any assessments or reassessments for additional taxes.
There have been no tax deficiencies asserted and, to the knowledge of
the Company, no tax deficiency might be reasonably asserted or
threatened against the Company that could individually or in the
aggregate have a Material Adverse Effect; and
(bb) the Company is not, and after the offering and sale of the
Shares, will not be, an "investment company" or a "promoter," "principal
underwriter" for 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").
In addition, any certificate signed by any officer of the
Company, delivered to the Representatives or counsel for the Underwriters in
connection with the offering of the Shares shall be deemed to be a
representation and warranty by the Company, as to matters covered thereby, to
each Underwriter.
4. Certain Covenants. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise
to cooperate in qualifying the Shares for offering and sale under the
securities or blue sky laws of such states as you may designate and to
maintain such qualifications in effect so long as required for the
distribution of the Shares; provided that the Company shall not be
required to qualify as a foreign corporation or to consent to the
service of process under the laws of any such state (except service of
process with respect to the offering and sale of the Shares); and to
promptly advise you of the receipt of any notification with respect to
the suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose;
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(b) to make available to the Underwriters in New York City, as
soon as practicable after the Registration Statement becomes effective,
and thereafter from time to time to furnish to the Underwriters, as many
copies of the Prospectus (or of the Prospectus as amended or
supplemented if the Company shall have made any amendments or
supplements thereto after the effective date of the Registration
Statement) as the Underwriters may request for the purposes contemplated
by the Act; in case any Underwriter is required to deliver a prospectus
beyond the nine-month period referred to in Section 10(a)(3) of the Act
in connection with the sale of the Shares, the Company will prepare
promptly upon request and at its cost such amendment or amendments to
the Registration Statement and such prospectuses as may be necessary to
permit compliance with the requirements of Section 10(a)(3) of the Act;
(c) to advise you promptly and (if requested by you) to confirm
such advice in writing, (i) when the Registration Statement has become
effective and when any post-effective amendment thereto becomes
effective and (ii) if Rule 430A under the Act is used, when the
Prospectus is filed with the Commission pursuant to Rule 424(b) under
the Act (which the Company agrees to file in a timely manner under such
Rules);
(d) to advise you promptly, confirming such advice in writing, of
any request by the Commission for amendments or supplements to the
Registration Statement or Prospectus or for additional information with
respect thereto, or of notice of institution of proceedings for, or the
entry of a stop order suspending the effectiveness of the Registration
Statement and, if the Commission should enter a stop order suspending
the effectiveness of the Registration Statement, to use its best efforts
to obtain the lifting or removal of such order as soon as possible; to
advise you promptly of any proposal to amend or supplement the
Registration Statement or Prospectus and to file no such amendment or
supplement to which you shall object in writing;
(e) subject to Section 4(o) hereof, to file promptly all reports
and any definitive proxy or information statement required to be filed
by the Company with the Commission in order to comply with the Exchange
Act subsequent to the date of the Prospectus and for so long as the
delivery of a prospectus is required in connection with the offering or
sale of the shares, and to promptly notify you of such filing;
(f) if necessary or appropriate, to file in a timely fashion a
registration statement pursuant to Rule 462(b) under the Act;
(g) to furnish to you and, upon request, to each of the other
Underwriters for a period of five years from the date of this Agreement
(i) copies of any reports or other communications which the Company
shall send to its shareholders or shall from
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time to time publish or publicly disseminate, (ii) copies of all annual,
quarterly and current reports filed with the Commission on Forms 10-K,
10-Q and 8-K, or such other similar form as may be designated by the
Commission, (iii) copies of documents or reports filed with any national
securities exchange on which any class of securities of the Company is
listed, and (iv) such other information as you may reasonably request
regarding the Company as soon as such communications, documents or
information becomes available;
(h) to advise the Underwriters promptly of the occurrence of any
event known to the Company within the time during which a Prospectus
relating to the Shares is required to be delivered under the Act which
would require the making of any change in the Prospectus then being used
so that the Prospectus would not include an untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
are made, not misleading, and, during such time, to prepare and furnish
promptly to the underwriters, at no expense to the Underwriters, such
amendments or supplements to such Prospectus as may be necessary to
reflect any such change and to furnish you a copy of such proposed
amendment or supplement before filing any such amendment or supplement
with the Commission;
(i) to make generally available to its security holders, and to
deliver to you, as soon as practicable an earnings statement of the
Company (which will satisfy the provisions of Section 11(a) of the Act)
covering a period of twelve months beginning after the effective date of
the Registration Statement (as defined in Rule 158(c) of the Act) and
ending not later than 15 months thereafter;
(j) to furnish to its shareholders as soon as practicable after
the end of each fiscal year an annual report (including a balance sheet
and statements of income, shareholders' equity and of cash flow of the
Company for such fiscal year, accompanied by a copy of the certificate
or report thereon of nationally recognized independent certified public
accountants);
(k) to furnish to you four conformed copies of the Registration
Statement, as initially filed with the Commission, and of all amendments
thereto including all exhibits thereto) and sufficient conformed copies
of the foregoing (other than exhibits) for distribution of a copy to
each of the other Underwriters;
(l) to furnish to you as early as practicable prior to the time
of purchase and the additional time of purchase, as the case may be, but
not later than two business days prior thereto, a copy of the latest
available quarterly (if available) or monthly unaudited interim
consolidated financial statements, if any, of the Company, which have
been read by the Company's independent certified public accountants, as
stated in their letter to be furnished pursuant to Section 6(b) hereof;
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(m) to apply the net proceeds from the sale of the Shares in the
manner set forth under the caption "Use of Proceeds" in the Prospectus;
(n) to pay all costs, expenses, fees and taxes in connection with
(i) the preparation and filing of the Registration Statement, each
Preliminary Prospectus, the Prospectus, and any amendments or
supplements thereto, and the printing and furnishing of copies of each
thereof to the Underwriters and to dealers (including costs of mailing
and shipment), (ii) the registration, issue, sale and delivery of the
Shares, (iii) the producing, word processing and/or printing of this
Agreement, any Agreement Among Underwriters, any dealer agreements, any
Powers of Attorney and any closing documents (including compilations
thereof) and the reproduction and/or printing and furnishing of copies
of each thereof to the Underwriters and (except closing documents) to
dealers (including costs of mailing and shipment), (iv) the
qualification of the Shares for offering and sale under state laws and
the determination of their eligibility for investment under state law as
aforesaid (including the reasonable legal fees and filing fees and other
disbursements of counsel for the Underwriters) and the printing and
furnishing of copies of any blue sky surveys or legal investment surveys
to the Underwriters and to dealers, (v) any listing of the Shares on any
securities exchange or qualification of the Shares for quotation on
NASDAQ and any registration thereof under the Exchange Act, (vi) any
filing for review of the public offering of the Shares by the NASD,
including the associated reasonable fees and disbursements of counsel
for the Underwriters, and (vii) the performance of the Company's other
obligations hereunder;
(o) to furnish to you, before filing with the Commission
subsequent to the effective date of the Registration Statement and
during the period referred to in paragraph (h) above, a copy of any
document proposed to be filed pursuant to Section 13, 14 or 15(d) of the
Exchange Act;
(p) not to sell, offer to sell, contract to sell, hypothecate,
pledge, grant any option to sell or otherwise dispose of, directly or
indirectly, any shares of Common Stock or securities convertible into or
exchangeable or exercisable for Common Stock or warrants or other rights
to purchase Common Stock or any other shares of the Company that are
substantially similar to Common Stock or permit the registration under
the Act of any shares of Common Stock for a period of 180 days after the
date hereof (the "Lock-up Period"), without the prior written consent of
UBSW, except for (i) the registration of the Shares and the sales to the
Underwriters pursuant to this Agreement, (ii) issuances of Common Stock
upon the exercise of outstanding options or warrants as disclosed in the
Registration Statement and the Prospectus, such issued Common Stock not
to be disposed of by the recipients thereof prior to the expiration of
the Lock-up Period and (iii) the issuance of employee stock options not
exercisable
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during the Lock-up Period pursuant to stock option plans described in
the Registration Statement and the Prospectus; and
(q) to use its best efforts to cause the Common Stock to be
listed for quotation on the National Association of Securities Dealers
Automated Quotation National Market System ("NASDAQ").
5. Reimbursement of Underwriters' Expenses. The Company agrees
that if the Shares are not delivered for any reason other than the termination
of this Agreement pursuant to subsections (ii), (iii) or (iv) of the second
paragraph of Section 7 hereof or the last paragraph of Section 8 hereof or the
default by one or more of the Underwriters in its or their respective
obligations hereunder, it shall, in addition to paying the amounts described in
Section 4(n) hereof, reimburse the Underwriters for all of the out-of-pocket
accountable expenses actually incurred by the Underwriters, including the
reasonable fees and disbursements of their counsel.
6. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company on the date hereof and at the time
of purchase (and the several obligations of the Underwriters at the additional
time of purchase are subject to the accuracy of the representations and
warranties of the Company on the date hereof and at the time of purchase (unless
previously waived) and at the additional time of purchase, as the case may be),
the performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) The Company shall furnish to you at the time of purchase and
at the additional time of purchase, as the case may be, an opinion of
Heller, Ehrman, White & XxXxxxxxx, counsel for the Company, addressed to
the Underwriters, and dated the time of purchase or the additional time
of purchase, as the case may be, with reproduced copies for each of the
other Underwriters and in form reasonably satisfactory to Xxxxx
Xxxxxxxxxx LLP, counsel for the Underwriters, stating that:
(i) the Company has been duly incorporated and is validly
existing as a corporation and is in good standing under the laws
of the State of California, with full power and authority to own,
lease and operate its properties and conduct its business as
described in the Registration Statement and the Prospectus, to
execute and deliver this Agreement and to issue, sell and deliver
the Shares as herein contemplated;
(ii) the Company is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction
in which the ownership or leasing of its properties or the
conduct of its business requires such
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qualification, except where the failure to so qualify would not
individually or in the aggregate have a Material Adverse Effect;
(iii) this Agreement has been duly authorized, executed
and delivered by the Company and is a legal, valid and binding
agreement of the Company enforceable in accordance with its
terms;
(iv) the Shares have been duly authorized and, when issued
and delivered to and paid for by the Underwriters, will be
validly issued, fully paid and non-assessable;
(v) the Company has authorized and outstanding shares of
capital stock as set forth in the Registration Statement and the
Prospectus; the outstanding shares of capital stock of the
Company have been duly and validly authorized and issued and are
fully paid, nonassessable and free of statutory and, to such
counsel's knowledge, contractual preemptive rights, resale
rights, rights of first refusal and similar rights, except as set
forth in the Prospectus and the Registration Statement; the
Shares when issued will be free of statutory and, to such
counsel's knowledge, contractual preemptive rights, resale
rights, rights of first refusal and similar rights; the
certificates for the Shares are in due and proper form and the
holders of the Shares will not be subject to personal liability
by reason of being such holders;
(vi) the capital stock of the Company, including the
Shares, conforms to the description thereof contained in the
Registration Statement and Prospectus;
(vii) the Registration Statement and the Prospectus
(except as to the financial statements and schedules and other
financial and statistical data contained therein, as to which
such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act;
(viii) the Registration Statement has become effective
under the Act and, to such counsel's knowledge, no stop order
proceedings with respect thereto are pending or threatened under
the Act and any required filing of the Prospectus, and any
supplement thereto pursuant to Rule 424 under the Act has been
made in the manner and within the time period required by such
Rule 424;
(ix) no approval, authorization, consent or order of or
filing with any national, state or local governmental or
regulatory commission, board, body, authority or agency is
required in connection with the execution, delivery and
performance of this Agreement, the issuance and sale of the
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Shares and the consummation of the transactions contemplated
hereby and by the Registration Statement, other than
registration of the Shares under the Act and other than any
necessary qualification under the state securities or blue sky
laws of the various jurisdictions in which the Shares are being
offered by the Underwriters, as to which such qualification such
counsel need express no opinion;
(x) the execution, delivery and performance of this
agreement by the Company and the transactions contemplated hereby
and by the Registration Statement do not and will not conflict
with, or result in any breach of, or constitute a default under
(nor constitute any event which with notice, lapse of time, or
both, would result in any breach of, or constitute a default
under), any provisions of the charter or bylaws or other
organizational documents of the Company or under any provision of
any license, permit, franchise, indenture, mortgage, deed of
trust, bank loan or credit agreement or other evidence of
indebtedness, or any lease, contract or other agreement or
instrument to which the Company is a party or by which its
properties may be bound or affected that is filed as an exhibit
to the Registration Statement or under any federal, state, local
or foreign law, regulation or rule, or any decree, judgment or
order applicable to the Company and known to such counsel;
(xi) to such counsel's knowledge, the Company is not in
violation of its charter or bylaws, and the Company is not in
breach of nor in default under (nor has any event occurred which
with notice, lapse of time, or both would result in any breach
of, or constitute a default under), any license, permit,
franchise, indenture, mortgage, deed of trust, bank loan or
credit agreement or other evidence of indebtedness, or any lease,
contract or other agreement or instrument to which the Company is
or was a party or by which it or its properties may be bound or
affected or in violation of any federal, state, local or foreign
law, regulation or rule or any decree, judgment or order
applicable to the Company the effect of which would individually
or in the aggregate have a Material Adverse Effect;
(xii) to such counsel's knowledge, there are no contracts,
licenses, agreements, leases or documents of a character which
are required to be filed as exhibits to the Registration
Statement or to be described in the Prospectus which have not
been so filed or described;
(xiii) to such counsel's knowledge, there are no private
or governmental actions, suits, claims, investigations or
proceedings pending, threatened or contemplated to which the
Company or any of its officers is subject or of which any of its
properties is subject, whether at law, in equity or
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before or by any federal, state, local or foreign governmental
or regulatory commission, board, body, authority or agency;
(xiv) the Company is not, and after the offering and sale
of the Shares, will not be, an "investment company," or a
"promoter," "principal underwriter" for or an entity controlled
by an "investment company," as such terms are defined in the
Investment Company Act;
(xv) the statements in the Registration Statement and
Prospectus, insofar as they are descriptions of contracts,
agreements or other legal documents, or refer to statements of
law or legal conclusions, are accurate in all material respects
and present fairly the information required to be shown; and
(xvi) to the knowledge of such counsel, except as
described in the Registration Statement and Prospectus, no person
is entitled to registration rights with respect to shares of
capital stock or other securities of the Company.
In addition, such counsel shall state that it has participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants of the Company and
representatives of the Underwriters at which the contents of the
Registration Statement and Prospectus were discussed and, although such
counsel is not passing upon and does not assume responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or Prospectus (except as and to the extent stated
in subparagraphs (vi), (vii) and (xv) above), on the basis of the
foregoing nothing has come to the attention of such counsel that causes
them to believe that the Registration Statement or any amendment thereto
at the time such Registration Statement or amendment became effective
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 the Prospectus or any
supplement thereto at the date of such Prospectus or such supplement,
and at all times up to and including the time of purchase or additional
time of purchase, as the case may be, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being
understood that such counsel need express no opinion with respect to the
financial statements and schedules and other financial and statistical
data included in the Registration Statement or Prospectus).
(b) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the opinion of [_____],
special counsel to the Company with respect to patents and proprietary
rights, dated the time of purchase or the additional time of purchase,
as the case may be, stating that:
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(i) To such counsel's knowledge, except as described in
the Prospectus, (A) the Company has valid license rights or clear
title to the Intellectual Property referenced in the Prospectus,
and there are no rights of third parties to any such Intellectual
Property; (B) there is no infringement or other violation by
third parties of any of the Intellectual Property of the Company
referenced in the Prospectus; (C) there is no infringement or
other violation by the Company of any Intellectual Property of
others; (D) there is no pending or threatened action, suit
proceeding or claim by governmental authorities or others that
the Company infringes or otherwise violates any Intellectual
Property of others, and such counsel is unaware of any facts
which would form a reasonable basis for any such claim; and (E)
there is no pending or threatened action, suit, proceeding or
claim by governmental authorities or others challenging the
rights of the Company in or to, or challenging the scope of, any
Intellectual Property of the Company referenced in the
Prospectus, and such counsel is unaware of any facts which would
form a reasonable basis for any such claim;
(ii) to such counsel's knowledge, the patent applications
of the Company presently on file disclose patentable subject
matter, and such counsel is not aware of any inventorship
challenges, any interference which has been declared or provoked,
or any other material fact with respect to the patent
applications of the Company presently on file that (A) would
preclude the issuance of patents with respect to such
applications, or (B) would lead such counsel to conclude that
such patents, when issued, would not be valid and enforceable in
accordance with applicable regulations; and
(iii) the statements in the Registration Statement and the
Prospectus referencing Intellectual Property matters, insofar as
such statements constitute summaries of legal matters, contracts,
agreements, documents or proceedings referred to therein, or
refer to statements of law or legal conclusions, are in all
material respects accurate and complete statements or summaries
of the matters therein set forth. Nothing has come to such
counsel's attention that causes them to believe that such above
described portions of the Registration Statement, at the time
such Registration Statement became effective, 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 such above described portions of
the Prospectus, at the date of the Prospectus contained an untrue
statement of material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were
made, not misleading.
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(c) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the opinion of [_____],
regulatory counsel to the Company, dated the time of purchase or the
additional time of purchase, as the case may be, to the effect that the
statements in the Registration Statement and the Prospectus referencing
regulatory matters, insofar as such statements constitute summaries of
food and drug regulatory matters with respect to the Company, as of the
date of the Registration Statement and the Prospectus and as of the date
of such opinion, are in all material respects accurate and complete
statements or summaries of the matters therein set forth; and nothing
has come to such counsel's attention that causes such counsel to believe
that the above-described portions of the Registration Statement and the
Prospectus, at the date of the Registration Statement and the Prospectus
or at the date of such opinion, contained or contains an untrue
statement of material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(d) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the favorable opinion
of Xxxxx Xxxxxxxxxx LLP, counsel for the Underwriters, dated the time of
purchase or the additional time of purchase, as the case may be, with
respect to the issuance and sale of the Shares by the Company, the
Registration Statement, the Prospectus (together with any supplement
thereto) and such other related matters as the Underwriters may require.
(e) You shall have received from Ernst & Young LLP, letters
dated, respectively, the date of this Agreement and the time of purchase
and additional time of purchase, as the case may be, and addressed to
the Underwriters (with reproduced copies for each of the Underwriters)
in the forms heretofore approved by Xxxxx Xxxxxxxxxx LLP, counsel for
the Underwriters.
(f) No amendment or supplement to the Registration Statement or
Prospectus shall be filed prior to the time the Registration Statement
becomes effective to which you object in writing.
(g) The Registration Statement shall become effective, or if Rule
430A under the Act is used, the Prospectus shall have been filed with
the Commission pursuant to Rule 424(b) under the Act, at or before 5:30
P.M., New York City time, on the date of this Agreement, unless a later
time (but not later than 5:30 P.M., New York City time, on the second
full business day after the date of this Agreement) shall be agreed to
by the Company and you in writing or by telephone, confirmed in writing;
provided, however, that the Company and you and any group of
Underwriters, including you, who have agreed hereunder to purchase in
the aggregate at least 50% of the Firm Shares may from time to time
agree on a later date.
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(h) Prior to the time of purchase or the additional time of
purchase, as the case may be, (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued under
the Act or proceedings initiated under Section 8(d) or 8(e) of the Act;
(ii) the Registration Statement and all amendments thereto, or
modifications thereof, if any, shall 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 not misleading; and
(iii) the Prospectus and all amendments or supplements thereto, or
modifications thereof, if any, shall 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 are made, not misleading.
(i) Between the time of execution of this Agreement and the time
of purchase or the additional time of purchase, as the case may be, (i)
no material and unfavorable change, or any development involving a
prospective material and adverse change, financial or otherwise (other
than as specifically identified in the Registration Statement and
Prospectus), in the business, prospects, properties, condition or
results of operations of the Company shall occur or become known and
(ii) no transaction which is material and unfavorable to the Company
shall have been entered into by the Company.
(j) The Company will, at the time of purchase or additional time
of purchase, as the case may be, deliver to you a certificate of its
President and its Chief Financial Officer to the effect that the
representations and warranties of the Company as set forth in this
Agreement are true and correct as of each such date, that the Company
has performed such of their obligations under this Agreement as are to
be performed at or before the time of purchase and at or before the
additional time of purchase, as the case may be, and the conditions set
forth in paragraphs (g), (h) and (i) of this Section 6 have been met.
(k) You shall have received signed letters, dated the date of
this Agreement, from each of the officers and directors of the Company
and all shareholders of the Company agreeing with the Underwriters that
such persons will not sell, offer or agree to sell, contract to sell,
hypothecate, pledge, grant any option to sell or otherwise dispose of,
directly or indirectly, any shares of Common Stock of the Company or
securities convertible into or exchangeable or exercisable for Common
Stock or warrants or other rights to purchase Common Stock or any other
securities of the Company that are substantially similar to the Common
Stock for a period of 180 days after the date of the Prospectus without
UBSW's prior written consent.
(l) The Company shall have furnished to you such other documents
and certificates as to the accuracy and completeness of any statement in
the Registration
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Statement and the Prospectus as of the time of purchase and the
additional time of purchase, as the case may be, as you may reasonably
request.
(m) The Shares shall have been approved for listing for quotation
on NASDAQ, subject only to notice of issuance at or prior to the time of
purchase or the additional time of purchase, as the case may be.
7. Effective Date of Agreement; Termination. This Agreement shall
become effective (i) if Rule 430A under the Act is not used, when you shall have
received notification of the effectiveness of the Registration Statement, or
(ii) if Rule 430A under the Act is used, when the parties hereto have executed
and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be
subject to termination in the absolute discretion of you or any group of
Underwriters (which may include you) which has agreed to purchase in the
aggregate at least 50% of the Firm Shares, (i) if, since the time of execution
of this Agreement or the respective dates as of which information is given in
the Registration Statement and Prospectus, there has been any material adverse
and unfavorable change, or any development involving a prospective material
adverse change, financial or otherwise (other than as specifically identified in
the Registration Statement and Prospectus), in the business, prospects,
properties, condition or results of operations of the Company which would, in
your judgment or in the judgment of such group of Underwriters, make it
impracticable to market the Shares, or, (ii) if, at any time prior to the time
of purchase or, with respect to the purchase of any Additional Shares, the
additional time of purchase, as the case may be, trading in securities on the
New York Stock Exchange, the American Stock Exchange or the Nasdaq National
Market shall have been suspended or limitations or minimum prices shall have
been established on the New York Stock Exchange, the American Stock Exchange or
the Nasdaq National Market, or (iii) if a banking moratorium shall have been
declared either by the United States or New York State authorities, or (iv) if
the United States shall have declared war in accordance with its constitutional
processes or there shall have occurred any material outbreak or escalation of
hostilities or other national or international calamity or crisis of such
magnitude in its effect on the financial markets of the United States as, in
your judgment or in the judgment of such group of Underwriters, to make it
impracticable to market the Shares.
If you or any group of Underwriters elects to terminate this
Agreement as provided in this Section 7, the Company and each other Underwriter
shall be notified promptly by letter or telegram.
If the sale to the Underwriters of the Shares, as contemplated by
this Agreement, is not carried out by the Underwriters for any reason permitted
under this Agreement or if such sale is not carried out because the Company
shall be unable to comply with any of the terms of this Agreement, the Company
shall not be under any obligation or liability under this Agreement (except to
the extent provided in Sections 4(n), 5 and 9 hereof),
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and the Underwriters shall be under no obligation or liability to the Company
under this Agreement (except to the extent provided in Section 9 hereof) or to
one another hereunder.
8. Increase in Underwriters' Commitments. Subject to Sections 6
and 7, if any Underwriter shall default in its obligation to take up and pay for
the Firm Shares to be purchased by it hereunder (otherwise than for a reason
sufficient to justify the termination of this Agreement under the provisions of
Section 7 hereof) and if the number of Firm Shares which all Underwriters so
defaulting shall have agreed but failed to take up and pay for does not exceed
10% of the total number of Firm Shares, the non-defaulting Underwriters shall
take up and pay for (in addition to the aggregate number of Firm Shares they are
obligated to purchase pursuant to Section 1 hereof) the number of Firm Shares
agreed to be purchased by all such defaulting Underwriters, as hereinafter
provided. Such Shares shall be taken up and paid for by such non-defaulting
Underwriter or Underwriters in such amount or amounts as you may designate with
the consent of each Underwriter so designated or, in the event no such
designation is made, such Shares shall be taken up and paid for by all
non-defaulting Underwriters pro rata in proportion to the aggregate number of
Firm Shares set opposite the names of such non-defaulting Underwriters in
Schedule A.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any Firm Shares hereunder unless all of the Firm Shares are purchased
by the Underwriters (or by substituted Underwriters selected by you with the
approval of the Company or selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provision, the Company or you shall have the right
to postpone the time of purchase for a period not exceeding five business days
in order that any necessary changes in the Registration Statement and Prospectus
and other documents may be effected.
The term Underwriter as used in this Agreement shall refer to and
include any Underwriter substituted under this Section 8 with like effect as if
such substituted Underwriter had originally been named in Schedule A.
If the aggregate number of Shares which the defaulting
Underwriter or Underwriters agreed to purchase exceeds 10% of the total number
of Shares which all Underwriters agreed to purchase hereunder, and if neither
the non-defaulting Underwriters nor the Company shall make arrangements within
the five business day period stated above for the purchase of all the Shares
which the defaulting Underwriter or Underwriters agreed to purchase hereunder,
this Agreement shall be terminated without further act or deed and without any
liability on the part of the Company to any non-defaulting Underwriter and
without any liability on the part of any non-defaulting Underwriter to the
Company. Nothing
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in this paragraph, and no action taken hereunder, shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
9. Indemnity and Contribution.
(a) The Company agrees to indemnify, defend and hold harmless
each Underwriter, its partners, directors and officers, and any person who
controls any Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, and the successors and assigns of all of the foregoing
persons from and against any loss, damage, expense, liability or claim
(including the reasonable cost of investigation) which, jointly or severally,
any such Underwriter or any such person may incur under the Act, the Exchange
Act, the common law or otherwise, insofar as such loss, damage, expense,
liability or claim arises out of or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or in the Registration Statement as amended by any post-effective
amendment thereof by the Company) or in a Prospectus (the term Prospectus for
the purpose of this Section 9 being deemed to include any Preliminary
Prospectus, the Prospectus and the Prospectus as amended or supplemented by the
Company), or arises out of or is based upon any omission or alleged omission to
state a material fact required to be stated in either such Registration
Statement or Prospectus or necessary to make the statements made therein not
misleading, except insofar as any such loss, damage, expense, liability or claim
arises out of or is based upon any untrue statement or alleged untrue statement
of a material fact contained in and in conformity with information furnished in
writing by or on behalf of any Underwriter through you to the Company expressly
for use with reference to such Underwriter in such Registration Statement or
such Prospectus or arises out of or is based upon any omission or alleged
omission to state a material fact in connection with such information required
to be stated in such Registration Statement or such Prospectus or necessary to
make such information not misleading or (ii) any untrue statement or alleged
untrue statement made by the Company in Section 3 of this Agreement or the
failure by the Company to perform when and as required any agreement or covenant
contained herein or (iii) any untrue statement or alleged untrue statement of
any material fact contained in any audio or visual materials provided by the
Company or based upon written information furnished by or on behalf of the
Company including, without limitation, slides, videos, films, tape recordings,
used in connection with the marketing of the Shares, or (iv) the Directed Share
Program, provided that, the Company shall not be responsible for any loss,
damage, expense, liability, or claim that is finally judicially determined to
have resulted from the bad faith or gross negligence of the Underwriters in
conducting the Directed Share Program.
If any action, suit or proceeding (together, a "Proceeding") is
brought against an Underwriter or any such person in respect of which indemnity
may be sought against the Company pursuant to the foregoing paragraph, such
Underwriter or such person shall promptly notify the Company in writing of the
institution of such Proceeding and the
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Company shall assume the defense of such Proceeding, including the employment of
counsel reasonably satisfactory to such indemnified party and payment of all
fees and expenses; provided, however, that the omission to so notify the Company
shall not relieve the Company from any liability which the Company may have to
any Underwriter or any such person or otherwise. Such Underwriter or such person
shall have the right to employ its or their own counsel in any such case, but
the fees and expenses of such counsel shall be at the expense of such
Underwriter or of such person unless the employment of such counsel shall have
been authorized in writing by the Company in connection with the defense of such
Proceeding or the Company shall not have, within a reasonable period of time in
light of the circumstances, employed counsel to defend such Proceeding or such
indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them which are different from, additional to or in
conflict with those available to the Company (in which case the Company shall
not have the right to direct the defense of such Proceeding on behalf of the
indemnified party or parties), in any of which events such fees and expenses
shall be borne by the Company and paid as incurred (it being understood,
however, that the Company shall not be liable for the expenses of more than one
separate counsel (in addition to any local counsel) in any one Proceeding or
series of related Proceedings in the same jurisdiction representing the
indemnified parties who are parties to such Proceeding). The Company shall not
be liable for any settlement of any Proceeding effected without the written
consent of the Company but if settled with the written consent of the Company,
the Company agrees to indemnify and hold harmless any Underwriter and any such
person from and against any loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second sentence of this
paragraph, then the indemnifying party agrees that it shall be liable for any
settlement of any Proceeding effected without its written consent if (i) such
settlement is entered into more than 60 days after receipt by such indemnifying
party of the aforesaid request, (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement and (iii) such indemnified party shall have given the
indemnifying party at least 30 days' prior notice of its intention to settle. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened Proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such Proceeding and does not include an
admission of fault, culpability or a failure to act, by or on behalf of such
indemnified party.
(b) In connection with the offer and sale of the Reserved Shares,
the Company agrees to pay UBSW, at its request, the full purchase price of all
Reserved Shares which were subject to a properly confirmed agreement to purchase
and for which any Directed Share Participant failed to pay therefor and accept
delivery thereof.
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(c) Each Underwriter severally agrees to indemnify, defend and
hold harmless the Company, its directors and officers, and any person who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, and the successors and assigns of all of the foregoing
persons from and against any loss, damage, expense, liability or claim
(including the reasonable cost of investigation) which, jointly or severally,
the Company or any such person may incur under the Act, the Exchange Act, the
common law or otherwise, insofar as such loss, damage, expense, liability or
claim arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in and in conformity with information
furnished in writing by or on behalf of such Underwriter through you to the
Company expressly for use with reference to such Underwriter in the Registration
Statement (or in the Registration Statement as amended by any post-effective
amendment thereof by the Company) or in a Prospectus, or arises out of or is
based upon any omission or alleged omission to state a material fact in
connection with such information required to be stated in such Registration
Statement or such Prospectus or necessary to make such information not
misleading.
If any Proceeding is brought against the Company or any such
person in respect of which indemnity may be sought against any Underwriter
pursuant to the foregoing paragraph, the Company or such person shall promptly
notify such Underwriter in writing of the institution of such Proceeding and
such Underwriter shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses; provided, however, that the omission to so
notify such Underwriter shall not relieve such Underwriter from any liability
which such Underwriter may have to the Company or any such person or otherwise.
The Company or such person shall have the right to employ its own counsel in any
such case, but the fees and expenses of such counsel shall be at the expense of
the Company or such person unless the employment of such counsel shall have been
authorized in writing by such Underwriter in connection with the defense of such
Proceeding or such Underwriter shall not have, within a reasonable period of
time in light of the circumstances, employed counsel to have charge of the
defense of such Proceeding or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to or in conflict with those available to such
Underwriter (in which case such Underwriter shall not have the right to direct
the defense of such Proceeding on behalf of the indemnified party or parties,
but such Underwriter may employ counsel and participate in the defense thereof
but the fees and expenses of such counsel shall be at the expense of such
Underwriter), in any of which events such fees and expenses shall be borne by
such Underwriter and paid as incurred (it being understood, however, that such
Underwriter shall not be liable for the expenses of more than one separate
counsel (in addition to any local counsel) in any one Proceeding or series of
related Proceedings in the same jurisdiction representing the indemnified
parties who are parties to such Proceeding). No Underwriter shall be liable for
any settlement of any such Proceeding effected without the written consent of
such Underwriter but if settled with the written consent of such Underwriter,
such
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Underwriter agrees to indemnify and hold harmless the Company and any such
person from and against any loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second sentence of this
paragraph, then the indemnifying party agrees that it shall be liable for any
settlement of any Proceeding effected without its written consent if (i) such
settlement is entered into more than 60 days after receipt by such indemnifying
party of the aforesaid request, (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement and (iii) such indemnified party shall have given the
indemnifying party at least 30 days' prior notice of its intention to settle. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened Proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such Proceeding.
(d) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a), (b) or (c) of this
Section 9 in respect of any losses, damages, expenses, liabilities or claims
referred to therein, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, damages, expenses,
liabilities or claims (i) 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 hand from the offering of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, damages, expenses, liabilities or
claims, 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 respective proportions as the total
proceeds from the offering (net of underwriting discounts and commissions but
before deducting expenses) received by the Company and the total underwriting
discounts and commissions received by the Underwriters, bear to the aggregate
public offering price of the Shares. The relative fault of the Company on the
one hand and of the Underwriters on the other shall be determined by reference
to, among other things, whether the untrue statement or alleged untrue statement
of a material fact or omission or alleged omission relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, damages, expenses, liabilities and claims referred to in this subsection
shall be deemed to include any legal or
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other fees or expenses reasonably incurred by such party in connection with
investigating, preparing to defend or defending any Proceeding.
(e) The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 9 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 that does not take account of
the equitable considerations referred to in subsection (c) above.
Notwithstanding the provisions of this Section 9, 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 such Underwriter and distributed to
the public were offered to the public exceeds the amount of any damage which
such Underwriter has otherwise been required to pay by reason of such untrue
statement 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 to contribute
pursuant to this Section 9 are several in proportion to their respective
underwriting commitments and not joint.
(f) The indemnity and contribution agreements contained in this
Section 9 and the covenants, warranties and representations of the Company
contained in this Agreement shall remain in full force and effect regardless of
any investigation made by or on behalf of any Underwriter, its partners,
directors or officers or any person (including each partner, officer or director
of such person) who controls any Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, or by or on behalf of the Company its
directors or officers or any person who controls the Company within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act, and shall survive
any termination of this Agreement or the issuance and delivery of the Shares.
The Company and each Underwriter agree promptly to notify each other of the
commencement of any Proceeding against it and, in the case of the Company,
against any of the Company's officers or directors in connection with the
issuance and sale of the Shares, or in connection with the Registration
Statement or Prospectus.
10. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or sent to
UBS Warburg LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, Attention: Syndicate
Department and, if to the Company, shall be sufficient in all respects if
delivered or sent to the Company at the offices of the Company at 0000 Xxxxxxxx
Xxxxxx, Xxxxxxxxx, XX, 00000-0000, Attention: President.
11. Governing Law; Construction. This Agreement and any claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement ("Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of New
York. The Section headings in this Agreement
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have been inserted as a matter of convenience of reference and are not a part of
this Agreement.
12. Submission to Jurisdiction. Except as set forth below, no
Claim may be commenced, prosecuted or continued in any court other than the
courts of the State of New York located in the City and County of New York or in
the United States District Court for the Southern District of New York, which
courts shall have jurisdiction over the adjudication of such matters, and the
Company consents to the jurisdiction of such courts and personal service with
respect thereto. The Company hereby consents to personal jurisdiction, service
and venue in any court in which any Claim arising out of or in any way relating
to this Agreement is brought by any third party against UBSW or any indemnified
party. Each of UBSW and the Company (on their respective behalfs and, to the
extent permitted by applicable law, on behalf of their respective shareholders
and affiliates) waives all right to trial by jury in any action, proceeding or
counterclaim (whether based upon contract, tort or otherwise) in any way arising
out of or relating to this Agreement. The Company agrees that a final judgment
in any such action, proceeding or counterclaim brought in any such court shall
be conclusive and binding upon the Company and may be enforced in any other
courts in the jurisdiction of which the Company is or may be subject, by suit
upon such judgment.
13. Parties at Interest. The Agreement herein set forth has been
and is made solely for the benefit of the Underwriters and the Company and to
the extent provided in Section 9 hereof the controlling persons, directors and
officers referred to in such section, and their respective successors, assigns,
heirs, personal representatives and executors and administrators. No other
person, partnership, association or corporation (including a purchaser, as such
purchaser, from any of the Underwriters) shall acquire or have any right under
or by virtue of this Agreement.
14. Counterparts. This Agreement may be signed by the parties in
one or more counterparts which together shall constitute one and the same
agreement among the parties.
15. Successors and Assigns. This Agreement shall be binding upon
the Underwriters, the Company and their successors and assigns and any successor
or assign of any substantial portion of the Company's, and any of the
Underwriters' respective businesses and/or assets.
16. Miscellaneous. UBSW, an indirect, wholly owned subsidiary of
UBS AG, is not a bank and is separate from any affiliated bank, including any
U.S. branch or agency of UBS AG. Because UBSW is a separately incorporated
entity, it is solely responsible for its own contractual obligations and
commitments, including obligations with respect to sales and purchases of
securities. Securities sold, offered or recommended by UBSW are not deposits,
are not insured by the Federal Deposit Insurance Corporation, are not
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guaranteed by a branch or agency, and are not otherwise an obligation or
responsibility of a branch or agency.
A lending affiliate of UBSW may have lending relationships with
issuers of securities underwritten or privately placed by UBSW. To the extent
required under the securities laws, prospectuses and other disclosure documents
for securities underwritten or privately placed by UBSW will disclose the
existence of any such lending relationships and whether the proceeds of the
issue will be used to repay debts owed to affiliates of UBSW.
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If the foregoing correctly sets forth the understanding among the
Company and the Underwriters, please so indicate in the space provided below for
the purpose, whereupon this letter and your acceptance shall constitute a
binding agreement among the Company and the Underwriters, severally.
Very truly yours,
CEPHEID
By:
-------------------------------
Name:
Title:
Accepted and agreed to as of the date first above written, on behalf of
themselves and the other several Underwriters named in Schedule A
UBS WARBURG LLC
PRUDENTIAL VECTOR HEALTHCARE
INVEMED ASSOCIATES
By: UBS WARBURG LLC
By:
--------------------------------------
Name:
Title: [_____]
By:
--------------------------------------
Name:
Title: [_____]
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SCHEDULE A
Number of
Underwriter Firm Shares
----------- -----------
UBS WARBURG LLC.....................................................
PRUDENTIAL VECTOR HEALTHCARE........................................
INVEMED ASSOCIATES..................................................
Total........................
===========
