Exhibit 1.1
BioSphere Medical, Inc.
5,000,000 Shares
Common Stock
($.01 Par Value)
UNDERWRITING AGREEMENT
________ __, 2001
UNDERWRITING AGREEMENT
________ __, 2001
UBS Warburg LLC
U.S. Bancorp Xxxxx Xxxxxxx Inc.
Xxxxx, Xxxxxxxx & Xxxx, Inc.
c/o UBS Warburg LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
BioSphere Medical, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to the Underwriters named in Schedule A annexed
hereto (the "Underwriters") an aggregate of 2,000,000 shares of Common Stock,
$.01 par value per share (the "Common Stock"), of the Company, and Sepracor Inc.
(the "Selling Stockholder") proposes to sell to the several Underwriters
3,000,000 shares of Common Stock (said shares to be issued and sold by the
Company and shares to be sold by the Selling Stockholder collectively, the "Firm
Shares"). In addition, solely for the purpose of covering over-allotments, the
Selling Stockholder proposes to grant to the Underwriters the option to purchase
from the Selling Stockholder up to an additional 750,000 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 has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the "Act"), with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 333-62272)
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. Any reference herein to the Registration
Statement, a Preliminary Prospectus or the Prospectus shall be deemed to refer
to and include the documents incorporated by reference therein pursuant to 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 such Preliminary Prospectus or
the Prospectus, as the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the Registration Statement,
any Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include the filing of any document under the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (collectively, the "Exchange
Act") after the Effective Date of the Registration Statement, or the issue date
of any Preliminary Prospectus or the Prospectus, as the case may be, deemed to
be incorporated therein by reference.
The Company, the Selling Stockholder 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
and the Selling Stockholder agree to sell to the respective Underwriters and
each of the Underwriters, severally and not jointly, agrees to purchase from the
Company and the Selling Stockholder the respective number of Firm Shares
(subject to such adjustment as you may determine to avoid fractional shares)
which bears the same proportion to the number of Firm Shares to be sold by the
Company or by the Selling Stockholder, as the case may be, as the number of Firm
Shares set forth opposite the name of such Underwriter in Schedule A annexed
hereto bears to the total number of Firm Shares to be sold by the Company and
the Selling Stockholder, in each case at a purchase price of $____ per Share.
The Company and the Selling Stockholder are 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 Selling Stockholder 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 Selling Stockholder, 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 and the Selling Stockholder for the Firm Shares.
This option may be exercised by you on
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behalf of the several Underwriters at any time (but not more than once) on or
before the thirtieth day following the date hereof, by written notice to the
Company and the Selling Stockholder. 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 and the Selling Stockholder 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 _________ __, 2001 (unless another time shall be
agreed to by you, the Company and the Selling Stockholder 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 and the Selling Stockholder agree 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 Selling Stockholder agrees to
---------------
(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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make such certificates available to you for such purpose at least one full
business day preceding the additional time of purchase.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING
STOCKHOLDER.
(i) The Company represents and warrants to each of the Underwriters
that:
(a) The Company has not received nor has 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 becomes effective, the Registration Statement
and the Prospectus will conform in all material respects with the
provisions of the Act, and the Registration Statement 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 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;
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, except as set forth in
the Registration Statement and the Prospectus, neither the Company nor
any of its affiliates has distributed 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's
capitalization is 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 the additional
time of purchase, as the case may be, the Company's capitalization
shall be as set forth under the heading entitled "As Adjusted" in the
section of the Registration Statement and the Prospectus entitled
"Capitalization" (provided that the currently outstanding Common Stock
includes shares of Common Stock issued after March 31, 2001 upon
exercise of options and/or warrants disclosed in the Registration
Statement and Prospectus as being outstanding as of March 31, 2001);
all of the issued and outstanding shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable, have been issued in
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compliance with all federal and state securities laws and were not
issued in violation of any preemptive right, right of first refusal or
similar right to which the Company is a party or by which it is bound;
(c) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with the requisite corporate power and authority to own,
lease and operate its properties and conduct its business as described
in the Registration Statement and the Prospectus;
(d) the Company is duly qualified to do business as a foreign
corporation in good standing in each jurisdiction where the ownership
or leasing of its properties or the conduct of its business requires
such qualification, except where the failure to so qualify or be in
good standing would not reasonably be expected to have a material
adverse effect on the business, operations, prospects, properties,
condition (financial or otherwise) or results of operations of the
Company and the Subsidiaries (as hereinafter defined) taken as a whole
(a "Material Adverse Effect"). The Company has no subsidiaries (as
defined in the Act) other than BioSphere Medical S.A. ("BMSA"),
BioSphere Medical Japan, Inc. ("BSM Japan") and BSMD Ventures, Inc.
("BSMD Ventures" and, together with BMSA and BSM Japan, the
"Subsidiaries"); the Company owns 85% of the outstanding capital stock
of BMSA and has the right to acquire the outstanding minority interest
therein on the terms described in the Registration Statement and
contained in an agreement filed as an exhibit to the Registration
Statement; other than each of the Subsidiaries, the Company does not
own, directly or indirectly, any shares of stock or any other equity or
long-term debt of any corporation or have any direct or indirect equity
interest or ownership of long-term debt in any firm, partnership, joint
venture, association or other entity; complete and correct copies of
the certificates of incorporation and of the bylaws of the Company and
each of the Subsidiaries and all amendments thereto have been made
available to you; each of the Subsidiaries has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, with the requisite
corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Registration Statement
and the Prospectus; each of the Subsidiaries is duly qualified to do
business as a foreign corporation in good standing in each jurisdiction
where the ownership or leasing of the properties or the conduct of its
business requires such qualification, except where the failure to so
qualify or be in good standing would not reasonably be expected to have
a Material Adverse Effect; all of the outstanding shares of capital
stock of each of the Subsidiaries have been duly authorized and validly
issued, are fully paid and non-assessable, have been issued in
compliance with all applicable securities laws, were not issued in
violation of any preemptive right, resale right, right of first refusal
or similar right and are owned by the Company (except in the case of
BMSA, which are owned by the Company and the minority shareholder of
BMSA) as described in the Registration Statement and the Prospectus;
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(e) Neither the Company nor any of the Subsidiaries is in
breach or violation of, or in default under (nor has any event occurred
which with notice, lapse of time, or both would result in any breach or
violation of, or constitute a default under) (each such breach,
violation, default or event, a "Default Event"), (i) its respective
charter, by-laws or other organizational documents or (ii) any
obligation, agreement, covenant or condition contained in any license,
permit, 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 or any of the
Subsidiaries is a party or by which any of them or any of their
properties is bound or affected or, except as set forth in the
Prospectus, under any federal, state, local or foreign law, regulation
or rule or any decree, judgment or order applicable to the Company, any
of the Subsidiaries or any of their respective properties, other than,
in the case of clause (ii), such Default Events as would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; and the execution, delivery and performance of
this Agreement, the issuance and sale of the Shares and the
consummation of the transactions contemplated hereby does not
constitute and will not result in a Default Event under (x) any
provisions of the charter, by-laws or other organizational documents of
the Company or any of the Subsidiaries, or (y) under any provision of
any license, permit, 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 or any
of the Subsidiaries or by which any of them or their respective
properties may be bound or affected, or, except as set forth in the
Prospectus, under any federal, state, local or foreign law, regulation
or rule or any decree, judgment or order applicable to the Company, any
of the Subsidiaries or any of their respective properties, except, in
the case of clause (y) for such Default Events as would not,
individually or in the aggregate, reasonably be expected to 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;
(g) the capital stock of the Company, including the Shares,
conforms in all material respects to the description thereof contained
in the section of the Registration Statement and Prospectus entitled
"Description of Capital Stock";
(h) the Shares to be sold by the Company have been duly and
validly authorized by the Company and, when issued by the Company and
delivered by the Company against payment therefor as provided herein,
will be validly issued, fully paid and non-assessable;
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(i) no approval, authorization, consent or order of or filing
with any national, state, local or other governmental or regulatory
commission, board, body, authority or agency is required to be obtained
or made by the Company or any of the Subsidiaries in connection with
the issuance and sale of the Shares or the consummation by the Company
and the Selling Stockholder of the transactions contemplated hereby
other than registration of the Shares under the Act, 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 Corporate Financing Rules of the National Association of
Securities Dealers, Inc.;
(j) no person has the right, contractual or otherwise, to
cause the Company to issue to it any shares of capital stock of the
Company upon the issue and sale of the Shares to the Underwriters
hereunder, nor does any person have preemptive rights, co-sale rights,
rights of first refusal or other rights to purchase any of the Shares
or to underwrite the offer and sale of the Shares or, except for such
rights as have been complied with or waived, have any contractual or
other rights to have securities owned by them included in the
Registration Statement or sold in the offering contemplated thereby or
otherwise registered pursuant to the Act as a result of the
transactions contemplated hereby;
(k) Xxxxxx Xxxxxxxx LLP, whose report on the consolidated
financial statements of the Company and the Subsidiaries is filed with
the Commission as part of the Registration Statement and Prospectus,
are independent public accountants as required by the Act;
(l) the Company and each of the Subsidiaries has all necessary
licenses, permits, authorizations, consents and approvals and has made
all necessary filings required under any federal, state, local or
foreign law, regulation or rule (collectively, "Permits"), and has
obtained all necessary authorizations, consents and approvals from
other persons (collectively, "Approvals"), in order to conduct its
respective business as described in the Registration Statement and the
Prospectus, other than such Permits and Approvals the failure to obtain
which, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect; neither the Company nor any
of the Subsidiaries is in violation of, or in default under, any such
Permit or Approval or any federal, state, local or foreign law,
regulation or rule or any decree, order or judgment applicable to the
Company or any of the Subsidiaries the effect of which, individually or
in the aggregate, would reasonably be expected to have a Material
Adverse Effect;
(m) all legal or governmental proceedings, contracts, leases
or documents of a character required to be described in the
Registration Statement or the Prospectus or any document incorporated
by reference therein or to be filed as an exhibit to the
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Registration Statement or any document incorporated by reference
therein have been so described or filed as required;
(n) except as disclosed in the Prospectus, there are no
actions, suits, claims, investigations or proceedings pending or
threatened to which the Company or any of the Subsidiaries or any of
their respective directors or officers is a party or of which any of
their respective properties is subject at law or in equity, or before
or by any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency which, if adversely
decided, could result in a judgment, decree or order which is
reasonably likely to cause a Material Adverse Effect or prevent
consummation of the transactions contemplated hereby;
(o) the financial statements included in the Registration
Statement and the Prospectus present fairly the consolidated financial
position of the Company and the Subsidiaries as of the dates indicated
and the consolidated results of operations and cash flows of the
Company and the Subsidiaries for the periods specified; such financial
statements have been prepared in compliance with the requirements of
the Act and in conformity with generally accepted accounting principles
applied on a consistent basis during the periods involved; and there
are no financial statements (historical or pro forma) that are required
to be included in the Registration Statement and the Prospectus that
are not so included as required;
(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 with
respect to the Company or any of the Subsidiaries which is reasonably
likely to cause a material adverse change in the business, properties
or assets described or referred to in the Registration Statement and
the Prospectus, or the results of operations, condition (financial or
otherwise), business, operations or prospects of the Company and the
Subsidiaries taken as a whole, (ii) any transaction which is material
to the Company or any of the Subsidiaries, (iii) any obligation, direct
or contingent, which is material to the Company and the Subsidiaries
taken as a whole, incurred by the Company or any of the Subsidiaries,
(iv) any change in the capital stock or outstanding indebtedness of the
Company or any of the Subsidiaries or except shares of Common Stock
issued upon exercise of stock options and/or warrants disclosed in the
Registration Statement and the Prospectus as being outstanding as of
March 31, 2002 (v) any dividend or distribution of any kind declared,
paid or made on the capital stock of the Company. Neither the Company
nor any of the Subsidiaries has any material contingent obligation
which is not disclosed in the Prospectus and the Registration
Statement;
(q) the Company has obtained the agreement of each of the
Company's executive officers and directors not to sell, offer to sell,
contract to sell, hypothecate,
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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 90 days after the date
of the Prospectus without the prior written consent of UBS Warburg LLC
("UBS Warburg"); the Company has obtained the agreement of the Selling
Stockholder not to sell, offer to sell, contract to sell, hypothecate,
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 120 days after the date
of the Prospectus without the prior written consent of UBS Warburg;
(r) the Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment company" or
an entity "controlled" by an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(s) neither the Company nor any of the Subsidiaries nor to the
Company's knowledge any of their respective officers or directors 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 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;
(t) the Company and each of the Subsidiaries maintain
insurance of the types and in amounts reasonably adequate for their
respective businesses, including, but not limited to, insurance
covering real and personal property owned or leased by the Company and
each of the Subsidiaries against theft, damage, destruction, acts of
vandalism and other risks customarily insured against, all of which
insurance is in full force and effect, except as would not reasonably
be expected to have a Material Adverse Effect;
(u) Neither the Company nor any of the Subsidiaries has
sustained since the date of the latest financial statements included in
the Prospectus any losses or interferences with its business from fire,
explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action,
order or decree, otherwise than as set forth or contemplated in the
Registration Statement and the Prospectus or other than any losses or
interferences which would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect;
(v) the Company and each of the Subsidiaries have good title
to all personal property owned by them as described in the Registration
Statement and the
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Prospectus, free and clear of all liens, encumbrances and defects
except such as are described in the Prospectus or such as would not,
individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; except as described in the Registration
Statement and the Prospectus, any real property and buildings held
under lease by the Company or any of the Subsidiaries are held by it
under valid, subsisting and enforceable leases with such exceptions as
are not material and do not interfere with the use made and proposed to
be made of such property and buildings by the Company or any of the
Subsidiaries, as the case may be;
(w) other than as set forth in the Registration Statement and
the Prospectus, or as would not individually or in the aggregate
reasonably be expected to have a Material Adverse Effect, the Company
and each of the Subsidiaries 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 their business as described in
the Registration Statement and the Prospectus and necessary in
connection with the commercialization of the existing products of the
Company and each of the Subsidiaries and the products described in the
Prospectus as being under development, and the Company and each of the
Subsidiaries have taken all reasonable steps necessary to secure
interests in such Intellectual Property; except as described in the
Registration Statement and the Prospectus, the Company is not aware of
any options, licenses or agreements of any kind relating to the
Intellectual Property of the Company or any of the Subsidiaries that
are outstanding and which are required to be described in the
Registration Statement and the Prospectus, and, except as described in
the Registration Statement and the Prospectus, neither the Company nor
any of the Subsidiaries is 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 described in the Registration
Statement and the Prospectus; none of the technology employed by the
Company and each of the Subsidiaries has been obtained or is used or
proposed to be used by the Company or any of the Subsidiaries in
violation of any contractual obligation binding on the Company or any
of the Subsidiaries or any of their respective directors or executive
officers or, to the Company's knowledge, any employees of the Company
or any of the Subsidiaries or otherwise in violation of the rights of
any persons, other than any violation which would not individually or
in the aggregate reasonably be expected to have a Material Adverse
Effect; except as described in the Registration Statement and the
Prospectus, to the Company's knowledge neither the Company nor any of
the Subsidiaries has violated or infringed or, by conducting its
business as described the Registration Statement and the Prospectus,
would violate or infringe any of the Intellectual Property of any other
person or entity, and neither the Company nor any of the Subsidiaries
has received any written or oral communication to such effect, other
than any such violation, infringement or conflict which would not
individually or in the aggregate reasonably be expected to have a
Material Adverse Effect;
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(x) neither the Company nor any of the Subsidiaries has
violated (i) 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,
(ii) 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, (iii) any provisions of the Employee Retirement Income
Security Act or the rules and regulations promulgated thereunder, which
in the case of clauses (i) through (iii), individually or in the
aggregate might reasonably be expected to result in a Material Adverse
Effect;
(y) the Company and each of the 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) all tax returns required to be filed by the Company and
each of the Subsidiaries in any jurisdiction have been filed, other
than those filings being contested in good faith, and all taxes,
including withholding taxes, penalties and interest, assessments, fees
and other charges due pursuant to such returns or pursuant to any
assessment received by the Company or any of the Subsidiaries have been
paid, other than those being contested in good faith and for which
adequate reserves have been provided;
(aa) there are no material agreements or understandings
between or among the Company, the Selling Stockholder or any of the
Subsidiaries relating to or affecting the Company or any of the
Subsidiaries or their respective businesses which are required to be
described in the Registration Statement and the Prospectus other than
as described in the Registration Statement and Prospectus; and
(bb) all documents incorporated by reference by the
Registration Statement, the Preliminary Prospectus or the Prospectus
complied in all material respects, at the time such documents were
filed with the Commission, with the requirements of the Exchange Act.
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(ii) The Selling Stockholder represents and warrants to each of the
Underwriters that:
(a) the Selling Stockholder is the lawful owner of the Shares
to be sold by the Selling Stockholder hereunder and immediately
preceding the sale and delivery of, and payment for, such Shares
(whether at the time of purchase or the additional time of purchase),
the Selling Stockholder will have good and marketable title to such
Shares, free and clear of all liens, encumbrances and defects;
(b) the Selling Stockholder has duly endorsed the Shares to be
sold by the Selling Stockholder hereunder in blank, and upon sale and
delivery of, and payment for, such Shares (whether at the time of
purchase or the additional time of purchase), assuming each Underwriter
has no notice of any adverse claim (within the meaning of Section 8-105
of the New York Uniform Commercial Code (the "UCC")), (i) each
Underwriter will acquire valid and marketable title to such Shares free
and clear of all liens, encumbrances and defects and (ii) each
Underwriter that has purchased such Shares delivered at the time of
purchase or at the additional time of purchase, as the case may be, to
DTC by making payment therefor as provided herein, and that has had
such Shares credited to the securities account or accounts of such
Underwriters maintained with DTC, will acquire a security entitlement
(within the meaning of Section 8-102(a)(17) of the UCC), and no action
based on an adverse claim (within the meaning of Section 8-102(a)(1) of
the UCC) may be asserted against such Underwriter with respect to such
Shares;
(c) neither the Selling Stockholder nor to its knowledge any
of its officers or directors 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 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;
(d) no approval, authorization, consent or order of any court
or filing with any national, state, local or other governmental or
regulatory commission, board, body, authority or agency is required to
be obtained or made by the Selling Stockholder in connection with the
sale of the Shares to be sold by Selling Stockholder or for the
consummation by the Selling Stockholder of the transactions
contemplated hereby other than registration of the Shares under the
Act, 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;
(e) this Agreement has been duly authorized, executed and
delivered by the Selling Stockholder and is a legal, valid and binding
agreement of the Selling Stockholder;
12
(f) the execution, delivery and performance of this Agreement,
the sale of the Shares to be sold by the Selling Stockholder and the
consummation of the transactions contemplated hereby by the Selling
Stockholder does not and will not constitute a Default Event under any
provisions of the charter or by-laws or other organizational documents
of the Selling Stockholder or any of its subsidiaries or under any
provision of any license, permit, 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 Selling
Stockholder or any of its subsidiaries 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 it or any of its subsidiaries, except for such Default
Events as would not individually or in the aggregate reasonably be
expected to have a Material Adverse Effect or have a material adverse
effect on the ability of the Selling Stockholder to consummate the
transactions contemplated hereby;
(g) the Selling Stockholder has reviewed the Registration
Statement and the Prospectus, and the Selling Stockholder represents
(i) that the Registration Statement contains any untrue statement of a
material fact or omits to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and
(ii) that the Prospectus contains an untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; PROVIDED, HOWEVER, that the
Selling Stockholder makes no warranty or representation pursuant to
this paragraph (g) with respect to any statement contained in the
Registration Statement or the Prospectus other than statements made in
reliance upon and in conformity with information concerning the Selling
Stockholder and furnished in writing by or on behalf of the Selling
Stockholder to the Company expressly for use in the Registration
Statement or the Prospectus;
(h) the Selling Stockholder has no actual knowledge (i) that
the Registration Statement contains any untrue statement of a material
fact or omits to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or (ii) that
the Prospectus contains an untrue statement of a material fact or omits
to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading;
(i) neither the Selling Stockholder nor, to the knowledge of
the Selling Stockholder, any of its officers and directors, has
distributed 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; and
13
(j) the Selling Stockholder 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.
4. CERTAIN COVENANTS OF THE COMPANY AND THE SELLING STOCKHOLDER.
(i) The Company hereby agrees, (and, with respect to Section
4(i)(l), the Selling Stockholder jointly and severally agrees with the Company):
(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 by the Company 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;
(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 reasonably request for the purposes
contemplated by the Act; in case any Underwriter is required to deliver
a prospectus after 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, but at the expense of such
Underwriter, 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
14
Rules), provided that filing on the XXXXX system will be sufficient
notice for purposes of this subsection (c)(ii);
(d) to advise you promptly, confirming such advice in writing
(if requested by you), 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 make every reasonable effort 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) if necessary or appropriate, to file a registration
statement pursuant to Rule 462(b) under the Act;
(f) to furnish to you and, upon request, to each of the other
Underwriters for a period of three years from the date of this
Agreement (i) copies of any reports or other communications which the
Company shall send to its stockholders or shall from 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 or any of the Subsidiaries (which such other information you
shall agree to keep as confidential to the extent such information is
identified by the Company as being of a confidential nature), in each
case as soon as reasonably practicable after such reports,
communications, documents or information become available;
(g) to advise the Underwriters promptly of the happening 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, in the judgment of the Company, would require the making of
any change in the Prospectus then being used so that the Prospectus
would not include an untrue statement of 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, at the Company's expense, to
the Underwriters promptly 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;
15
(h) to make generally available to its security holders, and
to deliver to you, 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;
(i) 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;
(j) to furnish to you as early as reasonably 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 unaudited interim consolidated financial
statements, if any, of the Company and the Subsidiaries which have been
read by the Company's independent certified public accountants, as
stated in their letter to be furnished pursuant to Section 6(g) hereof;
(k) 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;
(l) to pay all costs, expenses, fees and taxes (other than any
transfer taxes and, except as set forth under Section 5 hereof and (iv)
and (vi) below, fees and disbursements of counsel for the Underwriters)
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 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 reasonable legal fees and the filing fees and other
disbursements of counsel for the Underwriters with respect thereto) 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 the Nasdaq National Market and any registration
thereof under the Exchange Act, (vi) any filing for review of the
public offering of the Shares by NASD Regulation, Inc. (including the
reasonable legal fees and the filing fees and other disbursements of
counsel for the Underwriters with respect thereto), and (vii) the
performance of the other obligations of the Company and the Selling
Stockholder hereunder;
16
(m) for so long as the delivery of the Prospectus is required
in connection with the offering or sale of the Shares, to furnish to
you, before filing with the Commission, a copy of any document proposed
to be filed pursuant to Section 13, 14 or 15(d) of the Exchange Act;
(n) not to sell, offer or agree to sell, contract to sell,
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 securities 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 90 days after the date hereof (the "Lock-Up Period"), without the
prior written consent of UBS Warburg, 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, warrants and debentures, (iii) the granting of
options and the issuances of Common Stock upon the exercise thereof
pursuant to stock option and employee stock purchase plans described in
the Registration Statement and Prospectus and (iv) issuances of up to
1,250,000 shares of Common Stock as consideration for the acquisition
of assets, businesses or companies, provided the recipient or
recipients thereof agree in writing to be bound by the terms of a
letter in the form contemplated by Section 3(i)(q) hereof during the
Lock-Up Period; and
(ii) The Selling Stockholder hereby agrees:
(a) to execute and deliver to the Underwriters a letter in the
form contemplated by Section 3(i)(q);
(b) to advise the Underwriters promptly of the happening of
any event known to the Selling Stockholder within the time during which
a Prospectus relating to the Shares is required to be delivered under
the Act which, in the judgment of the Selling Stockholder, would
require the making of any change in the Prospectus then being used so
that the Prospectus would not include an untrue statement of 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
(c) to pay all federal and other taxes, if any, on the
transfer and sale of the Shares being sold by the Selling Stockholder
to the Underwriters.
17
5. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the Shares are not
delivered for any reason other than the termination of this Agreement pursuant
to Section 8 hereof, the Company and the Selling Stockholder, jointly and
severally, shall, in addition to paying the amounts described in Section 4(i)(l)
hereof, reimburse the Underwriters for all of their out-of-pocket expenses,
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 on the part of the Company and the Selling Stockholder 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 on the part of the Company and the Selling
Stockholder 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 and the Selling Stockholder of their obligations
hereunder and to the following additional conditions precedent:
(a) You shall have received, at the time of purchase and at
the additional time of purchase, as the case may be, an opinion of Xxxx
and Xxxx LLP, 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) each of the Company, BSM Japan and BSMD Ventures
has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of
Delaware, with the requisite corporate power and authority to
own, lease and operate its properties and conduct its business
as described in the Registration Statement and the Prospectus,
and in the case of the Company, to execute and deliver this
Agreement and to issue, sell and deliver the Shares as herein
contemplated;
(ii) each of the Company, BSM Japan and BSMD Ventures
is duly qualified to do business as a foreign corporation and
is in good standing in the Commonwealth of Massachusetts, and
to such counsel's knowledge no qualification is necessary in
any other jurisdiction for the Company to conduct its business
as described in the Registration Statement and the Prospectus;
(iii) this Agreement has been duly authorized,
executed and delivered by the Company and constitutes the
valid and binding agreement of the Company;
18
(iv) the Shares being sold by the Company have been
duly authorized by the Company and, when issued and delivered
by the Company to and paid for by the Underwriters in
accordance with the terms hereof, will be validly issued,
fully paid and non-assessable;
(v) the Company has an authorized and outstanding
capitalization as set forth in the Registration Statement and
the Prospectus; the outstanding shares of capital stock of
each of the Company ( including the Shares being sold by the
Selling Stockholder), BSM Japan and BSMD Ventures have been
duly and validly authorized and issued and are fully paid,
non-assessable and free of statutory preemptive and
contractual preemptive or similar rights; all of the
outstanding capital stock of or other ownership interest in
each of BSM Japan and BSMD Ventures is owned of record by the
Company subject to no recorded security interest, other
encumbrance or adverse claims; the Shares being sold by the
Company, when issued by the Company, will be free of
preemptive rights under the Delaware General Corporation law
("DGCL") and contractual preemptive or similar rights under
agreements filed as exhibits to the Registration Statement;
and the certificates for the Shares comply with the
requirements of the DGCL and the Nasdaq National Market;
(vi) 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;
(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 to be made or obtained by the Company in connection
with the issuance and sale of the Shares and consummation by
the Company of the transactions contemplated hereby other than
registration of the Shares under the Act and except for such
other approvals, authorizations,
19
consents, orders or filings as have been obtained or made
(except such counsel need express no opinion as to 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);
(x) the execution, delivery and performance of this
Agreement by the Company and the consummation by the Company
of the transactions contemplated hereby do not constitute, and
will not result in, a Default Event (a) under any provisions
of the charter, by-laws or other organizational documents of
any of the Company, BSM Japan or BSMD Ventures or (b) under
any provision of any license, permit, 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 any of the Company, BSM Japan or BSMD
Ventures is a party or by which any of them or their
properties may be bound or affected and which is filed as an
exhibit to the Registration Statement or, except as set forth
in the Prospectus, under any federal, state, local or foreign
law, regulation or rule or any decree, judgment or order known
to such counsel to be applicable to any of the Company, BSM
Japan or BSMD Ventures other than, in the case of clause (b),
such Default Events as would not, individually or in the
aggregate, have a Material Adverse Effect;
(xi) 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 summarized or described in the
Prospectus which have not been so filed, summarized or
described as required;
(xii) to such counsel's knowledge, there are no
actions, suits, claims, investigations or proceedings pending,
or, to such counsel's knowledge, threatened to which the
Company or any of the Subsidiaries is subject or of which any
of their respective properties is subject at law or in equity
or before or by any federal, state, local or foreign
governmental or regulatory commission, board, body, authority
or agency which are required to be described in the Prospectus
but are not so described as required;
(xiii) the Company is not and, after giving effect to
the offering and sale of the Shares, will not be an
"investment company" or an entity "controlled" by an
"investment company," as such terms are defined in the
Investment Company Act;
(xiv) such counsel has read the statements in the
Registration Statement and the Prospectus listed in Exhibit A
hereto and, insofar as such
20
statements constitute summaries of legal matters, contracts,
agreements, documents or proceedings referred to therein, or
refer to statements of law or legal conclusions (exclusive of
the laws of any jurisdiction other than the federal laws of
the United States, state laws of the Commonwealth of
Massachusetts and under the DGCL), such statements are
accurate in all material respects and fairly present the
information purported to be shown;
(xv) no person has the right, pursuant to the terms
of any contract, agreement or other instrument described in or
filed as an exhibit to the Registration Statement, to have any
securities owned by them included in the Registration
Statement or sold in the offering contemplated thereby or
otherwise registered pursuant to the Act as a result of the
filing or effectiveness of the Registration Statement or the
transactions contemplated by this Agreement, except for such
rights as have been complied with or waived; and
(xvi) all documents incorporated by reference by the
Registration Statement, the Preliminary Prospectus and the
Prospectus complied as to form, at the time such documents
were filed with the Commission, in all material respects with
the requirements of the Exchange Act, (it being understood
that such counsel need express no opinion with respect to the
financial statements and schedules and other financial or
statistical data included in the Registration Statement or
Prospectus).
In addition, such counsel shall state that such counsel 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 (v), (vi) and
(xiv) 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
21
need express no opinion with respect to the financial statements and
schedules and other financial or 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, an opinion of
Jeantet & Associes, counsel to BMSA, 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) BMSA has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
France with the requisite corporate power and authority to
own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the
Prospectus;
(ii) BMSA 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;
(iii) the Company is the sole registered owner of
8,525 shares of capital stock of BMSA, representing
approximately 85% of the outstanding capital stock of BMSA.
Such shares of capital stock have been duly authorized and
validly issued and are fully paid and non-assessable; except
as described in the Registration Statement and the Prospectus,
such counsel has no knowledge of any other outstanding shares
of capital stock of BMSA or any security interest, other
encumbrance or adverse claim with respect to the shares of
capital stock of BMSA owned by the Company or otherwise; and,
except as described in the Registration Statement and the
Prospectus, such counsel has no knowledge of any options,
warrants or other rights to purchase, agreements or other
obligations to issue or other rights to convert any obligation
into shares of capital stock or ownership interests in BMSA;
(iv) no approval, authorization, consent or order of
or filing with any national, state, local or other
governmental or regulatory commission, board, body, authority
or agency is required to be made or obtained by BMSA in
connection with the issuance and sale of the Shares and
consummation by the Company of the transactions contemplated
hereby;
(v) the execution, delivery and performance of this
Agreement by the Company and the consummation by the Company
of the transactions contemplated hereby do not constitute, and
will not result in, a Default Event
22
(a) under any provisions of the charter, by-laws or other
organizational documents of BMSA or (b) under any provision of
any license, permit, 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
BMSA is a party or by which it or its properties may be bound
or affected and, in any such case, which is known to such
counsel, or under any federal, state, local or foreign law,
regulation or rule or any decree, judgment or order known by
such counsel to be applicable to BMSA, other than, in the case
of clause (b), such Default Events as would not, individually
or in the aggregate, have a Material Adverse Effect;
(vi) to such counsel's knowledge, (a) BMSA is not in
violation of its charter, by-laws or other organizational
documents and (b) no Default Event exists under any license,
permit, 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 BMSA
is a party or by which it or its properties may be bound or
affected and which is known to such counsel or under any
French or European Union law, regulation or rule or any
decree, judgment or order applicable to BMSA, except, in the
case of clause (b), any such Default Events as would not,
individually or in the aggregate, have a Material Adverse
Effect;
(vii) such counsel has reviewed the statements with
respect to regulatory matters (solely insofar as such
statements pertain to jurisdictions other than the United
States or any State thereof) included in the Registration
Statement and the Prospectus, and nothing has come to such
counsel's attention that causes such counsel to believe that
such statements, as of the effective date of the Registration
Statement, as of the date of the Prospectus and as of 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; and
(viii) such counsel has reviewed the statements
relating to the contractual arrangements between the Company
and BMSA (including, without limitation, the contractual
arrangements relating to the minority ownership interest in
BMSA and the owner thereof) included in the Registration
Statement and the Prospectus, and nothing has come to such
counsel's attention that causes such counsel to believe that
such statements, as of the effective date of the Registration
Statement, as of the date of the Prospectus and as of the date
of such opinion, contained or contains an untrue
23
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.
(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
Xxxxxx & Xxxxxxx LLP, patent 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, 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) Nothing has come to the attention of such counsel
that would cause it to believe that the sections of the
Registration Statement captioned "Risk factors--Risks Relating
to Intellectual Property" and "Business--Proprietary
Technology and Patent Rights", as of the date the Registration
became effective, contained any untrue statement of material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading.
(ii) Nothing has come to the attention of such
counsel that would cause it to believe that the sections of
the Prospectus captioned "Risk factors--Risks Relating to
Intellectual Property"; and "Business--Proprietary Technology
and Patent Rights", as of the Closing Date, contain any
untrue statement of material fact, or omit to state a
material fact, necessary to make the statements therein, in
light of the circumstances in which they were made, not
misleading.
(iii) To the best of such counsel's knowledge, each
of the U.S. patents listed in Schedule A attached thereto and
each of the U.S. patent applications listed in Schedule B
attached thereto is either owned by the Company, or co-owned
and exclusively licensed to the Company by all other
co-owners; and to the best of such counsel's knowledge, the
Company has the right to enforce, in a United States court of
proper jurisdiction, each of the U.S. patents listed in
Schedule A attached thereto.
(iv) To the best of such counsel's knowledge, during
prosecution of the U.S. patents listed in Schedule A attached
thereto, such counsel had disclosed to the United States
Patent and Trademark Office (the "USPTO"), in accordance with
37 C.F.R. Section 1.56, those references known to such counsel
to be material to the patentability of the claims.
24
(v) Without having made any investigation for the
purpose of rendering this opinion, such counsel is not aware
of any valid basis for a finding, by a properly informed court
of proper jurisdiction, of invalidity under 35 U.S.C. Section
102 or of unenforceability of any of the patents listed in
Schedule A attached thereto.
(vi) While there can be no guarantee that any
particular patent application will issue as a patent, each of
the U.S. patent applications listed in Schedule B attached
thereto was properly filed, and is being diligently
prosecuted, in the USPTO.
(vii) To the best of such counsel's knowledge,
without any searches having been conducted for the purpose of
rendering this opinion, each of the U.S. patent applications
listed in Schedule B attached thereto recites patentable
subject matter under 35 U.S.C. Section 102 and 103.
(viii) To the best of such counsel's knowledge, no
interference proceeding has been declared, in the USPTO, with
respect to any of the U.S. patents listed in Schedule A
attached thereto or with respect to any of the U.S. patent
applications listed in Schedule B attached thereto.
(ix) To the best of such counsel's knowledge, for
each U.S. patent application listed in Schedule B attached
thereto, all published information known to us, to date, to be
"material to patentability", as defined in 37 C.F.R. Section
1.56(b), has been disclosed, or will be disclosed, if
required, pursuant to 37 C.F.R. Section 1.97 to the USPTO.
(x) To the best of such counsel's knowledge, other
than as disclosed in the section of the Registration Statement
and Prospectus captioned "Business--Legal Proceedings", the
Company has not received any communication or notice, written
or oral, relating to the potential infringement of any
patents, trademarks, copyrights, trade secrets or proprietary
rights of others.
(xi) To the best of such counsel's knowledge, without
having made any investigation, there is no infringement of
any patents, trademarks, copyrights, trade secrets or
proprietary rights of the Company and each of the
Subsidiaries by others.
(d) You shall have received, at the time of purchase and at
the additional time of purchase, as the case may be, an opinion of Xxxx
and Xxxx LLP, counsel to the Selling Stockholder, addressed to the
Underwriters, and dated the time of purchase or
25
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) this Agreement has been duly authorized, executed
and delivered by the Selling Stockholder and constitutes the
valid and binding agreement of the Selling Stockholder
enforceable against the Selling Stockholder in accordance with
its terms, except as enforcement of rights to indemnity and
contribution hereunder may be limited by federal or state
securities laws or principles of public policy and subject to
the qualification that the enforceability of obligations of
the Selling Stockholder hereunder may be limited by
bankruptcy, insolvency, reorganization, moratorium and other
laws relating to or affecting creditors' rights generally and
by general equitable principles;
(ii) 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 to be made or obtained by the Selling Stockholder or
any of its subsidiaries in connection with the consummation by
the Selling Stockholder of the transactions contemplated
hereby other than registration of the Shares under the Act and
except for such other approvals, authorizations, consent,
orders and filings as have been obtained or made (except such
counsel need express no opinion as to 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);
(iii) the execution, delivery and performance of this
Agreement by the Selling Stockholder and the consummation by
the Selling Stockholder of the transactions contemplated
hereby do not constitute, and will not result in, a Default
Event (a) under any provisions of the charter or by-laws of
the Selling Stockholder or (b) (i) under any provision of any
license, permit, 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
Selling Stockholder or any of its subsidiaries is a party or
by which any of them or their respective properties may be
bound or affected and which is filed as an Exhibit to the
Selling Stockholder's Annual Report on Form 10-K for the
period ended December 31, 2000, (ii) under any federal, state,
local or foreign law, regulation or rule known to such counsel
to be applicable to the Selling Stockholder or (iii) under any
decree, judgment or order known to such counsel specifically
naming the Selling Stockholder, other than, in the case of
clauses (a) and (b), such Default Events as would not,
individually or in the aggregate,
26
have a Material Adverse Effect or a material adverse effect on
the ability of the Selling Stockholder to consummate the
transactions contemplated by this Agreement;
(iv) to such counsel's knowledge, there are no
actions, suits, claims, investigations or proceedings pending
or, to such counsel's knowledge, threatened to which the
Selling Stockholder is subject or of which any of its
properties is subject at law or in equity or before or by any
federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency which are
required to be described in the Prospectus but are not so
described as required;
(v) the Selling Stockholder has all requisite
corporate power and authority to sell, transfer and deliver,
in the manner provided in this Agreement, the Shares being
sold by the Selling Stockholder hereunder;
(vi) assuming each Underwriter has no notice of any
adverse claim (within the meaning of Section 8-105 of the UCC
as enacted in the Commonwealth of Massachusetts (the
"Massachusetts UCC"), each Underwriter that has purchased such
Shares delivered at the time of purchase or at the additional
time of purchase, as the case may be, to DTC by making payment
therefor as provided herein, and that has had such Shares
credited to the securities account or accounts of such
Underwriters maintained with DTC, has acquired a security
entitlement (within the meaning of Section 8-102(a)(17) of the
Massachusetts UCC), and no action based on an adverse claim
(within the meaning of Section 8-102(a)(1) of the
Massachusetts UCC) may be asserted against such Underwriter
with respect to such Shares; and
(vii) such counsel has read the statements in the
Registration Statement and the Prospectus listed in Exhibit B
hereto and other references to the Selling Stockholder in the
Registration Statement and the Prospectus, and 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 (exclusive of
the laws of any jurisdiction other than the United States, the
State of New York, the State of Massachusetts and under the
Delaware General Corporation Law), such statements are
accurate in all material respects and fairly present the
information purported to be shown;
(e) You shall have received, at the time of purchase and at
the additional time of purchase, as the case may be, the opinion of
Xxxxx, Xxxxxx & XxXxxxxx, P.C., regulatory counsel to the Company,
dated the time of purchase or the additional
27
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 statements in the Registration Statement and
Prospectus under the captions "Risk factors - Risks Relating
To Regulatory Matters" and "Business - Government Regulation,
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 correct statements or summaries of applicable
federal law and regulation, subject to the qualifications set
forth therein; and
(ii) nothing has come to the attention of such
counsel which has caused it to believe that sections of the
Registration Statement and Prospectus referenced in (i) of
this subsection (e), and any amendment or supplement thereto,
as of the date of the Registration Statement and the
Prospectus and as of the date of such opinion, contained any
untrue statement of a 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.
(f) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the 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 other related matters as the Underwriters may require.
(g) You shall have received from Xxxxxx Xxxxxxxx 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 UBS Warburg.
(h) No amendment or supplement to the Registration Statement
or Prospectus, or document which upon filing with the Commission would
be incorporated by reference therein, shall at any time have been filed
to which you have objected or shall object in writing.
(i) The Registration Statement shall have become effective, or
if Rule 430A under the Act is used, the Prospectus shall have been
filed with the Commission
28
pursuant to Rule 424(b) under the Act, at or before 5:00 P.M., New York
City time, on the date of this Agreement, unless a later time (but not
later than 5:00 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.
(j) 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.
(k) 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 adverse change, financial or otherwise (other
than as referred to in the Registration Statement and Prospectus), in
the operations, business, condition or prospects of the Company and the
Subsidiaries taken as a whole 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 or any of the Subsidiaries.
(l) Each of the Company and the Selling Stockholder will, at
the time of purchase or additional time of purchase, as the case may
be, deliver to you a certificate of the Company (signed by two of its
executive officers) or the Selling Stockholder (signed by one of its
executive officers), as the case may be, to the effect that the
representations and warranties of the Company or the Selling
Stockholder, as the case may be, as set forth in this Agreement are
true and correct as of each such date, that the Company or the Selling
Stockholder, as the case may be, has performed such of its 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 (i) and (j) of this
Section 6 have been met.
(m) You shall have received the letters referred to in Section
3(i)(q).
29
(n) The Company and the Selling Stockholder shall have
furnished to you such other documents and certificates as to the
accuracy and completeness of any statement in the Registration
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.
(o) The Shares shall have been approved for listing for
quotation on the Nasdaq National Market, 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, financial or otherwise (other than as referred to in the Registration
Statement and Prospectus), in the operations, business, condition or prospects
of the Company and the Subsidiaries taken as a whole, 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 if a banking moratorium shall have been declared either by the United
States or New York State authorities, or 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 any Underwriter elects to terminate this Agreement as provided in
this Section 7, the Company, the Selling Stockholder and each other Underwriter
shall be notified promptly by letter or telegram from such terminating
Underwriter.
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
30
Agreement or if such sale is not carried out because the Company or the Selling
Stockholder shall be unable to comply with any of the terms of this Agreement,
the Company and the Selling Stockholder shall not be under any obligation or
liability under this Agreement (except to the extent provided in Sections
4(i)(1), 5 and 9 hereof), and the Underwriters shall be under no obligation or
liability to the Company and the Selling Stockholder 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 purchase 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 purchase and pay for does not exceed
10% of the total number of Firm Shares, the non-defaulting Underwriters shall
purchase 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 purchased 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 purchased 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 and the Selling Stockholder agree with the non-defaulting
Underwriters that they 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 and the Selling Stockholder or
selected by the Company and the Selling Stockholder with your approval).
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company and the Selling Stockholder for a defaulting
Underwriter or Underwriters in accordance with the foregoing provision, the
Company and the Selling Stockholder 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
31
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 or the Selling Stockholder to any non-defaulting Underwriter and
without any liability on the part of any non-defaulting Underwriter to the
Company and the Selling Stockholder. Nothing 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 and the Selling Stockholder jointly and
severally agree 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 (with respect to the Prospectus, in
light of the circumstances under which they were made) 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 (with respect to the Prospectus, in light of the
circumstances under which they were made) not misleading or (ii) the
matters described in the Prospectus under the caption "If shares in
this offering were offered in violation of the Securities Act of 1933,
certain purchasers of these shares would have the right to seek refunds
or damages", PROVIDED, HOWEVER, that (A) the indemnity agreement
contained in clause (i) of this subsection (a) with respect to any
Preliminary Prospectus or amended Preliminary Prospectus shall not
inure to the benefit of any
32
Underwriter from whom the person asserting any such loss, damage,
expense, liability or claim purchased the Shares which is the subject
thereof if the Prospectus corrected any such alleged untrue statement
or omission and if such Underwriter failed to send or give a copy of
the Prospectus to such person at or prior to the written confirmation
of the sale of such Shares to such person, unless the failure is the
result of noncompliance by the Company with Section 4(i)(b) hereof, (B)
the Selling Stockholder's obligation under clause (i) of this
subsection (a) will be limited to any misstatements or omissions in the
Prospectus under the caption "Selling stockholder" or otherwise of
which the Selling Stockholder had actual knowledge on the date hereof
or on the Closing Date and will be limited in any case to the amount of
its net proceeds received hereunder and the Selling Stockholder will
have no obligation under clause (ii) of this subsection (a) and (C) the
Company's obligation under clause (ii) of this subsection (a) will be
limited to its net proceeds received hereunder and will only inure to
the benefit of UBS Warburg to the extent any loss, damage, expense,
liability or claim as contemplated above incurred by UBS Warburg
exceeds an amount equal to 55% of the total underwriting discount and
commissions set forth on the outside front cover page of the
Prospectus.
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 and the Selling
Stockholder pursuant to the foregoing paragraph, such Underwriter or
such person shall promptly notify the Company and the Selling
Stockholder in writing of the institution of such Proceeding and the
Company and the Selling Stockholder 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 and the
Selling Stockholder shall not relieve the Company and the Selling
Stockholder from any liability which the Company and the Selling
Stockholder 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 and the Selling Stockholder in
connection with the defense of such Proceeding or the Company and the
Selling Stockholder 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, additional to or in conflict with those
available to the Company and the Selling Stockholder (in which case the
Company and the Selling Stockholder 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 the Selling Stockholder and paid as incurred (it
being understood, however, that the Company and the Selling Stockholder
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
33
indemnified parties who are parties to such Proceeding). The Company
and the Selling Stockholder shall not be liable for any settlement of
any Proceeding effected without the written consent of the Company and
the Selling Stockholder, but if settled with the written consent of the
Company and the Selling Stockholder, the Company and the Selling
Stockholder jointly and severally agree 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 the Company's
written consent if (i) such settlement is entered into more than 60
business days after receipt by the 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) Each Underwriter severally agrees to indemnify, defend and
hold harmless the Company, its directors and officers, the Selling
Stockholder and its directors and executive officers and any person who
controls the Company or the Selling Stockholder 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, the
Selling Stockholder 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, the Selling
Stockholder or any such person in respect of which indemnity may be
sought against any Underwriter
34
pursuant to the foregoing paragraph, the Company, the Selling
Stockholder 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, the
Selling Stockholder or any such person or otherwise. The Company, the
Selling Stockholder 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, the Selling Stockholder 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 Underwriter agrees to indemnify and hold harmless the
Company, the Selling Stockholder 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
business 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.
35
(c) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a) and (b) 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 and the Selling Stockholder 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, and the Selling Stockholder 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
and the Selling Stockholder 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 Selling Stockholder 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 and the
Selling Stockholder 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 Selling Stockholder 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 other fees or expenses reasonably
incurred by such party in connection with investigating, preparing to
defend or defending any Proceeding.
(d) The Company and the Selling Stockholder 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, in no case
shall any Underwriter 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
36
Underwriters' obligations to contribute pursuant to this Section 9 are
several in proportion to their respective underwriting commitments and
not joint.
(e) The indemnity and contribution agreements contained in
this Section 9 and the covenants, warranties and representations of the
Company and the Selling Stockholder 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 either of
the Company or the Selling Stockholder, their directors or officers or
any person who controls any of the Company or the Selling Stockholder
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, the Selling
Stockholder and each Underwriter agree promptly to notify each other of
the commencement of any Proceeding against it and, in the case of the
Company or the Selling Stockholder, against any of the officers,
directors or partners of the Company or the Selling Stockholder, as the
case may be, 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, X.X. 00000-0000, Attention:
Syndicate Department; if to the Company, shall be sufficient in all respects if
delivered or sent to the Company at the offices of the Company at BioSphere
Medical, Inc., 0000 Xxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx 000000, Attention:
Xxxx X. Xxxxxxxxx; if to the Selling Stockholder, shall be sufficient in all
respects if delivered or sent to the Selling Stockholder at the offices of the
Selling Stockholder at Sepracor Inc., 000 Xxxxx Xxxxx, Xxxxxxxxxxx,
Xxxxxxxxxxxxx 00000, Attention: Chief Financial Officer.
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 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 you, the Company
and the Selling Stockholder consent to the jurisdiction of such courts and
personal service with respect thereto. The Company and the Selling
37
Stockholder hereby consent 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 an Underwriter or any indemnified party.
Each Underwriter, the Company (on its behalf and, to the extent permitted by
applicable law, on behalf of its stockholders and affiliates), and the Selling
Stockholder (on its behalf and, to the extent permitted by applicable law, on
behalf of its stockholders 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
and the Selling Stockholder agree that a final judgment in any such action,
proceeding or counterclaim brought in any such court shall be conclusive and
binding upon the Company or the Selling Stockholder, as the case may be, and may
be enforced in any other courts in the jurisdiction to which the Company or the
Selling Stockholder 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, the Company and the Selling
Stockholder 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 the Selling Stockholder and their successors and
assigns and any successor or assign of any substantial portion of the Company's
and the Selling Stockholder's and any of the Underwriters' respective businesses
and/or assets.
16. MISCELLANEOUS. UBS Warburg LLC, 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 Warburg LLC. Because UBS Warburg LLC
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
UBS Warburg LLC are not deposits, are not insured by the Federal Deposit
Insurance Corporation, are not guaranteed by a branch or agency, and are not
otherwise an obligation or responsibility of a branch or agency.
A lending affiliate of UBS Warburg LLC may have lending relationships
with issuers of securities underwritten or privately placed by UBS Warburg LLC.
To the extent required under the securities laws, prospectuses and other
disclosure documents for securities underwritten or privately placed by UBS
Warburg LLC 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 UBS Warburg LLC.
38
If the foregoing correctly sets forth the understanding among the
Company, the Selling Stockholder 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, the Selling Stockholder
and the several Underwriters.
Very truly yours,
BIOSPHERE MEDICAL INC.
By:
-----------------------
Name:
Title:
SEPRACOR INC.
By:
-----------------------
Name:
Title:
Accepted and agreed to as of the
date first above written
UBS WARBURG LLC
U.S. BANCORP XXXXX XXXXXXX INC.
XXXXX, HARNESS & HILL, INC.
By: UBS WARBURG LLC
By:
-----------------------------
Name:
Title:
By:
-----------------------------
Name:
Title:
SCHEDULE A
NUMBER OF
UNDERWRITER FIRM SHARES
UBS Warburg LLC
U.S. Bancorp Xxxxx Xxxxxxx Inc.
Xxxxx, Xxxxxxxx & Xxxx, Inc.
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-------------
Total............. 5,000,000
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