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Exhibit 1.1
Cellomics, Inc.
6,000,000 Shares(1)
Common Stock
UNDERWRITING AGREEMENT
[________________], 2000
PRUDENTIAL SECURITIES INCORPORATED
ING BARINGS LLC
XXXX XXXXXXXX INCORPORATED
As Representatives of the several Underwriters
c/o Prudential Securities Incorporated
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Cellomics, Inc., a Delaware corporation (the "Company"),
hereby confirms its agreement with the several underwriters named in Schedule I
hereto (the "Underwriters"), for whom you have been duly authorized to act as
representatives (in such capacities, the "Representatives"), as set forth below.
If you are the only Underwriters, all references herein to the Representatives
shall be deemed to be to the Underwriters.
1. Securities. Subject to the terms and conditions herein contained,
the Company proposes to issue and sell to the several Underwriters an aggregate
of 6,000,000 shares (the "Firm Securities") of the Company's Common Stock, par
value $.01 per share ("Common Stock"). The Company also proposes to issue and
sell to the several Underwriters not more than 900,000 additional shares of
Common Stock if requested by the Representatives as provided in Section 3 of
this Agreement. Any and all shares of Common Stock to be purchased by the
Underwriters pursuant to such
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1 Plus an option to purchase from Cellomics, Inc. up to 900,000 additional
shares to cover over-allotments.
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option are referred to herein as the "Option Securities," and the Firm
Securities and any Option Securities are collectively referred to herein as the
"Securities."
As part of the offering contemplated by this Agreement, the
Representatives have agreed to reserve out of the Firm Securities purchased by
them up to [________] shares (the "Directed Shares") for sale to the Company's
directors, officers, employees and other parties associated with the Company
(each, individually a "Participant" and collectively, the "Participants") under
the terms of the friends and family directed sales program (the "Directed Share
Program"). Shares to be sold pursuant to the Directed Share Program shall be
sold pursuant to this Agreement at the public offering price. Any Directed
Shares not orally confirmed for purchase by a Participant by 5:00 p.m. New York
time on the date of this Agreement will be offered to the public by the
Representatives as set forth in the Prospectus (as such term is hereinafter
defined).
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each of the several Underwriters
that:
(a) A registration statement on Form S-1 (File No. 333-31680)
with respect to the Securities, including a prospectus subject to completion,
has been filed by the Company with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), and one
or more amendments to such registration statement has been so filed. After the
execution of this Agreement, the Company will file with the Commission either:
(i) if such registration statement, as it has been amended, has been declared by
the Commission to be effective under the Act, either: (A) if the Company relies
on Rule 434 under the Act, a Term Sheet (as hereinafter defined) relating to the
Securities, that shall identify the Preliminary Prospectus (as hereinafter
defined) that it supplements containing such information as is required or
permitted by Rules 434, 430A and 424(b) under the Act, or (B) if the Company
does not rely on Rule 434 under the Act, a prospectus in the form most recently
included in an amendment to such registration statement (or, if no such
amendment shall have been filed, in such registration statement), with such
changes or insertions as are required by Rule 430A under the Act or permitted by
Rule 424(b) under the Act, and in the case of either clause (i)(A) or (i)(B) of
this sentence as have been provided to and approved by the Representatives prior
to the execution of this Agreement, or (ii) if such registration statement, as
it has been amended, has not been declared by the Commission to be effective
under the Act, an amendment to such registration statement, including a form of
prospectus, a copy of which amendment has been furnished to and approved by the
Representatives prior to the execution of this
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Agreement. The Company may also file a related registration statement with the
Commission pursuant to Rule 462(b) under the Act for the purpose of registering
certain additional Securities, which registration shall be effective upon filing
with the Commission. As used in this Agreement, the term "Original Registration
Statement" means the registration statement initially filed relating to the
Securities, as amended at the time when it was or is declared effective,
including all financial schedules and exhibits thereto and including any
information omitted therefrom pursuant to Rule 430A under the Act and included
in the Prospectus (as hereinafter defined); the term "Rule 462(b) Registration
Statement" means any registration statement filed with the Commission pursuant
to Rule 462(b) under the Act (including the Registration Statement and any
Preliminary Prospectus or Prospectus incorporated therein at the time such
Registration Statement becomes effective); the term "Registration Statement"
includes both the Original Registration Statement and any Rule 462(b)
Registration Statement; the term "Preliminary Prospectus" means each prospectus
subject to completion filed with any such registration statement or any
amendment thereto (including the prospectus subject to completion, if any,
included in the Registration Statement or any amendment thereto at the time it
was or is declared effective); the term "Prospectus" means:
(A) if the Company relies on Rule 434 under the Act, the Term
Sheet relating to the Securities that is first filed pursuant
to Rule 424(b)(7) under the Act, together with the Preliminary
Prospectus identified therein that such Term Sheet
supplements;
(B) if the Company does not rely on Rule 434 under the Act,
the prospectus first filed with the Commission pursuant to
Rule 424(b) under the Act; or
(C) if the Company does not rely on Rule 434 under the Act and
if no prospectus is required to be filed pursuant to Rule
424(b) under the Act, the prospectus included in the
Registration Statement;
and the term "Term Sheet" means any term sheet that satisfies the requirements
of Rule 434 under the Act. Any reference herein to the "date" of a Prospectus
that includes a Term Sheet shall mean the date of such Term Sheet.
(b) The Commission has not issued any order preventing or
suspending use of any Preliminary Prospectus. When any Preliminary Prospectus
was filed with the Commission it: (i) contained all statements required to be
stated therein
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in accordance with, and, except for the omission from the Preliminary Prospectus
contained in the Original Registration Statement as filed with the Commission on
March 3, 2000 of a bona fide estimate of the range of the maximum offering
price, complied in all material respects with the requirements of, the Act and
the rules and regulations of the Commission thereunder, and (ii) did not include
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. When the Registration
Statement or any amendment thereto was or is declared effective, it: (i)
contained or will contain all statements required to be stated therein in
accordance with, and complied or will comply in all material respects with the
requirements of, the Act and the rules and regulations of the Commission
promulgated thereunder, and (ii) did not or will not include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein not misleading. When the Prospectus or any Term
Sheet that is a part thereof or any amendment or supplement to the Prospectus is
filed with the Commission pursuant to Rule 424(b) (or, if the Prospectus or part
thereof or such amendment or supplement is not required to be so filed, when the
Registration Statement or the amendment thereto containing such amendment or
supplement to the Prospectus was or is declared effective), and on the Firm
Closing Date and any Option Closing Date (both as hereinafter defined), the
Prospectus, as amended or supplemented at any such time, (i) contained or will
contain all statements required to be stated therein in accordance with, and
complied or will comply in all material respects with the requirements of, the
Act and the rules and regulations of the Commission thereunder, and (ii) did not
or will not include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The foregoing
provisions of this paragraph (b) do not apply to statements or omissions made in
any Preliminary Prospectus, the Registration Statement or any amendment thereto
or the Prospectus or any amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein.
(c) If the Company has elected to rely on Rule 462(b) and the
Rule 462(b) Registration Statement has not been declared effective: (i) the
Company has filed a Rule 462(b) Registration Statement in compliance with and
that is effective upon filing pursuant to Rule 462(b) and has received
confirmation of its receipt, and (ii) the Company has given irrevocable
instructions for transmission of the applicable filing fee in connection with
the filing of the Rule 462(b) Registration Statement in compliance with Rule 111
promulgated under the Act, or the Commission has received payment of such filing
fee.
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(d) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of its jurisdiction of
incorporation and is duly qualified to transact business as a foreign
corporation and is in good standing under the laws of all other jurisdictions
where the ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to be so qualified would
result in a material adverse change in the condition (financial or otherwise),
business prospects, net worth or results of operations of the Company (a
"Material Adverse Change"). The Company has no subsidiaries and does not
control, directly or indirectly, any corporation, partnership, joint venture,
association or other business organization.
(e) The Company has full power (corporate and otherwise) to
own or lease its properties and to conduct its business as described in the
Registration Statement and the Prospectus or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus; and the Company has full
power (corporate and otherwise) to enter into this Agreement and to carry out
all the terms and provisions hereof to be carried out by it hereunder.
(f) The Company's authorized, issued and outstanding
capitalization as of September 30, 2000 is as set forth in the Prospectus, or if
the Prospectus is not in existence, the most recent Preliminary Prospectus. All
of the issued shares of capital stock of the Company have been duly authorized
and validly issued and are fully paid and nonassessable.
(g) The Firm Securities and the Option Securities have been
duly authorized and at the Firm Closing Date or the related Option Closing Date
(as the case may be), after payment therefor in accordance herewith, will be
validly issued, fully paid and nonassessable. None of the shares of the issued
and outstanding capital stock of the Company have been issued in violation of
the preemptive or other similar rights of any security holder of the Company. No
holders of outstanding shares of capital stock of the Company are entitled as
such to any preemptive rights, rights of first refusal, co-sale rights or other
rights to subscribe for any of the Securities, and no holder of securities of
the Company has any right which has not been fully exercised or waived to
require the Company to register the offer or sale of any securities owned by
such holder under the Act in the public offering contemplated by this Agreement.
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(h) The capital stock of the Company conforms to the
description thereof contained in the Prospectus or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus.
(i) Except as disclosed in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus), there
are no outstanding: (A) securities or obligations of the Company convertible
into or exchangeable for any capital stock of the Company, (B) warrants, rights
or options to subscribe for or purchase from the Company any such capital stock
or any such convertible or exchangeable securities or obligations, or (C)
obligations of the Company to issue any shares of capital stock, any such
convertible or exchangeable securities or obligations, or any such warrants,
rights or options.
(j) The financial statements and schedule of the Company
included in the Registration Statement and the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus) fairly present the
financial position of the Company and the results of operations and changes in
financial condition as of the dates and periods therein specified. Such
financial statements and schedules have been prepared in accordance with
generally accepted accounting principles consistently applied throughout the
periods involved. The financial data set forth under the captions "Summary
Financial Data," "Capitalization" and "Selected Financial Data" in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) fairly present, on the basis stated in the Prospectus
(or such Preliminary Prospectus), the information included therein.
(k) PricewaterhouseCoopers LLP, who have certified certain
financial statements of the Company and delivered their report with respect to
the audited financial statements and schedule included in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus), are independent public accountants as
required by the Act and the applicable rules and regulations thereunder.
(l) The execution and delivery of this Agreement have been
duly authorized by the Company and this Agreement has been duly executed and
delivered by the Company, and is the valid and binding agreement of the Company,
enforceable against the Company in accordance with its terms.
(m) No legal or governmental proceedings are pending to which
the Company is a party or to which the property of the Company is subject that
are required
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to be described in the Registration Statement or the Prospectus and are not
described therein (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), and no such proceedings have, to the best of the
Company's knowledge, been threatened against the Company or with respect to any
of their respective assets, technologies or properties; and no contract or other
document is required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement that is
not described therein (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) or filed as required.
(n) The issuance, offering and sale of the Securities to the
Underwriters by the Company pursuant to this Agreement, the compliance by the
Company with the other provisions of this Agreement and the consummation of the
other transactions herein contemplated, do not and will not: (i) require the
consent, approval, authorization, registration or qualification of or with any
governmental authority, except such as have been obtained, such as may be
required under state securities or blue sky laws and, if the registration
statement filed with respect to the Securities (as amended) is not effective
under the Act as of the time of execution hereof, such as may be required (and
shall be obtained as provided in this Agreement) under the Act, or (ii) conflict
with or result in a breach or violation of any of the terms and provisions of,
or constitute a default under, any indenture, mortgage, deed of trust, lease or
other agreement or instrument to which the Company is a party or by which the
Company or any of its properties are bound, or the charter documents or by-laws
of the Company, or any statute or any judgment, decree, order, rule or
regulation of any court or other governmental authority or any arbitrator
applicable to the Company.
(o) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus, the Company has not
sustained any material loss or interference with its business or properties from
fire, flood, hurricane, accident or other calamity, whether or not covered by
insurance, or from any labor dispute or any legal or governmental proceeding and
there has not been any Material Adverse Change, or any development involving a
prospective Material Adverse Change.
(p) The Company has not, directly or indirectly, (i) taken any
action designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Securities, or (ii) since the filing of the Registration Statement: (A) sold,
bid for, purchased, or paid anyone any compensation for soliciting purchases of,
the Securities, or (B) paid or agreed to pay to any person
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other than the Underwriters any compensation for soliciting another to purchase
any other securities of the Company.
(q) The Company has not distributed, and, prior to the later
of: (i) the Firm Closing Date, and (ii) the completion of the distribution of
the Securities, will not distribute, any offering material in connection with
the offering and sale of the Securities other than the Registration Statement or
any amendment thereto, any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto, or other materials, if any, permitted by the
Act.
(r) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus), (i) the Company
has not incurred any material liability or obligation, direct or contingent, nor
entered into any material transaction not in the ordinary course of business;
(ii) the Company has not purchased any of its outstanding capital stock, nor
declared, paid or otherwise made any dividend or distribution of any kind on its
capital stock and (iii) there has not been any material change in the capital
stock, short-term debt or long-term debt of the Company, except in each case as
described in the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus).
(s) The Company has good and marketable title in fee simple to
all items of real property and marketable title to all personal property owned
by it, in each case free and clear of any security interests, liens,
encumbrances, equities, claims and other defects, except such as do not
materially and adversely affect the value of such property and do not interfere
with the use made or proposed to be made of such property by the Company, and
any real property and buildings held under lease by the Company are held under
valid, subsisting and enforceable leases, with such exceptions as are not
material and do not interfere with the use made or proposed to be made of such
property and buildings by the Company, in each case except as described in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(t) Except as described in the Prospectus, no labor dispute
with the employees of the Company exists or is threatened or imminent that could
result in a Material Adverse Change.
(u) The Company owns or is licensed to use all patents, patent
applications, inventions, licenses, copyrights, trademarks, trade names,
applications for registration of trademarks, service marks, service xxxx
applications, knowhow;
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manufacturing processes, formulae, trade secrets, licenses and proprietary or
other confidential information ("Proprietary Rights") currently employed by it
in connection with its business and does not have any knowledge of, and the
Company has not given or received any notice of infringement of or conflict with
associated rights of any third party with respect to any Proprietary Rights or
any license therefor which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would result in a Material Adverse
Change except as described in or contemplated by the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus). The
description in such Prospectus (or, if the Prospectus is not in existence, such
Preliminary Prospectus) of the Proprietary Rights is correct and fairly and
correctly describes the Company's rights with respect thereto. No action, suit,
arbitration, or legal, administrative or other proceeding, or investigation is
pending, or, to the best knowledge of the Company, threatened, which involves
any Proprietary Rights. The Company is not subject to any judgment, order, writ,
injunction or decree of any court or any Federal, state, local, foreign or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, or any arbitrator, or has entered into or is a party to any
contract which restricts or impairs the use of any such Proprietary Rights. No
Proprietary Rights used by the Company, and no services or products sold by the
Company, conflict with or infringe upon any Proprietary Rights available to any
third party. Except for indemnification provisions contained in agreements
identified to you by the Company in writing, the Company has not entered into
any consent, indemnification, forbearance to xxx or settlement agreement with
respect to Proprietary Rights. No claims have been asserted by any person with
respect to the validity of the Company's ownership or right to use the
Proprietary Rights and, to the best knowledge of the Company, there is no
reasonable basis for any such claim to be successful. The Proprietary Rights
currently employed or contemplated to be employed by the Company are valid and
enforceable and no registration relating thereto has lapsed, expired or been
abandoned or cancelled or is the subject of cancellation or other adversarial
proceedings, and all applications therefore are pending and are in good
standing. The Company has complied with its contractual obligations relating to
the protection of the Proprietary Rights used pursuant to licenses. To the best
of the Company's knowledge, no person is infringing on or violating the
Proprietary Rights owned or used by the Company.
(v) The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which it is engaged; the Company has not been
refused any insurance coverage sought or applied for; and the Company has no
reason to believe that it will not be able to renew its existing insurance
coverage as and when such
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coverage expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not result in a Material
Adverse Change, except as described in or contemplated by the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus).
(w) The Company possesses all certificates, authorizations and
permits issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct its business, and the Company has not received
any notice of proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in a
Material Adverse Change.
(x) The Company is not subject to registration as an
investment company under the Investment Company Act of 1940, as amended (the
"Investment Company Act"), and this transaction will not cause the Company to
become an investment company subject to registration under the Investment
Company Act.
(y) The Company has filed all foreign, federal, state and
local tax returns that are required to be filed or has requested extensions
thereof (except in any case in which the failure so to file would not result in
a Material Adverse Change) and has paid all taxes required to be paid by it and
any other assessment, fine or penalty levied against it, to the extent that any
of the foregoing is due and payable, except for any such assessment, fine or
penalty that is currently being contested in good faith or as described in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(z) The Company is not in violation of any federal or state
law or regulation relating to occupational safety and health or to the storage,
handling or transportation of hazardous or toxic materials, and the Company has
received all permits, licenses or other approvals required of it under
applicable federal and state occupational safety and health and environmental
laws and regulations to conduct its business, and the Company is in compliance
with all terms and conditions of any such permit, license or approval, except
any such violation of law or regulation, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals which would not, singly or in the
aggregate, result in a Material Adverse Change.
(aa) The statistical and market-related data included in the
Registration Statement and the Prospectus are derived from sources which the
Company
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reasonably and in good faith believes to be accurate, reasonable and reliable;
such data agrees in all material respects with the sources from which they were
derived, and to the Company's knowledge, such data reasonably describes the
markets or industries in which the Company conducts or proposes to conduct its
business.
(bb) The Company does not own any shares of stock or any other
equity securities of any corporation or have any equity interest in any firm,
partnership, association or other entity, except as described in the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus).
(cc) The Securities have been duly authorized for listing on
The Nasdaq Stock Market's National Market (the "Nasdaq National Market"),
subject to official notice of issuance. The Common Stock is registered pursuant
to Section 12(g) of the Exchange Act. A registration statement has been filed on
Form 8-A pursuant to Section 12 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), which registration statement complies in all
material respects with the Exchange Act. The Company has taken no action
designed to, or likely to have the effect of, terminating the registration of
the Common Stock under the Exchange Act or quotation the Common Stock on the
Nasdaq National Market, nor has the Company received any notification that the
Commission of the Nasdaq National Market is contemplating terminating such
registration or quotation.
(dd) The Company maintains 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.
(ee) No default exists, and no event has occurred which, with
notice or lapse of time or both, would constitute a default in the due
performance and observance of any term, covenant or condition of any material
indenture, mortgage, deed of trust, lease or other agreement or instrument to
which the Company is a party or by which the Company or any of its properties
are bound or may be affected in any material adverse respect with regard to the
property, business or operations of the Company.
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(ff) Except as disclosed in the Prospectus or except as not
reasonably required to be disclosed in the Prospectus, there are no outstanding
loans, advances, or guarantees of indebtedness by the Company to or for the
benefit of any of the executive officers or directors of the Company or any of
the members of the families of any of them.
(gg) Neither the Company nor any other person associated with
or acting on behalf of the Company including, without limitation, any director,
officer, agent or employee of the Company has offered or caused the Underwriters
to offer any of the Securities to any person pursuant to the Directed Share
Program with the specific intent to unlawfully influence (i) a customer or
supplier of the Company to alter the customer's or supplier's level or type of
business with the Company or (ii) a trade journalist or publication to write or
publish favorable information about the Company or its products.
(hh) The agreement between the Company and Xxxxxxx Xxxxxxx,
Inc. filed as exhibit 10.19 to the Registration Statement and each of the
amendments to such agreement incorporated in such exhibit have each been duly
authorized, executed and delivered by the Company, are valid and binding
agreements of the Company and are currently in full force and effect in
accordance with their respective terms. To the best knowledge of such counsel,
no default exists, and no event has occurred which, with notice or lapse of time
or both, would constitute a default in the due performance of any term, covenant
or condition of such agreement between the Company and Xxxxxxx Xxxxxxx, Inc., as
so amended.
(ii) The Company has not received any communication (whether
written or oral) relating to the termination or threatened termination or
modification or threatened modification of any material consulting, licensing,
marketing, research and development, cooperative or any similar agreement,
including, without limitation, the collaborative research and license agreements
listed under the sections of the Prospectus entitled, "Business-Corporate
Collaborations and Technology Access Programs."
(jj) All offers and sales of capital stock of the Company
prior to the date hereof were at all relevant times duly registered or exempt
from the registration requirements of the Securities Act and were duly
registered or subject to an available exemption from the registration
requirements of the applicable state securities or Blue Sky laws.
3. Purchase, Sale and Delivery of the Securities.
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(a) On the basis of the representations, warranties,
agreements and covenants herein contained and subject to the terms and
conditions herein set forth, the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters, severally and not jointly, agrees to
purchase from the Company, at a purchase price of $[______] per share, the
number of Firm Securities set forth opposite the name of such Underwriter in
Schedule I hereto. One or more certificates in definitive form for the Firm
Securities that the several Underwriters have agreed to purchase hereunder, and
in such denomination or denominations and registered in such name or names as
the Representatives request upon notice to the Company at least 48 hours prior
to the Firm Closing Date, shall be delivered by or on behalf of the Company to
the Representatives for the respective accounts of the Underwriters, against
payment by or on behalf of the Underwriters of the purchase price therefor by
wire transfer in same-day funds (the "Wired Funds") to the account of the
Company. Such delivery of and payment for the Firm Securities shall be made at
the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois), 000 Xxxx Xxxxxx
Xxxxx, Xxxxxxx, Xxxxxxxx, at 9:30 A.M., Chicago time, on [__________________],
2000, or at such other place, time or date as the Representatives and the
Company may agree upon or as the Representatives may determine pursuant to
Section 9 hereof, such time and date of delivery against payment being herein
referred to as the "Firm Closing Date." The Company will make such certificate
or certificates for the Firm Securities available for checking and packaging by
the Representatives at the offices in New York, New York of the Company's
transfer agent or registrar or of Prudential Securities Incorporated at least 24
hours prior to the Firm Closing Date.
(b) For the purpose of covering any over-allotments in
connection with the distribution and sale of the Firm Securities as contemplated
by the Prospectus, the Company hereby grants to the several Underwriters an
option to purchase, severally and not jointly, the Option Securities. The
purchase price to be paid for any Option Securities shall be the same price per
share as the price per share for the Firm Securities set forth above in
paragraph (a) of this Section 3. The option granted hereby may be exercised as
to all or any part of the Option Securities from time to time within (thirty)
days after the date of the Prospectus (or, if such 30th day shall be a Saturday
or Sunday or a holiday, on the next business day thereafter when the New York
Stock Exchange is open for trading). The Underwriters shall not be under any
obligation to purchase any of the Option Securities prior to the exercise of
such option. The Representatives may from time to time exercise the option
granted hereby by giving notice in writing or by telephone (confirmed in
writing) to the Company setting forth the aggregate number of Option Securities
as to which the several Underwriters are then exercising the option
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and the date and time for delivery of and payment for such Option Securities.
Any such date of delivery shall be determined by the Representatives but shall
not be earlier than two business days or later than five business days after
such exercise of the option and, in any event, shall not be earlier than the
Firm Closing Date. The time and date set forth in such notice, or such other
time on such other date as the Representatives and Company may agree upon or as
the Representatives may determine pursuant to Section 9 hereof, is herein called
the "Option Closing Date" with respect to such Option Securities. The obligation
of each Underwriter to the Company shall be to purchase from the Company that
number of shares of the Option Securities which represents the same proportion
of the total number of shares of the Option Securities to be sold by each of the
Company pursuant to this Agreement as the number of shares of the Option
Securities set forth opposite the name of such Underwriter in Schedule I hereto
represents of the total number of shares of Option Securities to be purchased by
all Underwriters pursuant to this Agreement, as adjusted by you in such manner
as you deem advisable to avoid fractional shares. In entering into this
Agreement, each Underwriter is contracting severally and not jointly; except as
provided in Section 9, the agreement of each Underwriter is to purchase only the
respective number of shares of the Option Securities as specified in Schedule I.
If the option is exercised as to all or any portion of the Option Securities,
one or more certificates in definitive form for such Option Securities, and
payment therefor, shall be delivered on the related Option Closing Date in the
manner, and upon the terms and conditions, set forth in paragraph (a) of this
Section 3, except that reference therein to the Firm Securities and the Firm
Closing Date shall be deemed, for purposes of this paragraph (b), to refer to
such Option Securities and Option Closing Date, respectively.
(c) The Company hereby acknowledges that the wire transfer by
or on behalf of the Underwriters of the purchase price for any Securities does
not constitute closing of a purchase and sale of the Securities. Only execution
and delivery of a receipt for Securities by the Underwriters indicates
completion of the closing of a purchase of the Securities from the Company.
Furthermore, in the event that the Underwriters wire funds to the Company prior
to the completion of the closing of a purchase of Securities, the Company hereby
acknowledges that until the Underwriters execute and deliver a receipt for the
Securities, by facsimile or otherwise, the Company will not be entitled to the
Wired Funds and shall return the Wired Funds to the Underwriters as soon as
practicable (by wire transfer of same-day funds) upon demand. In the event that
the closing of a purchase of Securities is not completed and the Wired Funds are
not returned by the Company to the Underwriters on the same day the Wired Funds
were received by such party, such party agrees to pay to the Underwriters in
respect of each day the Wired Funds are not returned by it, in same-day funds,
interest on the amount
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of such Wired Funds in an amount representing the Underwriters' cost of
financing as reasonably determined by Prudential Securities Incorporated.
(d) It is understood that any of you, individually and not as
one of the Representatives, may (but shall not be obligated to) make payment on
behalf of any Underwriter or Underwriters for any of the Securities to be
purchased by such Underwriter or Underwriters. No such payment shall relieve
such Underwriter or Underwriters from any of its or their obligations hereunder.
4. Offering by the Underwriters. Upon your authorization of the release
of the Firm Securities, the several Underwriters propose to offer the Firm
Securities for sale to the public upon the terms set forth in the Prospectus.
5. Covenants of the Company. The Company covenants and agrees with each
of the Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statement, if not effective at the time of execution of this
Agreement, and any amendments thereto to become effective as promptly as
possible. If required, the Company will file the Prospectus or any Term Sheet
that constitutes a part thereof and any amendment or supplement thereto with the
Commission in the manner and within the time period required by Rules 434 and
424(b) under the Act. During any time when a prospectus relating to the
Securities is required to be delivered under the Act, the Company: (i) will
comply with all requirements imposed upon it by the Act and the rules and
regulations of the Commission thereunder to the extent necessary to permit the
continuance of sales of or dealings in the Securities in accordance with the
provisions hereof and of the Prospectus, as then amended or supplemented, and
(ii) will not file with the Commission the prospectus, Term Sheet or the
amendment referred to in the second sentence of Section 2(a) hereof, any
amendment or supplement to such Prospectus, Term Sheet or any amendment to the
Registration Statement or any Rule 462(b) Registration Statement of which the
Representatives previously have been advised and furnished with a copy for a
reasonable period of time prior to the proposed filing and as to which filing
the Representatives shall not have given their consent. The Company will prepare
and file with the Commission, in accordance with the rules and regulations of
the Commission, promptly upon request by the Representatives or counsel for the
Underwriters, any amendments to the Registration Statement or amendments or
supplements to the Prospectus that may be necessary or advisable in connection
with the distribution of the Securities by the several Underwriters, and will
use its best efforts to cause any such amendment to the Registration Statement
to be declared effective by the
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Commission as promptly as possible. The Company will advise the Representatives,
promptly after receiving notice thereof, of the time when the Registration
Statement or any amendment thereto has been filed or declared effective or the
Prospectus or any amendment or supplement thereto has been filed and will
provide evidence satisfactory to the Representatives of each such filing or
effectiveness.
(b) The Company will advise the Representatives, promptly
after receiving notice or obtaining knowledge thereof, of: (i) the issuance by
the Commission of any stop order suspending the effectiveness of the Original
Registration Statement or any Rule 462(b) Registration Statement or any
amendment thereto or any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or any amendment or supplement thereto,
(ii) the suspension of the qualification of the Securities for offering or sale
in any jurisdiction, (iii) the institution, threatening or contemplation of any
proceeding for any such purpose, or (iv) any request made by the Commission for
amending the Original Registration Statement or any Rule 462(b) Registration
Statement, for amending or supplementing the Prospectus or for additional
information. The Company will use its best efforts to prevent the issuance of
any such stop order and, if any such stop order is issued, to obtain the
withdrawal thereof as promptly as possible.
(c) The Company will arrange for the qualification of the
Securities for offering and sale under the securities or blue sky laws of such
jurisdictions as the Representatives may designate and will continue such
qualifications in effect for as long as may be necessary to complete the
distribution of the Securities, provided, however, that in connection therewith
the Company shall not be required to qualify as a foreign corporation or to
execute a general consent to service of process in any jurisdiction where it is
not otherwise qualified or subject to jurisdiction.
(d) If, at any time prior to the later of: (i) the final date
when a prospectus relating to the Securities is required to be delivered under
the Act, or (ii) the Option Closing Date, any event occurs as a result of which
the Prospectus, as then amended or supplemented, would include any untrue
statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, or if for any other reason it is necessary at
any time to amend or supplement the Prospectus to comply with the Act or the
rules or regulations of the Commission thereunder, the Company will promptly
notify the Representatives thereof and, subject to Section 5(a) hereof, will
prepare and file with the Commission, at the Company's expense, an amendment to
the
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Registration Statement or an amendment or supplement to the Prospectus that
corrects such statement or omission or effects such compliance.
(e) The Company will, without charge, provide: (i) to the
Representatives and to counsel for the Underwriters a conformed copy of the
registration statement originally filed with respect to the Securities and each
amendment thereto (in each case including exhibits thereto) or any Rule 462(b)
Registration Statement, certified by the Secretary or an Assistant Secretary of
the Company to be true and complete copies thereof as filed with the Commission
by electronic transmission, (ii) to each other Underwriter, a conformed copy of
such registration statement or any Rule 462(b) Registration Statement and each
amendment thereto (in each case without exhibits thereto), and (iii) so long as
a prospectus relating to the Securities is required to be delivered under the
Act, as many copies of each Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto as the Representatives may reasonably request;
without limiting the application of clause (iii) of this sentence, the Company,
not later than (A) 6:00 P.M., New York City time, on the date of determination
of the public offering price, if such determination occurred at or prior to
10:00 A.M., New York City time, on such date, or (B) 2:00 P.M., New York City
time, on the business day following the date of determination of the public
offering price, if such determination occurred after 10:00 A.M., New York City
time, on such date, will deliver to the Underwriters, without charge, as many
copies of the Prospectus and any amendment or supplement thereto as the
Representatives may reasonably request for purposes of confirming orders that
are expected to settle on the Firm Closing Date.
(f) The Company, as soon as practicable, will make generally
available to its securityholders and to the Representatives an earnings
statement of the Company that satisfies the provisions of Section 11(a) of the
Act and Rule 158 thereunder.
(g) The Company will apply the net proceeds from the sale of
the Securities as set forth under "Use of Proceeds" in the Prospectus.
(h) The Company will not, directly or indirectly, without the
prior written consent of Prudential Securities Incorporated, on behalf of the
Underwriters, offer, sell, offer to sell, contract to sell, pledge, grant any
option to purchase or otherwise sell or dispose (or announce any offer, sale,
offer of sale, contract of sale, pledge, grant of any option to purchase or
other sale or disposition) of any shares of Common Stock or any securities
convertible into or exchangeable or exercisable for shares of Common Stock for a
period of 180 days from the date of the Xxxxxxxxxx,
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except pursuant to this Agreement and except for issuances pursuant to employee
benefit plans or stock option plans of the Company existing on the date hereof
or pursuant to the terms of convertible securities of the Company outstanding on
the date hereof, in each case pursuant to any plans described in the Prospectus.
(i) The Company will not, directly or indirectly, (i) take any
action designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Securities, or (ii) (A) sell, bid for, purchase, or pay anyone any compensation
for soliciting purchases of, the Securities, or (B) pay or agree to pay to any
person any compensation for soliciting another to purchase any other securities
of the Company.
(j) If at any time during the 25-day period after the
Registration Statement becomes effective or the period prior to the Option
Closing Date, any rumor, publication or event relating to or affecting the
Company shall occur as a result of which in your opinion the market price of the
Common Stock has been or is likely to be materially affected (regardless of
whether such rumor, publication or event necessitates a supplement to or
amendment of the Prospectus), the Company will, after notice from you advising
the Company to the effect set forth above, forthwith prepare, consult with you
concerning the substance of, and disseminate a press release or other public
statement, reasonably satisfactory to you, responding to or commenting on such
rumor, publication or event.
(k) If the Company elects to rely on Rule 462(b), the Company
shall both file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) and pay the applicable fees in accordance with Rule
111 promulgated under the Act by the earlier of: (i) 10:00 P.M. Eastern time on
the date of this Agreement, and (ii) the time confirmations are sent or given,
as specified by Rule 462(b)(2).
(l) The Company will cause the Securities to be duly included
for quotation on The Nasdaq National Market prior to the Firm Closing Date. The
Company will ensure that the Securities remain included for quotation on the
Nasdaq National Market following the Firm Closing Date.
(m) In connection with the Directed Share Program, the Company
will ensure that the Directed Shares will be restricted to the extent required
by the National Association of Securities Dealers, Inc. (the "NASD") or the NASD
rules from sale, transfer, assignment, pledge or hypothecation for a period of
three months following the
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date of the effectiveness of the Registration Statement. Prudential Securities
Incorporated will notify the Company as to which Participants will need to be
restricted. The Company will direct the transfer agent to place stop transfer
restrictions upon such securities for such period of time.
6. Expenses. The Company will pay all costs and expenses incident to
the performance of its obligations under this Agreement, whether or not the
transactions contemplated herein are consummated or this Agreement is terminated
pursuant to Section 11 hereof, including all costs and expenses incident to: (i)
the printing or other production of documents with respect to the transactions,
including any costs of printing the registration statement originally filed with
respect to the Securities and any amendment thereto, any Rule 462(b)
Registration Statement, any Preliminary Prospectus and the Prospectus and any
amendment or supplement thereto, this Agreement and any blue sky memoranda, (ii)
all arrangements relating to the delivery to the Underwriters of copies of the
foregoing documents, (iii) the fees and disbursements of the counsel, the
accountants and any other experts or advisors retained by the Company, (iv)
preparation, issuance and delivery to the Underwriters of any certificates
evidencing the Securities, including transfer agent's and registrar's fees, (v)
the qualification of the Securities under state securities and blue sky laws,
including filing fees and fees and disbursements of counsel for the Underwriters
relating thereto, (vi) the filing fees of the Commission and the NASD relating
to the Securities and the fees of underwriters' counsel incurred in connection
with the review of the Offering by the NASD, (vii) any quotation of the
Securities on The Nasdaq National Market, (viii) any meetings with prospective
investors in the Securities (other than as shall have been specifically approved
by the Representatives to be paid for by the Underwriters), (ix) advertising
relating to the offering of the Securities (other than as shall have been
specifically approved by the Representatives to be paid for by the
Underwriters), (x) fees and disbursements of counsel for the Underwriters in
connection with the matters relating to the Directed Share Program and (xi)
stamp duties, similar taxes or duties or other taxes, if any incurred by the
Underwriters in connection with the Directed Share Program.
If the sale of the Securities provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 7 hereof is not satisfied, because this Agreement is terminated
pursuant to Section 11 hereof or because of any failure, refusal or inability on
the part of the Company to perform all obligations and satisfy all conditions on
its part to be performed or satisfied hereunder other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all reasonable out-of-pocket
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expenses (including counsel fees and disbursements) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities. The Company shall not in any event be liable to any of the
Underwriters for the loss of anticipated profits from the transactions covered
by this Agreement.
7. Conditions of the Underwriters' Obligations. The obligations of the
several Underwriters to purchase and pay for the Firm Securities shall be
subject, in the Representatives' sole discretion, to the accuracy of the
representations and warranties of the Company contained herein as of the date
hereof and as of the Firm Closing Date, as if made on and as of the Firm Closing
Date, to the accuracy of the statements of the Company's officers made pursuant
to the provisions hereof, to the performance by the Company of its covenants and
agreements hereunder and to the following additional conditions:
(a) If the Original Registration Statement or any amendment
thereto filed prior to the Firm Closing Date has not been declared effective as
of the time of execution hereof, the Original Registration Statement or such
amendment and, if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement, shall have been declared effective not later than
the earlier of: (i) 11:00 A.M., New York time, on the date on which the
amendment to the registration statement originally filed with respect to the
Securities or to the Registration Statement, as the case may be, containing
information regarding the initial public offering price of the Securities has
been filed with the Commission, and (ii) the time confirmations are sent or
given as specified by Rule 462(b)(2), or with respect to the Original
Registration Statement, or such later time and date as shall have been consented
to in writing by the Representatives; if required, the Prospectus or any Term
Sheet that constitutes a part thereof and any amendment or supplement thereto
shall have been filed with the Commission in the manner and within the time
period required by Rules 434 and 424(b) under the Act; no stop order suspending
the effectiveness of the Registration Statement or any amendment thereto shall
have been issued, and no proceedings for that purpose shall have been instituted
or threatened or, to the knowledge of the Company or the Representatives, shall
be contemplated by the Commission; and the Company shall have complied with any
request of the Commission for additional information (to be included in the
Registration Statement or the Prospectus or otherwise).
(b) The Representatives shall have received an opinion, dated
the Firm Closing Date, of Xxxxxxxx Xxxxxxxxx Professional Corporation, counsel
for the Company, to the effect that:
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(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation and is duly
qualified to do business as a foreign corporation and is in
good standing under the laws of all other jurisdictions where
the ownership or leasing of its properties or the conduct of
its business requires such qualification, except where the
failure to be so qualified would result in a Material Adverse
Change.
(ii) the Company has full corporate power to own or
lease its properties and conduct its business as described in
the Registration Statement and the Prospectus or, if the
Prospectus is not in existence, the most recent Preliminary
Prospectus; and the Company has full corporate power to enter
into this Agreement and to consummate the transactions
contemplated hereby;
(iii) the Company's authorized, issued and
outstanding capital stock as of September 30, 2000 is as set
forth in the Prospectus under the caption "Capitalization,"
and, after giving effect to the offering, will be as set forth
under the column "Pro Forma As Adjusted" under the caption
"Capitalization" (except for subsequent issuances, if any,
pursuant to this Agreement, pursuant to reservations,
agreements or employee benefit plans referred to in the
Prospectus or pursuant to the exercise of options, warrants or
other rights referred to in the Prospectus). Except as
described in the Prospectus, there are no outstanding options,
warrants or other rights to purchase, agreements to issue or
other rights to convert any obligations into shares of capital
stock of the Company;
(iv) the Firm Securities and the Option Securities
have been duly authorized and at the Firm Closing Date or the
related Option Closing Date (as the case may be), after
delivery and payment therefor in accordance herewith, will be
validly issued, fully paid and nonassessable. No holders of
outstanding shares of capital stock of the Company are
entitled as such to any preemptive or other rights to
subscribe for any of the Securities, and no holder of
securities of the Company has any right which has not been
fully exercised or waived to require the Company to register
the offer or sale of any securities owned by such holder under
the Act in the public offering contemplated by this Agreement;
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(v) the statements set forth: (A) under the heading
"Business-Corporate Collaborations and Technology Access
Programs," "Description of Capital Stock," "Certain
Transactions," "Management" and "Shares Eligible for Future
Sale" in the Prospectus, and (B) in the Registration Statement
under Item 14, insofar as such statements constitute matters
of law, summaries of legal matters, the Company's Amended and
Restated Certificate of Incorporation and by-laws, legal
proceedings or legal conclusions, have been reviewed by us and
are correct in all material respects. Accurate copies of all
contracts and other documents required to be filed as exhibits
to, or described in, the Registration Statement have been so
filed with the Commission or are fairly described in the
Registration Statement, as the case may be;
(vi) the execution and delivery of this Agreement
have been duly authorized by all necessary corporate action of
the Company, and this Agreement has been duly executed and
delivered by the Company;
(vii) the agreement between the Company and Xxxxxxx
Xxxxxxx, Inc. filed as exhibit 10.19 to the Registration
Statement and each of the amendments to such agreement
incorporated in such exhibit have each been duly authorized,
executed and delivered by the Company, are valid and binding
agreements of the Company and are currently in full force and
effect in accordance with their respective terms, and, to the
best knowledge of such counsel, no default exists, and no
event has occurred which, with notice or lapse of time or
both, would constitute a default in the due performance of any
term, covenant or condition of such agreement between the
Company and Xxxxxxx Xxxxxxx, Inc., as so amended;
(viii) (A) no legal or governmental proceedings are
pending to which the Company is a party or to which the
property of the Company is subject that are required to be
described in the Registration Statement or the Prospectus and
are not described therein, and, to the best knowledge of such
counsel, no such proceedings have been threatened against the
Company or any of its subsidiaries or with respect to any of
their respective properties, and (B) no contract or other
document is required to be described in the Registration
Statement or the Prospectus
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or to be filed as an exhibit to the Registration Statement
that is not described therein or filed as required;
(ix) the issuance, offering and sale of the
Securities to the Underwriters by the Company pursuant to this
Agreement, the compliance by the Company with the other
provisions of this Agreement and the consummation of the other
transactions herein contemplated do not and will not: (A)
require the consent, approval, authorization, registration or
qualification of or with any governmental authority, except
such as have been obtained and such as may be required under
state securities or blue sky laws, or (B) conflict with or
result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, lease or other agreement or
instrument, known to such counsel, to which the Company is a
party or by which the Company or any of its properties are
bound, or the Amended and Restated Certificate of
Incorporation or by-laws of the Company, or any statute or any
judgment, decree, order, rule or regulation of any court or
other governmental authority or any arbitrator known to such
counsel and applicable to the Company;
(x) the Registration Statement is effective under the
Act; any required filing of the Prospectus, or any Term Sheet
that constitutes a part thereof, pursuant to Rules 434 and
424(b) has been made in the manner and within the time period
required by Rules 434 and 424(b); and no stop order suspending
the effectiveness of the Registration Statement or any
amendment thereto has been issued, and no proceedings for that
purpose have been instituted or, to the best knowledge of such
counsel, have been threatened or are contemplated by the
Commission;
(xi) except for omission of a bona fide estimate of
the maximum offering price from the Original Registration
Statement as filed with the Commission on March 3, 2000, the
Registration Statement originally filed with respect to the
Securities and each amendment thereto, any Rule 462(b)
Registration Statement and the Prospectus (in each case, other
than the financial statements and other financial information
contained therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the
applicable
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requirements of the Act and the rules and regulations of the
Commission thereunder; and
(xii) if the Company elects to rely on Rule 434, the
Prospectus is not "materially different", as such term is used
in Rule 434, from the prospectus included in the Registration
Statement at the time of its effectiveness or an effective
post-effective amendment thereto (including such information
that is permitted to be omitted pursuant to Rule 430A).
(xiii) All offers and sales of Common Stock to
Xxxxxxx Xxxxxxx, Inc. and of the Company's Series C preferred
stock prior to the date hereof were at all relevant times duly
registered or exempt from the registration requirements of the
Securities Act and were duly registered or subject to an
available exemption from the registration requirements of the
applicable state securities or Blue Sky laws.
Such counsel shall also state that they have no reason to believe that
the Registration Statement (except for the financial statements and other
financial information contained therein, as to which such counsel need express
no opinion), as of its effective date and the date of such opinion, contained
any untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein, not
misleading, or that the Prospectus, as of its date or the date of such opinion,
included or includes any untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and public officials.
References to the Registration Statement and the Prospectus in this
paragraph (b) shall include any amendment or supplement thereto at the date of
such opinion.
(c) The Representatives shall have received an opinion, dated
the Firm Closing Date, of Xxxx Xxxxxxxx & Xxxxx LLC, counsel for the Company, to
the effect that:
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(i) all of the issued shares of capital stock of the
Company have been duly authorized and validly issued and are
fully paid and nonassessable; none of the outstanding shares
of capital stock of the Company was issued in violation of the
preemptive or other similar rights of any security holder of
the Company. The shares of the issued and outstanding capital
stock of the Company have been issued in compliance with all
federal and state securities laws; and no preemptive rights
of, or rights of refusal in favor of, stockholders exist with
respect to the Common Stock, or the issue and sale thereof,
pursuant to the certificate of incorporation or bylaws of the
Company, and there are no contractual or statutory preemptive
rights that have not been waived, rights of first refusal or
rights of co-sale which exist with respect to the issue and
sale of the Common Stock; and
(ii) except for any issuance of capital stock covered
by the opinion of Xxxxxxxx Ingersoll Professional Corporation,
all offers and sales of capital stock of the Company prior to
the date hereof were at all relevant times duly registered or
exempt from the registration requirements of the Securities
Act and were duly registered or subject to an available
exemption from the registration requirements of the applicable
state securities or Blue Sky laws.
(d) The Representatives shall have received on the Firm
Closing Date from XxXxxxxxx Xxxxxxx Xxxxxxx & Xxxxxxxx, patent counsel for the
Company, an opinion, addressed to the Representatives and dated such Closing
Date, and stating in effect that:
(i) The information in the Prospectus under "Risk
Factors-Risks Related to Our Business-If our intellectual
property rights are not adequate, then third parties could use
our technologies and significantly impair our ability to
compete," "Risk Factors-Risks Related to Our Business-Our
success will depend partly on our ability to operate without
infringing on or utilizing the proprietary rights of others"
and "Business-Intellectual Property Rights," to the extent
that it constitutes matters of law, summaries of legal
matters, documents or proceedings, or legal conclusions, has
been reviewed by them and is correct in all material respects
and fairly and correctly presents the information called for
with respect thereto.
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(ii) To the best of such counsel's knowledge, there
are no pending or, to the best of their knowledge, threatened
legal or governmental proceedings, nor allegations on the part
of any person of infringement, relating to patent rights,
trade secrets, trademarks, service marks, copyrights or other
proprietary information or know-how of the Company and no such
proceedings are threatened or contemplated.
(iii) To the best of such counsel's knowledge, the
Company is not infringing or otherwise violating any patents,
trade secrets, trademarks, service marks, copyrights or other
proprietary information or know-how of any persons, and no
person is infringing or otherwise violating any of the
Company's patents, trade secrets, trademarks, service marks,
copyrights or other proprietary information or know-how of the
Company.
(iv) To the best of such counsel's knowledge, the
Company owns or possesses sufficient licenses or other rights
to use all technology covered by patents or trade secrets, and
to use all trademarks, service marks or other proprietary
information or know-how necessary to conduct the business now
being or proposed to be conducted by the Company as described
in the Prospectus.
(v) To the best of such counsel's knowledge, the
Company's United States and foreign patents (the "Patents")
are valid and enforceable and are entitled to a statutory
presumption of validity and of ownership by the assignee. To
the best of such counsel's knowledge, there are no asserted or
unasserted claims of any persons relating to the scope or
ownership of any of the Patents or any of the Company's patent
applications, whether United States or foreign
("Applications"), there are no liens which have been filed
against any of the Patents or the Applications, there are no
material defects of form in the preparation or filing of the
Applications, the Applications are being diligently prosecuted
and none of the Applications has been finally rejected or
abandoned. The Company is listed on the records of the United
States Patent and Trademark Office ("PTO") or appropriate
foreign patent offices as the sole assignee of record thereof.
(vi) Nothing has come to such counsel's attention
that leads them to believe that any of the Applications will
not eventuate in issued
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patents, or that any patents issued in respect of any such
Applications will not be valid or will not afford the Company
patent protection described by the claims therein.
(vii) The Company is the exclusive licensee of the
Patents and Applications so identified in such counsel's
opinion and is the non- exclusive licensee of the Patents and
Applications so identified in such counsel's opinion. All
licenses of the Company to patents and Applications, whether
United States or foreign, are duly executed, validly binding
and enforceable in accordance with their terms and, to such
counsel's knowledge, the Company is not in default (declared
or undeclared) of any material provision of such licenses.
(viii) To the best of such counsel's knowledge, all
pertinent prior art references known to the Company or its
counsel during the prosecution of the Patents and the
Applications were disclosed to the PTO, and neither such
counsel nor the Company made any misrepresentation to, or
concealed any material fact from, the PTO during such
prosecution.
(ix) To the best of such counsel's knowledge, there
are no asserted or unasserted claims of any persons relating
to the scope or ownership of any of the Company's trademark
applications, there are no liens which have been filed against
any of such applications, there are no material defects of
form in the preparation or filing of such applications, such
applications are being diligently prosecuted, and none of such
applications has been finally rejected or abandoned.
(x) Nothing has come to such counsel's attention that
leads them to believe that any of the Company trademark
applications filed with the PTO will not eventuate in
registered trademarks, or that any trademark registrations
issued in respect of any such applications will not be valid
or will not afford the Company reasonable trademark protection
relative to the subject matter thereof.
(xi) To the best of such counsel's knowledge, the
Company takes security measures adequate to assert trade
secret protection in its non-patented technology.
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(xii) The agreements executed by the Company's
employees, consultants and other advisors respecting trade
secrets, confidentiality or intellectual property rights are
valid, binding and enforceable in accordance with their
express terms.
Such counsel shall also state that they have no reason to believe that,
with respect to the licenses, patents, trademarks, service marks, trade secrets,
copyrights or other proprietary information or know-how owned or used by the
Company which are the subject of the foregoing paragraphs (i)-(xii) of this
subsection (c), the Registration Statement, as of its effective date and the
date of such opinion, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the Prospectus, as of its
date or the date of such opinion, included or includes any untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
(e) The Representatives shall have received an opinion, dated
the Firm Closing Date, of Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois),
counsel for the Underwriters, with respect to the issuance and sale of the Firm
Securities, the Registration Statement and the Prospectus, and such other
related matters as the Representatives may reasonably require, and the Company
shall have furnished to such counsel such documents as they may reasonably
request for the purpose of enabling them to pass upon such matters.
(f) The Representatives shall have received from
PricewaterhouseCoopers LLP a letter or letters dated, respectively, the date
hereof and the Firm Closing Date, in form and substance satisfactory to the
Representatives, to the effect that:
(i) they are independent accountants with respect to
the Company within the meaning of the Act and the applicable
rules and regulations thereunder;
(ii) in their opinion, the audited financial
statements and schedules examined by them and included in the
Registration Statement and the Prospectus comply in form in
all material respects with the applicable accounting
requirements of the Act and the related published rules and
regulations;
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(iii) on the basis of a reading of the latest
available interim unaudited financial statements of the
Company, carrying out certain specified procedures (which do
not constitute an examination made in accordance with
generally accepted auditing standards) that would not
necessarily reveal matters of significance with respect to the
comments set forth in this paragraph (iii), a reading of the
minute books of the stockholders, the board of directors and
any committees thereof of the Company, and inquiries of
certain officials of the Company who have responsibility for
financial and accounting matters, nothing came to their
attention that caused them to believe that:
(A) the unaudited financial statements of the Company
included in the Registration Statement and the
Prospectus do not comply in form in all material
respects with the applicable accounting requirements
of the Act and the related published rules and
regulations thereunder or are not in conformity with
generally accepted accounting principles applied on a
basis substantially consistent with that of the
audited financial statements included in the
Registration Statement and the Prospectus; and
(B) at a specific date not more than five business
days prior to the date of such letter, there were any
changes in the capital stock or long-term debt of the
Company or any decreases in net current assets or
stockholders' equity of the Company, in each case
compared with amounts shown on the September 30, 2000
unaudited balance sheet included in the Registration
Statement and the Prospectus, or for the period from
October 1, 2000 to the Firm Closing Date;
(iv) they have carried out certain specified
procedures, not constituting an audit, with respect to certain
amounts, percentages and financial information that are
derived from the general accounting records of the Company and
are included in the Registration Statement and the Prospectus
under the captions "Summary Financial Data," "Capitalization,"
"Selected Financial Data," and "Management's Discussion and
Analysis of Financial Condition and Results of Operations," to
the Registration Statement, and have compared such
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amounts, percentages and financial information with such
records of the Company and with information derived from such
records and have found them to be in agreement, excluding any
questions of legal interpretation; and
In the event that the letters referred to above set forth any such
changes, decreases or increases, it shall be a further condition to the
obligations of the Underwriters that: (A) such letters shall be accompanied by a
written explanation of the Company as to the significance thereof, unless the
Representatives deem such explanation unnecessary, and (B) such changes,
decreases or increases do not, in the sole judgment of the Representatives, make
it impractical or inadvisable to proceed with the purchase and delivery of the
Securities as contemplated by the Registration Statement, as amended as of the
date hereof.
References to the Registration Statement and the Prospectus in this
paragraph (e) with respect to either letter referred to above shall include any
amendment or supplement thereto at the date of such letter.
(g) The Representatives shall have received from each person
who is a director or officer of the Company or who owns any securities of the
Company an agreement to the effect that such person will not, directly or
indirectly, without the prior written consent of Prudential Securities
Incorporated, on behalf of the Underwriters, offer, sell, offer to sell,
contract to sell, pledge, grant any option to purchase or otherwise sell or
dispose (or announce any offer, sale, offer of sale, contract of sale, pledge,
grant of any option to purchase or other sale or disposition) of any shares of
Common Stock or any securities convertible into, or exchangeable or exercisable
for, shares of Common Stock of the Company or file any registration statement
under the Act with respect to any of the foregoing for a period of 180 days from
the date of the Prospectus, except pursuant to this Agreement or pursuant to the
terms of any convertible securities of the Company outstanding on the date
hereof as described in the Prospectus.
(h) On or before the Firm Closing Date, the Representatives
and counsel for the Underwriters shall have received such further certificates,
documents or other information as they may have reasonably requested from the
Company.
(i) Prior to the commencement of the offering of the
Securities, the Securities shall have been included for trading on the Nasdaq
National Market.
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All opinions, certificates, letters and documents delivered pursuant to
this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Representatives and
counsel for the Underwriters. The Company shall furnish to the Representatives
such conformed copies of such opinions, certificates, letters and documents in
such quantities as the Representatives and counsel for the Underwriters shall
reasonably request.
The respective obligations of the several Underwriters to purchase and
pay for any Option Securities shall be subject, in their discretion, to each of
the foregoing conditions to purchase the Firm Securities, except that all
references to the Firm Securities and the Firm Closing Date shall be deemed to
refer to such Option Securities and the related Option Closing Date,
respectively.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Securities Exchange Act of
1934 (the "Exchange Act") against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter or such controlling person may
become subject under state law, common law, the Exchange Act, the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement
made by the Company in Section 2 of this Agreement;
(ii) any untrue statement or alleged untrue statement
of any material fact contained in: (A) the Registration
Statement or any amendment or supplement thereto, any
Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto, or (B) any application or other document,
or any amendment or supplement thereto, executed by the
Company or based upon written information furnished by or on
behalf of the Company filed in any jurisdiction (foreign or
domestic) in order to qualify the Securities under the
securities or blue sky laws thereof or filed with the
Commission or any securities association or securities
exchange (each a "Securities Application");
(iii) the omission or alleged omission to state in
the Registration Statement or any amendment or supplement
thereto, any
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Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto, or any Securities Application a material
fact required to be stated therein or necessary to make the
statements therein not misleading;
(iv) any untrue statement or alleged untrue statement
of any material fact contained in any audio or visual
materials provided by the Company or based upon written
information furnished by or on behalf of the Company,
including, without limitation, slides, videos, films, tape
recordings, used in connection with the marketing of the
Securities, including, without limitation, statements
communicated to securities analysts employed by the
Underwriters; or
(v) any untrue statement or alleged untrue statement
of a material fact included in the Prospectus or material
distributed in, in connection with the reservation and sale of
the Directed Share Program to Participants or the omission or
alleged omission therefrom of a material fact necessary to
make the statements therein, when considered in conjunction
with the Prospectuses or Preliminary Prospectuses, not
misleading provided that the Company shall not be responsible
for any losses, claim, damages or liabilities (or expenses
relating thereto) that are finally judicially determined to
have resulted from the bad faith or gross negligence of
Prudential Securities Incorporated.
and will reimburse, as incurred, each Underwriter and each such controlling
person for any legal or other expenses reasonably incurred by such Underwriter
or such controlling person in connection with investigating, defending against
or appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement or
any amendment thereto, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto or any Application in reliance upon and in
conformity with written information furnished to the Company by such Underwriter
through the Representatives specifically for use therein; and provided, further,
that the Company will not be liable to any Underwriter or any person controlling
such Underwriter with respect to any such untrue statement or omission made in
any Preliminary Prospectus that is corrected in the Prospectus (or any amendment
or supplement thereto) if the person asserting any such loss, claim, damage or
liability purchased Securities from
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such Underwriter but was not sent or given a copy of the Prospectus (as amended
or supplemented) at or prior to the written confirmation of the sale of such
Securities to such person in any case where such delivery of the Prospectus (as
amended or supplemented) is required by the Act and it shall have been
determined by a final judgment of a court of competent jurisdiction that any
Underwriter or any person controlling such Underwriter would not have incurred
such loss, claim, damage or liability had the Prospectus (as amended or
supplemented) been delivered or sent, unless such failure to deliver the
Prospectus (as amended or supplemented) was a result of noncompliance by the
Company with Section 5(d) and (e) of this Agreement. This indemnity agreement
will be in addition to any liability which the Company may otherwise have. The
Company will not, without the prior written consent of the Representatives,
settle or compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding in respect of which indemnification
may be sought hereunder (whether or not any such Underwriter or any person who
controls any such Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act is a party to such claim, action, suit or
proceeding), unless such settlement, compromise or consent includes an
unconditional release of all of the Underwriters and such controlling persons
from all liability arising out of such claim, action, suit or proceeding.
(b) Each Underwriter, severally and not jointly, will
indemnify and hold harmless the Company, each of its directors, each of its
officers who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act against any losses, claims, damages or liabilities to which
the Company or any such director, officer or controlling person of the Company
may become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon: (i) any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement or any amendment thereto, any
Preliminary Prospectus or the Prospectus or any amendment or supplement thereto,
or any Application, or (ii) the omission or the alleged omission to state
therein a material fact required to be stated in the Registration Statement or
any amendment thereto, any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto, or any Application or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company by such Underwriter through the Representatives specifically for use
therein; and, subject to the limitation set forth immediately
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preceding this clause, will reimburse, as incurred, any legal or other expenses
reasonably incurred by the Company or any such director, officer or controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or any action in respect thereof. This indemnity agreement
will be in addition to any liability which such Underwriter may otherwise have.
(c) In connection with the offer and sale of the Directed
Shares, the Company agrees, promptly upon a request, in writing to indemnify and
hold harmless the Underwriters from and against any and all losses, liabilities,
claims, damages and expenses incurred by them as a result of the failure of
Participants to pay for and accept delivery of Directed Shares which were
subject to a properly confirmed agreement to purchase.
(d) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party of the commencement thereof;
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 8. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to such indemnified
party; provided, however, that if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be one or more legal defenses available
to it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnifying party shall not have
the right to direct the defense of such action on behalf of such indemnified
party or parties, and such indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. After notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof and approval by such
indemnified party of counsel appointed to defend such action, the indemnifying
party will not be liable to such indemnified party under this Section 8 for any
legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the defense
thereof, unless: (i) the indemnified party shall have employed separate counsel
in accordance with the proviso to the next preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the expenses of more than one separate
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counsel (in addition to local counsel) in any one action or separate but
substantially similar actions in the same jurisdiction arising out of the same
general allegations or circumstances, designated by the Representatives in the
case of paragraph (a) of this Section 8, representing the indemnified parties
under such paragraph (a) who are parties to such action or actions), or (ii) the
indemnifying party does not promptly retain counsel satisfactory to the
indemnified party, or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the indemnifying party.
After such notice from the indemnifying party to such indemnified party, the
indemnifying party will not be liable for the costs and expenses of any
settlement of such action effected by such indemnified party without the consent
of the indemnifying party.
(e) In circumstances in which the indemnity agreement provided
for in the preceding paragraphs of this Section 8 is unavailable or
insufficient, for any reason, to hold harmless an indemnified party in respect
of any losses, claims, damages or liabilities (or actions in respect thereof),
each indemnifying party, in order to provide for just and equitable
contribution, shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect: (i) the
relative benefits received by the indemnifying party or parties on the one hand
and the indemnified party on the other from the offering of the Securities, or
(ii) if the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions or alleged statements
or omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total proceeds from the offering (before deducting expenses) received by
the Company bear to the total underwriting discounts and commissions received by
the Underwriters. The relative fault of the parties shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriters, the parties'
relative intents, knowledge, access to information and opportunity to correct or
prevent such statement or omission, and any other equitable considerations
appropriate in the circumstances. The Company and the Underwriters agree that it
would not be equitable if the amount of such contribution were determined by pro
rata or per capita allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not
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take into account the equitable considerations referred to above in this
paragraph (e). Notwithstanding any other provision of this paragraph (e), no
Underwriter shall be obligated to make contributions hereunder that in the
aggregate exceed the total public offering price of the Securities purchased by
such Underwriter under this Agreement, less the aggregate amount of any damages
that such Underwriter has otherwise been required to pay in respect of the same
or any substantially similar claim, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute hereunder are
several in proportion to their respective underwriting obligations and not
joint, and contributions among Underwriters shall be governed by the provisions
of the Prudential Securities Incorporated Master Agreement Among Underwriters.
For purposes of this paragraph (e), each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, shall
have the same rights to contribution as the Company.
9. Default of Underwriters. If one or more Underwriters default in
their obligations to purchase Firm Securities or Option Securities hereunder and
the aggregate number of such Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase is ten percent or less of the
aggregate number of Firm Securities or Option Securities to be purchased by all
of the Underwriters at such time hereunder, the other Underwriters may make
arrangements satisfactory to the Representatives for the purchase of such
Securities by other persons (who may include one or more of the non- defaulting
Underwriters, including the Representatives), but if no such arrangements are
made by the Firm Closing Date or the related Option Closing Date, as the case
may be, the other Underwriters shall be obligated severally in proportion to
their respective commitments hereunder to purchase the Firm Securities or Option
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase. If one or more Underwriters so default with respect to an aggregate
number of Securities that is more than ten percent of the aggregate number of
Firm Securities or Option Securities, as the case may be, to be purchased by all
of the Underwriters at such time hereunder, and if arrangements satisfactory to
the Representatives are not made within 36 hours after such default for the
purchase by other persons (who may include one or more of the non- defaulting
Underwriters, including the Representatives) of the Securities with respect to
which such default occurs, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter or the Company other than as provided
in Section 10
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hereof. In the event of any default by one or more Underwriters as described in
this Section 9, the Representatives shall have the right to postpone the Firm
Closing Date or the Option Closing Date, as the case may be, established as
provided in Section 3 hereof for not more than seven business days in order that
any necessary changes may be made in the arrangements or documents for the
purchase and delivery of the Firm Securities or Option Securities, as the case
may be. As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 9. Nothing herein shall
relieve any defaulting Underwriter from liability for its default.
10. Survival. The respective representations, warranties, agreements,
covenants, indemnities and other statements of the Company, its officers and the
several Underwriters set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement shall remain in full force and
effect, regardless of: (i) any investigation made by or on behalf of the
Company, any of its officers or directors, any Underwriter or any controlling
person referred to in Section 8 hereof and (ii) delivery of and payment for the
Securities. The respective agreements, covenants, indemnities and other
statements set forth in Sections 2, 5, 6 and 8 hereof shall remain in full force
and effect, regardless of any termination or cancellation of this Agreement.
11. Termination.
(a) This Agreement may be terminated with respect to the Firm
Securities or any Option Securities in the sole discretion of the
Representatives by notice to the Company given prior to the Firm Closing Date or
the related Option Closing Date, respectively, in the event that the Company
shall have failed, refused or been unable to perform all obligations and satisfy
all conditions on its part to be performed or satisfied hereunder at or prior
thereto or, if at or prior to the Firm Closing Date or such Option Closing Date,
respectively,
(i) the Company shall have, in the sole judgment of
the Representatives, sustained any material loss or
interference with their respective businesses or properties
from fire, flood, hurricane, accident or other calamity,
whether or not covered by insurance, or from any labor dispute
or any legal or governmental proceeding or there shall have
been any Material Adverse Change, or any development involving
a prospective Material Adverse Change (including without
limitation a change in management or control of the Company);
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(ii) trading in the Common Stock shall have been
suspended by the Commission or the Nasdaq National Market or
trading in securities generally on the New York Stock Exchange
or the Nasdaq National Market shall have been suspended or
minimum or maximum prices shall have been established on any
such exchange or market system;
(iii) a banking moratorium shall have been declared
by New York or United States authorities; or
(iv) there shall have been: (A) an outbreak or
escalation of hostilities between the United States and any
foreign power, (B) an outbreak or escalation of any other
insurrection or armed conflict involving the United States, or
(C) any other calamity or crisis or material adverse change in
general economic, political or financial conditions having an
effect on the U.S. financial markets that, in the sole
judgment of the Representatives, makes it impractical or
inadvisable to proceed with the public offering or the
delivery of the Securities as contemplated by the Registration
Statement, as amended as of the date hereof.
(b) Termination of this Agreement pursuant to this Section 11
shall be without liability of any party to any other party except as provided in
Sections 6 and 10 hereof.
12. Information Supplied by Underwriters. The statements set forth: (a)
in the last paragraph on the front cover page, and (b) in the table below
paragraph 1 and in the text of paragraphs 3, 8, 9, 12 and 13 under the heading
"Underwriting" in any Preliminary Prospectus or the Prospectus (to the extent
such statements relate to the Underwriters) constitute the only information
furnished by any Underwriter through the Representatives to the Company for the
purposes of Sections 2(b) and 8 hereof. The Underwriters confirm that such
statements (to such extent) are correct.
13. Notices. All communications hereunder shall be in writing and, if
sent to any of the Underwriters, shall be delivered or sent by mail, telex or
facsimile transmission and confirmed in writing to Prudential Securities
Incorporated, Xxx Xxx Xxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000, Attention:
Xxxx-Xxxxxx Canfin; with a copy to Skadden, Arps, Slate, Xxxxxxx & Xxxx
(Illinois), 000 Xxxx Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000-0000, Attention: Xxxx
X. Xxxxxxxxx, Esq.; if sent to the
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Company, shall be delivered or sent by mail, telex or facsimile transmission and
confirmed in writing to the Company at 000 Xxxxxxx Xxxx Xxx, Xxxxxxxxxx,
Xxxxxxxxxxxx 00000, Attention: D. Lansing Xxxxxx, Ph.D.; with a copy to Xxxxxxxx
Ingersoll Professional Corporation, One Oxford Centre, 000 Xxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxxx and Xxxxx X. Xxxxx.
14. Successors. This Agreement shall inure to the benefit of and shall
be binding upon the several Underwriters, the Company and their respective
successors and legal representatives, and nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person any legal
or equitable right, remedy or claim under or in respect of this Agreement, or
any provisions herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person, except that: (i)
the indemnities of the Company contained in Section 8 of this Agreement shall
also be for the benefit of any person or persons who control any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
and (ii) the indemnities of the Underwriters contained in Section 8 of this
Agreement shall also be for the benefit of the directors of the Company, the
officers of the Company who have signed the Registration Statement and any
person or persons who control the Company within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act. No purchaser of Securities from any
Underwriter shall be deemed a successor because of such purchase.
15. Applicable Law. The validity and interpretation of this Agreement,
and the terms and conditions set forth herein, shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to any provisions relating to conflicts of laws.
16. Consent to Jurisdiction and Service of Process. All judicial
proceedings arising out of or relating to this Agreement may be brought in any
state or federal court of competent jurisdiction in the State of New York, and
by execution and delivery of this Agreement, the Company accepts for itself and
in connection with its properties, generally and unconditionally, the
nonexclusive jurisdiction of the aforesaid courts and waives any defense of
forum non conveniens and irrevocably agrees to be bound by any judgment rendered
thereby in connection with this Agreement.
17. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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If the foregoing correctly sets forth our understanding, please
indicate your acceptance thereof in the space provided below for that purpose,
whereupon this letter shall constitute an agreement binding the Company and each
of the several Underwriters.
Very truly yours,
CELLOMICS, INC.
By:
---------------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
PRUDENTIAL SECURITIES INCORPORATED
ING BARINGS LLC
XXXX XXXXXXXX INCORPORATED
By: PRUDENTIAL SECURITIES INCORPORATED
By:
----------------------------------
Xxxx-Xxxxxx Canfin
Managing Director
For itself and on behalf of the Representatives.
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SCHEDULE I
UNDERWRITERS
Number of Firm
Securities to
Underwriter be Purchased
----------- ------------
Prudential Securities Incorporated...............
ING Barings LLC..................................
Xxxx Xxxxxxxx Incorporated.......................
--------------
Total....................... 6,000,000
