Exhibit 1.1
CYNOSURE, INC.
5,000,000 Shares
Class A Common Stock
($0.001 par value)
UNDERWRITING AGREEMENT
____________________, 2005
UNDERWRITING AGREEMENT
New York, New York
December [__], 2005
Citigroup Global Markets Inc.
UBS Securities LLC
Xxxxxxxxx & Company, Inc.
Xxxxxxx & Company, Inc.
As Representatives of the several Underwriters,
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Cynosure, Inc., a corporation organized under the laws of Delaware
(the "Company"), proposes to sell to the several underwriters named in Schedule
I hereto (the "Underwriters"), for whom you (the "Representatives") are acting
as representatives, 4,000,000 shares of Class A Common Stock, $0.001 par value
("Class A Common Stock") of the Company, and BRCT, Inc., a Connecticut
corporation (the "Selling Stockholder"), a wholly owned subsidiary of El. En.
S.p.A., a corporation organized under the laws of Italy (the "Parent"), proposes
to sell to the several Underwriters 1,000,000 shares of Class A Common Stock
(said shares to be issued and sold by the Company and shares to be sold by the
Selling Stockholder collectively being hereinafter called the "Underwritten
Securities"). The Company also proposes to grant to the Underwriters an option
to purchase up to 750,000 additional shares of Class A Common Stock to cover
over-allotments (the "Option Securities"; the Option Securities, together with
the Underwritten Securities, being hereinafter called the "Securities"). To the
extent there are no additional Underwriters listed on Schedule I other than you,
the term Representatives as used herein shall mean you, as Underwriters, and the
terms Representatives and Underwriters shall mean either the singular or plural
as the context requires. The use of the neuter in this Agreement shall include
the feminine and masculine wherever appropriate. Certain terms used herein are
defined in Section 19 hereof.
1. Representations and Warranties.
(i) The Company, the Parent and the Selling Stockholder jointly and
severally represent and warrant to, and agree with, each Underwriter as set
forth below in this Section 1.
(a) The Company has prepared and filed with the Commission a
registration statement (file number 333-127463) on Form S-1, including a
related preliminary prospectus, for registration under the Act of the
offering and sale of
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the Securities. Such Registration Statement, including any amendments
thereto filed prior to the Execution Time, has become effective. The
Company may have filed one or more amendments thereto, including a related
preliminary prospectus, each of which has previously been furnished to
you. The Company will file with the Commission a final prospectus in
accordance with Rule 424(b). As filed, such final prospectus shall contain
all information required by the Act and the rules thereunder to be
included therein and, except to the extent the Representatives shall agree
in writing to a modification, shall be in all substantive respects in the
form furnished to you prior to the Execution Time or, to the extent not
completed at the Execution Time, shall contain only such specific
additional information and other changes (beyond that contained in the
latest Preliminary Prospectus) as the Company has advised you, prior to
the Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did, and when
the Prospectus is first filed in accordance with Rule 424(b) and on the
Closing Date (as defined herein) and on any date on which Option
Securities are purchased, if such date is not the Closing Date (a
"settlement date"), the Prospectus (and any supplements thereto) will,
comply in all material respects with the applicable requirements of the
Act and the rules thereunder; on the Effective Date and at the Execution
Time, the Registration Statement did not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; and on the date of any filing pursuant to Rule 424(b) and on
the Closing Date and any settlement date, the Prospectus (together with
any supplement thereto) will not, include any untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that the Company, the Parent
and the Selling Stockholder make no representations or warranties as to
the information contained in or omitted from the Registration Statement,
or the Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to the Company by or on
behalf of any Underwriter through the Representatives specifically for
inclusion in the Registration Statement or the Prospectus (or any
supplement thereto), it being understood and agreed that the only such
information furnished by any Underwriter consists of the information
described as such in Section 8 hereof.
(c) (i) The Disclosure Package and the price to the public, the
number of Underwritten Securities, the number of Option Securities and the
underwriting discount on the cover page of the Prospectus, when taken
together as a whole, and (ii) each electronic roadshow, when taken
together with the Disclosure Package and the price to the public, the
number of Underwritten Securities, the number of Option Securities and the
underwriting discount on the cover page of the
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Prospectus, do not contain 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 preceding sentence does not apply to statements in or
omissions from the Disclosure Package based upon and in conformity with
written information furnished to the Company by any Underwriter through
the Representatives specifically for use therein, it being understood and
agreed that the only such information furnished by or on behalf of any
Underwriter consists of the information described as such in Section 8
hereof.
(d) (i) At the time of filing the Registration Statement and (ii) as
of the Execution Time (with such date being used as the determination date
for purposes of this clause (ii)), the Company was not and is not an
Ineligible Issuer (as defined in Rule 405), without taking account any
determination by the Commission pursuant to Rule 405 that it is not
necessary that the Company be considered an Ineligible Issuer.
(e) Each Issuer Free Writing Prospectus does not include any
information that conflicts with the information contained in the
Registration Statement, including any document incorporated by reference
therein that has not been superseded or modified. The foregoing sentence
does not apply to statements in or omissions from any Issuer Free Writing
Prospectus based upon and in conformity with written information furnished
to the Company by any Underwriter through the Representatives specifically
for use therein, it being understood and agreed that the only such
information furnished by any Underwriter consists of the information
described as such in Section 8 hereof.
(f) Each of the Company and its subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is chartered or organized
with full corporate power and authority to own or lease, as the case may
be, and to operate its properties and conduct its business as described in
the Disclosure Package and the Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing under the laws
of each jurisdiction which requires such qualification, except where the
failure to be qualified as a foreign corporation could not reasonably be
expected, individually or in the aggregate, to have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Disclosure Package
and the Prospectus (exclusive of any supplement thereto).
(g) All the outstanding shares of capital stock of each subsidiary
have been duly and validly authorized and issued and are fully paid and
nonassessable,
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and, except as otherwise set forth in the Disclosure Package and the
Prospectus, all outstanding shares of capital stock of the subsidiaries
are owned by the Company either directly or through wholly owned
subsidiaries free and clear of any perfected security interest or any
other security interests, claims, liens or encumbrances.
(h) The entities listed on Annex A attached hereto are the only
subsidiaries of the Company as defined by Rule 1-02 of Regulation S-X (the
"Subsidiaries").
(i) The Company's authorized equity capitalization is as set forth
in the Disclosure Package and the Prospectus; the capital stock of the
Company, including the Class A Common Stock and the Company's Class B
Common Stock, par value $0.001 per share (the "Class B Common Stock," and
together with the Class A Common Stock, the "Common Stock"), conforms in
all material respects to the description thereof contained in the
Preliminary Prospectus and the Prospectus; the outstanding shares of
Common Stock (including the Securities being sold hereunder by the Selling
Stockholder) have been duly and validly authorized and issued and are
fully paid and nonassessable; the Securities being sold hereunder by the
Company have been duly and validly authorized, and, when issued and
delivered to and paid for by the Underwriters pursuant to this Agreement,
will be fully paid and nonassessable; the Securities being sold by the
Selling Stockholder are duly listed, and admitted and authorized for
trading, on the Nasdaq National Market and the Securities being sold
hereunder by the Company and the Selling Stockholder are duly listed, and
admitted and authorized for trading, subject to official notice of
issuance on the Nasdaq National Market; the certificates for the
Securities are in valid and sufficient form; the holders of outstanding
shares of capital stock of the Company are not entitled to preemptive or
other rights to subscribe for the Securities other than any such rights as
have heretofore been duly waived, or satisfied, in full; and, except as
set forth in the Disclosure Package and Prospectus, no options, warrants
or other rights to purchase, agreements or other obligations to issue, or
rights to convert any obligations into or exchange any securities for,
shares of capital stock of or ownership interests in the Company are
outstanding.
(j) There is no franchise, contract or other document of a character
required to be described in the Registration Statement or Prospectus, or
to be filed as an exhibit thereto, which is not described or filed as
required (and the Preliminary Prospectus contains in all material respects
the same description of the foregoing matters contained in the
Prospectus); and the statements in the Preliminary Prospectus and the
Prospectus under the headings "Risk Factors - Risks Related to our
Intellectual Property", "Risk Factors - Risks Related to Government
Regulation", "Risk Factors - Risks Relating to the Offering - Provisions
in our corporate charter documents and under Delaware law may
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prevent or frustrate attempts by our stockholders to change our management
and hinder efforts to acquire a controlling interest in us", "Business -
El. En. Commercial Relationship", "Business - Patents, Proprietary
Technology and Trademarks", "Business - Government Regulation",
"Management - Employment Agreements", "Management - Stock Option and Other
Compensation Plans", "Certain Relationships and Related Party
Transactions", "Description of Capital Stock" , "Shares Eligible for
Future Sale" and "Material U.S. Federal Income and Estate Tax Consequences
to Non-U.S. Holders", insofar as such statements summarize legal matters,
agreements, documents or proceedings discussed therein, are accurate and
fair summaries of such legal matters, agreements, documents or
proceedings.
(k) This Agreement has been duly authorized, executed and delivered
by the Company, the Parent and the Selling Stockholder.
(l) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Disclosure Package and the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of 1940, as
amended.
(m) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with the
transactions contemplated herein, except such as have been obtained under
the Act, the Exchange Act and the Corporate Financing Rule of the National
Association of Securities Dealers, Inc. and such as may be required under
the blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters in the manner
contemplated herein and in the Disclosure Package and the Prospectus.
(n) Neither the issue and sale of the Securities nor the
consummation of any other of the transactions herein contemplated nor the
fulfillment of the terms hereof will conflict with, result in a breach or
violation of, or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries pursuant to,
(i) the charter or by-laws of the Company or any of its subsidiaries, (ii)
the terms of any indenture, contract, lease, mortgage, deed of trust, note
agreement, loan agreement or other agreement, obligation, condition,
covenant or instrument to which the Company or any of its subsidiaries is
a party or bound or to which its or their property is subject, or (iii)
any statute, law, rule, regulation, judgment, order or decree applicable
to the Company or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other authority
having jurisdiction over the Company or any of its subsidiaries or any of
its or their properties, except, in the case of clause (ii) above, for
such conflicts, breaches, violations, liens, charges or encumbrances that
could not reasonably be expected, individually or in the
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aggregate, to have a material adverse effect on the condition (financial
or otherwise), prospects, earnings, business or properties of the Company
and its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Disclosure Package and the Prospectus (exclusive of
any supplement thereto).
(o) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
(p) The consolidated historical financial statements and schedules
of the Company and its consolidated subsidiaries included in the Statutory
Prospectus, the Prospectus and the Registration Statement present fairly
in all material respects the consolidated financial condition, results of
operations and cash flows of the Company and its consolidated subsidiaries
as of the dates and for the periods indicated, comply as to form in all
material respects with the applicable accounting requirements of the Act
and have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods involved
(except as otherwise noted therein). The selected financial data set forth
under the caption "Selected Financial Information" in the Statutory
Prospectus, the Prospectus and Registration Statement fairly present, on
the basis stated in the Statutory Prospectus, the Prospectus and the
Registration Statement, the information included therein.
(q) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property is pending or,
to the best knowledge of the Company, threatened that (i) could reasonably
be expected to have a material adverse effect on the performance of this
Agreement or the consummation of any of the transactions contemplated
hereby or (ii) could reasonably be expected to have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Disclosure Package
and the Prospectus (exclusive of any supplement thereto).
(r) Each of the Company and each of its subsidiaries owns or leases
all such properties as are necessary to the conduct of its operations as
presently conducted.
(s) Neither the Company nor any subsidiary is in violation or
default of (i) any provision of its charter or bylaws, (ii) the terms of
any indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument to which it is a party or bound or to which its property is
subject, or (iii) any statute, law, rule, regulation,
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judgment, order or decree of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over the Company or such subsidiary or any of its properties,
as applicable, except where such violation or default would not,
individually or in the aggregate, have a material adverse effect on the
condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole, whether
or not arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Disclosure Package and the
Prospectus (exclusive of any supplement thereto).
(t) Ernst and Young LLP, who have certified certain financial
statements of the Company and its consolidated subsidiaries and delivered
their report with respect to the audited consolidated financial statements
and schedules included in the Preliminary Prospectus and the Prospectus,
are independent public accountants with respect to the Company within the
meaning of the Act and within the meaning of Rule 3600T of the Public
Company Accounting Oversight Board.
(u) There are no transfer taxes or other similar fees or charges
under Federal law or the laws of any state, or any political subdivision
thereof, required to be paid in connection with the execution and delivery
of this Agreement or the issuance by the Company or sale by the Company of
the Securities.
(v) Except as described in the Disclosure Package and Prospectus,
the Company and its subsidiaries own, possess, license or have other
rights to use all patents, patent applications, trade and service marks,
trade and service xxxx registrations, trade names, copyrights, licenses,
inventions, trade secrets, technology, know-how and other intellectual
property (collectively, the "Intellectual Property") necessary for the
conduct of the Company's business as now conducted or as proposed in the
Disclosure Package and the Prospectus to be conducted. Except as set forth
in the Disclosure Package and the Prospectus, (i) to the Company's
knowledge, there are no rights of third parties to any such Intellectual
Property other than the retained rights of licensors with respect to any
such licensed intellectual property; (ii) to the Company's knowledge,
there is no material infringement by third parties of any such
Intellectual Property; (iii) there is no pending or, to the Company's
knowledge, threatened action, suit, proceeding or claim by others
challenging the Company's rights in or to any such Intellectual Property,
and the Company is unaware of any facts which would form a reasonable
basis for any such claim; (iv) to the Company's knowledge, there is no
pending or threatened action, suit, proceeding or claim by others
challenging the validity or scope of any such Intellectual Property, and
the Company is unaware of any facts which would form a reasonable basis
for any such claim; (v) there is no pending or, to the Company's
knowledge, threatened action, suit, proceeding or claim by others that the
Company infringes or otherwise violates any patent,
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trademark, copyright, trade secret or other proprietary rights of others,
and the Company is unaware of any other fact which would form a reasonable
basis for any such claim; (vi) to the Company's knowledge, there is no
U.S. patent or published U.S. patent application which contains claims
that dominate or may dominate any Intellectual Property described in the
Disclosure Package and the Prospectus as being owned by or licensed to the
Company or that interferes with the issued or pending claims of any such
Intellectual Property; and (vii) there is no prior art of which the
Company is aware that may render any U.S. patent held by the Company
invalid or any U.S. patent application held by the Company unpatentable
which has not been disclosed to the U.S. Patent and Trademark Office.
(w) Except as disclosed in the Disclosure Package and the
Prospectus, the Company (i) does not have any material lending or other
relationship with any bank or lending affiliate of Citigroup Global
Markets Holdings Inc. and (ii) does not intend to use any of the proceeds
from the sale of the Securities hereunder to repay any outstanding debt
owed to any affiliate of Citigroup Global Markets Holdings Inc.
(x) Except as disclosed in the Disclosure Package and the
Prospectus, the Company and the subsidiaries have each operated and
currently are in compliance in all material respects with all applicable
rules, regulations and policies of the U.S. Food and Drug Administration
and comparable foreign medical device regulatory agencies outside of the
United States.
(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 have a
material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or contemplated
in the Disclosure Package and the Prospectus (exclusive of any supplement
thereto) and has paid all taxes required to be paid by it and any other
assessment, fine or penalty levied against it, to the extent that any of
the foregoing is due and payable, except for any such assessment, fine or
penalty that is currently being contested in good faith or as would not
have a material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or contemplated
in the Disclosure Package and the Prospectus (exclusive of any supplement
thereto).
(z) No labor problem or dispute with the employees of the Company or
any of its subsidiaries exists or, to the Company's knowledge, is
threatened or
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imminent, and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its or its subsidiaries' principal
suppliers, contractors or customers, that could have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Disclosure Package
and the Prospectus (exclusive of any supplement thereto).
(aa) The Company and each of its subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the businesses
in which they are engaged; all material policies of insurance and fidelity
or surety bonds insuring the Company or any of its subsidiaries or their
respective businesses, assets, employees, officers and directors are in
full force and effect; the Company and its subsidiaries are in compliance
with the terms of such policies and instruments in all material respects;
and there are no material claims by the Company or any of its subsidiaries
under any such policy or instrument as to which any insurance company is
denying liability or defending under a reservation of rights clause;
neither the Company nor any such subsidiary has been refused any material
insurance coverage sought or applied for; and neither the Company nor any
such subsidiary has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires or
to obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a material adverse
effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken as a
whole, whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Disclosure Package
and the Prospectus (exclusive of any supplement thereto).
(bb) No subsidiary of the Company is currently prohibited, directly
or indirectly, from paying any dividends to the Company, from making any
other distribution on such subsidiary's capital stock, from repaying to
the Company any loans or advances to such subsidiary from the Company or
from transferring any of such subsidiary's property or assets to the
Company or any other subsidiary of the Company, except as described in or
contemplated by the Disclosure Package and the Prospectus (exclusive of
any supplement thereto).
(cc) The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by the appropriate
federal, state or foreign regulatory authorities necessary to conduct
their respective businesses, except for such licenses, certificates,
permits and other authorizations the absence of which, individually or in
the aggregate, could not reasonably be expected to have a material adverse
effect on the condition (financial or otherwise), prospects,
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earnings, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Disclosure Package and the Prospectus (exclusive of any supplement
thereto); and neither the Company nor any such subsidiary has received any
notice of proceedings relating to the revocation or modification of any
such certificate, authorization or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would have a material adverse effect on the condition (financial or
otherwise), prospects, earnings, business or properties of the Company and
its subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Disclosure Package and the Prospectus (exclusive of
any supplement thereto).
(dd) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(ee) The Company has not taken, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(ff) The Company and its subsidiaries are (i) in compliance with any
and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received and are in compliance with all
permits, licenses or other approvals required of them under applicable
Environmental Laws to conduct their respective businesses and (iii) have
not received notice of any actual or potential liability under any
environmental law, except where such non-compliance with Environmental
Laws, failure to receive required permits, licenses or other approvals, or
liability would not, individually or in the aggregate, have a material
adverse change in the condition (financial or otherwise), prospects,
earnings, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Disclosure Package and the Prospectus
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(exclusive of any supplement thereto). Except as set forth in the
Disclosure Package and the Prospectus, neither the Company nor any of the
subsidiaries has been named as a "potentially responsible party" under the
Comprehensive Environmental Response, Compensation, and Liability Act of
1980, as amended.
(gg) In the ordinary course of its business, the Company
periodically reviews the effect of Environmental Laws on the business,
operations and properties of the Company and its subsidiaries, in the
course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws, or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties). On the basis of such review, the Company has reasonably
concluded that such associated costs and liabilities would not, singly or
in the aggregate, have a material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or properties of
the Company and its subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, except as set forth
in or contemplated in the Disclosure Package and the Prospectus (exclusive
of any supplement thereto).
(hh) The minimum funding standard under Section 302 of the Employee
Retirement Income Security Act of 1974, as amended, and the regulations
and published interpretations thereunder ("ERISA"), has been satisfied by
each "pension plan" (as defined in Section 3(2) of ERISA) which has been
established or maintained by the Company and/or one or more of its
subsidiaries, and the trust forming part of each such plan which is
intended to be qualified under Section 401 of the Code is so qualified;
each of the Company and its subsidiaries has fulfilled its obligations, if
any, under Section 515 of ERISA; neither the Company nor any of its
subsidiaries maintains or is required to contribute to a "welfare plan"
(as defined in Section 3(1) of ERISA) which provides retiree or other
post-employment welfare benefits or insurance coverage (other than
"continuation coverage" (as defined in Section 602 of ERISA)); each
pension plan and welfare plan established or maintained by the Company
and/or one or more of its subsidiaries is in compliance in all material
respects with the currently applicable provisions of ERISA; and neither
the Company nor any of its subsidiaries has incurred or could reasonably
be expected to incur any withdrawal liability under Section 4201 of ERISA,
any liability under Section 4062, 4063, or 4064 of ERISA, or any other
liability under Title IV of ERISA.
(ii) There is and has been no failure on the part of the Company or,
to the Company's knowledge, any of the Company's directors or officers, in
their capacities as such, to comply in all material respects with any
provision of the Sarbanes Oxley Act of 2002 and the rules and regulations
promulgated in
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connection therewith (the "Sarbanes Oxley Act"), including Section 402
related to loans and Sections 302 and 906 related to certifications.
(jj) Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its subsidiaries is aware of or has
taken any action, directly or indirectly, that would result in a violation
by such Persons of the FCPA, including, without limitation, making use of
the mails or any means or instrumentality of interstate commerce corruptly
in furtherance of an offer, payment, promise to pay or authorization of
the payment of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any "foreign official"
(as such term is defined in the FCPA) or any foreign political party or
official thereof or any candidate for foreign political office, in
contravention of the FCPA and the Company, its subsidiaries and, to the
knowledge of the Company, its affiliates have conducted their businesses
in compliance with the FCPA and have instituted and maintain policies and
procedures designed to ensure, and which are reasonably expected to
continue to ensure, continued compliance therewith.
"FCPA" means Foreign Corrupt Practices Act of 1977, as amended, and
the rules and regulations thereunder.
(kk) The operations of the Company and its subsidiaries are and have
been conducted at all times in compliance in all material respects with
applicable financial recordkeeping and reporting requirements of the
Currency and Foreign Transactions Reporting Act of 1970, as amended, the
money laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines,
issued, administered or enforced by any governmental agency (collectively,
the "Money Laundering Laws") and no action, suit or proceeding by or
before any court or governmental agency, authority or body or any
arbitrator involving the Company or any of its subsidiaries with respect
to the Money Laundering Laws is pending or, to the best knowledge of the
Company, threatened.
(ll) Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or
affiliate of the Company or any of its subsidiaries is currently subject
to any U.S. sanctions administered by the Office of Foreign Assets Control
of the U.S. Treasury Department ("OFAC"); and the Company will not
directly or indirectly use the proceeds of the offering, or lend,
contribute or otherwise make available such proceeds to any subsidiary,
joint venture partner or other person or entity, for the purpose of
financing the activities of any person currently subject to any U.S.
sanctions administered by OFAC.
13
(mm) Neither the Company nor any of its subsidiaries nor any of its
or their properties or assets has any immunity from the jurisdiction of
any court or from any legal process (whether through service or notice,
attachment prior to judgment, attachment in aid of execution or otherwise)
under the laws of New York.
Any certificate signed by any officer of the Company and delivered
to the Representatives or counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
Company, as to matters covered thereby, to each Underwriter.
(ii) The Parent and the Selling Stockholder, jointly and severally,
represent and warrant to, and agree with, each Underwriter that:
(a) The Selling Stockholder is the record and beneficial owner of
the Securities to be sold by it hereunder free and clear of all liens,
encumbrances, equities and claims and has duly endorsed such Securities in
blank, and, assuming that each Underwriter acquires its interest in the
Securities it has purchased from the Selling Stockholder without notice of
any adverse claim (within the meaning of Section 8-105 of the New York
Uniform Commercial Code ("UCC")), each Underwriter that has purchased such
Securities delivered on the Closing Date to The Depository Trust Company
or other securities intermediary by making payment therefor as provided
herein, and that has had such Securities credited to the securities
account or accounts of such Underwriters maintained with The Depository
Trust Company or such other securities intermediary will have acquired a
security entitlement (within the meaning of Section 8-102(a)(17) of the
UCC) to such Securities purchased by such Underwriter, and no action based
on an adverse claim (within the meaning of Section 8-105 of the UCC) may
be asserted against such Underwriter with respect to such Securities.
(b) Neither the Selling Stockholder nor the Parent has taken,
directly or indirectly, any action designed to or that would constitute or
that might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the
Securities.
(c) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by the
Selling Stockholder or the Parent of the transactions contemplated herein,
except such as may have been obtained under the Act and such as may be
required under the blue sky laws of any jurisdiction in connection with
the purchase and distribution of the Securities by the Underwriters and
such other approvals as have been obtained.
14
(d) Neither the sale of the Securities being sold by the Selling
Stockholder nor the consummation of any other of the transactions herein
contemplated by the Parent or the Selling Stockholder or the fulfillment
of the terms hereof by the Parent or the Selling Stockholder will conflict
with, result in a breach or violation of, or constitute a default under
any law or the charter or by-laws of the Parent or the Selling Stockholder
or the terms of any indenture or other agreement or instrument to which
the Parent or the Selling Stockholder or any of its subsidiaries is a
party or bound, or any judgment, order or decree applicable to the Parent
or the Selling Stockholder or any of its subsidiaries of any court,
regulatory body, administrative agency, governmental body or arbitrator
having jurisdiction over the Parent or the Selling Stockholder or any of
its subsidiaries.
Any certificate signed by any officer of the Parent or the Selling
Stockholder and delivered to the Representatives or counsel for the Underwriters
in connection with the offering of the Securities shall be deemed a
representation and warranty by the Parent and the Selling Stockholder, as to
matters covered thereby, to each Underwriter.
2. Purchase and Sale. (a) Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
and the Selling Stockholder agree, severally and not jointly, to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from the Company and the Selling Stockholder, at a purchase price of $[_____]
per share, the amount of the Underwritten Securities set forth opposite such
Underwriter's name in Schedule I hereto.
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, the Company hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up to
750,000 Option Securities at the same purchase price per share as the
Underwriters shall pay for the Underwritten Securities. Said option may be
exercised only to cover over-allotments in the sale of the Underwritten
Securities by the Underwriters. Said option may be exercised in whole or in part
at any time on or before the 30th day after the date of the Prospectus upon
written or telegraphic notice by the Representatives to the Company setting
forth the number of shares of the Option Securities as to which the several
Underwriters are exercising the option and the settlement date. The number of
Option Securities to be purchased by each Underwriter shall be the same
percentage of the total number of shares of the Option Securities to be
purchased by the several Underwriters as such Underwriter is purchasing of the
Underwritten Securities, subject to such adjustments as you in your absolute
discretion shall make to eliminate any fractional shares.
3. Delivery and Payment. Delivery of and payment for the
Underwritten Securities and the Option Securities (if the option provided for in
15
Section 2(b) hereof shall have been exercised on or before the third Business
Day prior to the Closing Date) shall be made at 10:00 AM, New York City time, on
_____________, 2005, or at such time on such later date not more than three
Business Days after the foregoing date as the Representatives shall designate,
which date and time may be postponed by agreement among the Representatives, the
Company and the Selling Stockholder or as provided in Section 9 hereof (such
date and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Securities shall be made to the Representatives
for the respective accounts of the several Underwriters against payment by the
several Underwriters through the Representatives of the respective aggregate
purchase prices of the Securities being sold by the Company and the Selling
Stockholder to or upon the order of the Company and the Selling Stockholder by
wire transfer payable in same-day funds to the accounts specified in writing by
the Company and the Selling Stockholder, respectively. Delivery of the
Underwritten Securities and the Option Securities shall be made through the
facilities of The Depository Trust Company unless the Representatives shall
otherwise instruct.
The Selling Stockholder will pay all applicable state transfer
taxes, if any, involved in the transfer to the several Underwriters of the
Securities to be purchased by them from the Selling Stockholder and the
respective Underwriters will pay any additional stock transfer taxes involved in
further transfers.
If the option provided for in Section 2(b) hereof is exercised after
the third Business Day prior to the Closing Date, the Company will deliver the
Option Securities (at the expense of the Company) to the Representatives, at 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, xx the date specified by the
Representatives (which shall be within three Business Days after exercise of
said option) for the respective accounts of the several Underwriters, against
payment by the several Underwriters through the Representatives of the purchase
price thereof to or upon the order of the Company by wire transfer payable in
same-day funds to the accounts specified by the Company. If settlement for the
Option Securities occurs after the Closing Date, the Company will deliver to the
Representatives on the settlement date for the Option Securities, and the
obligation of the Underwriters to purchase the Option Securities shall be
conditioned upon receipt of, supplemental opinions, certificates and letters
confirming as of such date the opinions, certificates and letters delivered on
the Closing Date pursuant to Section 6 hereof.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
5. Agreements.
(i) The Company agrees with the several Underwriters that:
16
(a) Prior to the termination of the offering of the Securities, the
Company will not file any amendment of the Registration Statement or
supplement to the Prospectus or any Rule 462(b) Registration Statement
unless the Company has furnished you a copy for your review prior to
filing and will not file any such proposed amendment or supplement to
which you reasonably object. The Company will cause the Prospectus,
properly completed, and any supplement thereto to be filed in a form
approved by the Representatives with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to the Representatives of such timely
filing. The Company will promptly advise the Representatives (1) when the
Prospectus, and any supplement thereto, shall have been filed (if
required) with the Commission pursuant to Rule 424(b) or when any Rule
462(b) Registration Statement shall have been filed with the Commission,
(2) when, prior to termination of the offering of the Securities, any
amendment to the Registration Statement shall have been filed or become
effective, (3) of any request by the Commission or its staff for any
amendment of the Registration Statement, or any Rule 462(b) Registration
Statement, or for any supplement to the Prospectus or for any additional
information, (4) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of any
notice objecting to its use or the institution or threatening of any
proceeding for that purpose and (5) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the institution or threatening
of any proceeding for such purpose. The Company will use its best efforts
to prevent the issuance of any such stop order or the occurrence of any
such suspension or objection and, upon such issuance, occurrence or
objection, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time prior to the filing of the Prospectus pursuant
to Rule 424(b), any event occurs as a result of which the Disclosure
Package would include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein in the
light of the circumstances under which they were made at such time not
misleading, the Company will: (1) notify promptly the Representatives so
that any use of the Disclosure Package may cease until it is amended or
supplemented; (2) amend or supplement the Disclosure Package to correct
such statement or omission; and (3) supply any amendment or supplement to
you in such quantities as you may reasonably request.
(c) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act (including in circumstances where
such requirement may be satisfied pursuant to Rule 172), any event occurs
as a result of which the Prospectus as then supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances
under which they were made at such time not misleading, or if it shall be
necessary to amend the Registration
17
Statement or supplement the Prospectus to comply with the Act, the Company
promptly will (1) notify the Representatives of any such event, (2)
prepare and file with the Commission, subject to the second sentence of
paragraph (i)(a) of this Section 5, an amendment or supplement which will
correct such statement or omission or effect such compliance and (3)
supply any supplemented Prospectus to you in such quantities as you may
reasonably request.
(d) As soon as practicable, the Company will make generally
available to its security holders and to the Representatives an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158.
(e) The Company will furnish to the Representatives and counsel for
the Underwriters signed copies of the Registration Statement (including
exhibits thereto) and to each other Underwriter a copy of the Registration
Statement (without exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required (including in
circumstances where such requirement may be satisfied pursuant to Rule
172) by the Act, as many copies of each Preliminary Prospectus, the
Prospectus and each Issuer Free Writing Prospectus and any supplement
thereto as the Representatives may reasonably request.
(f) The Company will arrange, if necessary, for the qualification of
the Securities for sale under the laws of such jurisdictions as the
Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the Securities;
provided that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take
any action that would subject it to service of process in suits, other
than those arising out of the offering or sale of the Securities, in any
jurisdiction where it is not now so subject.
(g) The Company will not, without the prior written consent of
Citigroup Global Markets Inc., offer, sell, contract to sell, pledge, or
otherwise dispose of, (or enter into any transaction which is designed to,
or might reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash
settlement or otherwise) by the Company or any affiliate of the Company or
any person in privity with the Company or any affiliate of the Company)
directly or indirectly, including the filing (or participation in the
filing) of a registration statement with the Commission in respect of, or
establish or increase a put equivalent position or liquidate or decrease a
call equivalent position within the meaning of Section 16 of the Exchange
Act, any other shares of Class A Common Stock or any securities
convertible into, or exercisable, or exchangeable for, shares of Class A
Common Stock (including shares of Class B Common Stock), or publicly
announce an
18
intention to effect any such transaction, for a period of 180 days after
the date of the Underwriting Agreement, provided, however, that this
Section 5(g) shall not prohibit the Company from, and no consent of
Citigroup Global Markets, Inc. shall be required prior to the Company, (i)
issuing any shares of Class A Common Stock, or securities convertible into
Class A Common Stock (other than Class B Common Stock) in connection with
any acquisition, licensing or similar strategic arrangements, provided
that, (a) the total number of shares of Class A Common Stock, including
shares underlying convertible or exercisable securities, which may be
issued pursuant to this clause (i) cannot exceed 1,500,000 shares of Class
A Common Stock and (b) prior to the issuance of any such shares of Class A
Common Stock, or securities convertible into Class A Common Stock, the
Company shall cause the recipients of such securities to execute and
deliver to you agreements in the form of Exhibit A hereto, (ii) issuance
and sale pursuant to any employee stock option plan, stock ownership plan
or dividend reinvestment plan of the Company in effect at the Execution
Time (iii) issuance of Class A Common Stock or Class B Common Stock
issuable upon the conversion of securities or the exercise of warrants
outstanding at the Execution Time or (iv) filing with the Commission of
any registration statement on Form S-8 under the Act, as contemplated by
the Statutory Prospectus and Prospectus. If (1) during the last 17 days of
the 180-day restricted period the Company issues an earnings release or
material news or a material event relating to the Company occurs or (2)
prior to the expiration of the 180-day restricted period the Company
announces that it will release earnings results during the 16-day period
beginning on the last day of the 180-day period, then the foregoing
restrictions shall continue to apply until the expiration of the 18-day
period beginning on the issuance of the earnings release or the occurrence
of the material news or material event.
(h) The Company will comply with all applicable securities and other
applicable laws, rules and regulations, including, without limitation, the
Sarbanes Oxley Act, and to use its best efforts to cause the Company's
directors and officers, in their capacities as such, to comply with such
laws, rules and regulations, including, without limitation, the provisions
of the Sarbanes Oxley Act.
(i) The Company will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(j) The Company agrees to pay the costs and expenses relating to the
following matters: (i) the preparation, printing or reproduction and
filing with the Commission of the Registration Statement (including
financial statements and exhibits thereto), each Preliminary Prospectus,
the Prospectus and each Issuer
19
Free Writing Prospectus, and each amendment or supplement to any of them;
(ii) the printing (or reproduction) and delivery (including postage, air
freight charges and charges for counting and packaging) of such copies of
the Registration Statement, each Preliminary Prospectus, the Prospectus
and each Issuer Free Writing Prospectus, and all amendments or supplements
to any of them, as may, in each case, be reasonably requested for use in
connection with the offering and sale of the Securities; (iii) the
preparation, printing, authentication, issuance and delivery of
certificates for the Securities, including any stamp or transfer taxes in
connection with the original issuance and sale of the Securities; (iv) the
printing (or reproduction) and delivery of this Agreement, any blue sky
memorandum and all other agreements or documents printed (or reproduced)
and delivered in connection with the offering of the Securities; (v) the
registration of the Securities under the Exchange Act and the listing of
the Securities on the Nasdaq National Market; (vi) any registration or
qualification of the Securities for offer and sale under the securities or
blue sky laws of the several states (including filing fees and the
reasonable fees and expenses of counsel for the Underwriters relating to
such registration and qualification); (vii) any filings required to be
made with the National Association of Securities Dealers, Inc. (including
filing fees and the reasonable fees and expenses of counsel for the
Underwriters relating to such filings); (viii) the transportation and
other expenses incurred by or on behalf of Company representatives in
connection with presentations to prospective purchasers of the Securities;
(ix) the fees and expenses of the Company's accountants and the fees and
expenses of counsel (including local and special counsel) for the Company;
and (x) all other costs and expenses incident to the performance by the
Company of its obligations hereunder.
(k) The Company agrees that, unless it has obtained or will obtain
the prior written consent of the Representatives, and each Underwriter,
severally and not jointly, agrees with the Company that, unless it has
obtained or will obtain, as the case may be, the prior written consent of
the Company, it has not made and will not make any offer relating to the
Securities that would constitute an Issuer Free Writing Prospectus or that
would otherwise constitute a "free writing prospectus" (as defined in Rule
405) required to be filed by the Company with the Commission or retained
by the Company under Rule 433; provided that the prior written consent of
the parties hereto shall be deemed to have been given in respect of the
Free Writing Prospectuses identified in Schedule III hereto and any
electronic road show. Any such free writing prospectus consented to by the
Representatives or the Company is hereinafter referred to as a "Permitted
Free Writing Prospectus." The Company agrees that (x) it has treated and
will treat, as the case may be, each Permitted Free Writing Prospectus as
an Issuer Free Writing Prospectus and (y) it has complied and will comply,
as the case may be, with the requirements of Rules 164 and 433 applicable
to any Permitted Free Writing Prospectus, including in respect of timely
filing with the Commission, legending and record keeping.
20
(l) Upon the written request of Citigroup or any Underwriter, the
Company shall (i) furnish to Citigroup or such other Underwriter, a
certification, as contemplated by and in compliance with Treasury
regulations Section 1.897-2(h), that as of any Closing Date (or such other
date as may be specified in such request), the Offered Securities are not
United States real property interests as defined in Section 897(c)(1) of
the Code, (ii) file such certification with the Internal Revenue Services
in the manner and within the time period specified in Treasury regulations
Section 1.897-2(h) and (iii) promptly after such filing, furnish to
Citigroup or the Underwriter that has requested a certificate, as the case
may be, proof of such filing.
(ii) The Parent and the Selling Stockholder each agree with the
several Underwriters that:
(a) Neither the Parent nor the Selling Stockholder will take,
directly or indirectly, any action designed to or that would constitute or
that might reasonably be expected to cause or result in, under the
Exchange Act or otherwise, stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the
Securities.
(b) The Parent and the Selling Stockholder will advise you promptly,
and if requested by you, will confirm such advice in writing, so long as
delivery of a prospectus relating to the Securities by an underwriter or
dealer may be required (including in circumstances where such requirement
may be satisfied pursuant to Rule 172) under the Act, of (i) any material
change in the Company's condition (financial or otherwise), prospects,
earnings, business or properties, (ii) any change in information in the
Statutory Prospectus or the Prospectus relating to the Parent or the
Selling Stockholder or (iii) any new material information relating to the
Company or relating to any matter stated in the Prospectus which comes to
the attention of the Parent or the Selling Stockholder.
(c) In the event the Company fails in its obligations under Section
5(j), the Selling Stockholder will assume such obligations and pay any
amounts due.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to purchase the Underwritten Securities and the
Option Securities, as the case may be, shall be subject to the accuracy of the
representations and warranties on the part of the Company, the Parent and the
Selling Stockholder contained herein as of the Execution Time, the Closing Date
and any settlement date pursuant to Section 3 hereof, to the accuracy of the
statements of the Company, the Parent and the Selling Stockholder made in any
certificates pursuant to the provisions hereof, to the performance by the
Company, the Parent and the Selling Stockholder of their respective obligations
hereunder and to the following additional conditions:
21
(a) The Prospectus, and any supplement thereto, have been filed in
the manner and within the time period required by Rule 424(b); and no stop
order suspending the effectiveness of the Registration Statement or any
notice objecting to its use shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxxx Xxxxxx
Xxxxxxxxx Xxxx and Xxxx LLP, counsel for the Company, to have furnished to
the Representatives their opinion, dated the Closing Date and addressed to
the Representatives, to in the form set forth in Exhibit C.
(c) The Parent and the Selling Stockholder shall have requested and
caused Pavia & Harcourt LLP, special counsel for the Parent and the
Selling Stockholder, to have furnished to the Representatives their
opinion dated the Closing Date and addressed to the Representatives,
substantially in the form set forth in Exhibit D.
(d) The Company shall have requested and caused Xxxxxxxx, Xxxxx,
Xxxxx & Xxxxxxxx, P.C., special counsel for the Company with respect to
patents and proprietary rights, to have furnished to the Representatives
their opinion, dated the Closing Date and addressed to the
Representatives, in substantially the form set forth in Exhibit E.
(e) The Company shall have requested and caused Xxxxxxx & Xxxxxx
LLP, special counsel for the Company with respect to patents and
proprietary rights, to have furnished to the Representatives their
opinion, dated the Closing Date and addressed to the Representatives,
substantially in the form set forth in Exhibit F.
(f) The Company shall have requested and caused each of (i) Xxxx Xx
Law Firm, special Chinese counsel to the Company, (ii) Xxxxxx Xxxxxx
Xxxxxxxxx Xxxx and Xxxx LLP, special U.K. counsel to the Company, (iii)
Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP, special German counsel to the
Company, (iv) XxXxxxxxxx & Avocats, special French counsel to the Company
and (v) Xxxxx Day Horitsu Jimusho, special Japanese counsel to the
Company, to have furnished to the Representatives their opinion, dated the
Closing Date and addressed to the Representatives, substantially in the
form set forth in Exhibit G.
(g) The Representatives shall have received from Xxxxx Xxxxxxxxxx
LLP, counsel for the Underwriters, such opinion or opinions, dated the
Closing Date and addressed to the Representatives, with respect to the
issuance and sale of the Securities, the Registration Statement, the
Disclosure Package, the Prospectus (together with any supplement thereto)
and other related matters as the Representatives may reasonably require,
and the Company, the Parent and the
22
Selling Stockholder shall have furnished to such counsel such documents as
they request for the purpose of enabling them to pass upon such matters.
(h) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the
Company, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the Registration Statement, the
Prospectus, the Disclosure Package and any amendment or supplement
thereto, as well as each electronic roadshow used to offer the Securities,
and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with
the same effect as if made on the Closing Date and the Company has
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement or any notice objecting to its use has been
issued and no proceedings for that purpose have been instituted or,
to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectus (exclusive of any supplement thereto),
there has been no material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Disclosure
Package and the Prospectus (exclusive of any supplement thereto).
(i) The Parent and the Selling Stockholder shall have furnished to
the Representatives a certificate, signed by the Chairman of the Board or
the President and the principal financial or accounting officer of the
Parent and the Selling Stockholder, respectively, dated the Closing Date,
to the effect that the signers of such certificate have carefully examined
the Registration Statement, the Statutory Prospectus, the Disclosure
Package, the Prospectus, any supplement to the Prospectus and this
Agreement and that the representations and warranties of the Selling
Stockholder in this Agreement are true and correct in all material
respects on and as of the Closing Date to the same effect as if made on
the Closing Date.
(j) The Company shall have requested and caused Ernst and Young LLP
to have furnished to the Representatives letters, at the Execution Time
and at the Closing Date, dated respectively as of the Execution Time and
as of the
23
Closing Date, in form and substance satisfactory to the Representatives,
confirming that they are independent accountants within the meaning of the
Act and the applicable rules and regulations adopted by the Commission
thereunder and that they have performed a review of the unaudited interim
financial information of the Company for the nine-month period ended
September 30, 2005 and as at September 30, 2005, in accordance with
Statement on Auditing Standards No. 100, and stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules included in the Registration Statement
and the Prospectus and reported on by them comply as to form in all
material respects with the applicable accounting requirements of the
Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by the Company and its
subsidiaries; their limited review, in accordance with standards
established under Statement on Auditing Standards No. 100, of the
unaudited interim financial information for the nine-month period
ended September 30, 2005, and as at September 30, 2005; carrying out
certain specified procedures (but not an examination in accordance
with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of the
meetings of the stockholders, directors and the audit and _____
committees of the Company and the Subsidiaries; and inquiries of
certain officials of the Company who have responsibility for
financial and accounting matters of the Company and its subsidiaries
as to transactions and events subsequent to December 31, 2004,
nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included in the
Registration Statement and the Prospectus do not comply as to
form in all material respects with applicable accounting
requirements of the Act and with the related rules and
regulations adopted by the Commission with respect to
registration statements on Form S-1; and said unaudited
financial statements 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;
(2) with respect to the period subsequent to September
30, 2005, there were any changes, at a specified date not more
than five days prior to the date of the letter, in the
long-term debt of the Company and its subsidiaries or capital
stock of the Company or
24
decreases in the stockholders' equity of the Company as
compared with the amounts shown on the September 30, 2005,
consolidated balance sheet included in the Registration
Statement and the Prospectus, or for the period from October
1, 2005 to such specified date there were any decreases, as
compared the comparable period in 2004, in net revenues or
income before income taxes or in total or per share amounts of
net income of the Company and its subsidiaries, except in all
instances for changes or decreases set forth in such letter,
in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof
unless said explanation is not deemed necessary by the
Representatives; and
(iii) they have performed certain other specified procedures
as a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Prospectus agrees with
the accounting records of the Company and its subsidiaries,
excluding any questions of legal interpretation.
References to the Prospectus in this paragraph (g) include any
supplement thereto at the date of the letter.
(k) The Company shall have requested and used its reasonable
commercial efforts to cause T. Xxxxx Xxxxxxx, CPA, to have furnished to
the Representatives a letter, at the Execution Time, dated as of the
Execution Time, in form and substance satisfactory to the Representatives.
(l) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified
in the letter or letters referred to in paragraph (g) of this Section 6 or
(ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or
properties of the Company and its subsidiaries taken as a whole, whether
or not arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Disclosure Package and the
Prospectus (exclusive of any supplement thereto) the effect of which, in
any case referred to in clause (i) or (ii) above, is, in the sole judgment
of the Representatives, so material and adverse as to make it impractical
or inadvisable to proceed with the offering or delivery of the Securities
as contemplated by the Registration Statement (exclusive of any amendment
thereof) and the Prospectus (exclusive of any supplement thereto).
25
(m) Prior to the Closing Date, the Company, the Parent and the
Selling Stockholder shall have furnished to the Representatives such
further information, certificates and documents as the Representatives may
reasonably request.
(n) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(o) The Securities shall have been listed and admitted and
authorized for trading on the Nasdaq National Market, and satisfactory
evidence of such actions shall have been provided to the Representatives.
(p) At the Execution Time, the Company shall have furnished to the
Representatives a letter substantially in the form of Exhibit A hereto
from each officer and director of the Company and holders of substantially
all of the outstanding shares of Class B Common Stock addressed to the
Representatives.
(q) At the Execution Time, the Parent and the Selling Stockholder
shall have furnished to the Representatives a letter in the form of
Exhibit B hereto addressed to the Representatives.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as provided in this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Representatives and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancelation shall be given to the Company and
each Selling Stockholder in writing or by telephone or facsimile confirmed in
writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Xxxxx Xxxxxxxxxx LLP, counsel for the Underwriters,
at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company, the Parent or the
Selling Stockholder to perform any agreement herein or comply with any provision
hereof other than by reason of a default by any of the Underwriters, the Company
will reimburse the Underwriters severally through Citigroup Global Markets Inc.
on demand for all out-of-pocket expenses
26
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the
Securities. If the Company is required to make any payments to the Underwriters
under this Section 7 because of the Selling Stockholder's refusal, inability or
failure to satisfy any condition to the obligations of the Underwriters set
forth in Section 6, the Selling Stockholder shall reimburse the Company on
demand for all amounts so paid.
8. Indemnification and Contribution. (a) The Company, the Parent and
the Selling Stockholder jointly and severally agree to indemnify and hold
harmless each Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the meaning of
either the Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or other Federal or state statutory law
or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in the registration statement for the registration of the Securities
as originally filed or in any amendment thereof, or in any Preliminary
Prospectus, the Prospectus or any Issuer Free Writing Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company, the Parent and the Selling Stockholder will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter through the Representatives specifically for inclusion therein.
This indemnity agreement will be in addition to any liability which the Company,
the Parent or the Selling Stockholder may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, the Parent and the
Selling Stockholder, to the same extent as the foregoing indemnity to each
Underwriter, but only with reference to written information relating to such
Underwriter furnished to the Company by or on behalf of such Underwriter through
the Representatives specifically for inclusion in the documents referred to in
the foregoing indemnity. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company, the Parent and
the Selling Stockholder acknowledge that the statements set forth (i) in the
last paragraph of the cover page regarding delivery of the Securities and, under
the heading "Underwriting", (ii) the list of underwriters and their respective
participation in the sale
27
of the Securities, (iii) the sentences related to concessions and reallowances
and (iv) the paragraph related to stabilization, syndicate covering transactions
and penalty bids in any Preliminary Prospectus, the Prospectus and any Issuer
Free Writing Prospectus constitute the only information furnished in writing by
or on behalf of the several Underwriters for inclusion in any Preliminary
Prospectus, the Prospectus and any Issuer Free Writing Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
28
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company, the Parent and the Selling
Stockholder, jointly and severally, and the Underwriters severally agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating or
defending same) (collectively "Losses") to which the Company, the Parent, the
Selling Stockholder and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Company, the Parent and the Selling Stockholder on the one hand and by the
Underwriters on the other from the offering of the Securities; provided,
however, that in no case shall any Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the Securities) be
responsible for any amount in excess of the underwriting discount or commission
applicable to the Securities purchased by such Underwriter hereunder. If the
allocation provided by the immediately preceding sentence is unavailable for any
reason, the Company, the Parent and the Selling Stockholder, jointly and
severally, and the Underwriters severally shall contribute in such proportion as
is appropriate to reflect not only such relative benefits but also the relative
fault of the Company, the Parent and the Selling Stockholder on the one hand and
of the Underwriters on the other in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company, the Parent and the Selling
Stockholder shall be deemed to be equal to the total net proceeds from the
offering (before deducting expenses) received by it, and benefits received by
the Underwriters shall be deemed to be equal to the total underwriting discounts
and commissions, in each case as set forth on the cover page of the Prospectus.
Relative fault shall be determined by reference to, among other things, whether
any untrue or any alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information provided by the
Company, the Parent or the Selling Stockholder on the one hand or the
Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company, the Parent, the Selling Stockholder
and the Underwriters agree that it would not be just and equitable if
contribution were determined by pro rata allocation or any other method of
allocation which does not take account of the equitable considerations referred
to above. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section 8, each person who
controls an Underwriter within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of an Underwriter shall have the
same rights to contribution as such Underwriter, and each person who controls
the Company within the meaning of either the Act or the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of this
paragraph (d).
29
(e) The liability of the Selling Stockholder and the Parent under
the Selling Stockholder's and the Parent's representations and warranties
contained in Section 1 hereof and under the indemnity and contribution
agreements contained in this Section 8 shall be limited to an amount equal to
the initial public offering price of the Securities sold by the Selling
Stockholder to the Underwriters. The Company, the Parent and the Selling
Stockholder may agree, as among themselves and without limiting the rights of
the Underwriters under this Agreement, as to the respective amounts of such
liability for which they each shall be responsible.
9. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the amount of Securities set
forth opposite their names in Schedule I hereto bears to the aggregate amount of
Securities set forth opposite the names of all the remaining Underwriters) the
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase shall exceed 10% of the aggregate amount of Securities set forth in
Schedule I hereto, the remaining Underwriters shall have the right to purchase
all, but shall not be under any obligation to purchase any, of the Securities,
and if such nondefaulting Underwriters do not purchase all the Securities, this
Agreement will terminate without liability to any nondefaulting Underwriter, the
Parent, the Selling Stockholder or the Company. In the event of a default by any
Underwriter as set forth in this Section 9, the Closing Date shall be postponed
for such period, not exceeding five Business Days, as the Representatives shall
determine in order that the required changes in the Registration Statement and
the Prospectus or in any other documents or arrangements may be effected.
Nothing contained in this Agreement shall relieve any defaulting Underwriter of
its liability, if any, to the Company, the Parent, the Selling Stockholder and
any nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if at any time prior to
such time (i) trading in the Company's Class A 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 limited or minimum prices shall have been
established on such Exchange or the Nasdaq National Market, (ii) a banking
moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the
30
sole judgment of the Representatives, impractical or inadvisable to proceed with
the offering or delivery of the Securities as contemplated by the Prospectus
(exclusive of any supplement thereto).
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers, of the Selling Stockholder, of the Parent and of the
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation made by or on behalf of any
Underwriter, the Selling Stockholder or the Company or any of the officers,
directors, employees, agents or controlling persons referred to in Section 8
hereof, and will survive delivery of and payment for the Securities. The
provisions of Sections 7 and 8 hereof shall survive the termination or
cancelation of this Agreement.
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to the Citigroup Global Markets Inc. General Counsel (fax
no.: (000) 000-0000) and confirmed to the General Counsel, Citigroup Global
Markets Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention:
General Counsel; or, if sent to the Company, will be mailed, delivered or
telefaxed to (000) 000-0000 and confirmed to it at 0 Xxxxxxxx Xxxx, Xxxxxxxx, XX
00000 c/o Xxxxxxx X. Xxxxx; or if sent to the Parent will be mailed, delivered
or telefaxed to (00) 000-00-00-000 and confirmed to it at Xxx Xxxxxxxxxx, 00,
000000 Xxxxxxxxx, Xxxxxxx, Xxxxx or the Selling Stockholder, will be mailed,
delivered or telefaxed and confirmed to it at the address set forth in Schedule
II hereto.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. No fiduciary duty. The Company hereby acknowledges that (a) the
purchase and sale of the Securities pursuant to this Agreement is an
arm's-length commercial transaction between the Company, on the one hand, and
the Underwriters and any affiliate through which it may be acting, on the other,
(b) the Underwriters are acting as principal and not as an agent or fiduciary of
the Company and (c) the Company's engagement of the Underwriters in connection
with the offering and the process leading up to the offering is as independent
contractors and not in any other capacity. Furthermore, the Company agrees that
it is solely responsible for making its own judgments in connection with the
offering (irrespective of whether any of the Underwriters has advised or is
currently advising the Company on related or other matters). The Company agrees
that it will not claim that the Underwriters have rendered advisory services of
any nature or respect, or owe an agency, fiduciary or similar duty to the
Company, in connection with such transaction or the process leading thereto.
31
15. Integration. This Agreement supersedes all prior agreements and
understandings (whether written or oral) between the Company and the
Underwriters, or any of them, with respect to the subject matter hereof.
16. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
17. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
18. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
19. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies
are authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Disclosure Package" shall mean (i) the Statutory Prospectus, (ii)
the Issuer Free Writing Prospectuses, if any, identified in Schedule III
hereto, and (iii) any other Free Writing Prospectus that the parties
hereto shall hereafter expressly agree in writing to treat as part of the
Disclosure Package.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Free Writing Prospectus" shall mean a free writing prospectus, as
defined in Rule 405.
32
"Issuer Free Writing Prospectus" shall mean an issuer free writing
prospectus, as defined in Rule 433.
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in paragraph 1(i)(a) above and any preliminary prospectus
included in the Registration Statement at the Effective Date that omits
Rule 430A Information.
"Prospectus" shall mean the prospectus relating to the Securities
that is first filed pursuant to Rule 424(b) after the Execution Time or,
if no filing pursuant to Rule 424(b) is required, shall mean the form of
final prospectus relating to the Securities included in the Registration
Statement at the Effective Date.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements and any prospectus supplement relating to the Securities that
is filed with the Commission pursuant to Rule 424(b) and deemed part of
such registration statement pursuant to Rule 430B, as amended at the
Execution Time and, in the event any post-effective amendment thereto or
any Rule 462(b) Registration Statement becomes effective prior to the
Closing Date, shall also mean such registration statement as so amended or
such Rule 462(b) Registration Statement, as the case may be.
"Rule 158", "Rule 163", "Rule 164", "Rule 172", "Rule 405", "Rule
415", "Rule 424", "Rule 430B" and "Rule 433" refer to such rules under the
Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred to
in Section 1(a) hereof.
"Statutory Prospectus" shall mean, as of any time, the preliminary
prospectus relating to the Securities that is included in the Registration
Statement immediately prior to the Execution Time, including any document
incorporated by reference therein.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company, the Parent, the Selling Stockholder(s) and the several Underwriters.
33
Very truly yours,
CYNOSURE, INC.
By:
------------------------------
Name:
Title:
BRCT, Inc.
By:
------------------------------
Name:
Title:
EL. EN. S.P.A.
By:
------------------------------
Name:
Title:
34
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Citigroup Global Markets Inc.
UBS Securities LLC
Xxxxxxxxx & Company, Inc.
Xxxxxxx & Company, Inc.
By: Citigroup Global Markets Inc.
By:
------------------------------
Name:
Title:
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
SCHEDULE I
NUMBER OF UNDERWRITTEN
UNDERWRITERS SECURITIES TO BE PURCHASED
------------ --------------------------
Citigroup Global Markets Inc.
UBS Securities LLC
Xxxxxxxxx & Company, Inc.
Xxxxxxx & Company, Inc.
Total........ 5,000,000
==================
SCHEDULE II
MAXIMUM NUMBER OF
NUMBER OF UNDERWRITTEN OPTION SECURITIES
SELLING STOCKHOLDER: SECURITIES TO BE SOLD TO BE SOLD
------------------- --------------------- ----------
BRCT, Inc. 1,000,000 0
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
------------- ---------
Total ........... 1,000,000 0
============= =========
SCHEDULE III
Free Writing Prospectuses included in the Disclosure Package
[None]
[Form of Lock-Up Agreement] EXHIBIT A
[Letterhead of officer, director or stockholder of Cynosure, Inc.]
Cynosure, Inc.
Public Offering of Class A Common Stock
August __, 2005
Citigroup Global Markets Inc.
Xxxxxxxxx & Company, Inc.
Xxxxxxx & Company, Inc.
UBS Securities LLC
As Representatives of the several Underwriters,
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), among Cynosure, Inc., a
Delaware corporation (the "Company"), El. En. S.p.A., an Italian corporation,
and each of you as representatives of a group of Underwriters named therein (the
"Underwriters"), relating to an underwritten public offering (the "Offering") of
Class A Common Stock, $0.001 par value per share (the "Class A Common Stock"),
of the Company.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned will not, without the prior written
consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge
or otherwise dispose of (or enter into any transaction which is designed to, or
might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the undersigned or any affiliate of the undersigned or any person
in privity with the undersigned or any affiliate of the undersigned), directly
or indirectly, including the filing (or participation in the filing) of a
registration statement with the Securities and Exchange Commission in respect
of, or establish or increase a put equivalent position or liquidate or decrease
a call equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder with respect to, any
shares of capital stock of the Company or any securities convertible into, or
exercisable or exchangeable for such capital stock, or publicly announce an
intention to effect any such transaction during the period (the "Lock-up
Period") commencing on the date hereof and ending 180 days after the date of the
Underwriting Agreement. The foregoing sentence shall not apply to (a)
registration of or sale to the Underwriters of any Class A Common Stock pursuant
to the Offering and the Underwriting Agreement, (b) transactions relating to
shares of Class A Common Stock or other securities acquired in open market
transactions after completion of the Offering, (c) transfers of shares of Class
A Common Stock or any security convertible into Class A Common Stock as bona
fide gifts, (d) transfers of shares of Class A Common Stock or any security
convertible into Class A Common Stock to any trust for the direct or indirect
benefit of the undersigned or a member of the "immediate family" (i.e., any
relationship by blood, marriage or adoption, not more remote
2
than first cousins) of the undersigned not involving a disposition for value,
and (e) distribution of shares of Class A Common Stock or any security
convertible into Class A Common Stock to limited partners or stockholders of the
undersigned; provided that (i) in the case of any transfer or distribution
pursuant to clause (b), no filing by the undersigned or any other party to such
transfer or distribution (donor, donee, trustee, beneficiary, transferor or
transferee) under Section 16(a) of the Securities Exchange Act of 1934, as
amended, shall be required or shall be made voluntarily in connection with such
transfer or distribution (other than a filing on a Form 5 made after the
expiration of the Lock-up Period), and (ii) in the case of any transfer or
distribution pursuant to clauses (c), (d) and (e), each donee, trustee or
transferee shall execute and deliver to Citigroup Global Markets Inc. a
duplicate form of this letter agreement. If (1) during the last 17 days of the
Lock-up Period the Company issues an earnings release or material news or a
material event relating to the Company occurs or (2) prior to the expiration of
the Lock-up Period the Company announces that it will release earnings results
during the 16 day period beginning on the last day of the Lock-up Period, then
the foregoing restrictions shall continue to apply until the expiration of the
18 day period beginning on the issuance of the earnings release or the
occurrence of the material news or material event unless Citigroup Global
Markets Inc. waives, in writing, such extension.
The undersigned agrees and consents to the entry of stop transfer
instructions with the Company's transfer agent and registrar against the
transfer of the undersigned shares of Class A Common Stock or securities
convertible into Class A Common Stock except in compliance with the foregoing
restrictions.
The undersigned understands that the Company and the Underwriters are
relying upon this letter agreement in proceeding toward consummation of the
Offering. The undersigned further understands that this letter agreement is
irrevocable and shall be binding upon the undersigned's heirs, legal
representatives, successors and assigns.
Whether or not the Offering actually occurs depends on a number of
factors, including market conditions. Any Offering will only be made pursuant to
an Underwriting Agreement, the terms of which are subject to negotiation among
the Company, El.En. S.p.A. and the Underwriters.
This letter agreement shall automatically terminate upon the earliest
to occur, if any, of: (a) either Citigroup Global Markets Inc., on the one hand,
or the Company, on the other hand, advising the other in writing prior to the
execution of the Underwriting Agreement, that it has determined not to proceed
with the Offering, (b) termination of the Underwriting Agreement prior to the
sale of any shares of Class A Common Stock to the Underwriters, or (c) July 31,
2006, in the event that the registration statement has not been declared
effective by that date.
Yours very truly,
---------------------
(Signature)
[Form of El. En. S.p.A. Lock-up Agreement] EXHIBIT B
Cynosure, Inc.
Public Offering of Class A Common Stock
August __, 2005
Citigroup Global Markets Inc.
Xxxxxxxxx & Company, Inc.
Xxxxxxx & Company, Inc.
UBS Securities LLC
As Representatives of the several Underwriters,
c/o Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), among Cynosure, Inc., a
Delaware corporation (the "Company"), the undersigned, and each of you as
representatives of a group of Underwriters named therein (the "Underwriters"),
relating to an underwritten public offering (the "Offering") of Class A Common
Stock, $0.001 par value per share (the "Class A Common Stock"), of the Company.
In order to induce you and the other Underwriters to enter into the
Underwriting Agreement, the undersigned will not, without the prior written
consent of Citigroup Global Markets Inc., offer, sell, contract to sell, pledge
or otherwise dispose of (or enter into any transaction which is designed to, or
might reasonably be expected to, result in the disposition (whether by actual
disposition or effective economic disposition due to cash settlement or
otherwise) by the undersigned or any affiliate of the undersigned or any person
in privity with the undersigned or any affiliate of the undersigned), directly
or indirectly, including the filing (or participation in the filing) of a
registration statement with the Securities and Exchange Commission in respect
of, or establish or increase a put equivalent position or liquidate or decrease
a call equivalent position within the meaning of Section 16 of the Securities
Exchange Act of 1934, as amended, and the rules and regulations of the
Securities and Exchange Commission promulgated thereunder with respect to, any
shares of capital stock of the Company or any securities convertible into, or
exercisable or exchangeable for such capital stock (collectively, "Capital
Stock"), or publicly announce an intention to effect any such transaction during
the period commencing on the date hereof and ending on (and including) the
second anniversary of the date of the Underwriting Agreement (the "Lock-up
Period"); provided that:
1. commencing on the first day after the first anniversary of the
Underwriting Agreement (the "First Release Date"), the foregoing
restrictions shall not apply to the
2
transfer, in one or more transactions (or the public announcement of such
transfer), of a number of shares of Capital Stock equal, in the aggregate,
to 33% of the number of shares of Capital Stock beneficially owned by the
undersigned on the date of the Underwriting Agreement, after giving effect
to the Offering; and
2. commencing on the day after the date that is one year and six
months after the date of the Underwriting Agreement (the "Second Release
Date"), the foregoing restrictions shall not apply to the transfer, in one
or more transactions (or the public announcement of such transfer), of a
number of shares of Capital Stock equal, in the aggregate, to an
additional 33% of the number of shares of Capital Stock beneficially owned
by the undersigned on the date of the Underwriting Agreement, after giving
effect to the Offering.
In the event of any recapitalization, reclassification, stock dividend, stock
split, reverse stock split, or other distribution with respect to the Capital
Stock, the number of shares of Capital Stock subject to the restrictions above
shall be adjusted accordingly, including with regard to the number of shares
subject to the restrictions above after the First Release Date and the Second
Release Date, as the case may be.
The foregoing restrictions shall not apply to (a) registration of or
sale to the Underwriters of any Class A Common Stock pursuant to the Offering
and the Underwriting Agreement, (b) transactions after the First Release Date
relating to shares of Class A Common Stock or other securities acquired in open
market transactions.
If (1) during the 17 days before the First Release Date, the Second
Release Date or the date of the expiration of the Lock-up Period (such
expiration date shall be hereinafter referred to as the "Final Release Date",
and the First Release Date, the Second Release Date and the Final Release Date
shall each be referred to as a "Release Date") the Company issues an earnings
release or material news or a material event relating to the Company occurs or
(2) prior to any Release Date the Company announces that it will release
earnings results during the 16 day period beginning on such Release Date, then
the foregoing restrictions shall continue to apply until the expiration of the
18 day period beginning on the issuance of the earnings release or the
occurrence of the material news or material event unless Citigroup Global
Markets Inc. waives, in writing, such extension.
The undersigned agrees and consents to the entry of stop transfer
instructions with the Company's transfer agent and registrar against the
transfer of the undersigned shares of Class A Common Stock or securities
convertible into Class A Common Stock except in compliance with the foregoing
restrictions.
The undersigned understands that the Company and the Underwriters are
relying upon this letter agreement in proceeding toward consummation of the
Offering. The undersigned further understands that this letter agreement is
irrevocable and shall be binding upon the undersigned's heirs, legal
representatives, successors and assigns.
Whether or not the Offering actually occurs depends on a number of
factors, including market conditions. Any Offering will only be made pursuant to
an Underwriting Agreement, the terms of which are subject to negotiation among
the Company, the undersigned and the
3
Underwriters.
This letter agreement shall automatically terminate upon the earliest
to occur, if any, of: (a) either Citigroup Global Markets Inc., on the one hand,
or the Company, on the other hand, advising the other in writing prior to the
execution of the Underwriting Agreement, that it has determined not to proceed
with the Offering, (b) termination of the Underwriting Agreement prior to the
sale of any shares of Class A Common Stock to the Underwriters, or (c) July 31,
2006, in the event that the registration statement has not been declared
effective by that date.
Yours very truly,
-------------------------------
(Signature)
-------------------------------
(Print Name)
-------------------------------
El. En., S.p.A.
-------------------------------
(Address)
[Form of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx & Xxxx LLP Opinion] EXHIBIT C
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware
and has the corporate power and authority to carry on its business
and to own, lease and operate its properties, as such business and
properties are described in the Statutory Prospectus and the
Prospectus.
2. The Company is duly qualified and is in good standing as a foreign
corporation authorized to do business in each of the States listed
on Schedule A attached hereto.
3. All the outstanding shares of capital stock of the Company have been
duly authorized and are validly issued, fully paid and
non-assessable.
4. The Shares have been duly authorized and, when issued and delivered
to the Underwriters against payment therefor as provided by the
Underwriting Agreement, will be validly issued, fully paid and non
assessable, and the issuance of such Shares will not be subject to
any preemptive rights under the Delaware General Corporation Law
statute or the Certificate of Incorporation or, to our knowledge,
similar contractual rights granted by the Company (except for such
preemptive or contractual rights as have been waived).
5. The authorized capital stock of the Company conforms in all material
respects as to legal matters to the description thereof contained in
the Statutory Prospectus and the Prospectus under the captions
"Description of Capital Stock - Common Stock" and "Description of
Capital Stock - Preferred Stock."
6. The Underwriting Agreement has been duly authorized, executed and
delivered by the Company.
7. The Registration Statement has become effective under the Securities
Act, and, to our knowledge, (A) no stop order suspending its
effectiveness or any notice objecting to its use has been issued by
the Commission and (B) no proceedings for that purpose are pending
before or threatened by the Commission. Any required filings of the
Prospectus pursuant to Rules 424 and 430A under the Securities Act
have been made in a manner and within the time periods required by
such Rules.
8. Except as may be required under the Securities Act and the rules and
regulations of the Commission thereunder or as have been obtained or
made under the Securities Exchange Act of 1934, as amended, and the
rules and regulations of the Commission thereunder, no filing with,
or
2
authorization, approval, consent, license, order, registration,
qualification or decree of, any United States federal or
Massachusetts or New York state governmental authority or agency is
necessary for the issuance, sale and delivery of the Shares by the
Company to the Underwriters pursuant to the Underwriting Agreement.
9. The execution and delivery of the Underwriting Agreement by the
Company and the consummation by the Company of the transactions
contemplated thereby will not (A) conflict with or constitute a
breach of any of the terms or provisions of, or a default under, the
Certificate of Incorporation or By laws or any indenture, loan
agreement, mortgage, lease or other agreement or instrument to which
the Company is a party and that is filed as an exhibit to the
Registration Statement or (B) violate or conflict with any United
States federal or Massachusetts or New York state law, rule or
regulation that in such counsel's experience is normally applicable
in transactions of the type contemplated by the Underwriting
Agreement, the Delaware General Corporation Law statute, or any
judgment, order or decree specifically naming the Company of which
such counsel is aware.
10. The statements in the Statutory Prospectus and the Prospectus under
the captions "Risk Factors - Risks Related to Regulation", "Risk
Factors - Risks Related to the Offering - Provisions in our
corporate charter documents and under Delaware law may prevent or
frustrate attempts by our stockholders to change our management and
hinder efforts to acquire a controlling interest in us", "Business -
El. En. Commercial Relationship", "Business - Government
Regulation", "Management - Employment Agreements", "Management -
Stock Option and Other Compensation Plans", "Certain Relationships
and Related Party Transactions", "Description of Capital Stock",
"Shares Eligible for Future Sale" and "Material U.S. Federal Income
and Estate Tax Consequences to Non-U.S. Holders", insofar as such
statements constitute matters of law or legal conclusions or
summarize the terms of agreements, are correct in all material
respects.
11. The Company is not and, after giving effect to the offering and sale
of the Shares and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company," as
such term is defined in the Investment Company Act of 1940, as
amended.
12. To such counsel's knowledge, except as described in the Registration
Statement and the Statutory Prospectus, there are no contracts,
agreements or understandings between the Company and any person
granting such person the right to require the Company to file a
registration statement
3
under the Securities Act with respect to any securities of the
Company or to require the Company to include such securities with
the Shares registered pursuant to the Registration Statement.
13. The Shares have been approved by The NASDAQ Stock Market, Inc. for
listing on The NASDAQ National Market.
Such counsel shall also state that, in the course of acting as counsel for the
Company in connection with the preparation of the Registration Statement, the
Statutory Prospectus, the Prospectus and the documents listed in Schedule B
attached hereto (those scheduled documents, taken together with the Statutory
Prospectus, the "Company Disclosure Package"), such counsel has participated in
conferences with officers and other representatives of the Company,
representatives of and counsel for the Underwriters and representatives of the
registered independent public accounting firm of the Company, during which the
contents of the Registration Statement, the Company Disclosure Package and the
Prospectus were discussed; while the limitations inherent in the independent
verification of factual matters and the character of determinations involved in
the registration process are such that such counsel is not passing upon and does
not assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, the Company Disclosure
Package or the Prospectus (except to the extent expressly set forth in paragraph
10 above), and other than with respect to patents and intellectual property
matters relating to correspondence with and claims by Palomar Medical
Technologies, Inc. described in the Registration Statement, the Company
Disclosure Package and the Prospectus, as to which such counsel expresses no
view, subject to the foregoing and based on such participation and discussions:
(a) the Registration Statement, as of the Effective Date, and the
Prospectus, as of the date thereof (except for the financial
statements, including the notes and schedules thereto, other
financial and accounting data and information and statistical data
derived therefrom, and information relating to the Underwriters and
the method of distribution of the Shares by the Underwriters
included therein or omitted therefrom, as to which such counsel
expresses no view) appear on their face to be appropriately
responsive in all material respects to the requirements of the
Securities Act and the applicable rules and regulations of the
Commission thereunder;
(b) no facts have come to such counsel's attention that have caused such
counsel to believe that (i) the Registration Statement, as of the
Effective Date, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading (except as
set forth in the parenthetical in clause (a) above), (ii) the
Company Disclosure Package, as of [___] [a.m.][p.m.], Eastern time,
on December [___], 2005 (which you have
4
informed us is a time prior to the time of the first sale of the
Shares by any Underwriter) and the information with respect to the
public offering price, the number of Underwritten Securities, the
number of Option Securities and the underwriting discount set forth
on the cover page of the Prospectus, when taken together as a whole,
contained an untrue statement of a material fact or omitted to state
a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not
misleading (except as set forth in the parenthetical in clause (a)
above), or (iii) the Prospectus, as of its date or as of the date
hereof, contained or contains an 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 (except as set forth in the
parenthetical in clause (a) above);
(c) such counsel is not aware of any contract or other document of a
character required by the Securities Act and the applicable rules
and regulations of the Commission thereunder to be filed as an
exhibit to the Registration Statement that is not so filed; and
(d) such counsel is not aware of any action, proceeding or litigation
pending, contemplated or threatened against the Company before any
court or governmental or administrative agency or body that is
required by the Securities Act or the rules and regulations
thereunder to be described in the Registration Statement, the
Company Disclosure Package and the Prospectus that is not so
described.
[Form of Pavia & Harcourt LLP Opinion] EXHIBIT D
1. this Agreement has been duly authorized, executed and delivered by each of
the Selling Stockholder and the Parent;
2. the Selling Stockholder has full legal right and authority to sell,
transfer and deliver the Securities being sold by the Selling Stockholder
hereunder;
3. assuming that each Underwriter acquires its interest in the Securities it
has purchased from the Selling Stockholder without notice of any adverse
claim (within the meaning of Section 8-105 of the UCC), each Underwriter
that has purchased such Securities delivered on the Closing Date to The
Depository Trust Company or other securities intermediary by making
payment therefor as provided herein, and that has had such Securities
credited to the securities account or accounts of such Underwriters
maintained with The Depository Trust Company or such other securities
intermediary will have acquired a security entitlement (within the meaning
of Section 8-102(a)(17) of the UCC) to such Securities purchased by such
Underwriter, and no action based on an adverse claim (within the meaning
of Section 8-105 of the UCC) may be asserted against such Underwriter with
respect to such Securities;
4. except as may be required under the Act and such as may be required under
the blue sky laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters and such other
approvals (specified in such opinion) as have been obtained, no consent,
approval, authorization or order of any court or governmental agency or
body is required for the consummation by the Selling Stockholder or the
Parent of the transactions contemplated herein; and
5. neither the sale of the Securities being sold by the Selling Stockholder
nor the consummation of any other of the transactions herein contemplated
by the Selling Stockholder or the Parent or the fulfillment of the terms
hereof by the Selling Stockholder or the Parent will conflict with, result
in a breach or violation of, or constitute a default under (A) the charter
or By-laws of the Selling Stockholder or the Parent, (B) to such counsel's
knowledge, the terms of any indenture or other agreement or instrument
known to such counsel and to which the Selling Stockholder or the Parent
or any of their respective subsidiaries is a party or bound, (C) any
judgment, order or decree known to such counsel to be applicable to the
Selling Stockholder or the Parent or any of their respective subsidiaries
of any court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Selling Stockholder, the Parent or
any of their subsidiaries or (D) the Delaware General Corporation Law, any
New York or U.S. federal law, rule or regulation that is normally
applicable to transactions of the type contemplated by the Underwriting
Agreement.
6. In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of Delaware, the State of New York or the Federal laws of the United
States, to the extent they deem
2
proper and specified in such opinion, upon the opinion of other counsel of
good standing whom they believe to be reliable and who are satisfactory to
counsel for the Underwriters, and (B) as to matters of fact, to the extent
they deem proper, on certificates of responsible officers of the Selling
Stockholder, the Parent and public officials.
[Form of Xxxxxxxx, Xxxxx, Xxxxx & Xxxxxxxx, P.C. Opinion] EXHIBIT E
1. such counsel serves as special counsel to the Company with respect to
patents and proprietary rights other than with respect to patents and
intellectual property matters relating to the correspondence with and
claims raised by Palomar Medical Technologies, Inc. described in the
Registration Statement, the Disclosure Package and the Prospectus;
2. the statements included in the Registration Statement, the Disclosure
Package and the Prospectus relating to patents or proprietary rights
(collectively, the "Intellectual Property Information"), at the time such
Registration Statement became effective, at the Execution Time, as of the
date of the Prospectus and as of the date hereof, are accurate and
complete in all material respects and present fairly the information
purported to be shown; nothing has come to the attention of such counsel
that causes such counsel to believe that the Intellectual Property
Information, at the time such Registration Statement became effective, or
as of the date hereof, contained or contains an untrue statement of a
material fact or omitted or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading,
or that the Intellectual Property Information included in the Prospectus
(as of the date of such Prospectus or as of the date hereof) and the
Disclosure Package (at the Execution Time) contained or contains an untrue
statement of material fact or omitted or omits to state a material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
3. To the knowledge of such counsel, (i) there are no legal or governmental
proceedings pending relating to patent rights, trade secrets, trademarks,
service marks, copyrights or other proprietary information or materials of
the Company or any of the Subsidiaries, and (ii) no such proceedings are
threatened or contemplated by governmental authorities or others;
4. such counsel does not know of any contracts or other documents, relating
to the patents, trade secrets, trademarks, service marks or other
proprietary information or materials of the Company or any of the
Subsidiaries that is of a character required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit to
the Registration Statement which have not been so described or filed as
required;
5. To the knowledge of such counsel, (i) neither the Company nor any of the
Subsidiaries is infringing or otherwise violating the valid claim of any
issued patents, trade secrets, trademarks, service marks, copyrights or
other proprietary information or materials of others, and such counsel is
unaware of any facts which would form a reasonable basis for a claim of
any such infringement, and (ii) there are no infringements by others of
any of the patents, trade secrets, trademarks, service marks, copyrights
or other proprietary information or materials of the Company or any of the
Subsidiaries, and such counsel is unaware of any facts
2
which would form a reasonable basis for a claim of any such infringement;
6. such counsel has no knowledge of any facts which would preclude the
Company or any of the Subsidiaries from having valid license rights or
clear title to the patents referenced in the Registration Statement, the
Statutory Prospectus and the Prospectus; such counsel has no knowledge
that the Company or any of the Subsidiaries lacks or will be unable to
obtain any rights or licenses to use all patents and other material
intangible property and assets that are, or would be, necessary to conduct
the business now conducted or proposed to be conducted by the Company or
the Subsidiaries as described in the Registration Statement, the
Disclosure Package or the Prospectus, except as described in the
Registration Statement, the Disclosure Package and the Prospectus; and
such counsel is unaware of any facts which form a basis for a finding of
unenforceability or invalidity of any of the patents and other material
intellectual property and assets of the Company or any of the
Subsidiaries; and
7. such counsel is not aware of any fact with respect to the patent
applications of the Company or any of the Subsidiaries presently on file
that (i) would preclude the issuance of patents with respect to such
applications, (ii) would lead such counsel to conclude that such patents,
when issued, would not be valid and enforceable in accordance with
applicable regulations or (iii) would result in a third party having any
rights in any patents issuing from such patent applications.
[Form of Xxxxxxx & Angel LLP Opinion] EXHIBIT F
1. the statements included in the Registration Statement, the Preliminary
Prospectus and the Prospectus under the heading "Risk Factors - Risks
Relating to Intellectual Property - If we infringe or are alleged to
infringe intellectual property rights of third parties, it will adversely
affect our business" (collectively, the "Intellectual Property
Information"), at the time such Registration Statement became effective,
at the Execution Time, as of the date of the Prospectus and as of the date
hereof, are accurate and complete in all material respects and present
fairly the information purported to be shown; nothing has come to the
attention of such counsel that causes such counsel to believe that,
insofar as the matters addressed by the Intellectual Property Information
are concerned, the Registration Statement, at the time the Registration
Statement became effective, contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or that the
Prospectus (as of the date of the Prospectus or as of the date hereof) or
the Disclosure Package (at the Execution Time) contained or contains an
untrue statement of material fact or omitted or omits to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
2. Such counsel is unaware of (i) any legal or governmental proceedings
pending relating to patent rights, trade secrets, trademarks, service
marks, copyrights or other proprietary information or materials of the
Company or any of the Subsidiaries (other than normal processing of the
Company's patent applications before applicable patent authorities), and
(ii) is unaware that any such proceedings are threatened or contemplated
by governmental authorities or others;
3. Insofar as it relates to the third-party patents and proprietary rights
that we have been retained by the Company to consider, such counsel is of
the opinion that the Company has not infringed or otherwise violated, and
is not infringing or otherwise violating, any valid claims of those
certain patents;
4. such counsel has no knowledge of any facts which would preclude the
Company or any of the Subsidiaries from having valid license rights or
clear title to the patents referenced as owned by the Company or by El.En.
in the Registration Statement and the Prospectus; such counsel has no
knowledge that the Company or any of the Subsidiaries lacks or will be
unable to obtain any rights or licenses to use all patents and other
material intangible property and assets that are, or would be, necessary
to conduct the business now conducted or proposed to be conducted by the
Company or the Subsidiaries as described in the Registration Statement,
Disclosure Package or the Prospectus, except as described in the
Registration Statement, Disclosure Package and the Prospectus; and such
counsel is unaware of any facts which form a basis for a finding of
unenforceability or invalidity of any of the patents and other material
intellectual property and assets of the Company or any of the
Subsidiaries.
[Form of Foreign Counsel Opinion] EXHIBIT G
1. Each Subsidiary has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction in which
it is chartered or organized, with full corporate power and authority to
own or lease, as the case may be, and to operate its properties and
conduct its business as described in the Prospectus, and is duly qualified
to do business as a foreign corporation and is in good standing under the
laws of each jurisdiction which requires such qualification.
2. All the outstanding shares of capital stock of each Subsidiary have been
duly and validly authorized and issued and are fully paid and
nonassessable, and, except as otherwise set forth in the Disclosure
Package and the Prospectus, all outstanding shares of capital stock of the
Subsidiaries are owned by the Company either directly or through wholly
owned subsidiaries free and clear of any perfected security interest and,
to the knowledge of such counsel, after due inquiry, any other security
interest, claim, lien or encumbrance
3. Neither the issue and sale of the Securities, nor the consummation of any
other of the transactions herein contemplated nor the fulfillment of the
terms hereof will conflict with, result in a breach or violation of, or
imposition of any lien, charge or encumbrance upon any property or assets
of the Subsidiaries pursuant to, (i) the charter or by-laws of such
Subsidiary, (ii) the terms of any indenture, contract, lease, mortgage,
deed of trust, note agreement, loan agreement or other agreement,
obligation, condition, covenant or instrument to which such Subsidiary is
a party or bound or to which its or their property is subject, or (iii)
any statute, law, rule, regulation, judgment, order or decree applicable
to the such Subsidiary of any court, regulatory body, administrative
agency, governmental body, arbitrator or other authority having
jurisdiction over such Subsidiary or any of its properties.
Such counsel shall also state that to such's knowledge, there is no litigation
or governmental or other action, suit, proceedings or investigations before any
court or before or by any public, regulatory or governmental agency or body
pending or threatened against or involving the properties or business of the
such Subsidiary which, if determined adversely to the such Subsidiary, would
have a material adverse effect on the condition (financial or otherwise),
prospects, earnings, business or properties of the Company and its subsidiaries,
taken as a whole, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the Disclosure
Package and the Prospectus (exclusive of any supplement thereto).
ANNEX A
SUBSIDIARIES OF THE COMPANY JURISDICTION OF INCORPORATION
--------------------------- -----------------------------
Cynosure France France
Cynosure GmbH Germany
Cynosure K.K. Japan
Cynosure UK Ltd. United Kingdom
Suzhou Cynosure Medical Devices Company Ltd. China
