Exhibit 1.1
BRUKER BIOSCIENCES CORPORATION
10,400,000 Shares
Common Stock
($0.01 Par Value)
FORM OF
UNDERWRITING AGREEMENT
, 2007
UNDERWRITING AGREEMENT
, 2007
Bear, Xxxxxxx & Co. Inc.
UBS Securities LLC
AS MANAGING UNDERWRITERS
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Bruker Biosciences Corporation, a Delaware corporation (the "COMPANY"),
proposes to issue and sell and the persons named under the caption Selling
Stockholders in Schedule B annexed hereto (the "SELLING STOCKHOLDERS" and
collectively with the Company, the "SELLERS") propose to sell to the
underwriters named in Schedule A annexed hereto (the "UNDERWRITERS"), for whom
you are acting as representative(s), an aggregate of 10,400,000 shares (the
"FIRM SHARES") of Common Stock, $0.01 par value (the "COMMON STOCK"), of the
Company, of which 2,200,000 shares are to be issued and sold by the Company and
an aggregate of 8,200,000 shares are to be sold by the Selling Stockholders in
the respective amounts set forth under the caption "Firm Shares" in SCHEDULE B
annexed hereto. In addition, solely for the purpose of covering over-allotments,
the Sellers propose to grant to the Underwriters the option to purchase from the
Sellers up to an additional 1,560,000 shares of Common Stock (the "ADDITIONAL
SHARES") in the respective maximum amounts set forth under the caption
"Additional Shares" in SCHEDULE B hereto. The Firm Shares and the Additional
Shares are hereinafter collectively sometimes referred to as the "SHARES." The
Shares are described in the Prospectus which is referred to below.
The Company has prepared and filed, in accordance with the provisions
of the Securities Act of 1933, as amended, and the rules and regulations
thereunder (collectively, the "ACT"), with the Securities and Exchange
Commission (the "COMMISSION") a registration statement on Form S-3 (File No.
333-139406) under the Act, including a prospectus, relating to the Shares, which
registration statement incorporates by reference documents which the Company has
filed, or will file, in accordance with the provisions of the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder
(collectively, the "EXCHANGE ACT").
Except where the context otherwise requires, "REGISTRATION STATEMENT,"
as used herein, means the registration statement, as amended at the time of such
registration statement's effectiveness for purposes of Section 11 of the Act, as
such section applies to the respective Underwriters (the "EFFECTIVE TIME"),
including (i) all documents filed as a part thereof or incorporated or deemed to
be incorporated by reference therein, (ii) any information contained or
incorporated by reference in a prospectus filed with the Commission pursuant to
Rule 424(b) under the Act, to the extent such information is deemed, pursuant to
Rule 430A or Rule 430C under the Act, to be part of the registration statement
at the Effective Time, and (iii) any registration statement filed to register
the offer and sale of Shares pursuant to Rule 462(b) under the Act.
The Company has furnished to you, for use by the Underwriters and by
dealers in connection with the offering of the Shares, copies of one or more
preliminary prospectuses, and the documents incorporated by reference therein,
relating to the Shares. Except where the context otherwise requires,
"PRELIMINARY PROSPECTUS," as used herein, means each such preliminary
prospectus, in the form so furnished.
Except where the context otherwise requires, "PROSPECTUS," as used
herein, means the prospectus, relating to the Shares, filed by the Company with
the Commission pursuant to Rule 424(b) under the Act on or before the second
business day after the date hereof (or such earlier time as may be required
under the Act), or, if no such filing is required, the final prospectus included
in the Registration Statement at the time it became effective under the Act, in
each case in the form furnished by the Company to you for use by the
Underwriters and by dealers in connection with the offering of the Shares.
"PERMITTED FREE WRITING PROSPECTUSES," as used herein, means the
documents listed on SCHEDULE D attached hereto and each "road show" (as defined
in Rule 433 under the Act), if any, related to the offering of the Shares
contemplated hereby that is a "written communication" (as defined in Rule 405
under the Act) (each such road show, an "ELECTRONIC ROAD SHOW"). The
Underwriters have not offered or sold and will not offer or sell, without the
Company's consent, any Shares by means of any "free writing prospectus" (as
defined in Rule 405 under the Act) that is required to be filed by the
Underwriters with the Commission pursuant to Rule 433 under the Act, other than
a Permitted Free Writing Prospectus.
"DISCLOSURE PACKAGE," as used herein, means the Preliminary Prospectus
as of the Applicable Time (as defined below) as supplemented by the public
offering price of the Shares and the Permitted Free Writing Prospectuses, if
any, listed on SCHEDULE D hereto. For purposes of this Agreement, the
"APPLICABLE TIME" is P.M. New York City time on the date of this Agreement.
Any reference herein to the Registration Statement, any Preliminary
Prospectus, the Prospectus or any Permitted Free Writing Prospectus shall be
deemed to refer to and include the documents, if any, incorporated by reference,
or deemed to be incorporated by reference, therein (the "INCORPORATED
DOCUMENTS"), including, unless the context otherwise requires, the documents, if
any, filed as exhibits to such Incorporated Documents. Any reference herein to
the terms "amend," "amendment" or "supplement" with respect to the Registration
Statement, any Preliminary Prospectus, the Prospectus or any Permitted Free
Writing Prospectus shall be deemed to refer to and include the filing of any
document under the Exchange Act on or after the initial effective date of the
Registration Statement, or the date of such Preliminary Prospectus, the
Prospectus or such Permitted Free Writing Prospectus, as the case may be, and
deemed to be incorporated therein by reference.
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As used in this Agreement, "BUSINESS DAY" shall mean a day on which the
New York Stock Exchange (the "NYSE") is open for trading. The terms "herein,"
"hereof," "hereto," "hereinafter" and similar terms, as used in this Agreement,
shall in each case refer to this Agreement as a whole and not to any particular
section, paragraph, sentence or other subdivision of this Agreement. The term
"or," as used herein, is not exclusive.
The Company, the Selling Stockholders and the Underwriters agree as
follows:
1. SALE AND PURCHASE. Upon the basis of the representations and
warranties and subject to the terms and conditions herein set forth, the Company
agrees to issue and sell and each of the Selling Stockholders agrees to sell, in
each case severally and not jointly, to the respective Underwriters, and each of
the Underwriters, severally and not jointly, agrees to purchase from the Company
and each Selling Stockholder, the respective number of Firm Shares (subject to
such adjustment as Bear, Xxxxxxx & Co. Inc. ("BEAR XXXXXXX") and UBS Securities
LLC ("UBS") may determine to avoid fractional shares) which bears the same
proportion to the number of Firm Shares to be sold by the Company or by such
Selling Stockholder, as the case may be, as the number of Firm Shares set forth
opposite the name of such Underwriter in SCHEDULE A attached hereto bears to the
total number of Firm Shares, subject to adjustment in accordance with Section 9
hereof, in each case at a purchase price of $ per Share. The Company and each
Selling Stockholder is advised by you that the Underwriters intend (i) to make a
public offering of their respective portions of the Firm Shares as soon after
the effective date of the Registration Statement as in your judgment is
advisable and (ii) initially to offer the Firm Shares upon the terms set forth
in the Prospectus. You may from time to time increase or decrease the public
offering price after the initial public offering to such extent as you may
determine.
In addition, the Company and the Selling Stockholders, in each case
severally and not jointly, hereby grant to the several Underwriters the option
(the "OVER-ALLOTMENT OPTION") to purchase, and upon the basis of the
representations and warranties and subject to the terms and conditions herein
set forth, the Underwriters shall have the right to purchase, severally and not
jointly, from the Company and the Selling Stockholders, ratably in accordance
with the number of Firm Shares to be purchased by each of them, all or a portion
of the Additional Shares as may be necessary to cover over-allotments made in
connection with the offering of the Firm Shares, at the same purchase price per
share to be paid by the Underwriters to the Company and the Selling Stockholders
for the Firm Shares. The Over-Allotment Option may be exercised by Bear Xxxxxxx
and UBS jointly on behalf of the several Underwriters at any time and from time
to time on or before the thirtieth day following the date hereof, by written
notice to the Company and the Selling Stockholders. Such notice shall set forth
the aggregate number of Additional Shares as to which the Over-Allotment Option
is being exercised and the date and time when the Additional Shares are to be
delivered (any such date and time being herein referred to as an "ADDITIONAL
TIME OF PURCHASE"); PROVIDED, HOWEVER, that no additional time of purchase shall
be earlier than the "time of purchase" (as defined below) nor earlier than the
second business day after the date on which the Over-Allotment Option shall have
been exercised nor later than the tenth business day after the date on which the
Over-Allotment Option shall have been exercised. The number of Additional Shares
to be purchased by each Underwriter shall be the number which bears the same
proportion to the aggregate number of Additional Shares being purchased as the
number of Firm Shares set forth opposite the name of such Underwriter on
Schedule A hereto bears to the
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total number of Firm Shares (subject, in each case, to such adjustment as Bear
Xxxxxxx and UBS may determine to eliminate fractional shares), subject to
adjustment in accordance with Section 9 hereof. If, at any time, the
Underwriters purchase a portion of the Additional Shares, the number of
Additional Shares to be sold by each Seller shall be the number which bears the
same proportion to the aggregate number of Additional Shares being sold as the
number of Firm Shares set forth opposite the name of such Seller on SCHEDULE B
hereto bears to the total number of Firm Shares (subject, in each case, to such
adjustment as you may determine to eliminate fractional shares) subject to
adjustment in accordance with Section 9 hereof.
Pursuant to powers of attorney, which shall be satisfactory to counsel
for the Underwriters, granted by each Selling Stockholder, Xxxxx X. Xxxxxxx,
Ph.D. and Xxxxxxx Xxxxx will act as representatives of the Selling Stockholders.
The foregoing representatives (the "REPRESENTATIVES OF THE SELLING
STOCKHOLDERS") are authorized, on behalf of each Selling Stockholder, to execute
any documents necessary or desirable in connection with the sale of the Shares
to be sold hereunder by each Selling Stockholder, to make delivery of the
certificates of such Shares, to receive the proceeds of the sale of such Shares,
to give receipts for such proceeds, to pay therefrom the expenses to be borne by
each Selling Stockholder in connection with the sale and public offering of the
Shares, to distribute the balance of such proceeds to each Selling Stockholder
in proportion to the number of Shares sold by each Selling Stockholder, to
receive notices on behalf of each Selling Stockholder and to take such other
action as may be necessary or desirable in connection with the transactions
contemplated by this Agreement.
2. PAYMENT AND DELIVERY. Payment of the purchase price for the Firm
Shares shall be made to the Company and each of the Selling Stockholders by
Federal Funds wire transfer, against delivery of the certificates for the Firm
Shares to you through the facilities of The Depository Trust Company (DTC) for
the respective accounts of the Underwriters. Such payment and delivery shall be
made at 10:00 A.M., New York City time, on , 2007 (unless another time
shall be agreed to by you and the Company and the Representatives of the Selling
Stockholders or unless postponed in accordance with the provisions of Section 9
hereof). The time at which such payment and delivery are to be made is
hereinafter sometimes called "THE TIME OF PURCHASE." Electronic transfer of the
Firm Shares shall be made to you at the time of purchase in such names and in
such denominations as you shall specify.
Payment of the purchase price for the Additional Shares shall be made
at the additional time of purchase in the same manner and at the same office as
the payment for the Firm Shares. Electronic transfer of the Additional Shares
shall be made to you at the additional time of purchase in such names and in
such denominations as you shall specify.
Deliveries of the documents described in Section 7 hereof with respect
to the purchase of the Shares shall be made at the offices of Xxxxx Xxxxxxxxxx
LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 9:00 A.M., New
York City time, on the date of the closing of the purchase of the Firm Shares or
the Additional Shares, as the case may be.
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3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to and agrees with each of the Underwriters that:
(a) the Registration Statement has heretofore become effective under
the Act or, with respect to any registration statement to be filed to register
the offer and sale of Shares pursuant to Rule 462(b) under the Act, will be
filed with the Commission and become effective under the Act no later than 10:00
P.M., New York City time, on the date of determination of the public offering
price for the Shares; no stop order of the Commission preventing or suspending
the use of any Preliminary Prospectus or Permitted Free Writing Prospectus, or
the effectiveness of the Registration Statement, has been issued, and no
proceedings for such purpose have been instituted or, to the Company's
knowledge, are contemplated by the Commission;
(b) the Registration Statement, when it became effective, complied, as
of the date hereof complies and, as amended or supplemented, at the time of
purchase, each additional time of purchase, if any, and at all times during
which a prospectus is required by the Act to be delivered (whether physically or
through compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Shares, will comply, in all material respects, with
the requirements of the Act; the conditions to the use of Form S-3 in connection
with the offering and sale of the Shares as contemplated hereby have been
satisfied; the Registration Statement did not, as of the Effective Time, contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading;
each Preliminary Prospectus complied, at the time it was filed with the
Commission, and complies as of the date hereof, in all material respects, with
the requirements of the Act; at no time during the period that begins on the
earlier of the date of such Preliminary Prospectus and the date such Preliminary
Prospectus was filed with the Commission and ends at the time of purchase did or
will any Preliminary Prospectus, as then amended or supplemented, include an
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, and at no time during such period did or
will any Preliminary Prospectus, as then amended or supplemented, together with
any combination of one or more of the then issued Permitted Free Writing
Prospectuses, if any, include an 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; the
Prospectus will comply, as of its date, the date that it is filed with the
Commission, the time of purchase, each additional time of purchase, if any, and
at all times during which a prospectus is required by the Act to be delivered
(whether physically or through compliance with Rule 172 under the Act or any
similar rule) in connection with any sale of Shares, in all material respects,
with the requirements of the Act (including, without limitation, Section 10(a)
of the Act); at no time during the period that begins on the earlier of the date
of the Prospectus and the date the Prospectus is filed with the Commission and
ends at the later of the time of purchase, the latest additional time of
purchase, if any, and the end of the period during which a prospectus is
required by the Act to be delivered (whether physically or through compliance
with Rule 172 under the Act or any similar rule) in connection with any sale of
Shares did or will the Prospectus, as then amended or supplemented, include an
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; at no time during the period that begins
on the date of such Permitted Free Writing Prospectus and ends at the time of
purchase did or will any Permitted Free Writing Prospectus
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include an 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 makes no representation or warranty in this Section 3(b) with
respect to any statement contained in the Registration Statement, any
Preliminary Prospectus, the Prospectus or any Permitted Free Writing Prospectus
in reliance upon and in conformity with information concerning an Underwriter
and furnished in writing by or on behalf of such Underwriter through you to the
Company expressly for use in the Registration Statement, such Preliminary
Prospectus, the Prospectus or such Permitted Free Writing Prospectus; each
Incorporated Document, at the time such document was filed with the Commission
or at the time such document became effective, as applicable, complied, in all
material respects, with the requirements of the Exchange Act and did not include
an 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;
(c) prior to the execution of this Agreement, the Company has not,
directly or indirectly, offered or sold any Shares by means of any "prospectus"
(within the meaning of the Act) or used any "prospectus" (within the meaning of
the Act) in connection with the offer or sale of the Shares, in each case other
than the Preliminary Prospectuses and the Permitted Free Writing Prospectuses,
if any; the Company has not, directly or indirectly, prepared, used or referred
to any Permitted Free Writing Prospectus except in compliance with Rules 164 and
433 under the Act; assuming that such Permitted Free Writing Prospectus is so
sent or given after the Registration Statement was filed with the Commission
(and after such Permitted Free Writing Prospectus was, if required pursuant to
Rule 433(d) under the Act, filed with the Commission), the sending or giving, by
any Underwriter, of any Permitted Free Writing Prospectus will satisfy the
provisions of Rule 164 and Rule 433 (without reliance on subsections (b), (c)
and (d) of Rule 164); the conditions set forth in one or more of subclauses (i)
through (iv), inclusive, of Rule 433(b)(1) under the Act are satisfied, and the
registration statement relating to the offering of the Shares contemplated
hereby, as initially filed with the Commission, includes a prospectus that,
other than by reason of Rule 433 or Rule 431 under the Act, satisfies the
requirements of Section 10 of the Act; the Company is not disqualified, by
reason of subsection (f) or (g) of Rule 164 under the Act, from using, in
connection with the offer and sale of the Shares, "free writing prospectuses"
(as defined in Rule 405 under the Act) pursuant to Rules 164 and 433 under the
Act; the Company is not an "ineligible issuer" (as defined in Rule 405 under the
Act) as of the eligibility determination date for purposes of Rules 164 and 433
under the Act with respect to the offering of the Shares contemplated by the
Registration Statement; the parties hereto agree and understand that the content
of any and all "road shows" (as defined in Rule 433 under the Act) related to
the offering of the Shares contemplated hereby is solely the property of the
Company;
(d) as of the date of this Agreement, the Company has an authorized and
outstanding capitalization as set forth in the Registration Statement, the
Preliminary Prospectuses and the Prospectus in the section entitled "Description
of Capital Stock" and in the section entitled "Capitalization" under the heading
"Actual" (and any similar sections or information, if any, contained in any
Permitted Free Writing Prospectus), and, as of the time of purchase and any
additional time of purchase, as the case may be, the Company shall have an
authorized and outstanding capitalization as set forth in the Registration
Statement, the Preliminary Prospectuses and the Prospectus in the section
entitled "Description of Capital Stock" and in the section
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entitled "Capitalization" under the heading "As-Adjusted" (and any similar
sections or information, if any, contained in any Permitted Free Writing
Prospectus) (subject, in each case, to the issuance of shares of Common Stock
upon exercise of stock options and warrants disclosed as outstanding in the
Registration Statement (excluding the exhibits thereto), each Preliminary
Prospectus and the Prospectus and the grant of options under existing stock
option plans described in the Registration Statement (excluding the exhibits
thereto), each Preliminary Prospectus and the Prospectus); all of the issued and
outstanding shares of capital stock, including the Common Stock, of the Company
have been duly authorized and validly issued and are fully paid and
non-assessable, have been issued in compliance with all federal and state
securities laws and were not issued in violation of any preemptive right, resale
right, right of first refusal or similar right; the Shares are duly listed, and
admitted and authorized for trading, subject to official notice of issuance, on
the Nasdaq Global Market (the "NASDAQ");
(e) the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with full
corporate power and authority to own, lease and operate its properties and
conduct its business as described in each of the Registration Statement, the
Preliminary Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, to execute and deliver this Agreement and to issue, sell
and deliver the Shares as contemplated herein;
(f) the Company is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where the ownership or
leasing of its properties or the conduct of its business requires such
qualification, except where the failure to be so qualified and in good standing
would not, individually or in the aggregate, have a material adverse effect on
the business, properties, financial condition, results of operation or prospects
of the Company and the Subsidiaries (as hereinafter defined) taken as a whole (a
"MATERIAL ADVERSE EFFECT");
(g) the Company has no subsidiaries (as defined in the Exchange Act)
other than those set forth on SCHEDULE C hereto (collectively, the
"SUBSIDIARIES"); the Company owns 100% of the outstanding common stock of the
Subsidiaries; other than the capital stock of the Subsidiaries and except as
disclosed in the Registration Statement, the Preliminary Prospectuses and the
Prospectus, the Company does not own, directly or indirectly, any shares of
stock or any other equity or long-term debt securities of any corporation or
have any equity interest in any firm, partnership, joint venture, association or
other entity; complete and correct copies of the certificates of incorporation
and the by-laws of the Company and the Subsidiaries and all amendments thereto
have been delivered to you, and except as set forth in the exhibits to the
Registration Statement no changes therein will be made subsequent to the date
hereof and prior to the time of purchase or, if later, the additional time of
purchase; each Subsidiary has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, with full corporate power and authority to own, lease and operate
its properties and to conduct its business as described in each of the
Registration Statement, the Preliminary Prospectuses, the Prospectus and the
Permitted Free Writing Prospectuses, if any; each Subsidiary is duly qualified
to do business as a foreign corporation and is in good standing in each
jurisdiction where the ownership or leasing of its properties or the conduct of
its business requires such qualification, except where the failure to be so
qualified and in good standing would not, individually or in the aggregate, have
a Material Adverse Effect; all of the outstanding shares of capital stock of
each of the Subsidiaries have been duly authorized
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and validly issued, are fully paid and non-assessable and (except as otherwise
described in this Section 3(g)) are owned directly or indirectly by the Company
subject to no security interest, other encumbrance or adverse claims other than
foreign ownership restrictions under applicable laws, rules and regulations; and
no options, warrants or other rights to purchase, agreements or other
obligations to issue or other rights to convert any obligation into shares of
capital stock or ownership interests in the Subsidiaries are outstanding;
(h) the Shares to be sold by the Company pursuant hereto have been duly
and validly authorized and, when issued and delivered against payment therefor
as provided herein, will be duly and validly issued, fully paid and
non-assessable and free of statutory and contractual preemptive rights, resale
rights, rights of first refusal and similar rights; the Shares to be sold by the
Selling Stockholders pursuant hereto have been duly and validly authorized and
issued and are and, after they are delivered against payment therefor as
provided herein, will be fully paid, non-assessable and, pursuant to all
contracts, agreements or other instruments to which the Company is a party, free
of statutory and contractual preemptive rights, resale rights, rights of first
refusal and similar rights;
(i) the capital stock of the Company, including the Shares, conforms in
all material respects to the description thereof contained in the Registration
Statement, the Preliminary Prospectuses or the Prospectus (or any similar
sections or information, if any, contained in any Permitted Free Writing
Prospectus); and the certificates for the Shares are in due and proper form and
the holders of the Shares will not be subject to personal liability by reason of
being such holders;
(j) this Agreement has been duly authorized, executed and delivered by
the Company;
(k) neither the Company nor any of the Subsidiaries is in breach or
violation of or in default under (nor has any event occurred which with notice,
lapse of time or both would result in any breach of, constitute a default under
or give the holder of any indebtedness (or a person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment of all or a
part of such indebtedness under) its respective charter or by-laws, or any
indenture, mortgage, deed of trust, bank loan or credit agreement or other
evidence of indebtedness, or any license, lease, contract or other agreement or
instrument to which the Company or any of the Subsidiaries is a party or by
which any of them or any of their properties may be bound or affected, and the
execution, delivery and performance of this Agreement, the issuance and sale of
the Shares and the consummation of the transactions contemplated hereby will not
conflict with, result in any breach or violation of or constitute a default
under (nor constitute any event which with notice, lapse of time or both would
result in any breach of or constitute a default under) the charter or by-laws of
the Company or any of the Subsidiaries, or any indenture, mortgage, deed of
trust, bank loan or credit agreement or other evidence of indebtedness, or any
license, lease, contract or other agreement or instrument to which the Company
or any of the Subsidiaries is a party or by which any of them or any of their
respective properties may be bound, or any federal, state, local or foreign law,
regulation or rule or any decree, judgment or order applicable to the Company or
any of the Subsidiaries;
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(l) the acquisition by the Company of all of all of the outstanding
stock of Bruker Optics Inc. on July 1, 2006 from the Bruker Optics stockholders
in accordance with the terms of the stock purchase agreement dated as of April
17, 2006 by and among the Company, Bruker Optics Inc. and the stockholders of
Bruker Optics Inc. did not conflict with, result in any breach or violation of
or constitute a default under (nor constitute any event which, with notice,
lapse of time or both, would result in any breach or violation of, constitute a
default under or give the holder of any indebtedness (or a person acting on such
holder's behalf) the right to require the repurchase, redemption or repayment of
all or a part of such indebtedness under) the Company's charter or by-laws, or
any indenture, mortgage, deed of trust, bank loan or credit agreement or other
evidence of indebtedness, or any license, lease, contract or other agreement or
instrument to which the Company or any of the Subsidiaries is a party or by
which any of them or any of their properties may be bound or affected, or any
federal, state, local or foreign law, regulation or rule or any decree, judgment
or order applicable to the Company or any of the Subsidiaries including Bruker
Optics Inc.;
(m) no approval, authorization, consent or order of or filing with any
federal, state, local or foreign governmental or regulatory commission, board,
body, authority or agency is required in connection with the issuance and sale
of the Shares or the consummation by the Company of the transactions
contemplated hereby other than registration of the Shares under the Act, which
has been or will be effected, and any necessary qualification under the
securities or blue sky laws of the various jurisdictions in which the Shares are
being offered by the Underwriters or under the rules and regulations of the
National Association of Securities Dealers, Inc. (the "NASD");
(n) except as set forth in the Registration Statement, each Preliminary
Prospectus and the Prospectus, (i) no person has the right, contractual or
otherwise, to cause the Company to issue or sell to it any shares of Common
Stock or shares of any other capital stock or other equity interests of the
Company, (ii) no person has any preemptive rights, resale rights, rights of
first refusal or other rights to purchase any shares of Common Stock or shares
of any other capital stock or other equity interests of the Company, and (iii)
no person has the right to act as an underwriter or as a financial advisor to
the Company in connection with the offer and sale of the Shares, in the case of
each of the foregoing clauses (i), (ii) and (iii), whether as a result of the
filing or effectiveness of the Registration Statement or the sale of the Shares
as contemplated thereby or otherwise; no person has the right, contractual or
otherwise, to cause the Company to register under the Act any shares of Common
Stock or shares of any other capital stock or other equity interests of the
Company, or to include any such shares or interests in the Registration
Statement or the offering contemplated thereby, whether as a result of the
filing or effectiveness of the Registration Statement or the sale of the Shares
as contemplated thereby or otherwise;
(o) each of the Company and the Subsidiaries has all necessary
licenses, authorizations, consents and approvals and has made all necessary
filings required under any federal, state, local or foreign law, regulation or
rule, and has obtained all necessary authorizations, consents and approvals from
other persons, in order to conduct its respective business, except where the
absence of such license, authorization, consent, approval or filing, would not,
individually or in the aggregate, have a Material Adverse Effect; neither the
Company nor any of the Subsidiaries is in violation of, or in default under, or
has received notice of any
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proceedings relating to revocation or modification of, any such license,
authorization, consent or approval or any federal, state, local or foreign law,
regulation or rule or any decree, order or judgment applicable to the Company or
any of the Subsidiaries, except where such violation, default, revocation or
modification would not, individually or in the aggregate, have a Material
Adverse Effect;
(p) all legal or governmental proceedings, affiliate transactions,
off-balance sheet transactions (including, without limitation, transactions
related to, and the existence of "variable interest entities" within the meaning
of Financial Accounting Standards Board Interpretation No. 46), contracts,
licenses, agreements, leases or documents of a character required to be
described in the Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement have been so described or filed as
required;
(q) there are no actions, suits, claims, investigations or proceedings
pending or threatened or, to the Company's knowledge, contemplated to which the
Company or any of the Subsidiaries or any of their respective directors or
officers is a party or of which any of their respective properties is subject at
law or in equity, before or by any federal, state, local or foreign governmental
or regulatory commission, board, body, authority or agency, except any such
action, suit, claim, investigation or proceeding which would not result in a
judgment, decree or order having, individually or in the aggregate, a Material
Adverse Effect or preventing consummation of the transactions contemplated
hereby;
(r) Ernst & Young LLP, whose report on the consolidated financial
statements of the Company and the Subsidiaries is filed with the Commission as
part of the Registration Statement, the Preliminary Prospectuses and the
Prospectus, are independent registered public accountants as required by the Act
and by the rules of the Public Company Accounting Oversight Board;
(s) the financial statements included in the Registration Statement,
the Preliminary Prospectuses, the Prospectus, and the Permitted Free Writing
Prospectuses, if any, together with the related notes and schedules, present
fairly the financial position of the Company as of the dates indicated and the
results of operations and cash flows of the Company for the periods specified
and have been prepared in compliance with the requirements of the Act and in
conformity with generally accepted accounting principles applied on a consistent
basis during the periods involved; any pro forma financial statements or data
included in any of the Registration Statement, the Preliminary Prospectuses, the
Prospectus or the Permitted Free Writing Prospectuses, if any, comply with the
requirements of Regulation S-X of the Act, including, without limitation,
Article 11 thereof, and the assumptions used in the preparation of such pro
forma financial statements and data are reasonable, the pro forma adjustments
used therein are appropriate to give effect to the transactions or circumstances
described therein and the pro forma adjustments have been properly applied to
the historical amounts in the compilation of those statements and data; any
other financial and statistical data included in any of the Registration
Statement, the Preliminary Prospectuses, the Prospectus or the Permitted Free
Writing Prospectuses, if any, are accurately presented and prepared on a basis
consistent with the financial statements and books and records of the Company;
there are no financial statements (historical or pro forma) that are required to
be included in the Registration Statement, any Preliminary Prospectus or the
Prospectus (including, without limitation, as required by Rules 3-12
10
or 3-05 or Article 11 of Regulation S-X under the Act) that are not included as
required; the Company does not have any material liabilities or obligations,
direct or contingent (including any off-balance sheet obligations or any
"variable interest entities" within the meaning of the Financial Accounting
Standards Board Interpretation No. 46), not disclosed in the Registration
Statement, each Preliminary Prospectus and the Prospectus; and any "non-GAAP
financial measures" (as such term is defined by the rules and regulations of the
Commission), included in the Registration Statement, the Preliminary
Prospectuses, the Prospectus or the Permitted Free Writing Prospectuses, if any
comply with Regulation G of the Exchange Act and Item 10 of Regulation S-K under
the Act, to the extent applicable;
(t) subsequent to the respective dates as of which information is given
in the Registration Statement, the Preliminary Prospectuses, the Prospectus and
the Permitted Free Writing Prospectuses, if any, in each case excluding any
amendments or supplements to the foregoing made after the execution of this
Agreement, there has not been (i) any material adverse change, or any
development involving a prospective material adverse change, in the business,
properties, management, financial condition or results of operations of the
Company and the Subsidiaries taken as a whole, (ii) any transaction entered into
by the Company or its Subsidiaries which is material to the Company and the
Subsidiaries taken as a whole, (iii) any obligation, direct or contingent
(including any off-balance sheet obligations), incurred by the Company or the
Subsidiaries, which is material to the Company and the Subsidiaries taken as a
whole, (iv) any change in the capital stock or outstanding indebtedness of the
Company or the Subsidiaries or (v) any dividend or distribution of any kind
declared, paid or made on the capital stock of the Company;
(u) the Company has obtained for the benefit of the Underwriters the
agreement (a "LOCK-UP AGREEMENT"), in the form set forth as EXHIBIT A hereto, of
each of the Selling Stockholders and each of its directors and officers;
(v) neither the Company nor any Subsidiary is, and, after giving effect
to the offering and sale of the Shares, will not be an "investment company" or
an entity "controlled" by an "investment company," as such terms are defined in
the Investment Company Act of 1940, as amended (the "INVESTMENT COMPANY ACT");
(w) neither the Company nor any Subsidiary is and, after giving effect
to the offering and sale of the Shares, will be a "holding company" or a
"subsidiary company" of a "holding company" or an "affiliate" of a "holding
company" or of a "subsidiary company," as such terms are defined in the Public
Utility Holding Company Act of 1935, as amended (the "PUBLIC UTILITY HOLDING
COMPANY ACT");
(x) Except as disclosed in the Registration Statement, the Preliminary
Prospectuses and the Prospectus, the Company and each of the Subsidiaries has
good and marketable title to all property (real and personal) described in each
of the Registration Statement, the Preliminary Prospectuses, the Prospectus and
the Permitted Free Writing Prospectuses, if any, as being owned by each of them,
free and clear of all liens, claims, security interests or other encumbrances,
except for such liens, claims, security interests or other encumbrances that
would not, individually or in the aggregate, have a Material Adverse Effect; the
property described in each of the Registration Statement, the Preliminary
Prospectuses, the
11
Prospectus and the Permitted Free Writing Prospectuses, if any, as being held
under lease by the Company or a Subsidiary is held thereby under valid,
subsisting and enforceable leases;
(y) the Company and the Subsidiaries own, or have obtained valid and
enforceable licenses for, or other rights to use, the inventions, patent
applications, patents, trademarks (both registered and unregistered),
tradenames, copyrights, trade secrets and other proprietary information
described in each of the Registration Statement, the Preliminary Prospectuses,
the Prospectus and the Permitted Free Writing Prospectuses, if any, as being
owned or licensed by them or which are necessary for the conduct of their
respective businesses, except where the failure to own, license or have such
rights would not, individually or in the aggregate, have a Material Adverse
Effect (collectively, "INTELLECTUAL PROPERTY"); (i) to the Company's knowledge,
there are no third parties who have or will be able to establish rights to any
Intellectual Property, except for the ownership rights of the owners of the
Intellectual Property which the Registration Statement (excluding the exhibits
thereto), each Preliminary Prospectus and the Prospectus disclose is licensed to
the Company; (ii) to the Company's knowledge, there is no infringement by third
parties of any Intellectual Property; (iii) there is no pending or threatened
action, suit, proceeding or claim by others challenging the Company's rights in
or to any Intellectual Property, and the Company is unaware of any facts which
could form a reasonable basis for any such claim; (iv) there is no pending or
threatened action, suit, proceeding or claim by others challenging the validity
or scope of any Intellectual Property, and the Company is unaware of any facts
which could form a reasonable basis for any such claim; (v) there is no pending
or threatened action, suit, proceeding or claim by others that the Company
infringes or otherwise violates any patent, trademark, copyright, trade secret
or other proprietary rights of others, and the Company is unaware of any facts
which could form a reasonable basis for any such claim; (vi) to the Company's
knowledge, there is no patent or patent application that contains claims that
interfere with the issued or pending claims of any of the Intellectual Property;
and (vii) to the Company's knowledge, there is no prior art that may render any
patent application owned by the Company of the Intellectual Property
unpatentable that has not been disclosed to the U.S. Patent and Trademark
Office;
(z) neither the Company nor any of the Subsidiaries is engaged in any
unfair labor practice; except for matters which would not, individually or in
the aggregate, have a Material Adverse Effect, (i) there is (A) no unfair labor
practice complaint pending or, to the Company's knowledge after due inquiry,
threatened against the Company or any of the Subsidiaries before the National
Labor Relations Board, and no grievance or arbitration proceeding arising out of
or under collective bargaining agreements is pending or threatened, (B) no
strike, labor dispute, slowdown or stoppage pending or, to the Company's
knowledge after due inquiry, threatened against the Company or any of the
Subsidiaries and (C) no union representation dispute currently existing
concerning the employees of the Company or any of the Subsidiaries, and (ii) to
the Company's knowledge after due inquiry, (A) no union organizing activities
are currently taking place concerning the employees of the Company or any of the
Subsidiaries and (B) there has been no violation of any federal, state, local or
foreign law relating to discrimination in the hiring, promotion or pay of
employees, any applicable wage or hour laws or any provision of the Employee
Retirement Income Security Act of 1974 ("ERISA") or the rules and regulations
promulgated thereunder concerning the employees of the Company or any of the
Subsidiaries;
12
(aa) the Company and the Subsidiaries and their properties, assets and
operations are in compliance with, and hold all permits, authorizations and
approvals required under, Environmental Laws (as defined below), except to the
extent that failure to so comply or to hold such permits, authorizations or
approvals would not, individually or in the aggregate, have a Material Adverse
Effect; there are no past, present or, to the Company's knowledge, reasonably
anticipated future events, conditions, circumstances, activities, practices,
actions, omissions or plans that could reasonably be expected to give rise to
any material costs or liabilities to the Company or the Subsidiaries under, or
to interfere with or prevent compliance by the Company or the Subsidiaries with,
Environmental Laws; except as would not, individually or in the aggregate, have
a Material Adverse Effect, neither the Company nor any of the Subsidiaries (i)
is the subject of any investigation, (ii) has received any notice or claim,
(iii) is a party to or affected by any pending or threatened action, suit or
proceeding, (iv) is bound by any judgment, decree or order or (v) has entered
into any agreement, in each case relating to any alleged violation of any
Environmental Law or any actual or alleged release or threatened release or
cleanup at any location of any Hazardous Materials (as defined below) (as used
herein, "Environmental Law" means any federal, state, local or foreign law,
statute, ordinance, rule, regulation, order, decree, judgment, injunction,
permit, license, authorization or other binding requirement, or common law,
relating to health, safety or the protection, cleanup or restoration of the
environment or natural resources, including those relating to the distribution,
processing, generation, treatment, storage, disposal, transportation, other
handling or release or threatened release of Hazardous Materials, and "Hazardous
Materials" means any material (including, without limitation, pollutants,
contaminants, hazardous or toxic substances or wastes) that is regulated by or
may give rise to liability under any Environmental Law);
(bb) all tax returns required to be filed by the Company and each of
the Subsidiaries have been filed, and all taxes and other assessments of a
similar nature (whether imposed directly or through withholding) including any
interest, additions to tax or penalties applicable thereto due or claimed to be
due from such entities have been paid, other than those being contested in good
faith and for which adequate reserves have been provided;
(cc) the Company and each of the Subsidiaries maintains insurance
covering its properties, operations, personnel and businesses as the Company
deems adequate and as previously disclosed to the Underwriters; such insurance
insures against such losses and risks to an extent which is adequate in
accordance with customary industry practice to protect the Company and the
Subsidiaries and their businesses; all such insurance is fully in force on the
date hereof and will be fully in force at the time of purchase and any
additional time of purchase;
(dd) neither the Company nor any of the Subsidiaries has sustained
since the date of the last audited financial statements included in the
Registration Statement, the Preliminary Prospectuses and the Prospectus, any
loss or interference with its respective business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree;
(ee) the Company has not sent or received any communication regarding
termination of, or intent not to renew, any of the contracts or agreements
referred to or described in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any Permitted Free Writing Prospectus, or referred
to or described in, or filed as an exhibit to, the Registration
13
Statement or any Incorporated Document, and no such termination or non-renewal
has been threatened by the Company or, to the Company's knowledge, any other
party to any such contract or agreement;
(ff) the Company and each of the Subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance that (i)
transactions are executed in accordance with management's general or specific
authorization; (ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii) access to assets is
permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with
respect to any differences;
(gg) the Company has established and maintains "disclosure controls and
procedures" (as such term is defined in Rule 13a-15 and 15d-15 under the
Exchange Act) and "internal controls over financial reporting" (as such term is
defined in Rule 13a-15 and 15d-15 under the Exchange Act); such disclosure
controls and procedures are designed to ensure that material information
relating to the Company, including its consolidated subsidiaries, is made known
to the Company's Chief Executive Officer and its Chief Financial Officer by
others within those entities, and such disclosure controls and procedures are
effective to perform the functions for which they were established; the
Company's auditors and the Audit Committee of the Board of Directors have been
advised of: (i) all significant deficiencies and material weaknesses in the
design or operation of internal controls over financial reporting, except for
those that would not be reasonably likely, individually or in the aggregate, to
adversely affect the Company's ability to record, process, summarize and report
financial information; and (ii) any fraud whether or not material, that involves
management or other employees who have a role in the Company's internal
controls; any material weaknesses in internal controls have been identified for
the Company's auditors; since the date of the most recent evaluation of such
disclosure controls and procedures, there have been no significant changes in
internal controls or in other factors that could significantly affect internal
controls, including any corrective actions with regard to significant
deficiencies and material weaknesses;
(hh) the Company has provided you true, correct, and complete copies of
all documentation pertaining to any extension of credit in the form of a
personal loan made, directly or indirectly, by the Company to any director or
executive officer of the Company, or to any family member or affiliate of any
director or executive officer of the Company; and since July 30, 2002, the
Company has not, directly or indirectly, including through any subsidiary: (i)
extended credit, arranged to extend credit, or renewed any extension of credit,
in the form of a personal loan, to or for any director or executive officer of
the Company, or to or for any family member or affiliate of any director or
executive officer of the Company; or (ii) made any material modification,
including any renewal thereof, to any term of any personal loan to any director
or executive officer of the Company, or any family member or affiliate of any
director or executive officer, which loan was outstanding on July 30, 2002;
(ii) any statistical and market-related data included in any of the
Registration Statement, the Preliminary Prospectuses, the Prospectus or the
Permitted Free Writing Prospectuses, if any, are based on or derived from
sources that the Company believes to be
14
reliable and accurate, and the Company has obtained the written consent to the
use of such data from such sources to the extent required;
(jj) neither the Company nor any of the Subsidiaries nor, to the
Company's knowledge, any employee or agent of the Company or the Subsidiaries
has made any payment of funds of the Company or the Subsidiaries or received or
retained any funds in violation of any law, rule or regulation, which payment,
receipt or retention of funds is of a character required to be disclosed in the
Registration Statement, any Preliminary Prospectus, the Prospectus or the
Permitted Free Writing Prospectuses, if any;
(kk) neither the Company nor any of the Subsidiaries nor any of their
respective directors, officers, affiliates or controlling persons has taken,
directly or indirectly, any action designed, or which has constituted or might
reasonably be expected to cause or result in, under the Exchange Act or
otherwise, the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares;
(ll) to the Company's knowledge after due inquiry, there are no
affiliations or associations between any member of the NASD and any of the
Company's officers, directors or 5% or greater securityholders, except as set
forth in the Registration Statement, the Preliminary Prospectuses and the
Prospectus;
(mm) The Company and the Subsidiaries and any of the officers and
directors of the Company and any of the Subsidiaries, in their capacities as
such, are in compliance in all material respects with the provisions of the
Sarbanes Oxley Act of 2002 and the rules and regulations promulgated thereunder;
and
In addition, any certificate signed by any officer of the Company or
any of the Subsidiaries and delivered to the Underwriters or counsel for the
Underwriters in connection with the offering of the Shares shall be deemed to be
a representation and warranty by the Company or Subsidiary, as the case may be,
as to matters covered thereby, to each Underwriter.
4. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS. Each
Selling Stockholder, severally and not jointly, represents and warrants to each
Underwriter that:
(a) such Selling Stockholder now is and, at the time of delivery of
such Shares (whether the time of purchase or additional time of purchase, as the
case may be) will be, the lawful owner of the number of Shares to be sold by
such Selling Stockholder pursuant to this Agreement and has and, at the time of
delivery thereof, will have valid and marketable title to such Shares, and upon
delivery of and payment for such Shares (whether at the time of purchase or the
additional time of purchase, as the case may be), the Underwriters will acquire
valid and marketable title to such Shares free and clear of any claim, lien,
encumbrance, security interest, community property right, restriction on
transfer or other defect in title;
(b) such Selling Stockholder has and at the time of delivery of such
Shares (whether the time of purchase or additional time of purchase, as the case
may be) will have, full legal right, power and capacity, and any approval
required by law (other than those imposed by the Act and the securities or blue
sky laws of certain jurisdictions), to sell, assign, transfer and deliver such
Shares in the manner provided in this Agreement;
15
(c) this Agreement and the Custody Agreement among American Stock
Transfer & Trust Company, as custodian, and the Selling Stockholders (the
"CUSTODY AGREEMENT") have been duly executed and delivered by such Selling
Stockholder and each is a legal, valid and binding agreement of such Selling
Stockholder enforceable in accordance with its terms;
(d) such Selling Stockholder has reviewed carefully the Registration
Statement, each Preliminary Prospectus, the Prospectus and the Permitted Free
Writing Prospectuses, if any, and the Registration Statement, as to information
relating to such Selling Stockholder, did not, as of the Effective Time, contain
an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not misleading;
at no time during the period that begins on the earlier of the date of such
Preliminary Prospectus and the date such Preliminary Prospectus was filed with
the Commission and ends at the time of purchase did or will any Preliminary
Prospectus, as then amended or supplemented, as to information relating to such
Selling Stockholder in such Preliminary Prospectus, include an 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, and at no time during such period did or will any
Preliminary Prospectus, as then amended or supplemented, together with any
combination of one or more of the then issued Permitted Free Writing
Prospectuses, if any, in each case as to information relating to such Selling
Stockholder, include an 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; at no time during
the period that begins on the earlier of the date of the Prospectus and the date
the Prospectus is filed with the Commission and ends at the later of the time of
purchase, the latest additional time of purchase, if any, and the end of the
period during which a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any similar
rule) in connection with any sale of Shares did or will the Prospectus, as then
amended or supplemented, as to information relating to such Selling Stockholder
in the Prospectus, include an 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; at no
time during the period that begins on the date of such Permitted Free Writing
Prospectus and ends at the time of purchase did or will any Permitted Free
Writing Prospectus, as to information relating to such Selling Stockholder in
such Permitted Free Writing Prospectus, include an 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;
(e) such Selling Stockholder has duly and irrevocably authorized the
Representatives of the Selling Stockholders, on behalf of such Selling
Stockholder, to execute and deliver this Agreement and any other document
necessary or desirable in connection with the transactions contemplated thereby
and to deliver the Shares to be sold by such Selling Stockholder and receive
payment therefor pursuant hereto;
(f) the sale of such Selling Stockholder's Shares pursuant to this
Agreement is not prompted by any information concerning the Company which is not
set forth in the
16
Registration Statement (excluding the exhibits thereto), each Preliminary
Prospectus and the Prospectus;
(g) the Shares to be sold by such Selling Stockholder pursuant hereto
have been duly and validly authorized and issued and are and, after they are
delivered against payment therefor as provided herein, will be fully paid,
non-assessable and free of statutory and contractual preemptive rights, resale
rights, rights of first refusal and similar rights; and
(h) at the time of purchase, all stock transfer or other taxes (other
than income taxes) which are required to be paid in connection with the sale and
transfer of the Shares to be sold by such Selling Stockholder to the several
Underwriters hereunder will have been fully paid or provided for by such Selling
Stockholder and all laws imposing such taxes will have been fully complied with.
5. CERTAIN COVENANTS.
(a) The Company hereby agrees:
(i) to furnish such information as may be required and
otherwise to cooperate in qualifying the Shares for offering and sale
under the securities or blue sky laws of such states or other
jurisdictions as you may designate and to maintain such qualifications
in effect so long as you may request for the distribution of the
Shares; PROVIDED that the Company shall not be required to qualify as a
foreign corporation or to consent to the service of process under the
laws of any such jurisdiction (except service of process with respect
to the offering and sale of the Shares); and to promptly advise you of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose;
(ii) to make available to the Underwriters in New York City,
as soon as practicable after the Registration Statement becomes
effective, and thereafter from time to time to furnish to the
Underwriters, as many copies of the Prospectus (or of the Prospectus as
amended or supplemented if the Company shall have made any amendments
or supplements thereto after the effective date of the Registration
Statement) as the Underwriters may request for the purposes
contemplated by the Act; in case any Underwriter is required to deliver
(whether physically or through compliance with Rule 172 under the Act
or any similar rule) a prospectus after the nine-month period referred
to in Section 10(a)(3) of the Act in connection with the sale of the
Shares, the Company will prepare, at its expense, promptly upon request
such amendment or amendments to the Registration Statement and the
Prospectus as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the Act;
(iii) if, at the time this Agreement is executed and
delivered, it is necessary for the Registration Statement or any
post-effective amendment thereto to be declared effective before the
offering of the Shares may commence, the Company will endeavor to cause
the Registration Statement or such post effective amendment to become
effective as soon as possible and the Company will advise you promptly
and, if requested by you,
17
will confirm such advice in writing, (i) when the Registration
Statement and any such post-effective amendment thereto has become
effective, and (ii) if Rule 430A under the Act is used, when the
Prospectus is filed with the Commission pursuant to Rule 424(b) under
the Act (which the Company agrees to file in a timely manner under such
Rule);
(iv) to advise you promptly, confirming such advice in
writing, of any request by the Commission for amendments or supplements
to the Registration Statement, any Preliminary Prospectus or the
Prospectus or for additional information with respect thereto, or of
notice of institution of proceedings for, or the entry of a stop order,
suspending the effectiveness of the Registration Statement and, if the
Commission should enter a stop order suspending the effectiveness of
the Registration Statement, to use its best efforts to obtain the
lifting or removal of such order as soon as possible; to advise you
promptly of any proposal to amend or supplement the Registration
Statement, any Preliminary Prospectus or the Prospectus, and to provide
you and Underwriters' counsel copies of any such documents for review
and comment a reasonable amount of time prior to any proposed filing
and to file no such amendment or supplement to which you shall object
in writing;
(v) subject to Section 5(a)(iv) hereof, to file promptly all
reports and any definitive proxy or information statement required to
be filed by the Company with the Commission in order to comply with the
Exchange Act subsequent to the date of the Prospectus and for so long
as the delivery of a prospectus is required (whether physically or
through compliance with Rule 172 under the Act or any similar rule) in
connection with the offering or sale of the Shares; to provide you with
a copy of such reports and statements and other documents to be filed
by the Company pursuant to Section 13, 14 or 15(d) of the Exchange Act
during such period a reasonable amount of time prior to any proposed
filing, and to notify you of such filing;
(vi) if necessary or appropriate, to file a registration
statement pursuant to Rule 462(b) under the Act;
(vii) to advise the Underwriters promptly of the happening of
any event within the time during which a prospectus relating to the
Shares is required to be delivered (whether physically or through
compliance with Rule 172 under the Act or any similar rule) which could
require the making of any change in the Prospectus then being used so
that the Prospectus would not include an untrue statement of material
fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they are made,
not misleading, and during such time, subject to Section 5(a)(iv)
hereof, to promptly prepare, file with the Commission and furnish to
the Underwriters, each, at the Company's expense, such amendments or
supplements to such Prospectus as may be necessary to reflect any such
change;
(viii) to make generally available to its security holders,
and to deliver to you, an earnings statement of the Company (which will
satisfy the provisions of Section 11(a) of the Act) covering a period
of twelve months beginning after the effective date of the Registration
Statement (as defined in Rule 158(c) of the Act) as soon as is
reasonably
18
practicable after the termination of such twelve-month period but not
later than May 13, 2008;
(ix) to furnish to its shareholders as soon as practicable
after the end of each fiscal year an annual report (including a
consolidated balance sheet and statements of income, shareholders'
equity and cash flow of the Company and the Subsidiaries for such
fiscal year, accompanied by a copy of the certificate or report thereon
of nationally recognized independent certified public accountants);
(x) to furnish to you four copies of the Registration
Statement, as initially filed with the Commission, and of all
amendments thereto (including all exhibits thereto and documents
incorporated by reference therein) and sufficient copies of the
foregoing (other than exhibits) for distribution of a copy to each of
the other Underwriters;
(xi) to furnish to you promptly and, upon request, to each of
the other Underwriters for a period of five years from the date of this
Agreement (i) copies of any reports or other communications which the
Company shall send to its stockholders or shall from time to time
publish or publicly disseminate, (ii) copies of all annual, quarterly
and current reports filed with the Commission on Forms 10-K, 10-Q and
8-K, or such other similar forms as may be designated by the
Commission, (iii) copies of documents or reports filed with any
national securities exchange on which any class of securities of the
Company is listed, and (iv) such other information as you may
reasonably request regarding the Company or the Subsidiaries;
(xii) to furnish to you as early as practicable prior to the
time of purchase, and any additional time of purchase, as the case may
be, but not later than two business days prior thereto, a copy of the
latest available unaudited interim and monthly consolidated financial
statements, if any, of the Company and the Subsidiaries which have been
read by the Company's independent registered public accountants, as
stated in their letter to be furnished pursuant to Section 7(j) hereof;
(xiii) to apply the net proceeds from the sale of the Shares
in the manner set forth under the caption "Use of Proceeds" in the
Prospectus;
(xiv) to comply with Rule 433(d) under the Act (without
reliance on Rule 164(b) under the Act) and with Rule 433(g) under the
Act.
(xv) not to sell, offer to sell, contract or agree to sell,
hypothecate, pledge, grant any option to purchase or otherwise dispose
of or agree to dispose of, directly or indirectly, any Common Stock or
securities convertible into or exchangeable or exercisable for Common
Stock or warrants or other rights to purchase Common Stock or any other
securities of the Company that are substantially similar to Common
Stock, or file or cause to be declared effective a registration
statement under the Act relating to the offer and sale of any shares of
Common Stock or securities convertible into or exercisable or
exchangeable for Common Stock or other rights to purchase Common Stock
or any other securities of the Company that are substantially similar
to Common Stock for a period of 180 days after the date hereof (the
"LOCK-UP PERIOD"), without the prior written consent
19
of Bear Xxxxxxx and UBS, except that except that if (i) during the
period that begins on the date that is 15 calendar days plus three
business days before the last day of the 180-day restricted period and
ends on the last day 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 (ii) 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, the restrictions imposed by this section shall
continue to apply until the expiration of the date that is 15 calendar
days plus three business days after the date on which the issuance of
the earnings release or the material news or material event occurs,
provided however, this provision will not apply if, within three days
of the termination of the 180-day restricted period, the Company
delivers to Bear Xxxxxxx and UBS a certificate, signed by the Chief
Financial Officer or Chief Executive Officer of the Company, certifying
on behalf of the Company that the Company's shares of Common Stock are,
as of the date of delivery of such certificate, "actively trading
securities," as defined in Regulation M, 17 CFR 242.101(c)(1) (such
notice shall be delivered in accordance with Section 13 hereof). This
section shall not apply to (i) the registration of the Shares and the
sales to the Underwriters pursuant to this Agreement, (ii) issuances of
Common Stock upon the exercise of options or warrants disclosed as
outstanding in the Registration Statement, each Preliminary Prospectus
and the Prospectus, (iii) the issuance of employee stock options not
exercisable during the Lock-Up Period pursuant to stock option plans
described in the Registration Statement, each Preliminary Prospectus
and the Prospectus; and (iv) the issuance of up to an aggregate of
1,000,000 shares of Common Stock in connection with an acquisition,
strategic licensing arrangement, corporate partnering transaction or
similar extraordinary corporate transaction; provided that the
recipient(s) of such shares agrees in writing with the Underwriters
prior to the issuance of such shares not to sell, offer to sell,
contract or agree to sell, hypothecate, pledge, grant any option to
purchase or otherwise dispose of or agree to dispose of, directly or
indirectly, any of the shares of Common Stock during the Lock-Up
Period.;
(xvi) to use its best efforts to cause the Common Stock to be
listed for quotation on the NASDAQ;
(xvii) to maintain a transfer agent and, if necessary under
the jurisdiction of incorporation of the Company, a registrar for the
Common Stock; and
(xviii) Upon the written request of any Underwriter, the
Company shall (i) furnish to such Underwriter, a certification, as
contemplated by and in compliance with Treasury regulations section
1.897-2(h), that as of the time of purchase, any additional time of
purchase, or such other date as may be specified in such request, the
Shares are not United States real property interests as defined in
section 897(c)(1) of the Internal Revenue Code of 1986, as amended,
(ii) file such certification with the Internal Revenue Service 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 the
Underwriter that has requested such certification, as the case may be,
proof of such filing.
(b) The Company and the Selling Stockholders, jointly and severally,
hereby agree:
20
(i) to pay all costs, expenses, fees and taxes in connection
with (i) the preparation and filing of the Registration Statement, each
Preliminary Prospectus, the Prospectus, each Permitted Free Writing
Prospectus and any amendments or supplements thereto, and the printing
and furnishing of copies of each thereof to the Underwriters and to
dealers (including costs of mailing and shipment), (ii) the
registration, issue, sale and delivery of the Shares including any
stock or transfer taxes and stamp or similar duties payable upon the
sale, issuance or delivery of the Shares to the Underwriters, (iii) the
producing, word processing and/or printing of this Agreement, any
Agreement Among Underwriters, any dealer agreements, any Powers of
Attorney and any closing documents (including compilations thereof) and
the reproduction and/or printing and furnishing of copies of each
thereof to the Underwriters and (except closing documents) to dealers
(including costs of mailing and shipment), (iv) the qualification of
the Shares for offering and sale under state or foreign laws and the
determination of their eligibility for investment under state or
foreign law as aforesaid (including the reasonable legal fees and
filing fees and other reasonable disbursements of counsel for the
Underwriters) and the printing and furnishing of copies of any blue sky
surveys or legal investment surveys to the Underwriters and to dealers,
(v) any listing of the Shares on any securities exchange or
qualification of the Shares for quotation on NASDAQ and any
registration thereof under the Exchange Act, (vi) any filing for review
of the public offering of the Shares by the NASD, including the
reasonable legal fees and filing fees and other reasonable
disbursements of counsel to the Underwriters, (vii) the fees and
disbursements of any transfer agent or registrar for the Shares, (viii)
the costs and expenses of the Company relating to presentations or
meetings undertaken in connection with the marketing of the offering
and sale of the Shares to prospective investors and the Underwriters'
sales forces, including, without limitation, expenses associated with
the production of road show slides and graphics, fees and expenses of
any consultants engaged in connection with the road show presentations,
travel, lodging and other expenses incurred by the officers of the
Company and any such consultants, and the cost of any aircraft
chartered in connection with the road show, and (ix) the performance of
the Company's other obligations hereunder; provided, that the foregoing
shall not prevent the Company and the Selling Stockholders to allocate
responsibility for the above expenses among themselves.
(c) The Selling Stockholders hereby agree:
(i) to deliver to the Underwriters, prior to at the time of
purchase, a properly completed and executed United States Treasury
Department Form W-9 (or other applicable form or statement specified by
Treasury Department regulations in lieu thereof) in order to document
the Underwriters' compliance with the reporting and withholding
provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with
respect to the transactions contemplated herein;
(ii) not to sell, offer to sell, contract or agree to sell,
hypothecate, pledge, grant any option to purchase or otherwise dispose
of or agree to dispose of, directly or indirectly, any Common Stock or
securities convertible into or exchangeable or exercisable for Common
Stock or warrants or other rights to purchase Common Stock or any other
securities of the Company that are substantially similar to Common
Stock, or file or
21
cause to be declared effective a registration statement under the Act
relating to the offer and sale of any shares of Common Stock or
securities convertible into or exercisable or exchangeable for Common
Stock or other rights to purchase Common Stock or any other securities
of the Company that are substantially similar to Common Stock for a
period of 180 days after the date hereof (the "LOCK-UP PERIOD"),
without the prior written consent of Bear Xxxxxxx and UBS, except that
except that if (i) during the period that begins on the date that is 15
calendar days plus three business days before the last day of the
180-day restricted period and ends on the last day 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 (ii) 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, the
restrictions imposed by this section shall continue to apply until the
expiration of the date that is 15 calendar days plus three business
days after the date on which the issuance of the earnings release or
the material news or material event occurs, provided however, this
provision will not apply if, within three days of the termination of
the 180-day restricted period, the Company delivers to Bear Xxxxxxx and
UBS a certificate, signed by the Chief Financial Officer or Chief
Executive Officer of the Company, certifying on behalf of the Company
that the Company's shares of Common Stock are, as of the date of
delivery of such certificate, "actively trading securities," as defined
in Regulation M, 17 CFR 242.101(c)(1) (such notice shall be delivered
in accordance with Section 13 hereof). This section shall not apply to
(i) the registration of the Shares and the sales to the Underwriters
pursuant to this Agreement, (ii) issuances of Common Stock upon the
exercise of options or warrants disclosed as outstanding in the
Registration Statement, each Preliminary Prospectus and the Prospectus,
and (iii) the issuance of employee stock options not exercisable during
the Lock-Up Period pursuant to stock option plans described in the
Registration Statement, each Preliminary Prospectus and the Prospectus;
and
(iii) to advise the Underwriters promptly of the happening of
any event within the time during which a prospectus relating to the
Shares is required to be delivered under the Act (whether physically or
through compliance with Rule 172 under the Act or any similar rule)
which could require the making of any change in the Registration
Statement, any Preliminary Prospectus, the Prospectus or the Permitted
Free Writing Prospectuses, if any, then being used so that the
Registration Statement, any Preliminary Prospectus, the Prospectus and
the Permitted Free Writing Prospectuses, if any, would not include an
untrue statement of material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
6. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the Shares are not
delivered for any reason other than the termination of this Agreement pursuant
to the fifth paragraph of Section 8 hereof or the default by one or more of the
Underwriters in its or their respective obligations hereunder, the Company and
the Selling Stockholders, jointly and severally, shall, in addition to paying
the amounts described in Section 5(b)(i) hereof, reimburse the Underwriters for
all of their out-of-pocket expenses, including the fees and disbursements of
their counsel.
22
7. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations of
the Underwriters hereunder are subject to the accuracy of the representations
and warranties on the part of the Company and the Selling Stockholders on the
date hereof, at the time of purchase and, if applicable, at the additional time
of purchase, the performance by the Company and each of the Selling Stockholders
of its obligations hereunder and to the following additional conditions
precedent:
(a) The Company and the Selling Stockholders shall furnish to
you at the time of purchase and, if applicable, at the additional time
of purchase, an opinion of Xxxxx Xxxxxxx LLP, counsel for the Company,
addressed to the Underwriters, and dated the time of purchase or the
additional time of purchase, as the case may be, with reproduced copies
for each of the other Underwriters and in form and substance
satisfactory to Xxxxx Xxxxxxxxxx LLP, counsel for the Underwriters, in
the form set forth in EXHIBIT B hereto.
(b) The Company shall furnish to you at the time of purchase
and, if applicable, at the additional time of purchase, the opinion of
Xxxx and Xxxxx, special counsel for the Company with respect to patents
and proprietary rights, addressed to the Underwriters, and dated the
time of purchase or the additional time of purchase, as the case may
be, and in form and substance satisfactory to Xxxxx Xxxxxxxxxx LLP,
counsel for the Underwriters, in the form set forth in EXHIBIT C
hereto.
(c) The Company shall furnish to you at the time of purchase
and, if applicable, at the additional time of purchase, the opinion of
Kohler, Schmid, Moebus, special counsel for the Company with respect to
patents and proprietary rights, addressed to the Underwriters, and
dated the time of purchase or the additional time of purchase, as the
case may be, and in form and substance satisfactory to Xxxxx Xxxxxxxxxx
LLP, counsel for the Underwriters, in the form set forth in EXHIBIT C-1
hereto.
(d) The Company shall furnish to you at the time of purchase
and, if applicable, at the additional time of purchase, the letter from
Xxxxxxx LLP, special counsel for the Company with respect to patents
and proprietary rights, dated the time of purchase or the additional
time of purchase, as the case may be, and in form and substance
satisfactory to Xxxxx Xxxxxxxxxx LLP, counsel for the Underwriters, in
the form set forth in EXHIBIT C-2 hereto; and the Company shall have
furnished to you a certificate of its Chief Executive Officer relating
to certain intellectual property matters in a form reasonably
satisfactory to Xxxxx Xxxxxxxxxx LLP, counsel for the Underwriters.
(e) The Company shall furnish to you at the time of purchase
and, if applicable, at the additional time of purchase, the certificate
of Xx. Xxxx Xxxxxx, officer of the Company, with respect to patents and
proprietary rights, addressed to the Underwriters, and dated the time
of purchase or the additional time of purchase, as the case may be, and
in form and substance satisfactory to Xxxxx Xxxxxxxxxx LLP, counsel for
the Underwriters, in the form set forth in EXHIBIT C-3 hereto
(f) The Company shall furnish to you at the time of purchase
and, if applicable, at the additional time of purchase, the opinion of
Xx. X. Xxxxxxx & Partner,
23
Bremen, counsel for Bruker Daltonik GmbH, addressed to the
Underwriters, and dated the time of purchase or the additional time of
purchase, as the case may be, and in form and substance satisfactory to
Xxxxx Xxxxxxxxxx LLP, counsel for the Underwriters, in the form set
forth in EXHIBIT D hereto.
(g) The Company shall furnish to you at the time of purchase
and, if applicable, at the additional time of purchase, the opinion of
Rechtsanwalte Xxxxxxxxxxx & Xxxxxxx, counsel for Bruker AXS GmbH,
addressed to the Underwriters, and dated the time of purchase or the
additional time of purchase, as the case may be, and in form and
substance satisfactory to Xxxxx Xxxxxxxxxx LLP, counsel for the
Underwriters, in the form set forth in EXHIBIT D-1 hereto.
(h) You shall have received from Ernst & Young LLP letters
dated, respectively, the date of this Agreement, the date of the
Prospectus, the time of purchase and, if applicable, the additional
time of purchase, and addressed to the Underwriters (with reproduced
copies for each of the Underwriters) in the forms heretofore approved
by Bear Xxxxxxx and UBS.
(i) You shall have received at the time of purchase and, if
applicable, at the additional time of purchase, the favorable opinion
of Xxxxx Xxxxxxxxxx LLP, counsel for the Underwriters, dated the time
of purchase or the additional time of purchase, as the case may be, as
to the matters referred to in subparagraphs (4), (5), (8) (with respect
to the Shares only), (9), (10) and the last subparagraph of EXHIBIT B.
(j) No Prospectus or amendment or supplement to the
Registration Statement or the Prospectus, including documents deemed to
be incorporated by reference therein, shall have been filed to which
you object in writing.
(k) The Registration Statement shall become effective not
later than 5:30 P.M. New York City time on the date of this Agreement
and, if Rule 430A under the Act is used, the Prospectus shall have been
filed with the Commission pursuant to Rule 424(b) under the Act at or
before 5:30 P.M., New York City time, on the second full business day
after the date of this Agreement.
(l) Prior to and at the time of purchase, and, if applicable,
the additional time of purchase, (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued
under the Act or proceedings initiated under Section 8(d) or 8(e) of
the Act; (ii) the Registration Statement and all amendments thereto
shall not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; (iii) none of the
Preliminary Prospectuses or the Prospectus, and no amendment or
supplement thereto, shall include an 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
are made, not misleading; (iv) no Disclosure Package, and no amendment
or supplement thereto, shall include an 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
are made, not misleading; and (v) none of the Permitted
24
Free Writing Prospectuses, if any, shall include an 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 are made, not misleading.
(m) Between the time of execution of this Agreement and the
time of purchase or the additional time of purchase, as the case may
be, no material adverse change or any development involving a
prospective material adverse change in the business, properties,
management, financial condition or results of operations of the Company
and the Subsidiaries taken as a whole shall occur or become known;
(n) The Company will, at the time of purchase and, if
applicable, at the additional time of purchase, deliver to you a
certificate of its Chief Executive Officer and its Chief Financial
Officer to the form attached as EXHIBIT E hereto.
(o) The Company will, at the time of purchase and, if
applicable, at the additional time of purchase, deliver to you a
certificate of its Chief Financial Officer to the form attached as
EXHIBIT F hereto. The Company will, at the time of purchase and, if
applicable, at the additional time of purchase, deliver to you a
certificate of the Controller of Bruker Optics, Inc. to the form
attached as EXHIBIT G hereto.
(p) You shall have received signed Lock-Up Agreements referred
to in Section 3(u) hereof.
(q) The Company and the Selling Stockholders shall have
furnished to you such other documents and certificates as to the
accuracy and completeness of any statement in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any Permitted
Free Writing Prospectus as of the time of purchase and, if applicable,
the additional time of purchase, as you may reasonably request.
(r) The Shares shall have been approved for quotation on
NASDAQ, subject only to notice of issuance at or prior to the time of
purchase or the additional time of purchase, as the case may be.
(s) The Selling Stockholders will at the time of purchase and
the additional time of purchase, as the case may be deliver to you a
certificate of the Representatives of the Selling Stockholders to the
effect that the representations and the warranties of the Selling
Stockholders as set forth in this Agreement are true and correct as of
each such date.
8. EFFECTIVE DATE OF AGREEMENT; TERMINATION. This Agreement shall
become effective (i) if Rule 430A under the Act is not used, when you shall have
received notification of the effectiveness of the Registration Statement, or
(ii) if Rule 430A under the Act is used, when the parties hereto have executed
and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be subject
to termination in the absolute discretion of Bear Xxxxxxx and UBS, jointly, or
any group of Underwriters (which may include Bear Xxxxxxx and/or UBS) which has
agreed to purchase in the aggregate at least 50% of the Firm Shares, if (1)
since the time of execution of this Agreement or the earlier
25
respective dates as of which information is given in the Registration Statement,
the Preliminary Prospectuses, the Prospectus or the Permitted Free Writing
Prospectuses, if any, there has been any material adverse change or any
development involving a prospective material adverse change in the business,
properties, management, financial condition or results of operation of the
Company and the Subsidiaries taken as a whole, which would, in Bear Xxxxxxx and
UBS' judgment or in the judgment of such group of Underwriters, make it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares on the terms and in the manner contemplated in the Registration
Statement, the Preliminary Prospectuses, the Prospectus or the Permitted Free
Writing Prospectuses, if any, or (2) since the time of execution of this
Agreement, there shall have occurred: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange, the American
Stock Exchange or the NASDAQ; (ii) a suspension or material limitation in
trading in the Company's securities on the NASDAQ; (iii) a general moratorium on
commercial banking activities declared by either federal or New York State
authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States; (iv) an outbreak or
escalation of hostilities or acts of terrorism involving the United States or a
declaration by the United States of a national emergency or war; or (v) any
other calamity or crisis or any change in financial, political or economic
conditions in the United States or elsewhere, if the effect of any such event
specified in clause (iv) or (v) in Bear Xxxxxxx and UBS' judgment or in the
judgment of such group of Underwriters makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Shares on the terms and
in the manner contemplated in the Registration Statement, the Preliminary
Prospectuses, the Prospectus or the Permitted Free Writing Prospectuses, if any,
or (3) since the time of execution of this Agreement there shall have occurred
any downgrading, or any notice or announcement shall have been given or made of
(i) any intended or potential downgrading or (ii) any watch, review or possible
change that does not indicate an affirmation or improvement, in the rating
accorded any securities of or guaranteed by the Company or any Subsidiary by any
"nationally recognized statistical rating organization," as that term is defined
in Rule 436(g)(2) under the Act.
If Bear Xxxxxxx and UBS, jointly, or any group of Underwriters elects
to terminate this Agreement as provided in this Section 8, the Company, the
Representatives of the Selling Stockholders and each other Underwriter shall be
notified promptly in writing.
If the sale to the Underwriters of the Shares, as contemplated by this
Agreement, is not carried out by the Underwriters for any reason permitted under
this Agreement or if such sale is not carried out because the Company or the
Selling Stockholders, as the case may be, shall be unable to comply with any of
the terms of this Agreement, the Company or the Selling Stockholders, as the
case may be, shall not be under any obligation or liability under this Agreement
(except to the extent provided in Sections 6, 7 and 10 hereof), and the
Underwriters shall be under no obligation or liability to the Company and the
Selling Stockholders under this Agreement (except to the extent provided in
Section 10 hereof) or to one another hereunder.
9. INCREASE IN UNDERWRITERS' COMMITMENTS. Subject to Sections 7 and 8
hereof, if any Underwriter shall default in its obligation to take up and pay
for the Firm Shares to be purchased by it hereunder (otherwise than for a
failure of a condition set forth in Section 7 hereof or a reason sufficient to
justify the termination of this Agreement under the provisions of Section 8
hereof) and if the number of Firm Shares which all Underwriters so defaulting
shall
26
have agreed but failed to take up and pay for does not exceed 10% of the total
number of Firm Shares, the non-defaulting Underwriters shall take up and pay for
(in addition to the aggregate number of Firm Shares they are obligated to
purchase pursuant to Section 1 hereof) the number of Firm Shares agreed to be
purchased by all such defaulting Underwriters, as hereinafter provided. Such
Shares shall be taken up and paid for by such non-defaulting Underwriters in
such amount or amounts as you may designate with the consent of each Underwriter
so designated or, in the event no such designation is made, such Shares shall be
taken up and paid for by all non-defaulting Underwriters pro rata in proportion
to the aggregate number of Firm Shares set forth opposite the names of such
non-defaulting Underwriters in SCHEDULE A.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company and each of the Selling Stockholders agrees with the
non-defaulting Underwriters that it will not sell any Firm Shares hereunder
unless all of the Firm Shares are purchased by the Underwriters (or by
substituted Underwriters selected by you with the approval of the Company or
selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provision, the Company or you shall have the right
to postpone the time of purchase for a period not exceeding five business days
in order that any necessary changes in the Registration Statement and the
Prospectus and other documents may be effected.
The term Underwriter as used in this Agreement shall refer to and
include any Underwriter substituted under this Section 9 with like effect as if
such substituted Underwriter had originally been named in SCHEDULE A.
If the aggregate number of Firm Shares which the defaulting Underwriter
or Underwriters agreed to purchase exceeds 10% of the total number of Firm
Shares which all Underwriters agreed to purchase hereunder, and if neither the
non-defaulting Underwriters nor the Company shall make arrangements within the
five business day period stated above for the purchase of all the Firm Shares
which the defaulting Underwriter or Underwriters agreed to purchase hereunder,
this Agreement shall terminate without further act or deed and without any
liability on the part of the Company to any non-defaulting Underwriter and
without any liability on the part of any non-defaulting Underwriter to the
Company. Nothing in this paragraph, and no action taken hereunder, shall relieve
any defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
10. INDEMNITY AND CONTRIBUTION.
(a) The Company agrees to indemnify, defend and hold harmless
each Underwriter, its partners, directors and officers and "affiliates"
(within the meaning of Rule 405 under the Act), and any person who
controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, and the successors and assigns of all
of the foregoing persons, from and against any loss, damage, expense,
27
liability or claim (including the reasonable cost of investigation)
which, jointly or severally, any such Underwriter or any such person
may incur under the Act, the Exchange Act, the common law or otherwise,
insofar as such loss, damage, expense, liability or claim arises out of
or is based upon (i) any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment
thereof by the Company) or arises out of or is based upon any omission
or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading,
(ii) any untrue statement or alleged untrue statement of a material
fact included in any Prospectus (the term Prospectus for the purpose of
this Section 10 being deemed to include any Preliminary Prospectus, the
Prospectus and any amendments or supplements to the foregoing), in any
Permitted Free Writing Prospectus, in any "issuer information" (as
defined in Rule 433 under the Act) of the Company, which "issuer
information" is required to be, or is, filed with the Commission, or in
any Prospectus together with any combination of one or more of the
Permitted Free Writing Prospectuses, if any, or arises out of or is
based upon any omission or alleged omission 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, with
respect to such Prospectus or Permitted Free Writing Prospectus,
insofar as any such loss, damage, expense, liability or claim arises
out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in, and in conformity with
information concerning such Underwriter furnished in writing by or on
behalf of such Underwriter through you to the Company expressly for use
in, such Prospectus or Permitted Free Writing Prospectus or arises out
of or is based upon any omission or alleged omission to state a
material fact in such Prospectus or Permitted Free Writing Prospectus
in connection with such information, which material fact was not
contained in such information and which material fact was necessary in
order to make the statements in such information, in the light of the
circumstances under which they were made, not misleading, (iii) any
untrue statement or alleged untrue statement made by the Company in
Section 3 hereof or the failure by the Company to perform when and as
required any agreement or covenant contained herein, or (iv) any untrue
statement or alleged untrue statement of any material fact contained in
any audio or visual materials provided by the Company or based upon
written information furnished by or on behalf of the Company including,
without limitation, slides, videos, films or tape recordings used in
connection with the marketing of the Shares.
(b) the Selling Stockholders, jointly and severally, agree to
indemnify, defend and hold harmless each Underwriter, its partners,
directors and officers and "affiliates" (within the meaning of Rule 405
under the Act), and any person who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and
the successors and assigns of all of the foregoing persons, from and
against any loss, damage, expense, liability or claim (including the
reasonable cost of investigation) which, jointly or severally, any such
Underwriter or any such person may incur under the Act, the Exchange
Act, the common law or otherwise, insofar as such loss, damage,
expense, liability or claim arises out of or is based upon (i) any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or in the Registration
Statement as amended by any post-effective amendment thereof by the
Company), as such Registration Statement relates to such Selling
Stockholder, or arises out of or is based upon any omission or alleged
omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) any
28
untrue statement or alleged untrue statement of a material fact
included in any Prospectus, in any Permitted Free Writing Prospectus or
in any Prospectus together with any combination of one or more of the
Permitted Free Writing Prospectuses, if any, in each case as such
document(s) relate to such Selling Stockholder, or arises out of or is
based upon any omission or alleged omission to state a material fact
necessary in order to make the statements therein not misleading or
(iii) any untrue statement or alleged untrue statement made by such
Selling Stockholder in Section 4 hereof or the failure by such Selling
Stockholder to perform when and as required any agreement or covenant
contained herein; provided that no Selling Stockholder shall be
responsible, pursuant to this indemnity for losses, expenses, liability
or claims for an amount in excess of the proceeds to be received by
such Selling Stockholder (before deducting expenses) from the sale of
the Shares hereunder.
If any action, suit or proceeding (each, a "Proceeding") is brought
against an Underwriter or any such person in respect of which indemnity may be
sought against the Company or any Selling Stockholder pursuant to the foregoing
paragraph, such Underwriter or such person shall promptly notify the Company and
the Representatives of the Selling Stockholders in writing of the institution of
such Proceeding and the Company or such Selling Stockholder, as the case may be,
shall assume the defense of such Proceeding, including the employment of counsel
reasonably satisfactory to such indemnified party and payment of all fees and
expenses; provided, however, that the omission to so notify the Company or the
Representative of the Selling Stockholders shall not relieve the Company or such
Selling Stockholder from any liability which the Company or such Selling
Stockholder may have to any Underwriter or any such person or otherwise if the
Company or the Selling Stockholder is not materially prejudiced by such delay.
Such Underwriter or such person shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such Underwriter or of such person unless the employment of such
counsel shall have been authorized in writing by the Company or such Selling
Stockholder in connection with the defense of such Proceeding or the Company or
such Selling Stockholder shall not have, within a reasonable period of time in
light of the circumstances, employed counsel to have charge of the defense of
such Proceeding or such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them which are different
from, additional to or in conflict with those available to the Company or such
Selling Stockholder (in which case the Company or such Selling Stockholder shall
not have the right to direct the defense of such Proceeding on behalf of the
indemnified party or parties), in any of which events such fees and expenses
shall be borne by the Company or such Selling Stockholder and paid as incurred
(it being understood, however, that the Company or such Selling Stockholder
shall not be liable for the expenses of more than one separate counsel (in
addition to any local counsel) in any one Proceeding or series of related
Proceedings in the same jurisdiction representing the indemnified parties who
are parties to such Proceeding). The Company or such Selling Stockholder shall
not be liable for any settlement of any Proceeding effected without its written
consent but if settled with the written consent of the Company or such Selling
Stockholder, the Company or such Selling Stockholder agrees to indemnify and
hold harmless any Underwriter and any such person from and against any loss or
liability by reason of such settlement. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second sentence of this paragraph, then the indemnifying
party agrees that it
29
shall be liable for any settlement of any Proceeding effected without its
written consent if (i) such settlement is entered into more than 60 business
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall not have fully reimbursed the indemnified party in
accordance with such request prior to the date of such settlement and (iii) such
indemnified party shall have given the indemnifying party at least 30 days'
prior notice of its intention to settle. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement of any
pending or threatened Proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such Proceeding and does not include an admission of fault, culpability or a
failure to act, by or on behalf of such indemnified party.
(c) Each Underwriter severally agrees to indemnify, defend and
hold harmless the Company, its directors and officers, each Selling
Stockholder and any person who controls the Company within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act, and the
successors and assigns of all of the foregoing persons, from and
against any loss, damage, expense, liability or claim (including the
reasonable cost of investigation) which, jointly or severally, the
Company, any Selling Stockholder or any such person may incur under the
Act, the Exchange Act, the common law or otherwise, insofar as such
loss, damage, expense, liability or claim arises out of or is based
upon (i) any untrue statement or alleged untrue statement of a material
fact contained in, and in conformity with information concerning such
Underwriter furnished in writing by or on behalf of such Underwriter
through you to the Company expressly for use in, the Registration
Statement (or in the Registration Statement as amended by any
post-effective amendment thereof by the Company), or arises out of or
is based upon any omission or alleged omission to state a material fact
in such Registration Statement in connection with such information,
which material fact was not contained in such information and which
material fact was required to be stated in such Registration Statement
or was necessary to make such information not misleading or (ii) any
untrue statement or alleged untrue statement of a material fact
contained in, and in conformity with information concerning such
Underwriter furnished in writing by or on behalf of such Underwriter
through you to the Company expressly for use in, a Prospectus or a
Permitted Free Writing Prospectus, or arises out of or is based upon
any omission or alleged omission to state a material fact in such
Prospectus or Permitted Free Writing Prospectus in connection with such
information, which material fact was not contained in such information
and which material fact was necessary in order to make the statements
in such information, in the light of the circumstances under which they
were made, not misleading.
If any Proceeding is brought against the Company, any Selling
Stockholder or any such person in respect of which indemnity may be sought
against any Underwriter pursuant to the foregoing paragraph, the Company, any
Selling Stockholder or such person shall promptly notify such Underwriter in
writing of the institution of such Proceeding and such Underwriter shall assume
the defense of such Proceeding, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses;
provided, however, that the omission to so notify such Underwriter shall not
relieve such Underwriter from any
30
liability which such Underwriter may have to the Company, any Selling
Stockholder or any such person or otherwise if the Underwriter is not materially
prejudiced by such delay. The Company, any Selling Stockholder or such person
shall have the right to employ its own counsel in any such case, but the fees
and expenses of such counsel shall be at the expense of the Company, any Selling
Stockholder or such person unless the employment of such counsel shall have been
authorized in writing by such Underwriter in connection with the defense of such
Proceeding or such Underwriter shall not have, within a reasonable period of
time in light of the circumstances, employed counsel to defend such Proceeding
or such indemnified party or parties shall have reasonably concluded that there
may be defenses available to it or them which are different from or additional
to or in conflict with those available to such Underwriter (in which case such
Underwriter shall not have the right to direct the defense of such Proceeding on
behalf of the indemnified party or parties, but such Underwriter may employ
counsel and participate in the defense thereof but the fees and expenses of such
counsel shall be at the expense of such Underwriter), in any of which events
such fees and expenses shall be borne by such Underwriter and paid as incurred
(it being understood, however, that such Underwriter shall not be liable for the
expenses of more than one separate counsel (in addition to any local counsel) in
any one Proceeding or series of related Proceedings in the same jurisdiction
representing the indemnified parties who are parties to such Proceeding). No
Underwriter shall be liable for any settlement of any such Proceeding effected
without the written consent of such Underwriter but if settled with the written
consent of such Underwriter, such Underwriter agrees to indemnify and hold
harmless the Company, any Selling Stockholder and any such person from and
against any loss or liability by reason of such settlement. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this paragraph, then the
indemnifying party agrees that it shall be liable for any settlement of any
Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 business days after receipt by such indemnifying party
of the aforesaid request, (ii) such indemnifying party shall not have reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement and (iii) such indemnified party shall have given the indemnifying
party at least 30 days' prior notice of its intention to settle. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened Proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such Proceeding.
(d) If the indemnification provided for in this Section 10 is
unavailable to an indemnified party under subsections (a), (b) or (c)
of this Section 10 or insufficient to hold an indemnified party
harmless in respect of any losses, damages, expenses, liabilities or
claims referred to therein, then each applicable indemnifying party
shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, damages, expenses, liabilities or
claims (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Selling Stockholder on the one
hand and the Underwriters on the other hand from the offering of the
Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above
but also the relative fault of the Company and the Selling Stockholders
on the one hand and of the Underwriters on the other in connection with
the
31
statements or omissions which resulted in such losses, damages,
expenses, liabilities or claims, as well as any other relevant
equitable considerations. The relative benefits received by the Company
and the Selling Stockholders on the one hand and the Underwriters on
the other shall be deemed to be in the same respective proportions as
the total proceeds from the offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Company and
the Selling Stockholders and the total underwriting discounts and
commissions received by the Underwriters, bear to the aggregate public
offering price of the Shares. The relative fault of the Company and the
Selling Stockholders on the one hand and of the Underwriters on the
other shall be determined by reference to, among other things, whether
the untrue statement or alleged untrue statement of a material fact or
omission or alleged omission relates to information supplied by the
Company and/or the Selling Stockholders or by the Underwriters and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
amount paid or payable by a party as a result of the losses, damages,
expenses, liabilities and claims referred to in this subsection shall
be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating, preparing to
defend or defending any Proceeding.
(e) The Company, the Selling Stockholders and the Underwriters
agree that it would not be just and equitable if contribution pursuant
to this Section 10 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in subsection (d) above. Notwithstanding the
provisions of this Section 10, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price
at which the Shares underwritten by such Underwriter and distributed to
the public were offered to the public exceeds the amount of any damage
which such Underwriter has otherwise been required to pay by reason of
such untrue statement or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant
to this Section 10 are several in proportion to their respective
underwriting commitments and not joint.
(f) The indemnity and contribution agreements contained in
this Section 10 and the covenants, warranties and representations of
the Company and the Selling Stockholders contained in this Agreement
shall remain in full force and effect regardless of any investigation
made by or on behalf of any Underwriter, its partners, directors,
officers or "affiliates" (within the meaning of Rule 405 under the Act)
or any person (including each partner, officer or director of such
person) who controls any Underwriter within the meaning of Section 15
of the Act or Section 20 of the Exchange Act, or by or on behalf of the
Company, its directors or officers, any Selling Stockholder or any
person who controls the Company within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, and shall survive any
termination of this Agreement or the issuance and delivery of the
Shares. The Company, each of the Selling Stockholders and each
Underwriter agree promptly to notify each other of the commencement of
any Proceeding against it and, in the case of the Company or the
Selling Stockholders, against any of the Company's or Selling
Stockholder's officers or directors, as the case may be, in connection
with the issuance and sale of the Shares, or in connection with the
Registration Statement, any Preliminary Prospectus, the Prospectus or
any Permitted Free Writing Xxxxxxxxxx.
00
00. INFORMATION FURNISHED BY THE UNDERWRITERS. The statements set forth
in the last paragraph on the cover page of the Prospectus and the statements set
forth in the fifth, sixth, twelfth, thirteenth, fourteenth, fifteenth,
sixteenth, seventeenth and eighteenth paragraphs under the caption
"Underwriting" in the Prospectus, only insofar as such statements relate to the
amount of the selling concession and reallowance or to over-allotment and
stabilization activities that may be undertaken by the Underwriters constitute
the only information furnished by or on behalf of the Underwriters as such
information is referred to in Sections 3 and 10 hereof.
12. NOTICES. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or sent to
UBS Securities LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000-0000, Attention:
Syndicate Department and Bear, Xxxxxxx & Co., Inc., 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Parish, Senior Managing Director,
Equity Capital Markets; if to the Company, shall be sufficient in all respects
if delivered or sent to the Company at the offices of the Company at 00 Xxxxxxx
Xxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxx, Ph.D.; and if
to the Selling Stockholders, shall be sufficient in all respects if delivered or
sent to the Representatives of the Selling Stockholders at Xxxxx Xxxxxxx LLP,
000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, Attention: Xxxxxxx Xxxxx.
13. GOVERNING LAW; CONSTRUCTION. This Agreement and any claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement ("CLAIM"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of New
York. The section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
14. SUBMISSION TO JURISDICTION. Except as set forth below, no Claim may
be commenced, prosecuted or continued in any court other than the courts of the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, which courts shall
have jurisdiction over the adjudication of such matters, and the Company
consents to the jurisdiction of such courts and personal service with respect
thereto. The Company and each of the Selling Stockholders hereby consents to
personal jurisdiction, service and venue in any court in which any Claim arising
out of or in any way relating to this Agreement is brought by any third party
against Bear Xxxxxxx and/or UBS or any indemnified party. Each of Bear Xxxxxxx,
UBS, the Selling Stockholders and the Company (on its behalf and, to the extent
permitted by applicable law, on behalf of its stockholders and affiliates)
waives all right to trial by jury in any action, proceeding or counterclaim
(whether based upon contract, tort or otherwise) in any way arising out of or
relating to this Agreement. The Company and each of the Selling Stockholders
agrees that a final judgment in any such action, proceeding or counterclaim
brought in any such court shall be conclusive and binding upon the Company and
may be enforced in any other courts to the jurisdiction of which the Company is
or may be subject, by suit upon such judgment.
15. PARTIES AT INTEREST. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters, the Selling Stockholders and
the Company and to the extent provided in Section 11 hereof the controlling
persons, directors, officers and affiliates referred to in such Section, and
their respective successors, assigns, heirs, personal
33
representatives and executors and administrators. No other person, partnership,
association or corporation (including a purchaser, as such purchaser, from any
of the Underwriters) shall acquire or have any right under or by virtue of this
Agreement.
16. NO FIDUCIARY RELATIONSHIP. The Company and the Selling Stockholders
each hereby acknowledge that the Underwriters are acting solely as underwriters
in connection with the purchase and sale of the Company's securities. The
Company and the Selling Stockholders each further acknowledge that the
Underwriters are acting pursuant to a contractual relationship created solely by
this Agreement entered into on an arm's length basis, and in no event do the
parties intend that the Underwriters act or be responsible as a fiduciary to the
Company or any Selling Stockholder, their respective management, stockholders or
creditors or any other person in connection with any activity that the
Underwriters may undertake or have undertaken in furtherance of the purchase and
sale of the Company's securities, either before or after the date hereof. The
Underwriters hereby expressly disclaim any fiduciary or similar obligations to
the Company or any Selling Stockholder, either in connection with the
transactions contemplated by this Agreement or any matters leading up to such
transactions, and the Company and the Selling Stockholders each hereby confirm
their understanding and agreement to that effect. The Company, the Selling
Stockholders and the Underwriters agree that they are each responsible for
making their own independent judgments with respect to any such transactions and
that any opinions or views expressed by the Underwriters to the Company or any
Selling Stockholder regarding such transactions, including, but not limited to,
any opinions or views with respect to the price or market for the Company's
securities, do not constitute advice or recommendations to the Company or any
Selling Stockholder. The Company, the Selling Stockholders and the Underwriters
agree that the Underwriters are acting as principal and not the agent or
fiduciary of the Company and the Selling Stockholders and no Underwriter has
assumed, and no Underwriter will assume, any advisory responsibility in favor of
the Company or any Selling Stockholder with respect to the transactions
contemplated hereby or the process leading thereto (irrespective of whether any
Underwriter has advised or is currently advising the Company or any Selling
Stockholder on other matters). The Company and the Selling Stockholders each
hereby waive and release, to the fullest extent permitted by law, any claims
that the Company or any Selling Stockholder may have against the Underwriters
with respect to any breach or alleged breach of any fiduciary, advisory or
similar duty to the Company or any Selling Stockholder in connection with the
transactions contemplated by this Agreement or any matters leading up to such
transactions.
17. COUNTERPARTS. This Agreement may be signed by the parties in one or
more counterparts which together shall constitute one and the same agreement
among the parties.
18. SUCCESSORS AND ASSIGNS. This Agreement has been and is made solely
for the benefit of the Underwriters, the Company and the Selling Stockholders
and their respective successors, executors, administrators, heirs and assigns,
and the officers, directors and controlling persons referred to herein, and no
other person will have any right or obligation hereunder. The term "successors"
shall not include any purchaser of the Shares merely because of such persons.
19. MISCELLANEOUS. UBS, an indirect, wholly owned subsidiary of UBS AG,
is not a bank and is separate from any affiliated bank, including any U.S.
branch or agency of UBS AG.
34
Because UBS is a separately incorporated entity, it is solely responsible for
its own contractual obligations and commitments, including obligations with
respect to sales and purchases of securities. Securities sold, offered or
recommended by UBS are not deposits, are not insured by the Federal Deposit
Insurance Corporation, are not guaranteed by a branch or agency, and are not
otherwise an obligation or responsibility of a branch or agency.
35
If the foregoing correctly sets forth the understanding among the
Company, the Selling Stockholders and the Underwriters, please so indicate in
the space provided below for the purpose, whereupon this agreement and your
acceptance shall constitute a binding agreement among the Company, the Selling
Stockholders and the Underwriters, severally, in accordance with its terms.
Very truly yours,
BRUKER BIOSCIENCES CORPORATION
By:
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chairman, President and Chief
Executive Officer
THE SELLING STOCKHOLDERS NAMED IN
SCHEDULE B ATTACHED HERETO
By:
------------------------------------
Xxxxxxx X. Xxxxx
Attorney-in-Fact
36
Accepted and agreed to as of the
date first above written, on
behalf of themselves
and the other several Underwriters
named in Schedule A
BEAR, XXXXXXX & CO. INC.
UBS SECURITIES LLC
By: BEAR, XXXXXXX & CO. INC.
By:
------------------------------------
Name:
Title:
By: UBS SECURITIES LLC
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
SCHEDULE A
----------
Number of
UNDERWRITER FIRM SHARES
----------- -----------
BEAR, XXXXXXX & CO. INC.
UBS SECURITIES LLC
Total........................ 10,400,000
==========
1
SCHEDULE B
----------
NUMBER OF NUMBER OF
SELLERS FIRM SHARES ADDITIONAL SHARES
------- ----------- -----------------
Company 2,200,000 330,000
SELLING STOCKHOLDERS:
---------------------
Xxxxxx Xxxxxxx-Xxxxxxx 2,200,000 330,000
Xxxx Xxxxxxx 2,600,000 390,000
Xxxx Xxxxxxx 1,700,000 255,000
Xxxx Xxxxxxx 1,700,000 255,000
---------- ---------
Total................... 10,400,000 1,560,000
========== =========
1
SCHEDULE C
----------
SUBSIDIARY JURISDICTION OF INCORPORATION
---------- -----------------------------
Bruker AXS Inc. Delaware, USA
Bruker Daltonics Inc. Delaware, USA
Bruker Optics Inc. Delaware, USA
Bruker BioSciences Security Corp. Massachusetts, USA
Bruker AXS GmbH Germany
Bruker AXS K.K. (5) Japan
Bruker AXS B.V. (5) The Netherlands
Bruker do Brasil Ltda. (1) Brazil
Bruker AXS Ltd. (1) United Kingdom
Bruker AXS SAS (1) France
Bruker AXS S.r.l. (1) Italy
Bruker AXS Pte Ltd (Singapore) (1) Singapore
Bruker Austria GmbH (1) Austria
Bruker South Africa (Pty) Ltd. (1) South Africa
Bruker Polska Sp. Z o.o. (1) Poland
Bruker AXS Microanalysis GmbH Germany
Roentec UK Ltd. (4) United Kingdom
Baltic Scientific Instruments Ltd. (2) Latvia
InCoaTec GmbH (3) Germany
Bruker Quantron GmbH (1) Germany
Bruker AXS Analytical Instruments
Pvt. Ltd. (1) India
Bruker Daltonics NBC Detection Corp. Massachusetts, USA
Bruker BioSciences Korea Co., Ltd. South Korea
Bruker BioSciences Espanola S.A. Spain
Bruker Daltonics Ltd. England
Bruker Daltonique S.A. France
Bruker Daltonics K.K. Japan
Bruker Daltonics GmbH Switzerland
Bruker Daltonics Scandinavia AB Sweden
Bruker Daltonik GmbH Germany
Bruker Daltonics LTD Canada
Bruker Daltonics S.r.l. Italy
Bruker Daltonics Pte Ltd (Singapore) Singapore
Bruker BioSciences Pty. Ltd. Australia
Bruker Daltonics B.V. The Netherlands
Bruker Daltonics SPRL/BVBA Belgium
Bruker Daltonics Taiwan Taiwan
Bruker Optik GmbH Germany
Bruker Optique SA (6) France
Bruker Optics AB (6) Sweden
Bruker Optics S.r.l. (6) Italy
Bruker Optics GmbH Switzerland
Bruker Optics Ltd. Canada
Bruker Optik Asia Pacific Limited (6) Hong Kong
Bruker Instruments Ltd. (6) China
Bruker Optics Taiwan Ltd. (8) Taiwan
Bruker Optik Southeast Asia (8) Singapore
Bruker Optics Ltd. United Kingdom
Bruker Optics K.K. Japan
Bruker Optics B.V. (6) The Netherlands
Bruker Optics Korea (7) South Korea
Interspectra OU (9) Estonia
(1) These entities are indirect subsidiaries of Bruker AXS Inc. ("BAXS"). Each
is a wholly-owned subsidiary of Bruker AXS GmbH; Bruker AXS GmbH, in turn,
is a 90% owned subsidiary of BAXS and a 10% owned subsidiary of Bruker
BioSciences Corporation.
(2) Baltic Scientific Instruments Ltd. ("BSI") is an indirect subsidiary of
BAXS. BSI is 75.5% owned by Bruker AXS GmbH.
(3) InCoaTec GmbH ("InCoaTec") is an indirect subsidiary of BAXS. InCoaTec
is 51% owned by Bruker AXS GmbH.
(4) Roentec UK Ltd. is a wholly-owned subsidiary of Bruker AXS Microanalysis
GmbH.
(5) These entities are wholly-owned subsidiaries of BAXS.
(6) These entities are indirect subsidiaries of Bruker Optics Inc. ("BOPT").
Each is a wholly-owned subsidiary of Bruker Optik GmbH; Bruker Optik GmbH
is, in turn, a wholly-owned subsidiary of BOPT.
(7) Bruker Optics Korea is an indirect subsidiary of BOPT. It is a wholly-owned
subsidiary of Bruker Optics K.K.; Bruker Optics K.K. is, in turn, a
wholly-owned subsidiary of BOPT.
(8) These entities are indirect subsidiaries of BOPT. Each is a wholly-owned
subsidiary of Bruker Optik Asia Pacific Limited; Bruker Optik Asia Pacific
Limited is, in turn, a wholly-owned subsidiary of Bruker GmbH.
(9) Interspectra OU is an indirect subsidiary of BOPT. Interspectra is 76%
owned by Bruker Optik GmbH.
1
SCHEDULE D
----------
PERMITTED FREE WRITING PROSPECTUSES
1
EXHIBIT A
----------
BRUKER BIOSCIENCES CORPORATION
Common Stock
$0.01 Par Value
December ____, 2006
UBS Securities LLC
Bear, Xxxxxxx & Co. Inc.
As Representative of the several Underwriters
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This Lock-Up Letter Agreement is being delivered to you in connection with the
proposed
Underwriting Agreement (the "
Underwriting Agreement") to be entered
into by
Bruker Biosciences Corporation (the "Company"), certain selling
shareholders and you, as Representative of the several Underwriters named
therein, with respect to the public offering (the "Offering") of Common Stock,
par value $0.01 per share, of the Company (the "Common Stock").
In order to induce you to enter into the
Underwriting Agreement, the undersigned
agrees that for a period from the date of the Preliminary Prospectus until 180
days after the date of the final prospectus relating to the Offering the
undersigned will not, without the prior written consent of Bear Xxxxxxx and UBS,
(i) sell, offer to sell, contract or agree to sell, hypothecate, pledge, grant
any option to purchase or otherwise dispose of or agree to dispose of, directly
or indirectly, or file (or participate in the filing of) a registration
statement with the Securities and Exchange Commission (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
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission promulgated thereunder with respect to, any Common Stock of the
Company or any securities convertible into or exercisable or exchangeable for
Common Stock, or warrants or other rights to purchase Common Stock, (ii) enter
into any swap or other arrangement that transfers to another, in whole or in
part, any of the economic consequences of ownership of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock, or
warrants or other rights to purchase Common Stock, whether any such transaction
is to be settled by delivery of Common Stock or such other securities, in cash
or otherwise, or (iii) publicly announce an
A-1
intention to effect any transaction specified in clause (i) or (ii). The
foregoing sentence shall not apply to (a) the registration of or sale to the
Underwriters of any Common Stock pursuant to the Offering and the
Underwriting
Agreement, (b) bona fide gifts, provided the recipient thereof agrees in writing
with the Underwriters to be bound by the terms of this Lock-Up Letter Agreement
and confirm that he, she or it has been in compliance with the terms of this
Lock-Up Letter Agreement since the date of the Preliminary Prospectus or (c)
dispositions to any trust for the direct or indirect benefit of the undersigned
and/or the immediate family of the undersigned, provided that such trust agrees
in writing with the Underwriters to be bound by the terms of this Lock-Up Letter
Agreement and confirms that it has been in compliance with the terms of this
Lock-Up Letter Agreement since the date of the Preliminary Prospectus.
If (i) during the period that begins on the date that is 15 calendar days plus
three business days before the last day of the 180-day restricted period and
ends on the last day 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 (ii) 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, the restrictions imposed by
this letter shall continue to apply until the expiration of the date that is 15
calendar days plus three business days after the date on which the issuance of
the earnings release or the material news or material event occurs, provided
however, this paragraph will not apply if, within three days of the termination
of the 180-day restricted period, the Company delivers to Bear Xxxxxxx and UBS a
certificate, signed by the Chief Financial Officer or Chief Executive Officer of
the Company, certifying on behalf of the Company that the Company's shares of
Common Stock are, as of the date of delivery of such certificate, "actively
trading securities," as defined in Regulation M, 17 CFR 242.101(c)(1). Such
notice shall be delivered in accordance with Section 12 of the
Underwriting
Agreement.
In addition, the undersigned hereby waives any rights the undersigned may have
to require registration of Common Stock in connection with the filing of a
registration statement relating to the Offering. The undersigned further agrees
that, for a period from the date of the Preliminary Prospectus until 180 days
after the date of the final prospectus relating to the Offering, the undersigned
will not, without the prior written consent of Bear Xxxxxxx and UBS, make any
demand for, or exercise any right with respect to, the registration of Common
Stock of the Company or any securities convertible into or exercisable or
exchangeable for Common Stock, or warrants or other rights to purchase Common
Stock.
If (i) the Company notifies you in writing that it does not intend to proceed
with the Offering, (ii) the registration statement filed with the Securities and
Exchange Commission with respect to the Offering is withdrawn or (iii) for any
reason the
Underwriting Agreement shall be terminated prior to the time of
purchase (as defined in the
Underwriting Agreement), this Lock-Up Letter
Agreement shall be terminated and the undersigned shall be released from its
obligations hereunder. This lock-up agreement shall automatically terminate and
the undersigned shall be released from its obligations hereunder on the 90th day
after the date of the Preliminary Prospectus if the purchase of the Firm Shares
(as defined in the
Underwriting Agreement) by the Underwriters has not occurred
by such date.
Yours very truly,
Name:
A-2
