EXHIBIT 1.2
CYGNUS, INC.
Debt Securities
UNDERWRITING AGREEMENT
[DATE]
The Representatives of
the several Underwriters
listed on Schedule I hereto
Dear Sirs:
Cygnus, Inc., a Delaware corporation (the "Company"), proposes to
issue and sell an aggregate of $___________ (the "Firm Securities") principal
amount of the Company's [insert title of securities] (the "Securities") to be
issued pursuant to an Indenture dated as of __________, 19__ (the
"Indenture"), between the Company and ________, as Trustee (the "Trustee").
[The Securities are convertible into shares of common stock, par value ___ per
share, of the Company (the "Common Stock").] The Company has also agreed to
grant to you and the other Underwriters an option (the "Option") to purchase up
to an additional _____ Securities (the "Option Securities") on the terms and for
the purposes set forth in Section 1(b). The Firm Securities and the Option
Securities are hereafter collectively referred to as the "Securities". The
Securities will be sold to you and to the other underwriters named in Schedule I
(collectively, the "Underwriters") for whom you are acting as representatives
(the "Representatives").
The purchase price for the Securities to be paid by the several
Underwriters shall be agreed upon by the Company and the Representatives,
acting on behalf of the several Underwriters, and such agreement shall be set
forth in a separate written instrument substantially in the form of Exhibit A
hereto (the "Price Determination Agreement"). The Price Determination
Agreement may take the form of an exchange of any standard form of written
telecommunication among the Company and the Representatives and shall specify
such applicable information as is indicated in Exhibit A hereto. The
offering of the Securities will be governed by this Agreement, as
supplemented by the Price Determination Agreement. From and after the date
of the execution and delivery of the Price Determination Agreement, this
Agreement shall be deemed to incorporate, and, unless the context otherwise
indicates, all
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references contained herein to "this Agreement" and to the phrase "herein"
shall be deemed to include the Price Determination Agreement.
The Company confirms as follows its agreements with the
Representatives and the several other Underwriters.
1. AGREEMENT TO SELL AND PURCHASE.
(a) On the basis of the representations, warranties and
agreements of the Company herein contained and subject to all the terms and
conditions of this Agreement, the Company agrees to sell to each
Underwriter named below, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, the principal amount of the Firm
Securities set forth opposite the name of such Underwriter in Schedule I,
plus such additional principal amount of Firm Securities which such
Underwriter may become obligated to purchase pursuant to Section 8 hereof,
all at the purchase price [plus accrued interest, if any, from _________,
19__, to the Closing Date (as hereinafter defined)], to be agreed upon by
the Representatives and the Company in accordance with Section 1(c) or 1(d)
and set forth in the Price Determination Agreement. Schedule I may be
attached to the U.S. Price Determination Agreement.
(b) Subject to all the terms and conditions of this Agreement,
the Company grants the Option to the several Underwriters to purchase,
severally and not jointly, up to ____ Option Securities from the Company at
the same price per Security as the Underwriters shall pay for the Firm
Securities. The Option may be exercised only to cover over-allotments in
the sale of the Firm Securities by the Underwriters and may be exercised in
whole or in part at any time (but not more than once) on or before the 30th
day after the date of the Price Determination Agreement), upon written or
telegraphic notice (the "Option Securities Notice") by the Representatives
to the Company no later than 12:00 noon, New York City time, at least two
and no more than five business days before the date specified for closing
in the Option Securities Notice (the "Option Closing Date") setting forth
the aggregate number of Option Securities to be purchased and the time and
date for such purchase. On the Option Closing Date, the Company will issue
and sell to the Underwriters the number of Option Securities set forth in
the Option Securities Notice, and each Underwriter will purchase such
percentage of the Option Securities as is equal to the percentage of Firm
Securities that such Underwriter is purchasing, as adjusted by the
Representatives in such manner as they deem advisable to avoid fractional
shares.
(c) The purchase price for the Firm Securities to be paid by the
several Underwriters shall be agreed upon and set forth in the Price
Determination Agreement. In the event such price has not been agreed upon
and the Price Determination Agreement has not been executed by the close of
business on the
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fourteenth business day following the date on which the Registration
Statement becomes effective, this Agreement shall terminate forthwith,
without liability of any party to any other party except that Section 6
shall remain in effect.
2. DELIVERY AND PAYMENT. Delivery of the Firm Securities shall be
made to the Representatives for the accounts of the Underwriters against payment
of the purchase price [Federal Reserve Funds check payable in immediately
available funds to the order of the Company] [wire transfer of Federal Funds or
similar same day funds to an account designated in writing by the Company to
________ at least one business day prior to the Closing Date (as hereinafter
defined)]. Such payment shall be made at 10:00 a.m., New York City time, on the
[third] [fourth] business day after the date on which the first bona fide
offering of the Securities to the public is made by the Underwriters or at such
time on such other date, not later than 10 business days after such date as may
be agreed upon by the Company and the Representatives (such date is hereinafter
referred to as the "Closing Date").
To the extent the Option is exercised, delivery of the Option
Securities against payment by the Underwriters (in the manner specified above)
will take place [at the offices specified above for the Closing Date] at the
time and date (which may be the Closing Date) specified in the Option Securities
Notice.
[Certificates evidencing the Securities shall be in definitive form
and shall be registered in such names and in such authorized denominations as
the Representatives shall request by written notice to the Company at least two
business days prior to the Closing Date or the Option Closing Date, as the case
may be. For the purpose of expediting the checking and packaging of
certificates for the Securities, the Company agrees to make such certificates
available for inspection at least 24 hours prior to the Closing Date or the
Option Closing Date, as the case may be.]
The cost of original issue tax stamps, if any, in connection with the
issuance and delivery of the Securities by the Company to the respective
Underwriters shall be borne by the Company. The Company will pay and save each
Underwriter and any subsequent holder of the Securities harmless from any and
all liabilities with respect to or resulting from any failure or delay in paying
Federal and state stamp and other issuance taxes, if any, which may be payable
or determined to be payable in connection with the original issuance or sale to
such Underwriter of the Securities.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents, warrants and covenants to each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 and a
registration statement (Registration No. ) on Form S-3 relating to
the Securities [and the shares of Common Stock to be delivered upon
conversion thereof], including
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a preliminary prospectus and such amendments to such registration statement
as may have been required to the date of this Agreement, has been prepared
by the Company under the provisions of the Securities Act of 1933, as
amended (the "Act"), and the rules and regulations (collectively referred to
as the "Rules and Regulations") of the Securities and Exchange Commission
(the "Commission") thereunder for the offering of the Securities [(including
the Common Stock issuable upon conversion thereof)] from time to time in
accordance with Rule 415 of the Rules and Regulations, and has been filed
with the Commission. The term "preliminary prospectus" as used herein means
a preliminary prospectus as contemplated by Rule 430 or Rule 430A ("Rule
430A") of the Rules and Regulations included at any time as part of the
registration statement. Copies of such registration statement and amendments
and of each related preliminary prospectus have been delivered to the
Representatives. The term "Registration Statement" means the registration
statement as amended at the time it becomes or became effective (the
"Effective Date"), including financial statements and all exhibits and any
information deemed to be included by Rule 430A or Rule 434 of the Rules and
Regulations. If the Company files a registration statement to register a
portion of the Securities and relies on Rule 462(b) of the Rules and
Regulations for such registration statement to become effective upon filing
with the Commission (the "Rule 462 Registration Statement"), then any
reference to the "Registration Statement" shall be deemed to include the
Rule 462 Registration Statement, as amended from time to time. A prospectus
supplement relating to the Securities [(and the shares of Common Stock to
be delivered upon conversion thereof)], the terms of the offering thereof
and the other matters set forth therein has been prepared and will be filed
pursuant to Rule 424 of the Rules and Regulations. Such prospectus
supplement, in the form first filed after the date hereof pursuant to Rule
424, is herein referred to as the "Prospectus Supplement". The term
"Prospectus" means the form of final prospectus included in the
Registration Statement at the Effective Date as supplemented by the
Prospectus Supplement; PROVIDED that if the Prospectus is amended or
supplemented on or after the date hereof by prior to the date on which the
Prospectus Supplement is first filed pursuant to Rule 424, the term
"Prospectus" shall refer to the Prospectus as so amended or supplemented
and as supplemented by the Prospectus Supplement. Any reference herein to
the Registration Statement, any preliminary prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 which were filed under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), on or
before the Effective Date or the date of such preliminary prospectus or the
Prospectus, as the case may be. Any reference herein to the terms "amend,"
"amendment" or "supplement" with respect to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the
Effective Date, or the date of any preliminary prospectus or the
Prospectus, as the case may be, and deemed to be incorporated therein by
reference.
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(b) On the Effective Date, the date the Prospectus is first
filed with the Commission pursuant to Rule 424(b), at all times subsequent
to and including the Closing Date and, if later, the Option Closing Date
and when any post-effective amendment to the Registration Statement becomes
effective or any amendment or supplement to the Prospectus is filed with
the Commission, the Registration Statement and the Prospectus (as amended
or as supplemented if the Company shall have filed with the Commission any
amendment or supplement thereto), including the financial statements
included or incorporated by reference in the Prospectus, did or will comply
with the applicable provisions of the Act, the Exchange Act, the rules and
regulations thereunder (the "Exchange Act Rules and Regulations"), the
Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"), the
rules and regulations thereunder (the "Trust Indenture Act Rules and
Regulations") and the Rules and Regulations and will contain all statements
required to be stated therein in accordance with the Act, the Exchange Act,
the Exchange Act Rules and Regulations and the Rules and Regulations. On
the Effective Date and when any post-effective amendment to the
Registration Statement becomes effective, no part of the Registration
Statement, or any such amendment did or will contain any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein not
misleading. At the Effective Date, the date the Prospectus or any
amendment or supplement to the Prospectus is filed with the Commission and
at the Closing Date, and, if later, the Option Closing Date, the Prospectus
did not or will not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in
order to make the satements therein, in the light of the circumstances
under which they were made, not misleading. The foregoing representations
and warranties in this Section 3(b) do not apply to any statements or
omissions made in reliance on and in conformity with information relating
to any Underwriter furnished in writing to the Company by the
Representatives specifically for inclusion in the Registration Statement or
Prospectus or any amendment or supplement thereto. For all purposes of
this Agreement, the amounts of the selling concession and reallowance set
forth in the Prospectus constitute the only information relating to any
Underwriter furnished in writing to the Company by the Representatives
specifically for inclusion in the Registration Statement, the preliminary
prospectus or the Prospectus. The Company has not distributed any offering
material in connection with the offering or sale of the Securities other
than the Registration Statement, the preliminary prospectus, the Prospectus
or any other materials, if any, permitted by the Act. On the Effective
Date, the date the Prospectus is first filed with the Commission pursuant
to Rule 497 (if required), and at all subsequent times to and including the
Closing Date or, if later, the Option Closing Date, the Indenture will
comply with all applicable provisions of the Trust Indenture Act and the
Trust Indenture Act Rules and Regulations.
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(c) The documents which are incorporated by reference in the
preliminary prospectus and the Prospectus or from which information is so
incorporated by reference, when they become effective or were filed with
the Commission, as the case may be, complied in all material respects with
the requirements of the Act or the Exchange Act, as applicable, the
Exchange Act Rules and Regulations and the Rules and Regulations; and any
documents so filed and incorporated by reference subsequent to the
Effective Date shall, when they are filed with the Commission, conform in
all material respects with the requirements of the Act and the Exchange
Act, as applicable, the Exchange Act Rules and Regulations and the Rules
and Regulations.
(d) The only subsidiaries (as defined in the Rules and
Regulations) of the Company are the subsidiaries listed on Exhibit 21 to
the Registration Statement (the Subsidiaries"). The Company and each of
its Subsidiaries is, and at the Closing Date will be, a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation. The Company and each of its Subsidiaries
has, and at the Closing Date will have, full power and authority to conduct
all the activities conducted by it, to own or lease all the assets owned or
leased by it and to conduct its business as described in the Registration
Statement and the Prospectus. The Company and each of its Subsidiaries is,
and at the Closing Date will be, duly licensed or qualified to do business
and in good standing as a foreign corporation in all jurisdictions in which
the nature of the activities conducted by it or the character of the assets
owned or leased by it makes such licensing or qualification necessary. All
of the outstanding shares of capital stock of the Subsidiaries have been
duly authorized and validly issued and are fully paid and non-assessable
and are owned by the Company free and clear of all liens, encumbrances and
claims whatsoever. Except for the stock of the Subsidiaries and as
disclosed in the Registration Statement, the Company does not own, and at
the Closing Date will 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 certificate of
incorporation and of the by-laws of the Company and each of its
Subsidiaries and all amendments thereto have been delivered to the
Representatives, and no changes therein will be made subsequent to the date
hereof and prior to the Closing Date or, if later, the Option Closing Date.
(e) [The outstanding shares of Common Stock have been duly
authorized, validly issued, and are fully paid and nonassessable and not
subject to any preemptive or similar right.] The Securities have been duly
and validly authorized and, when authenticated by the Trustee and issued,
delivered and sold in accordance with this Agreement and the Indenture,
will have been duly and validly executed, authenticated, issued and
delivered and will constitute valid and binding obligations of the Company,
enforceable against the Company in accordance with their respective
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terms and entitled to the benefits provided by the Indenture. [The shares
of Common Stock to be delivered upon conversion of the Securities have been
duly authorized and reserved for issuance upon such conversion and, when
issued and delivered upon conversion of the Securities, will be validly
issued, fully paid and nonassessable and will not be subject to any
preemptive or similar right.] At the Closing Date, the Company will have
an authorized and outstanding capitalization as set forth in the
Prospectus.
(f) The description of the Securities [and the Common Stock] in
the Registration Statement and the Prospectus is, and at the Closing Date
will be, complete and accurate in all respects. The Indenture conforms to
the description thereof contained in the Registration Statement and the
Prospectus.
(g) The financial statements and schedules included or
incorporated by reference in the Registration Statement or the Prospectus
present fairly the consolidated financial condition of the Company as of
the respective dates thereof and the consolidated results of operations and
cash flows of the Company for the respective periods covered thereby, all
in conformity with generally accepted accounting principles applied on a
consistent basis throughout the entire period involved, except as otherwise
disclosed in the Prospectus. The pro forma financial statements and other
pro forma financial information included in the Registration Statement or
the Prospectus (i) present fairly in all material respects the information
shown therein, (ii) have been prepared in accordance with the Commission's
rules and guidelines with respect to pro forma financial statements and
(iii) have been properly computed on the bases described therein. The
assumptions used in the preparation of the pro forma financial statements
and other pro forma financial information included in the Registration
Statement or the Prospectus are reasonable and the adjustments used therein
are appropriate to give effect to the transactions or circumstances
referred to therein. No other financial statements or schedules of the
Company are required by the Act, the Exchange Act or the Rules and
Regulations to be included in the Registration Statement or the Prospectus.
Ernst & Young, LLP (the "Accountants"), who have reported on such financial
statements and schedules, are independent accountants with respect to the
Company as required by the Act and the Rules and Regulations. The
statements included in the Registration Statement with respect to the
Accountants pursuant to Rule 509 of Regulation S-K of the Rules and
Regulations are true and correct in all material respects.
(h) The Company maintains a system of internal accounting
control 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;
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(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.
(i) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus and prior to the
Closing Date, except as set forth in or contemplated by the Registration
Statement and the Prospectus, (i) there has not been and will not have been
any change in the capitalization of the Company, or in the business,
properties, business prospects, condition (financial or otherwise) or
results of operations of the Company and its Subsidiaries, arising for any
reason whatsoever, (ii) neither the Company nor any of its Subsidiaries has
incurred nor will it incur any material liabilities or obligations, direct
or contingent, nor has it entered into nor will it enter into any material
transactions other than pursuant to this Agreement and the transactions
referred to herein and (iii) the Company has not and will not have paid or
declared any dividends or other distributions of any kind on any class of
its capital stock.
(j) The Company is not an "investment company" or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an "investment
company," as such terms are defined in the Investment Company Act of 1940,
as amended.
(k) Except as set forth in the Registration Statement and the
Prospectus, there are no actions, suits or proceedings pending or
threatened against or affecting the Company or any of its Subsidiaries or
any of their respective officers in their capacity as such, before or by
any Federal or state court, commission, regulatory body, administrative
agency or other governmental body, domestic or foreign, wherein an
unfavorable ruling, decision or finding might materially and adversely
affect the Company or any of its Subsidiaries or its business, properties,
business prospects, condition (financial or otherwise) or results of
operations.
(l) The Company and each of its Subsidiaries has, and at the
Closing Date will have, (i) all governmental licenses, permits, consents,
orders, approvals and other authorizations necessary to carry on its
business as contemplated in the Prospectus, (ii) complied in all respects
with all laws, regulations and orders applicable to it or its business and
(iii) performed all its obligations required to be performed by it, and is
not, and at the Closing Date will not be, in default, under any indenture,
mortgage, deed of trust, voting trust agreement, loan agreement, bond,
debenture, note agreement, lease, contract or other agreement or instrument
(collectively, a "contract or other agreement") to which it is a party or
by which its property is bound or affected. To the best knowledge of the
Company and each of its Subsidiaries, no other party under any contract or
other agreement to which it is a
9
party is in default in any respect thereunder. Neither the Company nor any
of its Subsidiaries is, nor at the Closing Date will any of them be, in
violation of any provision of its certificate of incorporation or by-laws.
(m) No consent, approval, authorization or order of, or any
filing or declaration with, any court or governmental agency or body is
required in connection with the authorization, issuance, transfer, sale or
delivery of the Securities [or the shares of Common Stock to be delivered
upon conversion thereof] by the Company, in connection with the execution,
delivery and performance of this Agreement by the Company or in connection
with the taking by the Company of any action contemplated hereby and in the
Indenture and the Securities, except such as have been obtained under the
Act, the Trust Indenture Act, the Trust Indenture Act Rules and Regulations
or the Rules and Regulations and such as may be required under state
securities or Blue Sky laws or the by-laws and rules of the National
Association of Securities Dealers, Inc. (the "NASD") in connection with the
purchase and distribution by the Underwriters of the Securities.
(n) The Company has full corporate power and authority to enter
into this Agreement. This Agreement has been duly authorized, executed and
delivered by the Company and constitutes a valid and binding agreement of
the Company and is enforceable against the Company in accordance with the
terms hereof. The Indenture has been duly authorized and, when executed
and delivered by the Company and the Trustee and qualified under the Trust
Indenture Act, will constitute a valid and binding agreement of the Company
and will be enforceable against the Company in accordance with its terms.
The performance by the Company of this Agreement, the Indenture and the
Securities and the consummation of the transactions contemplated hereby and
thereby and the application of the net proceeds from the offering and sale
of the Securities to be sold by the Company in the manner set forth in the
Prospectus under "Use of Proceeds" will not result in the creation or
imposition of any lien, charge or encumbrance upon any of the assets of the
Company or any of its Subsidiaries pursuant to the terms or provisions of,
or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or give any other party a right to terminate
any of its obligations under, or result in the acceleration of any
obligation under, the certificate of incorporation or by-laws of the
Company or any of its Subsidiaries, any contract or other agreement to
which the Company or any of its Subsidiaries is a party or by which the
Company or any of its Subsidiaries or any of its properties is bound or
affected, or violate or conflict with any judgment, ruling, decree, order,
statute, rule or regulation of any court or governmental agency or body
applicable to the business or properties of the Company or any of its
Subsidiaries.
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(o) The Company and each of its Subsidiaries has good and
marketable title to all properties and assets described in the Prospectus
as owned by it, free and clear of all liens, charges, encumbrances or
restrictions, except such as are described in the Prospectus or are not
material to the business of the Company or its Subsidiaries. The Company
and each of its Subsidiaries has valid, subsisting and enforceable leases
for the properties described in the Prospectus as leased by it, with such
exceptions as are not material and do not materially interfere with the use
made and proposed to be made of such properties by the Company and such
Subsidiaries.
(p) There is no document or contract of a character required to
be described in the Registration Statement or the Prospectus or to be filed
as an exhibit to the Registration Statement which is not described or filed
as required. All such contracts to which the Company or any Subsidiary is
a party have been duly authorized, executed and delivered by the Company or
such Subsidiary, constitute valid and binding agreements of the Company or
such Subsidiary and are enforceable against the Company or such Subsidiary
in accordance with the terms thereof.
(q) No statement, representation, warranty or covenant made by
the Company in this Agreement or the Indenture or made in any certificate
or document required by this Agreement to be delivered to the
Representatives was or will be, when made, inaccurate, untrue or incorrect.
(r) Neither the Company nor any of its directors, officers or
controlling persons has taken, directly or indirectly, any action designed,
or which might reasonably be expected, to cause or result, under the Act or
otherwise, in, or which has constituted, stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale
of the Securities.
(s) No holder of securities of the Company has rights to the
registration of any securities of the Company because of the filing of the
Registration Statement.
[(t) Prior to the Closing Date, the Securities [and the shares of
Common Stock to be delivered upon conversion thereof] will be approved for
quotation on the Nasdaq National Market.]
(u) The Company and its Subsidiaries are in compliance with all
federal, state and local employment and labor laws, including, but not
limited to, laws relating to non-discrimination in hiring, promotion and
pay of employees; no labor dispute with the employees of the Company or any
Subsidiary exists or, to the knowledge of the Company, is imminent or
threatened; and the Company is not aware of any existing, imminent or
threatened labor disturbance by the employees of any of
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its principal suppliers, manufacturers or contractors that could result in
a material adverse effect on the condition (financial or otherwise) or on
the earnings, business, properties, business prospects or operations of the
Company and its Subsidiaries, taken as a whole.
(v) The Company and its Subsidiaries own, or are licensed or
otherwise have the full exclusive right to use, the material patents,
patent rights, licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, services
marks and trade names (collectively, "patent and proprietary rights")
presently employed by them or which are necessary in connection with the
conduct of the business now operated by them, and neither the Company nor
any of its Subsidiaries has received any written notice or otherwise has
actual knowledge of any infringement of or conflict with asserted rights of
others or any other claims with respect to any patent or proprietary
rights, or of any basis for rendering any patent and proprietary rights
invalid or inadequate to protect the interest of the Company or any of its
Subsidiaries.
(w) Neither the Company nor any of its Subsidiaries nor, to the
Company's knowledge, any employee or agent of the Company or any Subsidiary
has made any payment of funds of the Company or any Subsidiary or received
or retained any funds in violation of any law, rule or regulation or of a
character required to be disclosed in the Prospectus.
(x) The Company and its Subsidiaries (i) are in compliance with
any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or imposing liability or standards of conduct concerning any
Hazardous Material (as hereinafter defined) ("Environmental Laws"), (ii)
have received all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective businesses
and (iii) are in compliance with all terms and conditions of any such
permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such
permits, licenses or approvals would not, individually or in the aggregate
result in a material adverse effect on the condition (financial or
otherwise) or on the earnings, business, properties, business prospects or
operations of the Company and its Subsidiaries, taken as a whole. The term
"Hazardous Material" means (A) any "hazardous substance" as defined by the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended, (B) any "hazardous waste" as defined by the Resource
Conservation and Recovery Act, as amended, (C) any petroleum or petroleum
product, (D) any polychlorinated biphenyl and (E) any pollutant or
contaminant or hazardous,
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dangerous, or toxic chemical, material, waste or substance regulated under
or within the meaning of any other Environmental Law.
(y) In the ordinary course of its business, the Company conducts
a periodic review of the effect of Environmental Laws on the business,
operations and properties of the Company and its Subsidiaries, in the
course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or compliance
with Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties). Except as set forth in the Registration Statement and the
Prospectus there are no costs and liabilities associated with or arising in
connection with Environmental Laws as currently in effect (including,
without limitation, costs of compliance therewith) which would, singly or
in the aggregate have a material adverse effect on the condition (financial
or otherwise) or on the earnings, business, properties, business prospects
or operations of the Company and its Subsidiaries, taken as a whole.
(z) The Company maintains insurance with respect to its
properties and business of the types and in amounts generally deemed
adequate for its business and consistent with insurance coverage maintained
by similar companies and businesses, all of which insurance is in full
force and effect.
(aa) The Company has filed all material federal, state and
foreign income and franchise tax returns and has paid all taxes shown as
due thereon, other than taxes which are being contested in good faith and
for which adequate reserves have been established in accordance with
generally accepted accounting principles ("GAAP"); and the Company has no
knowledge of any tax deficiency which has been or might be asserted or
threatened against the Company. There are no tax returns of the Company or
any of its Subsidiaries that are currently being audited by state, local or
federal taxing authorities or agencies (and with respect to which the
Company or any Subsidiary has received notice), where the findings of such
audit, if adversely determined, would result in a material adverse effect
on the condition (financial or otherwise) or on the earnings, business,
properties, business prospects or operations of the Company and its
Subsidiaries, taken as a whole.
(bb) With respect to each employee benefit plan, program and
arrangement (including, without limitation, any "employee benefit plan" as
defined in Section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA")) maintained or contributed to by the Company, or
with respect to which the Company could incur any liability under ERISA
(collectively, the "Benefit Plans"), no event has occurred and, to the best
knowledge of the Company, there exists no condition or set of
circumstances, in connection with which the Company could be
13
subject to any liability under the terms of such Benefit Plan, applicable
law (including, without limitation, ERISA and the Internal Revenue Code of
1986, as amended) or any applicable agreement that could materially
adversely affect the business, properties, business prospects, condition
(financial or otherwise) or results of operations of the Company and its
Subsidiaries, taken as a whole.
4. AGREEMENTS OF THE COMPANY. The Company agrees with the several
Underwriters as follows:
(a) The Company will not, either prior to the Effective Date or
thereafter during such period as the Prospectus is required by law to be
delivered in connection with sales of the Securities by an Underwriter or
dealer, file any amendment or supplement to the Registration Statement or
the Prospectus, unless a copy thereof shall first have been submitted to
the Representatives within a reasonable period of time prior to the filing
thereof and the Representatives shall not have objected thereto in good
faith.
(b) The Company will use its best efforts to cause the
Registration Statement to become effective, and will notify the
Representatives promptly, and will confirm such advice in writing, (1) when
the Registration Statement has become effective and when any post-effective
amendment thereto becomes effective, (2) of any request by the Commission
for amendments or supplements to the Registration Statement or the
Prospectus or for additional information, (3) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose or the threat thereof, (4) of the happening of any event during the
period mentioned in the second sentence of Section 4(e) that in the
judgment of the Company makes any statement made in the Registration
Statement or the Prospectus untrue or that requires the making of any
changes in the Registration Statement or the Prospectus in order to make
the statements therein, in light of the circumstances in which they are
made, not misleading and (5) of receipt by the Company or any
representative or attorney of the Company of any other communication from
the Commission relating to the Company, the Registration Statement, any
preliminary prospectus or the Prospectus. If at any time the Commission
shall issue any order suspending the effectiveness of the Registration
Statement, the Company will make every reasonable effort to obtain the
withdrawal of such order at the earliest possible moment. The Company will
use its best efforts to comply with the provisions of and make all
requisite filings with the Commission pursuant to Rule 430A and to notify
the Representatives promptly of all such filings.
(c) The Company will furnish to the Representatives, without
charge, two signed copies of the Registration Statement and of any post-
effective
14
amendment thereto, including financial statements and schedules, and all
exhibits thereto (including any document filed under the Exchange Act and
deemed to be incorporated by reference into the Prospectus), and will
furnish to the Representatives, without charge, for transmittal to each of
the other Underwriters, a copy of the Registration Statement and any post-
effective amendment thereto, including financial statements and schedules
but without exhibits.
(d) The Company will comply with all the provisions of any
undertakings contained in the Registration Statement.
(e) On the Effective Date, and thereafter from time to time, the
Company will deliver to each of the Underwriters, without charge, as many
copies of the Prospectus or any amendment or supplement thereto, as the
Representatives may reasonably request. The Company consents to the use of
the Prospectus or any amendment or supplement thereto by the several
Underwriters and by all dealers to whom the Securities may be sold, both in
connection with the offering or sale of the Securities and for any period
of time thereafter during which the Prospectus is required by law to be
delivered in connection therewith. If during such period of time any event
shall occur which in the judgment of the Company or counsel to the
Underwriters should be set forth in the Prospectus in order to make any
statement therein, in the light of the circumstances under which it was
made, not misleading, or if it is necessary to supplement or amend the
Prospectus to comply with law, the Company will forthwith prepare and duly
file with the Commission an appropriate supplement or amendment thereto,
and will deliver to each of the Underwriters, without charge, such number
of copies thereof as the Representatives may reasonably request. The
Company shall not file any document under the Exchange Act before the
termination of the offering of the Securities by the Underwriters if such
document would be deemed to be incorporated by reference into the
Prospectus which is not approved by the Representatives after reasonable
notice thereof.
(f) Prior to any public offering of the Securities by the
Underwriters, the Company will cooperate with the Representatives and
counsel to the Underwriters in connection with the registration or
qualification of the Securities [and the shares of Common Stock to be
delivered upon conversion thereof] for offer and sale under the securities
or Blue Sky laws of such jurisdictions as the Representatives may request;
provided, that in no event shall the Company be obligated to qualify to do
business in any jurisdiction where it is not now so qualified or to take
any action which would subject it to general service of process in any
jurisdiction where it is not now so subject.
(g) During the period of five years commencing on the Effective
Date, the Company will furnish to the Representatives and each other
Underwriter who
15
may so request copies of such financial statements and other periodic and
special reports as the Company may from time to time distribute generally
to the holders of any class of its capital stock, and will furnish to the
Representatives and each other Underwriter who may so request a copy of each
annual or other report it shall be required to file with the Commission.
(h) The Company will make generally available to holders of its
securities as soon as may be practicable but in no event later than the
last day of the fifteenth full calendar month following the calendar
quarter in which the Effective Date falls, an earnings statement (which
need not be audited but shall be in reasonable detail) for a period of
12 months ended commencing after the Effective Date, and satisfying the
provisions of Section 11(a) of the Act (including Rule 158 of the Rules and
Regulations).
(i) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the Company will
pay, or reimburse if paid by the Representatives, all costs and expenses
incident to the performance of the obligations of the Company under this
Agreement, including but not limited to costs and expenses of or relating
to (1) the preparation, printing and filing of the Registration Statement
and exhibits to it, each preliminary prospectus, the Prospectus, any
amendment or supplement to the Registration Statement or the Prospectus and
the Indenture, (2) the preparation and delivery of certificates
representing the Securities [and the shares of Common Stock to be delivered
upon conversion thereof], (3) the word processing, printing and
reproduction of this Agreement, the Agreement Among Underwriters, any
Dealer Agreements and any Underwriters' Questionnaire, (4) furnishing
(including costs of shipping, mailing and courier) such copies of the
Registration Statement, the Prospectus and any preliminary prospectus, and
all amendments and supplements thereto, as may be requested for use in
connection with the offering and sale of the Securities by the Underwriters
or by dealers to whom Securities may be sold, [(5) the listing of the
Securities [and the shares of Common Stock to be delivered upon conversion
thereof] for quotation on the Nasdaq National Market], (6) any filings
required to be made by the Underwriters with the NASD, and the fees,
disbursements and other charges of counsel for the Underwriters in
connection therewith, (7) the registration or qualification of the
Securities [and the shares of Common Stock to be delivered upon conversion
thereof] for offer and sale under the securities or Blue Sky laws of such
jurisdictions designated pursuant to Section 4(f), including the fees,
disbursements and other charges of counsel to the Underwriters in
connection therewith, and the preparation and printing of preliminary,
supplemental and final Blue Sky memoranda, (8) counsel to the Company,
(9) the transfer agent and registrar for the Securities [and the shares of
Common Stock to be delivered upon conversion thereof], (10) the rating of
the Securities by one or more rating agencies, (11) the Trustee and any
agent of the Trustee and the fees,
16
disbursements and other charges of counsel for the Trustee in connection
with the Indenture and the Securities and (12) the Accountants.
(j) If this Agreement shall be terminated by the Company
pursuant to any of the provisions hereof (other than pursuant to Section 8)
or if for any reason the Company shall be unable to perform its obligations
hereunder, the Company will reimburse the several Underwriters for all out-
of-pocket expenses (including the fees, disbursements and other charges of
counsel to the Underwriters) reasonably incurred by them in connection
herewith.
(k) The Company will not at any time, directly or indirectly,
take any action intended, or which might reasonably be expected, to cause
or result in, or which will constitute, stabilization of the price of the
Securities [or the shares of Common Stock to be delivered upon conversion
thereof] to facilitate the sale or resale of any of the Securities [or such
shares of Common Stock].
(l) The Company will apply the net proceeds from the offering
and sale of the Securities in the manner set forth in the Prospectus under
"Use of Proceeds".
(m) The Company will not claim the benefit of any usury law
against any holders of Securities.
(n) The Company will not, and will cause each of its executive
officers, directors and each beneficial owner of more than 5% of the
outstanding shares of Common Stock to enter into agreements with the
Representatives in the form set forth in Exhibit B to the effect that they
will not, for a period of 90 days after the commencement of the public
offering of the Securities, without the prior written consent of
____________, contract to sell or otherwise dispose of any shares of Common
Stock or securities convertible into common stock (other than to the
underwriters pursuant to this Agreement and pursuant to employee benefit
plans).
5. CONDITIONS OF OBLIGATIONS OF THE UNDERWRITERS. In addition to
the execution and delivery of the Price Determination Agreement, the obligations
of each Underwriter hereunder are subject to the following conditions:
(a) Notification that the Registration Statement has become
effective shall be received by the Representatives not later than
5:00 P.M., New York City time, on the date of this Agreement or at such
later date and time as shall be consented to in writing by the
Representatives and all filings required by Rule 424 of the Rules and
Regulations and Rule 430A shall have been made.
17
(b) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall be pending or threatened by the Commission, (ii) no order
suspending the effectiveness of the Registration Statement or the
qualification or registration of the Securities [and the shares of Common
Stock to be delivered upon conversion thereof] under the securities or Blue
Sky laws of any jurisdiction shall be in effect and no proceeding for such
purpose shall be pending before or threatened or contemplated by the
Commission or the authorities of any such jurisdiction, (iii) any request
for additional information on the part of the staff of the Commission or
any such authorities shall have been complied with to the satisfaction of
the staff of the Commission or such authorities and (iv) after the date
hereof no amendment or supplement to the Registration Statement or the
Prospectus shall have been filed unless a copy thereof was first submitted
to the Representatives and the Representatives did not object thereto in
good faith, and the Representatives shall have received certificates, dated
the Closing Date and the Option Closing Date and signed by the Chief
Executive Officer or the Chairman of the Board of Directors of the Company
and the Chief Financial Officer of the Company (who may, as to proceedings
threatened, rely upon the best of their information and belief), to the
effect of clauses (i), (ii) and (iii).
(c) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus (i) there shall not have
been and no development shall have occurred which could reasonably be
expected to result in a material adverse change in the general affairs,
business, business prospects, properties, management, condition (financial
or otherwise) or results of operations of the Company and its Subsidiaries,
taken as a whole, whether or not arising from transactions in the ordinary
course of business, in each case other than as set forth in or contemplated
by the Registration Statement and the Prospectus, and (ii) neither the
Company nor any of its Subsidiaries shall have sustained any material loss
or interference with its business or properties from fire, explosion, flood
or other casualty, whether or not covered by insurance, or from any labor
dispute or any court or legislative or other governmental action, order or
decree, which is not set forth in the Registration Statement and the
Prospectus, if in the judgment of the Representatives any such development
makes it impracticable or inadvisable to consummate the sale and delivery
of the Securities by the Underwriters in accordance with the terms hereof
and thereof.
(d) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, there shall have been no
litigation or other proceeding instituted against the Company or any of its
Subsidiaries or any of their respective officers or directors in their
capacities as such, before or by any Federal, state or local court,
commission, regulatory body, administrative agency or other governmental
body, domestic or foreign, in which litigation or proceeding an
18
unfavorable ruling, decision or finding would materially and adversely
affect the business, properties, business prospects, condition (financial
or otherwise) or results of operations of the Company and its Subsidiaries
taken as a whole.
(e) Each of the representations and warranties of the Company
contained herein shall be true and correct in all material respects at the
Closing Date and, with respect to the Option Securities, at the Option
Closing Date, as if made at the Closing Date, and, with respect to the
Option Securities, at the Option Closing Date, and all covenants and
agreements herein contained to be performed on the part of the Company and
all conditions herein contained to be fulfilled or complied with by the
Company at or prior to the Closing Date and, with respect to the Option
Securities, at or prior to the Option Closing Date, shall have been duly
performed, fulfilled or complied with.
(f) The Representatives shall have received an opinion, dated
the Closing Date and, with respect to the Option Securities, the Option
Closing Date, and satisfactory in form and substance to counsel for the
Underwriters, from ______________, counsel to the Company, to the effect
set forth in Exhibit C, and (ii) _______, patent and regulatory counsel for
the Company, to the effect set forth in Exhibit D.
(g) The Representatives shall have received an opinion, dated
the Closing Date and, with respect to the Option Securities, the Option
Closing Date, from ___________________, counsel to the Underwriters, with
respect to the Registration Statement, the Prospectus and this Agreement,
which opinion shall be satisfactory in all respects to the Representatives.
(h) On the date of the Prospectus, the Accountants shall have
furnished to the Representatives a letter, dated the date of its delivery,
addressed to the Representatives and in form and substance satisfactory to
the Representatives, confirming that they are independent accountants with
respect to the Company as required by the Act and the Rules and Regulations
and with respect to the financial and other statistical and numerical
information contained or incorporated by reference in the Registration
Statement. At the Closing Date and, as to the Option Securities, the
Option Closing Date, the Accountants shall have furnished to the
Representatives a letter, dated the date of its delivery, which shall
confirm, on the basis of a review in accordance with the procedures set
forth in the letter from the Accountants, that nothing has come to their
attention during the period from the date of the letter referred to in the
prior sentence to a date (specified in the letter) not more than five days
prior to the Closing Date and the Option Closing Date which would require
any change in their letter dated the date of the Prospectus, if it were
required to be dated and delivered at the Closing Date and the Option
Closing Date.
19
(i) At the Closing Date and, as to the Option Securities, the
Option Closing Date], there shall be furnished to the Representatives an
accurate certificate, dated the date of its delivery, signed by each of the
Chief Executive Officer and the Chief Financial Officer of the Company, in
form and substance satisfactory to the Representatives, to the effect that:
(i) Each signer of such certificate has carefully examined
the Registration Statement and the Prospectus (including any documents
filed under the Exchange Act and deemed to be incorporated by
reference into the Prospectus) and (A) as of the date of such
certificate, such documents are true and correct in all material
respects and do not omit to state a material fact required to be
stated therein or necessary in order to make the statements therein
not untrue or misleading and (B) since the Effective Date, no event
has occurred as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein not
untrue or misleading in any material respect and there has been no
document required to be filed under the Exchange Act and the Exchange
Act Rules and Regulations that upon such filing would be deemed to be
incorporated by reference into the Prospectus that has not been so
filed.
(ii) Each of the representations and warranties of the
Company contained in this Agreement were, when originally made, and
are, at the time such certificate is delivered, true and correct in
all material respects.
(iii) Each of the covenants required herein to be
performed by the Company on or prior to the delivery of such
certificate has been duly, timely and fully performed and each
condition herein required to be complied with by the Company on or
prior to the date of such certificate has been duly, timely and fully
complied with; and
(iv) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus, (A) there has
not been, and no development has occurred which could reasonably be
expected to result in, a material adverse change in the general
affairs, business, business prospects, properties, management,
condition (financial or otherwise) or results of operations of the
Company and its Subsidiaries, taken as a whole, whether or not arising
from transactions in the ordinary course of business, in each case
other than as set forth in or contemplated by the Registration
Statement and the Prospectus and (B) neither the Company nor any of
its Subsidiaries has sustained any material loss or interference with
its business or properties from fire, explosion, flood or other
casualty, whether or not covered by insurance, or from any labor
dispute or any court or legislative or other governmental action,
20
order or decree, which is not set forth in the Registration Statement
and the Prospectus,
and such other matters as the Representatives may reasonably request.
(j) On or prior to the Closing Date, the Representatives shall
have received the executed agreements referred to in Section 4(n).
(k) The Securities [and the shares of Common Stock to be
delivered upon conversion thereof] shall be qualified for sale in such
states as the Representatives may reasonably request, each such
qualification shall be in effect and not subject to any stop order or other
proceeding on the Closing Date and the Option Closing Date.
[(l) Prior to the Closing Date, the Securities [and the shares of
Common Stock to be delivered upon conversion thereof] shall have been
approved for quotation on the Nasdaq National Market.]
(m) The Company shall have furnished to the Representatives such
certificates, in addition to those specifically mentioned herein, as the
Representatives may have reasonably requested as to the accuracy and
completeness at the Closing Date and the Option Closing Date of any
statement in the Registration Statement or the Prospectus or any documents
filed under the Exchange Act and deemed to be incorporated by reference
into the Prospectus, as to the accuracy at the Closing Date and the Option
Closing Date of the representations and warranties of the Company herein,
as to the performance by the Company of its obligations hereunder, or as to
the fulfillment of the conditions concurrent and precedent to the
obligations hereunder of the Representatives.
6. INDEMNIFICATION.
(a) The Company will indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person, if any, who controls each Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act from
and against any and all losses, claims, liabilities, expenses and damages
(including, but not limited to, any and all investigative, legal and other
expenses reasonably incurred in connection with, and all amounts paid in
settlement of, any action, suit or proceeding between any of the
indemnified parties and any indemnifying parties or between any indemnified
party and any third party, or otherwise, or any claim asserted), as and
when incurred to which any Underwriter, or any such person, may become
subject under the Act, the Exchange Act or other Federal or state statutory
law or regulation, at common law or
21
otherwise, insofar as such losses, claims, liabilities, expenses or damages
arise out of or are based on (i) any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus, the
Registration Statement or the Prospectus or any amendment or supplement to
the Registration Statement or the Prospectus or in any documents filed
under the Exchange Act and deemed to be incorporated by reference into the
Prospectus, or in any application or other document executed by or on
behalf of the Company or based on written information furnished by or on
behalf of the Company filed in any jurisdiction in order to qualify the
Securities under the Securities Laws thereof or filed with the Commission,
(ii) the omission or alleged omission to state in such document a material
fact required to be stated in it or necessary to make the statements in it
not misleading or (iii) any act or failure to act or any alleged act or
failure to act by any Underwriter in connection with, or relating in any
manner to, the Securities or the offering contemplated hereby, and which is
included as part of or referred to in any loss, claim, liability, expense
or damage arising out of or based upon matters covered by clause (i) or
(ii) above (provided that the Company shall not be liable under this clause
(iii) to the extent it is finally judicially determined by a court of
competent jurisdiction that such loss, claim, liability, expense or damage
resulted directly from any such acts or failures to act undertaken or
omitted to be taken by such underwriter through its gross negligence or
willful misconduct); provided that the Company will not be liable to the
extent that such loss, claim, liability, expense or damage arises from the
sale of the Securities in the public offering to any person by an
Underwriter and is based on an untrue statement or omission or alleged
untrue statement or omission made in reliance on and in conformity with
information relating to any Underwriter furnished in writing to the Company
by the Representatives on behalf of any Underwriter expressly for inclusion
in the Registration Statement, any preliminary prospectus or the
Prospectus. This indemnity agreement will be in addition to any liability
that the Company might otherwise have.
(b) Each Underwriter will indemnify and hold harmless the
Company, each person, if any, who controls the Company within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act, each director
of the Company and each officer of the Company who signs the Registration
Statement to the same extent as the foregoing indemnity from the Company to
each Underwriter, but only insofar as losses, claims, liabilities, expenses
or damages arise out of or are based on any untrue statement or omission or
alleged untrue statement or omission made in reliance on and in conformity
with information relating to any Underwriter furnished in writing to the
Company by the Representatives on behalf of such Underwriter expressly for
use in the Registration Statement, any preliminary prospectus or the
Prospectus. This indemnity will be in addition to any liability that each
Underwriter might otherwise have; provided, however, that in no event shall
any
22
Underwriter be liable or responsible for any amount in excess of the
underwriting discounts as commissions received by such Underwriter.
(c) Any party that proposes to assert the right to be
indemnified under this Section 6 will, promptly after receipt of notice of
commencement of any action against such party in respect of which a claim
is to be made against an indemnifying party or parties under this
Section 6, notify each such indemnifying party of the commencement of such
action, enclosing a copy of all papers served, but the omission so to
notify such indemnifying party will not relieve it from any liability that
it may have to any indemnified party under the foregoing provisions of this
Section 6 unless, and only to the extent that, such omission results in the
forfeiture of substantive rights or defenses by the indemnifying party. If
any such action is brought against any indemnified party and it notifies
the indemnifying party of its commencement, the indemnifying party will be
entitled to participate in and, to the extent that it elects by delivering
written notice to the indemnified party promptly after receiving notice of
the commencement of the action from the indemnified party, jointly with any
other indemnifying party similarly notified, to assume the defense of the
action, with counsel satisfactory to the indemnified party, and after
notice from the indemnifying party to the indemnified party of its election
to assume the defense, the indemnifying party will not be liable to the
indemnified party for any legal or other expenses except as provided below
and except for the reasonable costs of investigation subsequently incurred
by the indemnified party in connection with the defense. The indemnified
party will have the right to employ its own counsel in any such action, but
the fees, expenses and other charges of such counsel will be at the expense
of such indemnified party unless (1) the employment of counsel by the
indemnified party has been authorized in writing by the indemnifying party,
(2) the indemnified party has reasonably concluded (based on advice of
counsel) that there may be legal defenses available to it or other
indemnified parties that are different from or in addition to those
available to the indemnifying party, (3) a conflict or potential conflict
exists (based on advice of counsel to the indemnified party) between the
indemnified party and the indemnifying party (in which case the
indemnifying party will not have the right to direct the defense of such
action on behalf of the indemnified party) or (4) the indemnifying party
has not in fact employed counsel to assume the defense of such action
within a reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable fees, disbursements and other
charges of counsel will be at the expense of the indemnifying party or
parties. It is understood that the indemnifying party or parties shall not,
in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees, disbursements and other
charges of more than one separate firm admitted to practice in such
jurisdiction at any one time for all such indemnified party or parties.
All such fees, disbursements and other charges will be reimbursed by the
indemnifying party promptly as they are incurred. An indemnifying party
will not be liable for any
23
settlement of any action or claim effected without its written consent
(which consent will not be unreasonably withheld). No indemnifying party
shall, without the prior written consent of each indemnified party, settle
or compromise or consent to the entry of any judgment in any pending or
threatened claim, action or proceeding relating to the matters contemplated
by this Section 6 (whether or not any indemnified party is a party
thereto), unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
or that may arise out of such claim, action or proceeding.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 6 is applicable in accordance with its terms but
for any reason is held to be unavailable from the Company or the
Underwriters, the Company and the Underwriters will contribute to the total
losses, claims, liabilities, expenses and damages (including any
investigative, legal and other expenses reasonably incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding
or any claim asserted, but after deducting any contribution received by the
Company from persons other than the Underwriters, such as persons who
control the Company within the meaning of the Act, officers of the Company
who signed the Registration Statement and directors of the Company, who
also may be liable for contribution) to which the Company and any one or
more of the Underwriters may be subject in such proportion as shall be
appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other. The relative benefits received
by the Company on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by the Underwriters,
in each case as set forth in the table on the cover page of the Prospectus.
If, but only if, the allocation provided by the foregoing sentence is not
permitted by applicable law, the allocation of contribution shall be made
in such proportion as is appropriate to reflect not only the relative
benefits referred to in the foregoing sentence but also the relative fault
of the Company, on the one hand, and the Underwriters, on the other, with
respect to the statements or omissions which resulted in such loss, claim,
liability, expense or damage, or action in respect thereof, as well as any
other relevant equitable considerations with respect to such offering.
Such relative fault shall be determined by reference to whether the untrue
or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
Company or the Representatives on behalf of the Underwriters, the intent of
the parties and their relative knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 6(d) were to be determined by pro
rata allocation (even if the Underwriters were treated as one
24
entity for such purpose) or by any other method of allocation which does
not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the loss,
claim, liability, expense or damage, or action in respect thereof,
referred to above in this Section 6(d) shall be deemed to include, for
purpose of this Section 6(d), any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any such action or claim. Notwithstanding the provisions of
this Section 6(d), no Underwriter shall be required to contribute any
amount in excess of the underwriting discounts received by it, and no
person found guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) will be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute as provided in this Section 6(d)
are several in proportion to their respective underwriting obligations and
not joint. For purposes of this Section 6(d), any person who controls a
party to this Agreement within the meaning of the Act will have the same
rights to contribution as that party, and each officer of the Company who
signed the Registration Statement will have the same rights to contribution
as the Company, subject in each case to the provisions hereof. Any party
entitled to contribution, promptly after receipt of notice of commencement
of any action against such party in respect of which a claim for
contribution may be made under this Section 6(d), will notify any such
party or parties from whom contribution may be sought, but the omission
so to notify will not relieve the party or parties from whom contribution
may be sought from any other obligation it or they may have under this
Section 6(d). No party will be liable for contribution with respect to any
action or claim settled without its written consent (which consent will
not be unreasonably withheld).
(e) The indemnity and contribution agreements contained in this
Section 6 and the representations and warranties of the Company contained
in this Agreement shall remain operative and in full force and effect
regardless of (i) any investigation made by or on behalf of the
Underwriters, (ii) acceptance of any of the Securities and payment therefor
or (iii) any termination of this Agreement.
7. TERMINATION. The obligations of the several Underwriters under
this Agreement may be terminated at any time on or prior to the Closing Date
(or, with respect to the Option Securities, on or prior to the Option Closing
Date), by notice to the Company from the Representatives, without liability
on the part of any Underwriter to the Company, if, prior to delivery and
payment for the Securities (or the Option Securities, as the case may be), in
the sole judgment of the Representatives, (i) trading in any of the equity
securities of the Company shall have been suspended by the Commission, by an
exchange that lists the Securities or by the Nasdaq Stock Market, (ii)
trading in securities generally on the New York Stock Exchange shall have
been suspended or limited or minimum or maximum prices shall have been
generally established on such exchange, or additional material governmental
25
restrictions, not in force on the date of this Agreement, shall have been
imposed upon trading in securities generally by such exchange or by order of
the Commission or any court or other governmental authority, (iii) a general
banking moratorium shall have been declared by either Federal or New York
State authorities or (iv) any material adverse change in the financial or
securities markets in the United States or in political, financial or
economic conditions in the United States or any outbreak or material
escalation of hostilities or declaration by the United States of a national
emergency or war or other calamity or crisis shall have occurred the effect
of any of which is such as to make it, in the sole judgment of the
Representatives, impracticable or inadvisable to market the Securities on the
terms and in the manner contemplated by the Prospectus.
8. SUBSTITUTION OF UNDERWRITERS. If any one or more of the
Underwriters shall fail or refuse to purchase any of the Firm Securities
which it or they have agreed to purchase hereunder, and the aggregate
principal amount of Firm Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than
one-tenth of the aggregate principal amount of Firm Securities, the other
Underwriters shall be obligated, severally, to purchase the Firm Securities
which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase, in the proportions which the principal amount of Firm
Securities which they have respectively agreed to purchase pursuant to
Section 1 bears to the aggregate principal amount of Firm Securities which
all such non-defaulting Underwriters have so agreed to purchase, or in such
other proportions as the Representatives may specify; provided that in no
event shall the maximum principal amount of Firm Securities which any
Underwriter has become obligated to purchase pursuant to Section 1 be
increased pursuant to this Section 8 by more than one-ninth of the principal
amount of Firm Securities agreed to be purchased by such Underwriter without
the prior written consent of such Underwriter. If any Underwriter or
Underwriters shall fail or refuse to purchase any Firm Securities and the
aggregate principal amount of Firm Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase exceeds
one-tenth of the aggregate principal amount of the Firm Securities and
arrangements satisfactory to the Representatives and the Company for the
purchase of such Firm Securities are not made within 48 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Company for the purchase or sale of any
Securities under this Agreement. In any such case either the Representatives
or the Company shall have the right to postpone the Closing Date, but in no
event for longer than seven days, in order that the required changes, if any,
in the Registration Statement and in the Prospectus or in any other documents
or arrangements may be effected. Any action taken pursuant to this Section 8
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
9. MISCELLANEOUS.
26
(a) Notice given pursuant to any of the provisions of this
Agreement shall be in writing and, unless otherwise specified, shall be
mailed or delivered (a) if to the Company, at the office of the Company,
000 Xxxxxxxxx Xxxxx, Xxxxxxx Xxxx, Xxxxxxxxxx 00000, Attention: Xxxxxxx X.
Xxxxxxx, Ph.D., President and Chief Executive Officer or (b) if to the
Underwriters, to the Representatives at the offices of
_____________________, _________________, Attention: _________________.
Any such notice shall be effective only upon receipt. Any notice under
Section 7 or 8 may be made by telex or telephone, but if so made shall be
subsequently confirmed in writing.
(b) This Agreement has been and is made solely for the benefit
of the several Underwriters and the Company and of the controlling persons,
directors and officers referred to in Section 6, and their respective
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. The term "successors and assigns" as
used in this Agreement shall not include a purchaser, as such purchaser, of
Securities from any of the several Underwriters.
(c) All representations, warranties and agreements of the
Company contained herein or in certificates or other instruments delivered
pursuant hereto, shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of any Underwriter or
any of their controlling persons and shall survive delivery of and payment
for the Securities hereunder.
(d) Any action required or permitted to be taken by the
Representatives under this Agreement may be taken by them jointly or by
_______________.
(e) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO THE
CONFLICT OF LAWS PRINCIPLES OF SUCH STATE.
(f) This Agreement may be signed in two or more counterparts
with the same effect as if the signatures thereto and hereto were upon the
same instrument.
(g) In case any provision in this Agreement shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
(h) THE COMPANY AND THE UNDERWRITERS EACH HEREBY IRREVOCABLY
WAIVE ANY RIGHT THEY MAY HAVE TO TRAIL BY JURY IN RESPECT OF ANY CLAIM
BASED UPON OR ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
27
(i) This Agreement may not be amended or otherwise modified or
any provision hereof waived except by an instrument in writing signed by
the Representatives and the Company.
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
CYGNUS, INC.
By: ________________________
Title:
Confirmed as of the date first
above mentioned:
[Representatives]
Acting on behalf of themselves
and as the Representatives
of the other several Underwriters
named in Schedule I hereof.
By:______________________________
By:______________________________
Title:
SCHEDULE I
UNDERWRITERS
Principal Amount
of Firm Securities
Name To Be Purchased
____ ___________________
_________________
Total.....................................................$_________________
_________________
EXHIBIT A
[NAME OF COMPANY]
_____________________
PRICE DETERMINATION AGREEMENT
[Date]
[Representatives]
As Representatives of the several Underwriters
Dear Sirs:
Reference is made to the Underwriting Agreement, dated ______,
199___ (the "Underwriting Agreement"), among __________________, a __________
corporation (the "Company") and the several Underwriters named in Schedule I
thereto or hereto (the "Underwriters"), for whom _____________,
_________________ [and __________________] are acting as representatives (the
"Representatives"). The Underwriting Agreement provides for the purchase by
the Underwriters from the Company, subject to the terms and conditions set
forth therein, of an aggregate of $________ (the "Firm Securities") principal
amount of the Company's [insert title of securities] (the "Securities") to be
issued pursuant to an Indenture dated as of ____________, 19__ between the
Company and ____________, as Trustee. This Agreement is the Price
Determination Agreement referred to in the Underwriting Agreement.
Pursuant to Section 1 of the Underwriting Agreement, the undersigned
agree with the Representatives that the purchase price for the Firm
Securities to be paid by each of the several Underwriters shall be %_______
of the aggregate principal amount of the Firm Securities set forth opposite
the name of such Underwriter in Schedule I attached hereto.
The Company represents and warrants to each of the Underwriters
that the representations and warranties of the Company set forth in Section 3
of the Underwriting Agreement are accurate as though expressly made at and as
of the date hereof.
As contemplated by the Underwriting Agreement, attached as Schedule
I is a completed list of the several Underwriters, which shall be a part of
this Agreement and the Underwriting Agreement.
THIS AGREEMENT SHALL BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK
WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES OF SUCH STATE.
If the foregoing is in accordance with your understanding of the
agreement among the Underwriters and the Company, please sign and return to
the Company a counterpart hereof, whereupon this instrument along with all
counterparts and together with the Underwriting Agreement shall be a binding
agreement among the Underwriters and the Company in accordance with its terms
and the terms of the Underwriting Agreement.
Very truly yours,
CYGNUS, INC.
By:_________________________
Title:
Confirmed as of the date
first above mentioned:
[Representatives]
Acting on behalf of themselves
and as the Representatives
of the other several Underwriters
named in Schedule I hereof.
By:______________________________
By:______________________________
Title:
A-2
EXHIBIT B
[DATE]
[Representatives]
As Representatives of the
several Underwriters
Dear Sirs:
In consideration of the agreement of the several Underwriters, for
which ______________, __________________ [and ______________] (the
"Representatives") intend to act as RG1 representatives to underwrite a
proposed public offering (the "Offering") of an aggregate of $_____ principal
amount of [insert title of securities] of ______, a ______________
corporation (the "Company"), as contemplated by a registration statement with
respect to such securities filed with the Securities and Exchange Commission
on Form S-3 (Registration No. _________), the undersigned hereby agrees that
the undersigned will not, for a period of [90] days after the commencement of
the public offering of such securities, without the prior written consent
of___________________, offer to sell, sell, contract to sell, grant any
option to sell, or otherwise dispose of, or require the Company to file with
the Securities and Exchange Commission a registration statement under the
Securities Act of 1933 to register any shares of the Company's common stock
or securities convertible into or exchangeable for such common stock or
warrants or rights to acquire shares of the Company's common stock of which
the undersigned is now, or may in the future become, the beneficial owner
(within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934)
[(other than pursuant to employee stock option plans or in connection with
other employee incentive compensation arrangements)].*
Very truly yours,
By:_____________________________________________
Print Name:_____________________________________
____________
* Insert if this letter agreement will be signed by an employee of the
Company.
EXHIBIT C
Form of Opinion of
COUNSEL TO THE COMPANY
1. The Company and each of its Subsidiaries is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation and has full corporate power and authority
to conduct all the activities conducted by it, to own or lease all the assets
owned or leased by it and to conduct its business as described in the
Registration Statement and the Prospectus. The Company is the sole record
owner and, to our knowledge, the sole beneficial owner of all of the capital
stock of each of its Subsidiaries.
2. All of the outstanding shares of Common Stock have been,
and the shares of Common Stock to be delivered upon conversion of the
Securities, when they are issued upon such conversion in accordance with the
terms of the Securities, will be, duly authorized, validly issued, fully paid
and nonassessable and will not be subject to any preemptive or similar right
under (i) the statutes, judicial and administrative decisions and the rules
and regulations of the governmental agencies of the State of Delaware, (ii)
the Company's certificate of incorporation or by-laws or (iii) any
instrument, document, contract or other agreement referred to in the
Registration Statement or any instrument, document, contract or agreement
filed as an exhibit to, or incorporated by reference in the Registration
Statement. Except as described in the Registration Statement or the
Prospectus, to the best of our knowledge, there is no commitment or
arrangement to issue, and there are no outstanding options, warrants or other
rights calling for the issuance of, any share of capital stock of the Company
or any Subsidiary to any person or any security or other instrument that by
its terms is convertible into, exercisable for or exchangeable for capital
stock of the Company. [The shares of Common Stock to be delivered upon the
conversion of the Securities have been duly reserved for issuance by the
Company.]
3. No consent, approval, authorization or order of, or any
filing or declaration with, any court or governmental agency or body is
required in connection with the authorization, issuance, transfer, sale or
delivery of the Securities,
[or the shares of Common Stock to be delivered upon conversion thereof,] in
connection with the execution, delivery and performance of the Agreement by
the Company or in connection with the taking by the Company of any action
contemplated thereby or, if so required, all such consents, approvals,
authorizations and orders have been obtained and are in full force and
effect, except such as have been obtained under the Act, the Trust Indenture
Act and the Rules and Regulations and such as may be required under state
securities or "Blue Sky" laws or by the by-laws and rules of the NASD in
connection with the purchase and distribution by the Underwriters of the
Securities.
4. The authorized, issued and outstanding capital stock of the
Company is as set forth in the Registration Statement and the Prospectus under
the caption "Capitalization." [The description of the Common Stock to be
delivered upon conversion of the Securities contained in the Prospectus is
complete and accurate in all material respects. The form of certificate used
to evidence the Common Stock to be delivered upon conversion of the Securities
is in due and proper form and complies with all statutory requirements.]
5. The Registration Statement and the Prospectus (including any
documents incorporated by reference into the Prospectus, at the time they were
filed) comply or complied in all material respects as to form with the
requirements of the Act, the Exchange Act, the Exchange Act Rules and
Regulations, the Trust Indenture Act, the Trust Indenture Act Rules and
Regulations and the Rules and Regulations and the Indenture complies in all
material respects as to form with the Trust Indenture Act (except that we
express no opinion as to (i) financial statements, schedules and other financial
data contained in the Registration Statement or the Prospectus or incorporated
by reference therein) and (ii) the Statement of Eligibility and Qualification
under the Trust Indenture Act of the Trustee on Form T-1.
6. To the best of our knowledge, any instrument, document,
lease, license, contract or other agreement (collectively, "Documents") required
to be described or referred to in the Registration Statement or the Prospectus
has been properly described or referred to therein and any Document required to
be filed as an exhibit to the Registration Statement has been filed as an
exhibit thereto or has been incorporated as an exhibit by reference in the
Registration Statement; and no default exists in the due performance or
observance of any material obligation, agreement, covenant or condition
contained in any Document filed or required to be filed as an exhibit to the
Registration Statement.
7. To the best of our knowledge, except as disclosed in the
Registration Statement or the Prospectus, no person or entity has the right to
require the registration under the Act of shares of common stock or other
securities of the Company by reason of the filing or effectiveness of the
Registration Statement.
8. To the best of our knowledge, the Company is not in
violation of, or in default with respect to, any law, rule, regulation, order,
judgment or decree, except as may be described in the Prospectus or such as in
the aggregate do not now have and will not in the future have a material adverse
effect upon the operations, business or assets of the Company and the
Subsidiaries, taken as a whole.
9. The Securities and the Indenture conform in all material
respects as to legal matters to the description thereof contained in the
Registration Statement and the Prospectus. All descriptions in the Prospectus
of statutes, regulations or legal or governmental proceedings are accurate and
fairly present the information required to be shown.
10. The information in the Registration Statement under the
caption "certain federal Income Tax Consequences" to the extent it constitutes
matters of law or legal
A-5
conclusions, has been reviewed by us and is an accurate description under
applicable law of the principal Federal income tax consequences of an
investment in the Securities.
11. The Company has full corporate power and authority to enter
into the Agreement, and the Agreement has been duly authorized, executed and
delivered by the Company, is a valid and binding agreement of the Company and,
except for the indemnification and contribution provisions thereof, as to which
we express no opinion, is enforceable against the Company in accordance with the
terms thereof.
12. The Company has full corporate power and authority to
enter into the Indenture and to issue the Securities, and the Indenture has
been duly authorized, executed and delivered by the Company and duly
qualified under the Trust Indenture Act; the Securities have been duly
authorized, executed, authenticated (assuming due authentication by or on
behalf of the Trustee), issued and delivered and are entitled to the benefits
of the Indenture; and each of the Indenture and the Securities are legal,
valid and binding obligations of the Company and are enforceable against the
Company in accordance with their respective terms.
13. The execution and delivery by the Company of, and the
performance by the Company of its agreements in, the Agreement, the Indenture
and the Securities do not and will not (i) violate the certificate of
incorporation or by-laws of the Company, (ii) breach or result in a default
under, cause the time for performance of any obligation to be accelerated
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any of the assets of the Company or any of its Subsidiaries
pursuant to the terms of, (x) any indenture, mortgage, deed of trust, loan
agreement, bond, debenture, note agreement, capital lease or other evidence
of indebtedness of which we have knowledge, (y) any voting trust arrangement
or any contract or other agreement to which the Company is a party that
restricts the ability of the Company to issue securities or (z) any Document
filed as an exhibit to, or incorporated as an exhibit by reference in, the
Registration Statement, (iii) breach or otherwise violate any existing
obligation of the Company under any court or administrative order, judgment
or decree of which we have knowledge or (iv) violate applicable provisions of
any statute or regulation in the States of Delaware or California or of the
United States.
14. Delivery of certificates for the Securities will transfer
valid and marketable title thereto to each Underwriter that has purchased
such Securities in good faith and without notice of any adverse claim with
respect thereto.
15. The Company is not an "investment company" or an
"affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company," as such terms are defined in the Investment Company Act
of 1940, as amended.
[16. The Securities [and the shares of Common Stock issuable upon
conversion thereof] have been approved for quotation on the Nasdaq National
Market.]
A-6
We hereby confirm to you that we have been advised by the Commission
that the Registration Statement has become effective under the Act and that
no order suspending the effectiveness of the Registration Statement has been
issued and no proceeding for that purpose has been instituted or is
threatened, pending or contemplated.
We hereby further confirm to you that there are no actions, suits,
proceedings or investigations pending or, to our knowledge, overtly
threatened in writing against the Company or any of its Subsidiaries, or any
of their respective officers or directors in their capacities as such, before
or by any court, governmental agency or arbitrator which (i) seek to
challenge the legality or enforceability of the Agreement, the Indenture or
the Securities, (ii) seek to challenge the legality or enforceability of any
of the Documents filed, or required to be filed, as exhibits to the
Registration Statement, (iii) seek damages or other remedies with respect to
any of the Documents filed, or required to be filed, as exhibits to the
Registration Statement, (iv) except as set forth in or contemplated by the
Registration Statement and the Prospectus, seek money damages in excess of
$________ or seek to impose criminal penalties upon the Company, any of its
Subsidiaries or any of their respective officers or directors in their
capacities as such and of which we have knowledge or (v) seek to enjoin any
of the business activities of the Company or any of its Subsidiaries or the
transactions described in the Prospectus and of which we have knowledge.
We have participated in the preparation of the Registration
Statement and the Prospectus and, without assuming any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus or in any amendment or supplement
thereto or in any document incorporated by reference into the Prospectus,
nothing has come to our attention that causes us to believe that, both as of
the Effective Date and as of the Closing Date and the Option Closing Date,
the Registration Statement, or any amendment thereto, contained or contains
any untrue statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or that any Prospectus or any amendment or
supplement thereto including any documents incorporated by reference into the
Prospectus], at the time such Prospectus was issued, at the time any such
amended or supplemented Prospectus was issued, at the Closing Date, and the
Option Closing Date, contained or contains any untrue statement of a material
fact or omitted or omits to state a material fact necessary in order to make
the statements therein, in the light of the circumstances in which they were
made, not misleading (except that we express no opinion as to financial
statements, schedules and other financial data contained in the Registration
Statement or the Prospectus or incorporated by reference therein).
The foregoing opinion is subject to the qualification that the
enforceability of the Agreement, the Indenture and the Securities may be: (i)
subject to bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally; and (ii) subject to general principles
of equity (regardless of whether such enforceability is considered in a
proceeding at law or in equity), including principles of commercial
reasonableness or conscionability and an implied covenant of good faith and
fair dealing.
A-7
This letter is furnished by us solely for your benefit in connection
with the transactions referred to in the Agreement and may not be circulated
to, or relied upon by, any other person, except that this letter may be
relied upon by our counsel in connection with the opinion letter to be
delivered pursuant to Section 5(g) of the Agreement.
In rendering the foregoing opinion, counsel may rely, to the extent
they deem such reliance proper, on the opinions (in form and substance
reasonably satisfactory to Underwriters' counsel) of other counsel reasonably
acceptable to Underwriters' counsel as to matters governed by the laws of
jurisdictions other than the United States and the States of California and
Delaware and as to matters of fact, upon certificates of officers of the
Company and of government officials; provided that such counsel shall state
that the opinion of any other counsel is in form satisfactory to such
counsel. Copies of all such opinions and certificates shall be furnished to
counsel to the Underwriters on the Closing Date.
