EXHIBIT 1.1
6,000,000 SHARES(1)
OMNICELL, INC.
COMMON STOCK
PURCHASE AGREEMENT
------------------
August __, 2001
U.S. BANCORP XXXXX XXXXXXX INC.
CIBC WORLD MARKETS CORP.
XX XXXXX SECURITIES CORPORATION
As Representatives of the several
Underwriters named in Schedule I hereto
c/o U.S. Bancorp Xxxxx Xxxxxxx Inc.
U.S. Bancorp Center
000 Xxxxxxxx Xxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Ladies and Gentlemen:
Omnicell, Inc., a Delaware corporation (the "Company"), proposes to issue
and sell to the several Underwriters named in Schedule I hereto (the
"Underwriters") an aggregate of 6,000,000 shares (the "Firm Shares") of common
stock, $0.001 par value per share (the "Common Stock"), of the Company. The
Company has also granted to the several Underwriters an option to purchase up to
900,000 additional shares of Common Stock on the terms and for the purposes set
forth in Section 3 hereof (the "Option Shares"). The Firm Shares and any Option
Shares purchased pursuant to this Purchase Agreement are herein collectively
called the "Securities."
The Company hereby acknowledges that in connection with the proposed
offering of the Securities, it has requested U.S. Bancorp Xxxxx Xxxxxxx Inc. to
administer a directed share program (the "Directed Share Program") under which
up to 300,000 Firm Shares, or five percent (5%) of the Firm Shares, to be
purchased by you (the "Reserved Shares") shall be reserved for sale by you at
the initial public offering price to the Company's officers, directors,
employees, and consultants and others having a relationship with the Company
(the "Directed Share Participants") as part of the distribution of the
Securities by the Underwriters, subject to the terms of this Agreement, the
applicable rules, regulations and interpretations of the National Association of
Securities Dealers, Inc. ("NASD") and all other applicable laws, rules and
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(1) Plus an option to purchase up to 900,000 additional shares to cover
over-allotments.
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regulations (the "Directed Share Program"). The number of Securities available
for sale to the general public will be reduced to the extent that Directed Share
Participants purchase Reserved Shares. You may offer any Reserved Shares not
purchased by Directed Share Participants to the general public on the same basis
as the other Securities being issued and sold hereunder. The Company has
supplied U.S. Bancorp Xxxxx Xxxxxxx Inc. with the names, addresses and telephone
numbers of the individuals or other entities which the Company has designated to
be participants in the Directed Share Program. It is understood that any number
of those designated to participate in the Directed Share Program may decline to
do so.
The Company hereby confirms its agreement with respect to the sale of the
Securities to the several Underwriters, for whom you are acting as
Representatives (the "Representatives").
1. REGISTRATION STATEMENT AND PROSPECTUS. A registration statement on Form
S-1 (File No. 333-57024) with respect to the Securities, including a preliminary
form of prospectus, has been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the "Act"), and the
rules and regulations ("Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") thereunder, and has been filed with the
Commission; one or more amendments to such registration statement have also been
so prepared and have been, or will be, so filed; and, if the Company has elected
to rely upon Rule 462(b) of the Rules and Regulations to increase the size of
the offering registered under the Act, then the Company will prepare and file
with the Commission a registration statement with respect to such increase
pursuant to Rule 462(b) of the Rules and Regulation. Copies of such registration
statement(s) and amendments, and each related preliminary prospectus have been
delivered to you.
If the Company has elected not to rely upon Rule 430A of the Rules and
Regulations, the Company has prepared and will promptly file an amendment to the
registration statement and an amended prospectus that satisfy the requirements
of the Act and the Rules and Regulations. If the Company has elected to rely
upon Rule 430A of the Rules and Regulations, then it will prepare and file a
prospectus (or a term sheet meeting the requirements of Rule 434 of the Rules
and Regulations) pursuant to Rule 424(b) of the Rules and Regulations that
discloses the information previously omitted from the prospectus in reliance
upon Rule 430A of the Rules and Regulations. Such registration statement, as
amended at the time it is or was declared effective by the Commission, and, in
the event of any amendment thereto after the effective date and prior to the
First Closing Date (as hereinafter defined), such registration statement as so
amended (but only from and after the effectiveness of such amendment), including
a registration statement (if any) filed pursuant to Rule 462(b) of the Rules and
Regulations increasing the size of the offering registered under the Act, and
information (if any) deemed to be part of the registration statement at the time
of effectiveness pursuant to Rules 430A(b) and 434(d) of the Rules and
Regulations, is hereinafter called the "Registration Statement." The prospectus
included in the Registration Statement at the time it is or was declared
effective by the Commission is hereinafter called the "Prospectus," except that
if any prospectus (including any term sheet meeting the requirements of Rule 434
of the Rules and Regulations provided by the Company for use with a prospectus
subject to completion within the meaning of Rule 434 of the Rules and
Regulations in order to meet the requirements of Section 10(a) of the Act) filed
by the Company with the Commission pursuant to Rule 424(b) (and Rule 434, if
applicable) of the Rules and Regulations, or any other such prospectus provided
to the Underwriters by the Company for use
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in connection with the offering of the Securities (whether or not required to be
filed by the Company with the Commission pursuant to Rule 424(b) of the Rules
and Regulations) differs from the prospectus on file at the time the
Registration Statement is or was declared effective by the Commission, then the
term "Prospectus" shall refer to such differing prospectus (including any term
sheet within the meaning of Rule 434 of the Rules and Regulations) from and
after the time such prospectus is filed with the Commission or transmitted to
the Commission for filing pursuant to such Rule 424(b) (and Rule 434, if
applicable) of the Rules and Regulations or from and after the time it is first
provided to the Underwriters by the Company for such use. The term "Preliminary
Prospectus" as used herein means any preliminary prospectus included in the
Registration Statement prior to the time it becomes or became effective under
the Act, and any prospectus subject to completion as described in Rule 430A or
Rule 434 of the Rules and Regulations.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
(a) The Company represents and warrants to, and agrees with, the
several Underwriters as follows:
(i) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, nor has any proceeding for
that purpose been initiated or, to the Company's knowledge, threatened by
the Commission, and each Preliminary Prospectus, at the time of filing
thereof, did not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; except that the foregoing shall not apply to
statements in or omissions from any Preliminary Prospectus in reliance
upon, and in conformity with, written information furnished to the Company
by you, or by any Underwriter through you, specifically for use in the
preparation thereof.
(ii) As of the time the Registration Statement (or any
post-effective amendment thereto, including a registration statement (if
any) filed pursuant to Rule 462(b) of the Rules and Regulations increasing
the size of the offering registered under the Act) is or was declared
effective by the Commission, upon the filing or first delivery to the
Underwriters of the Prospectus (or any supplement to the Prospectus
(including any term sheet meeting the requirements of Rule 434 of the Rules
and Regulations)) and at the First Closing Date and Second Closing Date (as
hereinafter defined), (A) the Registration Statement and Prospectus (in
each case, as so amended and/or supplemented) conformed or will conform in
all material respects to the requirements of the Act and the Rules and
Regulations, (B) the Registration Statement (as so amended) did not or will
not include an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading and (C) the Prospectus (as so
supplemented) did not or will not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in
which they are or were made, not misleading; except that the foregoing
shall not apply to statements in or omissions from any such document in
reliance upon, and in conformity with, written information furnished to the
Company by you, or by any
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Underwriter through you, specifically for use in the preparation thereof.
If the Registration Statement has been declared effective by the
Commission, no stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceeding for that purpose has been
initiated or, to the Company's knowledge, threatened by the Commission.
(iii) The Company has been duly organized and is validly existing
as a corporation in good standing under the laws of its jurisdiction of
incorporation. The Company has full corporate power and authority to own,
lease and operate its properties and conduct its business as currently
carried on and as proposed or described in the Registration Statement and
Prospectus and is duly qualified to do business as a foreign corporation in
good standing in each jurisdiction in which it owns or leases real property
or in which the conduct of its business makes such qualification necessary
and in which the failure to so qualify would have a material adverse effect
upon its business as currently carried on and as proposed or described in
the Registration Statement and Prospectus, properties, condition (financial
or otherwise), net worth or results of operations taken as a whole (a
"Material Adverse Effect"). Each of the subsidiaries of the Company as
listed in Exhibit 21.1 to Item 16(a) of the Registration Statement, as
listed in Exhibit A hereto (collectively, the "Subsidiaries"), has been
duly organized and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation, with corporate power
and authority to own, lease and operate its properties and conduct its
business as currently carried on and as proposed or described in the
Registration Statement and Prospectus and is duly qualified to do business
as a foreign corporation in good standing in each jurisdiction in which it
owns or leases real property or in which the conduct of its business makes
such qualification necessary and in which the failure to so qualify would
have a Material Adverse Effect. The Subsidiaries are the only subsidiaries
(as defined in the Act), direct or indirect, of the Company. The
outstanding shares of capital stock of each of the Subsidiaries have been
duly authorized and validly issued, are fully paid and non-assessable and
to the extent shown in Exhibit A hereto are owned by the Company or another
Subsidiary free and clear of all liens, encumbrances and equities and
claims; and no options, warrants or other rights to purchase, agreements or
other obligations to issue or other rights to convert any obligations into
shares of capital stock or ownership interests in any of the Subsidiaries
are outstanding.
(iv) The consolidated financial statements of the Company and the
Subsidiaries, together with the notes thereto, set forth in the
Registration Statement and Prospectus comply in all material respects with
the requirements of the Act and fairly present the consolidated financial
condition of the Company and the Subsidiaries as of the dates indicated and
the results of operations and changes in cash flows for the periods therein
specified in conformity with generally accepted accounting principles
consistently applied throughout the periods involved (except as otherwise
specifically stated therein); the pro forma financial data included in the
Registration Statement and Prospectus comply as to form in all material
respects with the applicable accounting requirements of Regulation S-X of
the Securities Act, and the pro forma adjustments have been properly
applied to the historical amounts in the compilation of those statements;
and the other financial and statistical data and supporting schedules
included in the Registration Statement and Prospectus present fairly and
accurately the information required to be
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stated therein and have been prepared on a basis consistent with such
financial statements and the books and records of the Company and the
Subsidiaries. Other than the consolidated financial statements and
schedules included in the Registration Statement and Prospectus, no other
financial statements or schedules are required to be included in the
Registration Statement or Prospectus. Ernst & Young LLP, which has
expressed its opinion with respect to the audited consolidated financial
statements included in the Registration Statement and Prospectus, is an
independent public accountant as required by the Act and the Rules and
Regulations.
(v) Except as set forth in the Prospectus, subsequent to the
respective dates as of which information is given in the Registration
Statement and the Prospectus, the Company and the Subsidiaries have not
incurred any material liabilities or obligations, direct or contingent, or
entered into any material transactions, or declared or paid any dividends
or made any distribution of any kind with respect to their respective
capital stock; and there has not been any change in the capital stock
(other than a change in the number of outstanding shares of Common Stock
due to the issuance of shares upon the exercise of outstanding options or
warrants disclosed as outstanding in the Registration Statement and
Prospectus), or any material change in the short-term or long-term debt, or
any issuance of options, warrants, convertible securities, or other rights
to purchase the capital stock (other than in the ordinary course of
business pursuant to the Company's equity incentive plans disclosed in the
Registration Statement and Prospectus) of the Company or the Subsidiaries,
or any material adverse change, or any development involving a prospective
change, which has had or is reasonably likely to have a Material Adverse
Effect.
(vi) Except as set forth in the Prospectus, there is not pending
or, to the Company's knowledge, threatened or contemplated, any action,
suit, or proceeding to which the Company, any of the Subsidiaries or any of
the officers of the Company or any of the Subsidiaries is a party before or
by any court or governmental agency, authority, or body, or any arbitrator,
which is reasonably possible to have a Material Adverse Effect.
(vii) There are no contracts or documents that are required to be
filed as exhibits to the Registration Statement by the Act or by the Rules
and Regulations that have not been so filed. The documents incorporated by
reference in the Prospectus, if any, at the time filed with the Commission
conformed, in all respects to the requirements of the Securities Exchange
Act of 1934 (the "Exchange Act") or the Act, as applicable, and the Rules
and Regulations.
(viii) This Agreement has been duly authorized, executed and
delivered by the Company, and constitutes a valid, legal, and binding
obligation of the Company, enforceable in accordance with its terms, except
as rights to indemnity hereunder may be limited by federal or state
securities laws and except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting the rights
of creditors generally, and subject to general principles of equity. The
execution, delivery, and performance of this Agreement and the consummation
of the transactions herein contemplated will not result in a breach or
violation of any of the terms and provisions of, or constitute a default
under, any statute, any agreement or instrument to which the
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Company or any of the Subsidiaries is a party or by which the Company or
any of the Subsidiaries is bound or to which any of their property is
subject, the charter or bylaws of the Company or any Subsidiary, or any
order, rule, regulation, or decree of any court or governmental agency or
body having jurisdiction over the Company, any of the Subsidiaries or any
of the properties of the Company or any of the Subsidiaries; no consent,
approval, authorization, or order of, or filing with, any court or
governmental agency or body is required for the execution, delivery and
performance of this Agreement or for the consummation of the transactions
contemplated hereby, including the issuance or sale of the Securities by
the Company, except such as may be required under the Act or state
securities or blue sky laws or in connection with the review of the
offering by the National Association of Securities Dealers, Inc. ("NASD");
and the Company has full power and authority to enter into this Agreement
and to authorize, issue and sell the Securities as contemplated by this
Agreement.
(ix) All of the issued and outstanding shares of capital stock of
the Company, including the outstanding shares of Common Stock, are duly
authorized and validly issued, fully paid, and nonassessable, have been
issued in compliance with all federal and state securities laws, were not
issued in violation of or subject to any preemptive rights or other rights
to subscribe for or purchase securities, and the holders thereof are not
subject to personal liability by reason of being such holders; the
Securities which may be sold hereunder by the Company have been duly
authorized and, when issued, delivered and paid for in accordance with the
terms hereof, will have been validly issued and will be fully paid and
nonassessable, and the holders thereof will not be subject to personal
liability by reason of being such holders; and the capital stock of the
Company, including the Common Stock, conforms to the description thereof in
the Registration Statement and Prospectus. The certificates for the
Securities are in due and proper form and conform in all material respects
to the requirements of the Delaware General Corporation Law. Except as
otherwise described in the Registration Statement and Prospectus, there are
no preemptive rights or other rights to subscribe for or to purchase, or
any restriction upon the voting or transfer of, any shares of Common Stock
pursuant to the Company's charter, bylaws, or any agreement or other
instrument to which the Company is a party or by which the Company is
bound. Except as described in the Registration Statement and the
Prospectus, neither the filing or effectiveness of the Registration
Statement nor the offering or sale of the Securities as contemplated by
this Agreement gives rise to any rights for or relating to the registration
of any shares of Common Stock or other securities of the Company. Except as
described in the Registration Statement and the Prospectus, there are no
options, warrants, agreements, contracts or other rights in existence to
purchase or acquire from the Company any shares of the capital stock of the
Company. As of the date set forth thereon, the Company has an authorized
and outstanding capitalization as set forth in the Registration Statement
and the Prospectus under the heading "Capitalization".
(x) The Company and the Subsidiaries hold, and are operating in
compliance in all material respects with, all franchises, grants,
authorizations, licenses, permits, easements, consents, certificates and
orders of any governmental or self-regulatory body required for the conduct
of their businesses as currently conducted and as proposed to be conducted
as described in the Registration Statement and Prospectus, and
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all such franchises, grants, authorizations, licenses, permits, easements,
consents, certifications and orders are valid and in full force and effect;
and the Company and the Subsidiaries have not violated and currently are in
compliance in all material respects with all applicable federal, state,
local and foreign laws, regulations, orders, ordinances and decrees.
(xi) The Company and each of the Subsidiaries have good and
marketable title to all property owned by them and valid rights to use all
property described in the Registration Statement and Prospectus or
necessary for the conduct of their respective businesses as described in
the Registration Statement and Prospectus, in each case free and clear of
all liens, claims, security interests or other encumbrances, except such as
are described in the Registration Statement and the Prospectus; the
property held under lease by the Company and the Subsidiaries is held by
them under valid, subsisting and enforceable leases with only such
exceptions with respect to any particular lease as do not interfere in any
material respect with the conduct of the business of the Company and the
Subsidiaries.
(xii) The Company and each of the Subsidiaries owns or possesses
all patents, patent applications, trademarks, service marks, tradenames,
trademark registrations, service xxxx registrations, copyrights, licenses,
inventions, trade secrets and rights necessary for the conduct of its
respective business as currently carried on and as proposed, on the date
hereof, to be carried on as described in the Registration Statement and
Prospectus (collectively, the "Intellectual Property"). Except as described
in the Prospectus, (i) no third parties have received rights to any such
Intellectual Property from the Company, other than licenses granted in the
ordinary course and those that would not have a Material Adverse Effect;
(ii) to the Company's knowledge, there is no infringement by third parties
of any such Intellectual Property; (iii) there is no pending or, to the
Company's knowledge, threatened action, suit, proceeding or claim by others
challenging the Company's or any Subsidiary's rights in or to any such
Intellectual Property, and the Company is unaware of any facts which would
form a basis for any such claim; (iv) there is no pending or, to the
Company's knowledge, threatened action, suit, proceeding or claim by others
challenging the validity or scope of any such Intellectual Property, and
the Company is unaware of any facts which would form a basis for any such
claim; (v) there is no pending or, to the Company's knowledge, threatened
action, suit, proceeding or claim by others that the Company or any of the
Subsidiaries infringes or otherwise violates, or would infringe or
otherwise violate upon commercialization of its products and product
candidates described in the Prospectus, any patent, trademark, copyright,
trade secret or other proprietary rights of others, and the Company is
unaware of any facts which would form a basis for any such claim; (vi) to
the Company's knowledge there is no patent or patent application that
contains claims that dominate or may dominate any Intellectual Property
described in the Prospectus as being owned by or licensed to the Company or
any of the Subsidiaries or that is necessary for the conduct of their
businesses as currently or contemplated to be conducted or that interferes
with the issued or pending claims of any such Intellectual Property; and
(vii) there is no prior art of which the Company is aware that may render
any patent held by the Company or any of the Subsidiaries invalid or any
patent application held by the Company or any of the Subsidiaries
unpatentable which has not been disclosed to the
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U.S. Patent and Trademark Office. None of the technology employed by the
Company has been obtained or, to the Company's knowledge, is being used by
the Company in violation of the rights of any person or third party. The
Company knows of no infringement by others of Intellectual Property owned
by or licensed to the Company. Exhibit B lists all of the issued patents
owned in whole or in part by the Company or any Subsidiary.
(xiii) Neither the Company nor any of the Subsidiaries is in
violation of its respective charter or bylaws or in breach of or otherwise
in default in the performance of any material obligation, agreement, or
condition contained in any bond, debenture, note, indenture, loan
agreement, or any other material contract, lease, or other instrument to
which it is subject or by which it may be bound, or to which any of the
material property or assets of the Company or any of the Subsidiaries is
subject.
(xiv) The Company and each Subsidiary has filed all federal,
state, local and foreign income and franchise tax returns and tax forms
required to be filed and is not in default in the payment of any taxes
which were payable pursuant to said returns or any assessments with respect
thereto, other than any which the Company or any Subsidiary is contesting
in good faith and as to which adequate reserves have been provided. Such
returns and forms are complete and correct in all material respects. The
Company and each Subsidiary has made all payroll withholdings required to
be made by it with respect to employees. The charges, accruals and reserves
on the books of the Company and each Subsidiary in respect of any tax
liability for any year not finally determined are adequate to meet any
assessments or reassessments for additional taxes. There have been no tax
deficiencies asserted and, to the Company's knowledge, no tax deficiency
might be reasonably asserted or threatened against the Company or any
Subsidiary that could individually or in the aggregate have a Material
Adverse Effect.
(xv) The Company has not distributed and will not distribute any
prospectus or other offering material in connection with the offering and
sale of the Securities other than any Preliminary Prospectus or the
Prospectus or other materials permitted by the Act to be distributed by the
Company.
(xvi) The Securities have been conditionally approved for listing
on the Nasdaq National Market system and, on the date the Registration
Statement became or becomes effective, the Company's Registration Statement
on Form 8-A or other applicable form under the Exchange Act, became or will
become effective.
(xvii) Other than the Subsidiaries and as set forth on Exhibit C,
the Company does not own, directly or indirectly, any shares of capital
stock and does not have any other equity or ownership or proprietary
interest in any corporation, partnership, association, trust, limited
liability company, joint venture or other entity.
(xviii) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (A) transactions
are executed in accordance with management's general and specific
authorization; (B) transactions are recorded as necessary to permit
preparation of financial statements in conformity with
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generally accepted accounting principles and to maintain accountability for
assets; (C) access to assets is permitted only in accordance with
management's general and specific authorization; and (D) the recorded
accountability for assets is compared to existing assets at reasonable
intervals, and appropriate action is taken with respect to any differences.
(xix) Other than as contemplated by this Agreement, the Company
has not incurred any liability for any finder's or broker's fee, or agent's
commission in connection with the execution and delivery of this Agreement
or the consummation of the transactions contemplated hereby.
(xx) Except as otherwise disclosed in the Registration Statement
and Prospectus, the Company and each of the Subsidiaries is insured by
insurers of recognized financial responsibility against such losses and
risks and in such amount as are customary in the business in which they are
engaged. All policies of insurance insuring the Company or any Subsidiary
or any of their respective businesses, assets, employees, officers and
directors are in full force and effect, and the Company and the
Subsidiaries are in compliance with the terms of such policies in all
material respects. There are no claims by the Company or any of Subsidiary
under any such policy or instrument as to which any insurance company is
denying liability or defending under a reservation of rights clause.
(xxi) Neither the Company nor any Subsidiary has sent or received
any notice of termination of any of the contracts or agreements referred to
or described in, or filed as an exhibit to, the Registration Statement, and
no such termination has been threatened by the Company, any Subsidiary or
any other party to any such contract or agreement.
(xxii) All statistical and market-related data included in the
Prospectus are based on or derived from sources that the Company believes
to be reliable and accurate, and the Company has obtained the written
consent to the use of such data from such sources to the extent required.
(xxiii) Neither the Company nor, to the Company's knowledge, any
of its affiliates, has taken or will take, directly or indirectly, any
action designed to or which has constituted, caused or resulted in, or
which might reasonably be expected to constitute, cause or result in, under
the Exchange Act or otherwise, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of
the Securities. The Company has not effected any sales of Common Stock
which are required to be disclosed in response to Item 701 of Regulation
S-K under the Act which have not been so disclosed in the Registration
Statement. The Company acknowledges that the Underwriters may engage in
passive market making transactions in the Securities on the Nasdaq Stock
Market in accordance with Regulation M under the Exchange Act.
(xxiv) Except as set forth in the Prospectus, immediately after
the issuance and sale of the Securities to the Underwriters, no shares of
preferred stock of the Company shall be issued and outstanding and no
holder of any shares of capital stock,
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securities convertible into or exchangeable or exercisable for capital
stock or options, warrants or other rights to purchase capital stock or any
other securities of the Company shall have any existing or future right to
acquire any shares of preferred stock of the Company.
(xxv) Neither the Company nor any Subsidiary is, and after the
offering and sale of the Securities, will be, an "investment company" or a
"promoter," "principal underwriter" for an entity "controlled" by an
"investment company," as such terms are defined in the Investment Company
Act of 1940, as amended (the "Investment Company Act").
(xxvi) The Company and the Subsidiaries have operated and
currently are in compliance in all material respects with applicable United
States Food and Drug Administration ("FDA") rules, regulations and
policies, if any.
(xxvii) The Company and each Subsidiary is in compliance in all
material respects with all presently applicable provisions of the Employee
Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA"); no
"reportable event" (as defined in ERISA) has occurred with respect to any
"pension plan" (as defined in ERISA) for which the Company or any
Subsidiary would have any liability; neither the Company nor any Subsidiary
has incurred or expects to incur liability under (A) Title IV of ERISA with
respect to termination of, or withdrawal from, any "pension plan" or (B)
Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended,
including the regulations and published interpretations thereunder (the
"Code"); and each "pension plan" for which the Company or any Subsidiary
would have any liability that is intended to be qualified under Section
401(a) of the Code is so qualified in all material respects and nothing has
occurred, whether by action or by failure to act, which would cause the
loss of such qualification.
(xxviii) To the Company's knowledge, there are no affiliations or
associations between any member of the NASD and any of the Company's
officers, directors or 5% or greater securityholders, except as set forth
in the Registration Statement.
(xxix) Except as disclosed in the Prospectus, neither the Company
nor any Subsidiary is in violation of any statute, any rule, regulation,
decision or order of any governmental agency or body or any court, domestic
or foreign, relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the environment
or human exposure to hazardous or toxic substances (collectively,
"Environmental Laws"), owns or operates any real property contaminated with
any substance that is subject to any Environmental Laws, is liable for any
off-site disposal or contamination pursuant to any environmental laws, or
is subject to any claim relating to any environmental laws, which
violation, contamination, liability or claim would individually or in the
aggregate have a Material Adverse Effect; and the Company is not aware of
any pending investigation which might lead to such a claim.
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(xxx) The Company's migratory merger from California to Delaware
(the "Reincorporation") is effective. The Reincorporation complied in all
respects with California, Delaware and federal securities laws and there
are no material liabilities of the Company's predecessor California entity
that have not been discharged or otherwise accounted for in connection with
such merger.
(xxxi) No consent, approval, authorization or order of, or
qualification with, any governmental body or agency, other than those
obtained, is required in connection with the offering of the Reserved
Shares in any jurisdiction where the Reserved Shares are being offered.
(xxxii) The Company has not offered, or caused any Underwriter or
its affiliates to offer, Securities to any person pursuant to the Directed
Share Program with the specific intent to unlawfully influence (A) a
customer or supplier of the Company to alter the customer's or supplier's
level or type of business with the Company, or (B) a trade journalist or
publication to write or publish favorable information about the Company or
its products.
(b) Any certificate signed by any officer of the Company and delivered
to you or to counsel for the Underwriters shall be deemed to be a representation
and warranty by the Company to each Underwriter as to the matters covered
thereby.
3. PURCHASE, SALE AND DELIVERY OF SECURITIES.
(a) On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth, the
Company agrees to issue and sell 6,000,000 Firm Shares to the several
Underwriters, and each Underwriter agrees, severally and not jointly, to
purchase from the Company the number of Firm Shares set forth opposite the name
of such Underwriter in Schedule I hereto. The purchase price for each Firm Share
shall be $____ per share. In making this Agreement, each Underwriter is
contracting severally and not jointly; except as provided in Section 8 hereof,
the agreement of each Underwriter is to purchase only the number of Firm Shares
specified as to such Underwriter in Schedule I.
The Firm Shares will be delivered by the Company to you for the accounts of
the several Underwriters against payment of the purchase price therefor by
Federal Funds wire transfer payable to the order of the Company at the offices
of U.S. Bancorp Xxxxx Xxxxxxx Inc., U.S. Bancorp Center, 000 Xxxxxxxx Xxxx,
Xxxxxxxxxxx, Xxxxxxxxx, or such other location as may be mutually acceptable, at
9:00 a.m. Central time on the third (or if the Securities are priced, as
contemplated by Rule 15c6-1(c) under the Exchange Act, after 4:30 p.m. Eastern
time, the fourth) full business day following the date hereof, or at such other
time and date as you and the Company determine pursuant to Rule 15c6-1(a) under
the Exchange Act, such time and date of delivery being herein referred to as the
"First Closing Date." If the Representatives so elect, delivery of the Firm
Shares may be made by credit through full fast transfer to the accounts at the
Depository Trust Company ("DTC") designated by the Representatives. Certificates
representing the Firm Shares, in definitive form and in such denominations and
registered in such names as you may request upon at least two (2) business days'
prior notice to the Company,
11
will be made available for checking and packaging not later than 10:30 a.m.,
Central time, on the business day next preceding the First Closing Date at the
offices of U.S. Bancorp Xxxxx Xxxxxxx Inc., U.S. Bancorp Center, 000 Xxxxxxxx
Xxxx, Xxxxxxxxxxx, Xxxxxxxxx, or such other location as may be mutually
acceptable.
(b) On the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth, the
Company hereby grants to the several Underwriters an option to purchase all or
any portion of the Option Shares at the same purchase price as the Firm Shares,
for use solely in covering any over-allotments made by the Underwriters in the
sale and distribution of the Firm Shares. The option granted hereunder may be
exercised at any time (but not more than once) within thirty (30) days after the
effective date of this Agreement upon notice (confirmed in writing) by the
Representatives to the Company setting forth the aggregate number of Option
Shares as to which the several Underwriters are exercising the option, the names
and denominations in which the certificates for the Option Shares are to be
registered and the date and time, as determined by you, when the Option Shares
are to be delivered, such time and date being herein referred to as the "Second
Closing" and "Second Closing Date," respectively; provided, however, that the
Second Closing Date shall not be earlier than the First Closing Date nor earlier
than the second business day after the date on which the option shall have been
exercised. The number of Option Shares to be purchased by each Underwriter shall
be the same percentage of the total number of Option Shares to be purchased by
the several Underwriters as the number of Firm Shares to be purchased by such
Underwriter is of the total number of Firm Shares to be purchased by the several
Underwriters, as adjusted by the Representatives in such manner as the
Representatives deem advisable to avoid fractional shares. No Option Shares
shall be sold and delivered unless the Firm Shares previously have been, or
simultaneously are, sold and delivered.
The Option Shares will be delivered by the Company to you for the accounts
of the several Underwriters against payment of the purchase price therefor by
Federal Funds wire transfer payable to the order of the Company at the offices
of U.S. Bancorp Xxxxx Xxxxxxx Inc., U.S. Bancorp Center, 000 Xxxxxxxx Xxxx,
Xxxxxxxxxxx, Xxxxxxxxx, or such other location as may be mutually acceptable at
9:00 a.m., Central time, on the Second Closing Date. If the Representatives so
elect, delivery of the Option Shares may be made by credit through full fast
transfer to the accounts at DTC designated by the Representatives. Certificates
representing the Option Shares, in definitive form and in such denominations and
registered in such names as you have set forth in your notice of option
exercise, will be made available for checking and packaging not later than 10:30
a.m., Central time, on the business day next preceding the Second Closing Date
at the office of U.S. Bancorp Xxxxx Xxxxxxx Inc., U.S. Bancorp Center, 000
Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx, or such other location as may be mutually
acceptable.
(c) It is understood that you, individually and not as Representatives
of the several Underwriters, may (but shall not be obligated to) make payment to
the Company on behalf of any Underwriter for the Securities to be purchased by
such Underwriter. Any such payment by you shall not relieve any such Underwriter
of any of its obligations hereunder. Nothing herein contained shall constitute
any of the Underwriters an unincorporated association or partner with the
Company.
12
(d) It is understood that the several Underwriters are to make a public
offering of the Firm Shares as soon as the Representatives deem it advisable to
do so. The Firm Shares are to be initially offered to the public at the initial
public offering price set forth in the Prospectus. To the extent, if at all,
that any Option Shares are purchased pursuant to Section 3(b) hereof, the
Underwriters will offer them to the public on the foregoing terms.
It is further understood that you will act as the Representatives for
the Underwriters in the offering and sale of the Shares in accordance with a
Master Agreement Among Underwriters entered into by you and the several other
Underwriters.
4. COVENANTS.
(a) The Company covenants and agrees with the several Underwriters as
follows:
(i) If the Registration Statement has not already been declared
effective by the Commission, then the Company will use its best efforts to
cause the Registration Statement and any post-effective amendments thereto
to become effective as soon as possible; the Company will notify you
promptly of the time when the Registration Statement or any post-effective
amendment to the Registration Statement has become effective or any
supplement to the Prospectus (including any term sheet within the meaning
of Rule 434 of the Rules and Regulations) has been filed, of receipt of any
comments from the Commission with respect to the Registration Statement or
Prospectus and of any request by the Commission for any amendment or
supplement to the Registration Statement or Prospectus or additional
information; if the Company has elected to rely on Rule 430A of the Rules
and Regulations, then the Company will prepare and file a Prospectus (or
term sheet within the meaning of Rule 434 of the Rules and Regulations)
containing the information omitted therefrom pursuant to Rule 430A of the
Rules and Regulations with the Commission within the time period required
by, and otherwise in accordance with the provisions of, Rules 424(b), 430A
and 434, if applicable, of the Rules and Regulations; if the Company has
elected to rely upon Rule 462(b) of the Rules and Regulations to increase
the size of the offering registered under the Act, the Company will prepare
and file a registration statement with respect to such increase with the
Commission within the time period required by, and otherwise in accordance
with the provisions of, Rule 462(b) of the Rules and Regulation; the
Company will prepare and file with the Commission, promptly upon your
request, any amendments or supplements to the Registration Statement or
Prospectus (including any term sheet within the meaning of Rule 434 of the
Rules and Regulations) that, in your opinion, may be necessary or advisable
in connection with the distribution of the Securities by the Underwriters;
and the Company will not file any amendment or supplement to the
Registration Statement or Prospectus (including any term sheet within the
meaning of Rule 434 of the Rules and Regulations) to which you shall
reasonably object by notice to the Company after having been furnished a
copy a reasonable time prior to the filing.
(ii) The Company will advise you, promptly after it shall receive
notice or obtain knowledge thereof, of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement,
of the suspension of the
13
qualification of the Securities for offering or sale in any jurisdiction,
or of the initiation or threatening of any proceeding for any such purpose;
and the Company will promptly use its best efforts to prevent the issuance
of any stop order or suspension of qualification or to obtain the
withdrawal of any such a stop order, or lifting of any such suspension, if
issued or imposed.
(iii) Within the time during which a prospectus relating to the
Securities is required to be delivered under the Act, the Company will use
its best efforts to comply as far as it is able with all requirements
imposed upon it by the Act, as now and hereafter amended, and by the Rules
and Regulations, as from time to time in force, so far as necessary to
permit the continuance of sales of or dealings in the Securities as
contemplated by the provisions hereof and the Prospectus. If during such
period any event occurs as a result of which the Prospectus would include
an untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
then existing, not misleading, or if during such period it is necessary to
amend the Registration Statement or supplement the Prospectus to comply
with the Act, the Company will promptly notify you and, subject to Section
4(a)(i) hereof, will amend the Registration Statement or supplement the
Prospectus (at the expense of the Company) so as to correct such statement
or omission or effect such compliance.
(iv) The Company will use its best efforts to qualify the
Securities for sale under the securities laws of such jurisdictions as you
reasonably designate and to continue such qualifications in effect so long
as required for the distribution of the Securities, except that the Company
shall not be required in connection therewith to qualify as a foreign
corporation or to execute a general consent to service of process in any
state.
(v) The Company will furnish to the Underwriters copies of the
Registration Statement (including all exhibits), each Preliminary
Prospectus, the Prospectus, and all amendments and supplements (including
any term sheet within the meaning of Rule 434 of the Rules and Regulations)
to such documents, in each case as soon as available and in such quantities
as you may from time to time reasonably request.
(vi) During a period of four (4) years commencing with the date
hereof, the Company will furnish to the Representatives, and to each
Underwriter who may so request in writing, copies of all periodic and
special reports furnished to the stockholders of the Company and all
information, documents and reports filed with the Commission, the National
Association of Securities Dealers, Inc., NASDAQ or any securities exchange.
(vii) The Company will make generally available to its security
holders, and deliver to you, as soon as practicable, but in any event not
later than fifteen (15) months after the end of the Company's current
fiscal quarter, an earnings statement covering a twelve (12) month period
beginning after the effective date of the Registration Statement that shall
satisfy the provisions of Section 11(a) of the Act and Rule 158 of the
Rules and Regulations.
14
(viii) The Company, whether or not the transactions contemplated
hereunder are consummated or this Agreement is prevented from becoming
effective under the provisions of Section 9(a) hereof or is terminated,
will pay or cause to be paid (A) all expenses (including transfer taxes
allocated to the respective transferees) incurred in connection with the
delivery to the Underwriters of the Securities, (B) all expenses and fees
(including, without limitation, fees and expenses of the Company's
accountants and counsel but, except as otherwise provided below, not
including fees of the Underwriters' counsel) in connection with the
preparation, printing, filing, delivery, and shipping of the Registration
Statement (including the financial statements therein and all amendments,
schedules and exhibits thereto), the Securities, each Preliminary
Prospectus, the Prospectus, and any amendment thereof or supplement
thereto, and the printing, delivery, and shipping of this Agreement and
other underwriting documents, including Blue Sky Memoranda, (C) all filing
fees and reasonable fees and disbursements of the Underwriters' counsel
incurred in connection with the qualification of the Securities for
offering and sale by the Underwriters or by dealers under the securities or
blue sky laws of the states and other jurisdictions which you shall
designate in accordance with Section 4(a)(iv) hereof, (D) upon receipt of a
reasonably detailed accounting, all out-of-pocket expenses, including
reasonable fees and disbursements of Underwriters' counsel, incurred by the
Underwriters in administering the Directed Share Program, (E) the fees and
expenses of any transfer agent or registrar, (F) upon receipt of a
reasonably detailed accounting, the filing fees and reasonable fees and
disbursements of the Underwriters' counsel incident to any required review
by the National Association of Securities Dealers, Inc. of the terms of the
sale of the Securities, (G) listing fees, if any, and (H) all other costs
and expenses incident to the performance of its obligations hereunder that
are not otherwise specifically provided for herein. If the sale of the
Securities provided for herein is not consummated by reason of action by
the Company pursuant to Section 9(a) hereof which prevents this Agreement
from becoming effective, or by reason of any failure, refusal or inability
on the part of the Company to perform any agreement on its part to be
performed, or because any condition of the Underwriters' obligations
hereunder required to be fulfilled by the Company is not fulfilled, the
Company will reimburse the several Underwriters for all documented
out-of-pocket disbursements (including documented reasonable fees and
disbursements of counsel) incurred by the Underwriters in connection with
their investigation, preparing to market and marketing the Securities or in
contemplation of performing their obligations hereunder. The Company shall
not in any event be liable to any of the Underwriters for loss of
anticipated profits from the transactions covered by this Agreement.
(ix) The Company will apply the net proceeds from the sale of the
Securities to be sold by it hereunder for the purposes set forth in the
Prospectus and will file such reports with the Commission with respect to
the sale of the Securities and the application of the proceeds therefrom as
may be required in accordance with Rule 463 of the Rules and Regulations.
(x) So long as required by law, the Company will furnish to its
stockholders, and deliver to you, as soon as practicable after the end of
each fiscal year an annual report (including a balance sheet and statements
of income, stockholders' equity of
15
cash flow of the Company for such fiscal year, accompanied by a copy of the
certificate or report thereon of nationally recognized independent
certified public accountants).
(xi) The Company will furnish to you as early as practicable prior
to the Closing Date but not later than two (2) business days prior thereto,
a copy of the latest available quarterly and monthly unaudited interim
financial statements of the Company which have been read by the Company's
independent certified public accountants, as stated in their letter to be
furnished pursuant to Section 5(h) hereof.
(xii) The Company will not, without the prior written consent of
U.S. Bancorp Xxxxx Xxxxxxx Inc., from the date of execution of this
Agreement and continuing to and including the date one hundred and eighty
(180) days after the date of the Prospectus (the "Lock-Up Period"), sell,
offer to sell, contract to sell, hypothecate, pledge, grant any option to
sell, enter into any transaction which is designed to, or might reasonably
be expected to, result in the disposition (whether by actual disposition or
effective economic disposition due to cash settlement or otherwise) by the
Company or any affiliate, or otherwise issue or dispose of, directly or
indirectly (or publicly disclose the intention to make any such offer,
sale, pledge, grant, issuance or other disposition), any Common Stock or
any securities convertible into or exchangeable for, or any options or
rights to purchase or acquire, Common Stock, or register or publicly
announce any intent to register under the Act the offer or sale of any
capital stock of the Company except for (i) the registration of the offer
and sale of the Securities and sales to the Underwriters pursuant to this
Agreement; (ii) the issuance of Common Stock upon exercise of options and
warrants disclosed as outstanding in the Registration Statement and the
Prospectus; (iii) the issuance of stock options not exercisable during the
Lock-Up Period pursuant to stock option plans described in the Registration
Statement and Prospectus; and (iv) registration statements filed on Form
S-8 limited in scope to stock option plans described in the Registration
Statement and Prospectus. The Company agrees not to accelerate the vesting
of any option or warrant or the lapse of any repurchase right prior to the
expiration of the Lock-Up Period.
(xiii) The Company either has caused to be delivered to you or
will cause to be delivered to you prior to the effective date of the
Registration Statement a binding letter agreement, in the form attached
hereto as Exhibit D, from each of the Company's directors and officers and
the holders of more than 90% of the outstanding Common Stock and securities
convertible into or exchangeable or exercisable for Common Stock (including
options and warrants), stating that such person agrees not to sell, offer
to sell, contract to sell, hypothecate, pledge, grant any option to sell or
otherwise dispose of, directly or indirectly, any shares of Common Stock or
options, warrants or other rights to purchase Common Stock or any other
securities of the Company that are substantially similar to Common Stock,
except to the Underwriters pursuant to this Agreement, for a period of one
hundred and eighty (180) days after commencement of the public offering of
the Securities by the Underwriters without the prior written consent of
U.S. Bancorp Xxxxx Xxxxxxx Inc. Except as set forth in the Prospectus, all
holders of outstanding Common Stock or securities convertible into or
exchangeable or exercisable for Common Stock who have not signed a binding
letter
16
agreement, in the form attached hereto as Exhibit D, are subject to similar
restrictions pursuant to other binding agreements between such holders and
the Company.
(xiv) The Company will file promptly all reports and any
definitive proxy or information statement required to be filed by the
Company with the Commission in order to comply with the Exchange Act
subsequent to the date of the Prospectus and for so long as the delivery of
a prospectus is required in connection with the offer or sale of the
Securities, and to promptly notify you of such filing.
(xv) The Company will not incur any liability for any finder's or
broker's fee or agent's commission in connection with the execution and
delivery of this Agreement or the consummation of the transactions
contemplated hereby.
(xvi) The Company will use its best efforts to cause the Common
Stock to be listed for quotation on the Nasdaq National Market.
(xvii) The Company will maintain a transfer agent and, if
necessary under the jurisdiction of incorporation of the Company, a
registrar for the Common Stock.
(xviii) The Company shall not invest, or otherwise use the
proceeds received by the Company from its sale of the Securities in such a
manner as would require the Company or any Subsidiary to register as an
investment company under the Investment Company Act.
(xix) The Company will not take, directly or indirectly, any
action designed to cause or result in, or that has constituted or might
reasonably be expected to constitute, the stabilization or manipulation of
the price of any securities of the Company.
(xx) The Company will comply with all applicable securities and
other applicable laws, rules and regulations in each jurisdiction in which
the Reserved Shares are offered in connection with the Directed Share
Program.
5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the several
Underwriters hereunder are subject to the accuracy, as of the date hereof and at
each of the First Closing Date and the Second Closing Date (as if made at such
Closing Date), of and compliance with all representations, warranties and
agreements of the Company contained herein, to the performance by the Company of
its obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have become effective not later
than 5:00 p.m., Central time, on the date of this Agreement, or such later time
and date as you, as Representatives of the several Underwriters, shall approve
and all filings required by Rules 424, 430A and 434 of the Rules and Regulations
shall have been timely made; no stop order suspending the effectiveness of the
Registration Statement or any amendment thereof shall have been issued; no
proceedings for the issuance of such an order shall have been initiated or
threatened; and any request of the Commission for additional information (to be
included in the Registration Statement or the Prospectus or otherwise) shall
have been complied with to your satisfaction.
17
(b) No Underwriter shall have advised the Company that the Registration
Statement or the Prospectus, or any amendment thereof or supplement thereto
(including any term sheet within the meaning of Rule 434 of the Rules and
Regulations), contains an untrue statement of fact which, in your opinion, is
material, or omits to state a fact which, in your opinion, is material and is
required to be stated therein or necessary to make the statements therein not
misleading.
(c) Except as specifically set forth in the Prospectus, subsequent to
the respective dates as of which information is given in the Registration
Statement and the Prospectus, neither the Company nor any Subsidiary shall have
incurred any material liabilities or obligations, direct or contingent, or
entered into any material transactions, or declared or paid any dividends or
made any distribution of any kind with respect to its capital stock; and there
shall not have been any change in the capital stock (other than a change in the
number of outstanding shares of Common Stock due to the issuance of shares upon
the exercise of outstanding options or warrants disclosed as outstanding in the
Registration Statement and Prospectus), or any material change in the short-term
or long-term debt of the Company or any Subsidiary, or any issuance of options,
warrants, convertible securities or other rights to purchase the capital stock
of the Company or any Subsidiary, or any change which has or is reasonably
possible to have a Material Adverse Effect, or any development involving or
which has or is reasonably possible to have a prospective Material Adverse
Effect, that, in your judgment, makes it impractical or inadvisable to offer or
deliver the Securities on the terms and in the manner set forth in the
Prospectus.
(d) On each Closing Date, there shall have been furnished to you, as
Representatives of the several Underwriters, the opinion of Xxxxxx Godward
LLP, counsel for the Company, dated such Closing Date and addressed to you,
covering the matters set forth in Schedule II.
(e) On each Closing Date, there shall have been furnished to you, as
Representatives of the several Underwriters, the opinion of Xxxxxxxx and
Xxxxxxxx and Crew L.L.P., special counsel for the Company with respect to patent
and proprietary rights, dated such Closing Date and addressed to you, with
reproduced copies for each of the other Underwriters and in form reasonably
satisfactory to Xxxxxxx Xxxxx & Xxxxx LLP, counsel for the Underwriters, stating
that:
(i) To such counsel's knowledge, except as described in the
Prospectus, (A) the Company has valid license rights or clear title to the
Intellectual Property referenced in the Prospectus, and there are no rights
of third parties to any such Intellectual Property; (B) there is no
infringement or other violation by third parties of any of the Intellectual
Property of the Company referenced in the Prospectus; (C) there is no
infringement or other violation by the Company of any Intellectual Property
of others; (D) there is no pending or threatened action, suit, proceeding
or claim by governmental authorities or others that the Company infringes
or otherwise violates any Intellectual Property of others, and such counsel
is unaware of any facts which would form a reasonable basis for any such
claim; and (E) there is no pending or threatened action, suit, proceeding
or claim by governmental authorities or others challenging the rights of
the Company in or to, or challenging the scope of, any Intellectual
Property of the Company
18
referenced in the Prospectus, and such counsel is unaware of any facts
which would form a reasonable basis for any such claim.
(ii) To such counsel's knowledge, the patent applications of the
Company presently on file disclose patentable subject matter, and such
counsel is not aware of any inventorship challenges, any interference which
has been declared or provoked, or any other material fact with respect to
the patent applications of the Company presently on file that (A) would
preclude the issuance of patents with respect to such applications or (B)
would lead such counsel to conclude that such patents, when issued, would
not be valid and enforceable in accordance with applicable regulations.
(iii) Such counsel has reviewed the portions of the Registration
Statement and the Prospectus referencing certain Company patent rights,
captioned "Risk Factors--Our failure to protect our intellectual property
rights could adversely affect our ability to compete," "Risk
Factors--Intellectual property or product liability claims against us could
harm our competitive position, results of operations and financial
condition" and "Business--Proprietary Rights and Licensing" (collectively,
the "Patent Sections"). On the basis of such counsel's representation of
the Company, such counsel has no reason to believe that the information in
the Patent Sections contains any untrue statement or material fact or omits
to state a material fact necessary to make the statements therein not
misleading and insofar as such Patent Sections constitute statements or
summaries of matters of law, to such counsel's knowledge, are, in all
material respects, accurate and complete statements or summaries, as the
case may be, of the matters referred to therein.
(f) On each Closing Date, there shall have been furnished to you, as
Representatives of the several Underwriters, the opinion of Xxxxxxx Xxxxx &
Xxxxx LLP, counsel for the several Underwriters, dated such Closing Date and
addressed to you, with respect to the formation of the Company, the validity of
the Securities and other related matters as you reasonably may request, and such
counsel shall have received such papers and information as they request to
enable them to pass upon such matters.
(g) On each Closing Date, there shall have been furnished to you, as
Representatives of the several Underwriters, a letter of Ernst & Young LLP,
dated such Closing Date and addressed to you, confirming that they are
independent public accountants within the meaning of the Act and are in
compliance with the applicable requirements relating to the qualifications of
accountants under Rule 2-01 of Regulation S-X of the Commission, and stating, as
of the date of such letter (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than five (5) days
prior to the date of such letter), stating that in their opinion the financial
statements and schedules examined by them and included in the Registration
Statement and Prospectus comply in form in all material respects with the
applicable accounting requirements of the Act and the related published Rules
and Regulations; and containing such other statements and information as is
ordinarily included in accountants' "comfort letters" to Underwriters with
respect to the financial statements and certain financial and statistical
information contained in the Registration Statement and Prospectus and that the
conclusions and findings of said firm with respect to the financial information
and other matters covered by their letter delivered to you
19
concurrently with the execution of this Agreement, and the effect of the letter
so to be delivered on such Closing Date shall be to confirm the conclusions and
findings set forth in such prior letter.
(h) On each Closing Date, there shall have been furnished to you, as
Representatives of the Underwriters, a certificate, dated such Closing Date and
addressed to you, signed by the chief executive officer and by the chief
financial officer of the Company, stating that:
(i) The representations and warranties of the Company in this
Agreement are true and correct in all material respects as if made at and
as of such Closing Date, and the Company has complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to such Closing Date.
(ii) No stop order or other order suspending the effectiveness of
the Registration Statement or any amendment thereof or the qualification of
the Securities for offering or sale has been issued, and no proceeding for
that purpose has been instituted or, to their knowledge or the knowledge of
the Company, is contemplated by the Commission or any state or regulatory
body.
(iii) The signers of said certificate have carefully examined the
Registration Statement and the Prospectus, and any amendments thereof or
supplements thereto (including any term sheet within the meaning of Rule
434 of the Rules and Regulations), and (A) such documents contain all
statements and information required to be included therein, the
Registration Statement, or any amendment thereof, does not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, and the Prospectus, as amended or supplemented, does not
include any untrue statement of material fact or omit to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, (B) since the
effective date of the Registration Statement, there has occurred no event
required to be set forth in an amended or supplemented prospectus which has
not been so set forth, (C) subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
neither the Company nor any Subsidiary has incurred any material
liabilities or obligations, direct or contingent, or entered into any
material transactions, or declared or paid any dividends or made any
distribution of any kind with respect to its capital stock; and there has
not been any change in the capital stock (other than a change in the number
of outstanding shares of Common Stock due to the issuance of shares upon
the exercise of outstanding options or warrants disclosed as outstanding in
the Registration Statement and Prospectus), or any material change in the
short-term or long-term debt of the Company or any Subsidiary, or any
issuance of options, warrants, convertible securities or other rights to
purchase the capital stock, of the Company or any Subsidiary, or any change
that would have a Material Adverse Effect or any development involving a
prospective Material Adverse Effect and (D) except as stated in the
Registration Statement and the Prospectus, there is not pending or, to
their knowledge, threatened or contemplated, any action, suit or proceeding
to which the Company, any Subsidiary or any of their respective officers is
a party before or by any court or
20
governmental agency, authority or body, or any arbitrator, which might
result in a Material Adverse Effect.
(iv) All filings required to have been made pursuant to Rules 424
or 430A under the Act have been made.
(v) The lock-up agreements described in Section 4(a)(xiii) have
not been terminated or modified by the Company in any material respects.
(i) The Securities shall have been approved for listing for quotation
on the Nasdaq National Market, subject only to notice of issuance at or prior to
the Closing Date.
(j) The Company shall have furnished to you and counsel for the
Underwriters such additional documents, certificates and evidence as you or they
may have reasonably requested.
(k) The Representatives shall have received at or prior to the First
Closing Date from Xxxxxxx Xxxxx & Xxxxx LLP, a memorandum or summary, in form
and substance satisfactory to the Representatives, with respect to the
qualification for offering and sale by the Underwriters of the Securities under
the State securities or Blue Sky laws of such jurisdictions as the
Representatives may reasonably have designated to the Company.
All such opinions, certificates, letters and other documents referred to
hereinabove will be in compliance with the provisions hereof only if they are
satisfactory in form and substance to you and counsel for the Underwriters. The
Company will furnish you with such conformed copies of such opinions,
certificates, letters and other documents as you shall reasonably request.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise (including in
settlement of any litigation if such settlement is effected with the written
consent of the Company), insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, including the information deemed to be a part of the
Registration Statement at the time of effectiveness pursuant to Rules 430A and
434(d) of the Rules and Regulations, if applicable, any Preliminary Prospectus,
the Prospectus, or any amendment or supplement thereto (including any term sheet
within the meaning of Rule 434 of the Rules and Regulations), or in any
materials or information provided to investors by, or with the approval of, the
Company in connection with the marketing of the offering of the Common Stock
("Marketing Materials"), including any roadshow or investor presentations made
to investors by the Company (whether in person or electronically) or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein in light of the circumstances in which they were made, not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by it in connection with investigating or defending against such loss,
claim, damage, liability or action; provided, however, that (i) the Company
shall not be liable in any such case to the extent that any such
21
loss, claim, damage, liability or action arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement, any Preliminary Prospectus, the Prospectus,
or any such amendment or supplement, or in any Marketing Materials, in reliance
upon and in conformity with written information furnished to the Company by you,
or by any Underwriter through you, specifically for use in the preparation
thereof and (ii) the foregoing indemnity with respect to any Preliminary
Prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such loss, damage, liability or claim purchased Shares, or
any person controlling such Underwriter, if a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such Underwriter
to such person, if required by law to have been so delivered at or prior to the
written confirmation of the sale of the Shares to such person, and if the
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such loss, damage, liability or claim, and the Company had previously
furnished copies thereof to such Underwriter.
The Company further agrees to indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise (including in
settlement of any litigation if such settlement is effected with the written
consent of the Company), insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon or in connection
with the offer and sale of the Reserved Shares under the Directed Share Program,
provided that the Company shall not be responsible for any loss, damage,
expense, liability or claim that is finally judicially determined to have
resulted from the bad faith or gross negligence of the Underwriters in
conducting the Directed Share Program.
In addition to its other obligations under this Section 6(a), the Company
agrees that, as an interim measure during the pendency of any claim, action,
investigation, inquiry or other proceeding arising out of or based upon any
statement or omission, or any alleged statement or omission, described in this
Section 6(a), or the offer and sale of the Reserved Shares under the Directed
Share Program, it will reimburse each Underwriter on a monthly basis for all
reasonable legal fees or other expenses incurred in connection with
investigating or defending any such claim, action, investigation, inquiry or
other proceeding, notwithstanding the absence of a judicial determination as to
the propriety and enforceability of the Company's obligation to reimburse the
Underwriters for such expenses and the possibility that such payments might
later be held to have been improper by a court of competent jurisdiction. To the
extent that any such interim reimbursement payment is so held to have been
improper, the Underwriter that received such payment shall promptly return it to
the party or parties that made such payment, together with interest, compounded
daily, determined on the basis of the prime rate (or other commercial lending
rate for borrowers of the highest credit standing) announced from time to time
by U.S. Bancorp (the "Prime Rate"). Any such interim reimbursement payments
which are not made to an Underwriter within thirty (30) days of a request for
reimbursement shall bear interest at the Prime Rate from the date of such
request. This indemnity agreement shall be in addition to any liabilities which
the Company may otherwise have.
(b) In connection with the offer and sale of the Reserved Shares, the
Company agrees to purchase from U.S. Bancorp Xxxxx Xxxxxxx Inc., at its request,
for full purchase price all Reserved Shares not resold by the Underwriters which
were subject to a properly confirmed
22
agreement to purchase and for which any Directed Share Participant failed to pay
therefor and accept delivery thereof.
(c) Each Underwriter will indemnify and hold harmless the Company
against any losses, claims, damages or liabilities to which the Company, each of
its directors and each officer who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 5 of the
Act against any losses, claims, damages or liabilities to which the Company may
become subject, under the Act or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of such
Underwriter), insofar as such Losses (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto (including
any term sheet within the meaning of Rule 434 of the Rules and Regulations), or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any such amendment or supplement, in reliance
upon and in conformity with written information furnished to the Company by you,
or by such Underwriter through you, specifically for use in the preparation
thereof, and will reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
against any such loss, claim, damage, liability or action. Notwithstanding the
provisions of this subsection (c), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages that such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (c) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(d) Promptly after receipt by an indemnified party under subsection (a)
or (c) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve the indemnifying party from any liability that it may have to any
indemnified party to the extent the indemnifying party is not materially
prejudiced thereby. In case any such action shall be brought against any
indemnified party, and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
in, and, to the extent that it shall wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party, and after notice from the indemnifying
party to such indemnified party of the indemnifying party's election so to
assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
if, in the sole judgment of the
23
Representatives, it is advisable for the Underwriters to be represented as a
group by separate counsel, the Representatives shall have the right to employ a
single counsel to represent the Representatives and all Underwriters who may be
subject to liability arising from any claim in respect of which indemnity may be
sought by the Underwriters under subsection (a) of this Section 6, in which
event the reasonable fees and expenses of such separate counsel shall be borne
by the indemnifying party or parties and reimbursed to the Underwriters as
incurred (in accordance with the provisions of the second paragraph in
subsection (a) above). Notwithstanding anything contained herein to the
contrary, if indemnity may be sought pursuant to the second full paragraph of
subsection 6(a) hereof in respect of such action or proceeding, then the
indemnifying party shall be liable for the reasonable fees and expenses of not
more than one separate firm for the Underwriters for the defense of any losses,
claims, damages and liabilities arising out of the Directed Share Program, and
all persons, if any, who control each Underwriter within the meaning of the Act.
An indemnifying party shall not be obligated under any settlement agreement
relating to any action under this Section 6 to which it has not agreed in
writing.
(e) If the indemnification provided for in this Section 6 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (c) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (c) above, (i)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters on the other from the
offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the Underwriters on
the other in connection with the statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total 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. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company or the Underwriters and the parties'
relevant intent, knowledge, access to information and opportunity to correct or
prevent such untrue statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contributions pursuant to this
subsection (e) were to be determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to in the first sentence of this subsection (e). The amount paid by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in the first sentence of this subsection (e) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending against any action or claim
which is the subject of this subsection (e). Notwithstanding the provisions of
this subsection (e), no Underwriter shall be required to contribute any amount
in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
24
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this subsection (e) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(f) The obligations of the Company under this Section 6 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 6 shall be in addition to any liability that the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company (including any person who, with
his consent, is named in the Registration Statement as about to become a
director of the Company), to each officer of the Company who has signed the
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Act.
7. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All representations,
warranties, and agreements of the Company herein or in certificates delivered
pursuant hereto, and the agreements of the several Underwriters and the Company
contained in Section 6 hereof, shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of any Underwriter
or any controlling person thereof, or the Company or any of its officers,
directors, or controlling persons, and shall survive delivery of, and payment
for, the Securities to and by the Underwriters hereunder.
8. SUBSTITUTION OF UNDERWRITERS.
(a) If any Underwriter or Underwriters shall fail to take up and pay
for the amount of Firm Shares agreed by such Underwriter or Underwriters to be
purchased hereunder, upon tender of such Firm Shares in accordance with the
terms hereof, and the amount of Firm Shares not purchased does not aggregate
more than ten percent (10%) of the total amount of Firm Shares set forth in
Schedule I hereto, the remaining Underwriters shall be obligated to take up and
pay for (in proportion to their respective underwriting obligations hereunder as
set forth in Schedule I hereto except as may otherwise be determined by you) the
Firm Shares that the withdrawing or defaulting Underwriters agreed but failed to
purchase.
(b) If any Underwriter or Underwriters shall fail to take up and pay
for the amount of Firm Shares agreed by such Underwriter or Underwriters to be
purchased hereunder, upon tender of such Firm Shares in accordance with the
terms hereof, and the amount of Firm Shares not purchased aggregates more than
ten percent (10%) of the total amount of Firm Shares set forth in Schedule I
hereto, and arrangements satisfactory to you for the purchase of such Firm
Shares by other persons are not made within thirty-six (36) hours thereafter,
this Agreement shall terminate. In the event of any such termination, the
Company shall not be under any liability to any Underwriter (except to the
extent provided in Section 4(a)(viii) and Section 6 hereof) nor shall any
Underwriter (other than an Underwriter who shall have failed, otherwise than for
some reason permitted under this Agreement, to purchase the amount of Firm
Shares agreed by such Underwriter to be purchased hereunder) be under any
liability to the Company (except to the extent provided in Section 6 hereof).
25
If Firm Shares to which a default relates are to be purchased by the
non-defaulting Underwriters or by any other party or parties, the
Representatives or the Company shall have the right to postpone the First
Closing Date for not more than seven (7) business days in order that the
necessary changes in the Registration Statement, Prospectus and any other
documents, as well as any other arrangements, may be effected. As used herein,
the term "Underwriter" includes any person substituted for an Underwriter under
this Section 8. Any action taken under this Section 8 shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
9. EFFECTIVE DATE OF THIS AGREEMENT AND TERMINATION.
(a) This Agreement shall become effective at 10:00 a.m., Central time,
on the first full business day following the effective date of the Registration
Statement, or at such earlier time after the effective time of the Registration
Statement as you in your discretion shall first release the Securities for sale
to the public; provided, that if the Registration Statement is effective at the
time this Agreement is executed, this Agreement shall become effective at such
time as you in your discretion shall first release the Securities for sale to
the public. For the purpose of this Section, the Securities shall be deemed to
have been released for sale to the public upon release by you of the publication
of a newspaper advertisement relating thereto or upon release by you of telexes
offering the Securities for sale to securities dealers, whichever shall first
occur. By giving notice as hereinafter specified before the time this Agreement
becomes effective, you, as Representatives of the several Underwriters, or the
Company may prevent this Agreement from becoming effective without liability of
any party to any other party, except that the provisions of Section 4(a)(viii)
and Section 6 hereof shall at all times be effective.
(b) You, as Representatives of the several Underwriters, shall have the
right to terminate this Agreement by giving notice as hereinafter specified at
any time at or prior to the First Closing Date, and the option referred to in
Section 3(b), if exercised, may be cancelled at any time prior to the Second
Closing Date, if (i) the Company shall have failed, refused or been unable, at
or prior to such Closing Date, to perform any agreement on its part to be
performed hereunder, (ii) any condition of the Underwriters' obligations
hereunder is not fulfilled, (iii) trading on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq National Market shall have been wholly
suspended, (iv) minimum or maximum prices for trading shall have been fixed, or
maximum ranges for prices for securities shall have been required, on the New
York Stock Exchange, the American Stock Exchange or the Nasdaq National Market,
by such Exchange or by order of the Commission or any other governmental
authority having jurisdiction, (v) a banking moratorium shall have been declared
by Federal, New York or California authorities, (vi) since the respective dates
as of which information is given in the Registration Statement and the
Prospectus, any material adverse change or any development that would reasonably
be expected to result in a material adverse change in or affecting the
condition, financial or otherwise, of the Company and its Subsidiaries taken as
a whole or the earnings, business, management, properties, assets, rights,
operations, condition (financial or otherwise) or prospects of the Company and
its Subsidiaries taken as a whole, whether or not arising in the ordinary course
of business, that, in your judgment, makes it impractical or inadvisable to
proceed with the completion of the sale of and payment for the Securities, (vii)
the enactment, publication, decree or other promulgation of any statute,
regulation, rule or order of any court or other governmental authority which in
your opinion materially and adversely affects or may
26
materially and adversely affect the business or operations of the Company that,
in your judgment, makes it impractical or inadvisable to proceed with the
completion of the sale of and payment for the Securities, or (viii) there has
occurred any material adverse change in the financial markets in the United
States or an outbreak of major hostilities (or an escalation thereof) in which
the United States is involved, a declaration of war by Congress, any other
substantial national or international calamity or any other event or occurrence
of a similar character shall have occurred since the execution of this Agreement
that, in your judgment, makes it impractical or inadvisable to proceed with the
completion of the sale of and payment for the Securities. Any such termination
shall be without liability of any party to any other party except that the
provisions of Section 4(a)(viii) and Section 6 hereof shall at all times be
effective.
(c) If you elect to prevent this Agreement from becoming effective or
to terminate this Agreement as provided in this Section, the Company shall be
notified promptly by you by telephone or telegram, confirmed by letter. If the
Company elects to prevent this Agreement from becoming effective, you shall be
notified by the Company by telephone or telegram, confirmed by letter.
10. DEFAULT BY THE COMPANY. If the Company shall fail at the First Closing
Date to sell and deliver the number of Securities which it is obligated to sell
hereunder, then this Agreement shall terminate without any liability on the part
of any non-defaulting party. No action taken pursuant to this Section shall
relieve the Company from liability, if any, in respect of such default.
11. INFORMATION FURNISHED BY UNDERWRITERS. The statements set forth in the
first, third, ninth and tenth paragraphs under the caption "Underwriting" in any
Preliminary Prospectus and in the Prospectus constitute the only written
information furnished by or on behalf of the Underwriters referred to in Section
2 and Section 6 hereof.
12. NOTICES. Except as otherwise provided herein, all communications
hereunder shall be in writing or by telegraph and, if to the Underwriters, shall
be mailed, faxed or delivered to the Representatives c/o U.S. Bancorp Xxxxx
Xxxxxxx Inc., U.S. Bancorp Center, 000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, Xxxxxxxxx
00000, fax: (000) 000-0000, except that notices given to an Underwriter pursuant
to Section 6 hereof shall be sent to such Underwriter at the address stated in
the Underwriters' Questionnaire furnished by such Underwriter in connection with
this offering; if to the Company, shall be mailed, faxed or delivered to it at
Omnicell, Inc., 0000 Xxxx Xxxxxx Xxxxx, Xxxx Xxxx, Xxxxxxxxxx 00000, fax: (605)
000-0000, Attention: Xxxxxxx Xxxxx, Chief Executive Officer, or to such other
address as the person to be notified may have requested in writing. All notices
given by telegram shall be promptly confirmed by letter. Any party to this
Agreement may change such address for notices by sending to the parties to this
Agreement written notice of a new address for such purpose.
13. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
successors and assigns and the controlling persons, officers and directors
referred to in Section 6. Nothing in this Agreement is intended or shall be
construed to give to any other person, firm or corporation any legal or
equitable remedy or claim under or in respect of this Agreement or any provision
herein
27
contained. The term "successors and assigns" as herein used shall not include
any purchaser, as such purchaser, of any of the Securities from any of the
several Underwriters.
14. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Minnesota.
15. COUNTERPARTS. This Agreement may be executed in two counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
28
Please sign and return to the Company the enclosed duplicates of this
letter whereupon this letter will become a binding agreement between the Company
and the several Underwriters in accordance with its terms.
Very truly yours,
OMNICELL, INC.
By: ____________________________________
Title:
Accepted and agreed to as of the date
first above mentioned, on behalf of
themselves and the other several
Underwriters named in Schedule I hereto.
U.S. BANCORP XXXXX XXXXXXX INC.
CIBC WORLD MARKETS CORP.
XX XXXXX SECURITIES CORPORATION
By: U.S. BANCORP XXXXX XXXXXXX INC.
By: _____________________________________
Name:
Title:
SCHEDULE I
UNDERWRITER NUMBER OF FIRM SHARES(1)
----------- ------------------------
U.S. BANCORP XXXXX XXXXXXX INC.
CIBC WORLD MARKETS CORP.
XX XXXXX SECURITIES CORPORATION
---------------
Total. . . . . . . . . . . . . . 6,000,000
=========
-----------------
(1) The Underwriters may purchase up to an additional 900,000 Option Shares, to
the extent the option described in Section 3(b) of the Agreement is exercised,
in the proportions and in the manner described in the Agreement.
SCHEDULE II
MATTERS TO BE COVERED IN THE OPINION OF XXXXXX GODWARD LLP
COUNSEL FOR THE COMPANY
EXHIBIT A
LIST OF THE COMPANY'S SUBSIDIARIES
Omnicell HealthCare Canada, Inc.
Omnicell Europe SARL
EXHIBIT B
LIST OF ALL ISSUED PATENTS OWNED IN WHOLE OR IN PART
BY THE COMPANY OR ANY SUBSIDIARY
EXHIBIT C
LIST OF ENTITIES IN WHICH COMPANY HAS OWNERSHIP OR
PROPRIETARY INTEREST
EXHIBIT D
FORM OF LOCK-UP LETTER AGREEMENT
