TH&T DRAFT 12/20/95
1,200,000 SHARES1
HOLOGIC, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
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XXXXXXX & COMPANY, INC. January ___, 1996
XXXXXX XXXXXXX INCORPORATED
XXXXX, XXXXXXXX & XXXX, INC.
As Representatives of the several Underwriters
c/o Needham & Company, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Hologic, Inc., a Delaware corporation (the "Company"), proposes to sell
1,200,000 shares (the "Firm Shares") of the Company's Common Stock, $.01 par
value per share (including the associated Rights, the "Common Stock"), to you
and to the several other Underwriters named in Schedule I (collectively, the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"). The Company and the persons named in Schedule II (the
"Selling Stockholders") have agreed to grant to you and to the other
Underwriters an option (the "Option") to purchase up to an additional 180,000
shares of Common Stock (the "Option Shares"), of which 46,000 shares are to be
issued and sold by the Company and an aggregate of 134,000 shares are to be sold
by the Selling Stockholders which are to be sold in the respective amounts set
forth opposite their respective names in Schedule II, on the terms and for the
purposes set forth in Section 1(b) hereof. The Firm Shares and the Option
Shares are referred to collectively herein as the "Shares." Each Selling
Stockholder has executed and delivered a Custody Agreement and Power of Attorney
(each a "Custody Agreement") pursuant to which each Selling Stockholder has
placed his Shares in custody and appointed the persons designated therein as the
attorneys (the "Attorneys") with authority to execute and deliver this Agreement
on behalf of such Selling Stockholder and to take certain other actions with
respect thereto and hereto.
__________________
1Plus an option to purchase up to an additional 180,000 shares to cover over-
allotments.
The Company and the Selling Stockholders confirm as follows their
respective agreement with the Representatives and the several other
Underwriters.
1. Agreement to Sell and Purchase.
(a) The Company agrees to sell to each Underwriter named below, and
upon the basis of the representations, warranties and agreements of the
Company herein contained and subject to all the terms and conditions of
this Agreement, each Underwriter agrees, severally and not jointly, to
purchase from the Company, the respective number of Firm Shares set forth
opposite its name on Schedule I, at the purchase price of $ for each Firm
Share.
(b) Subject to all the terms and conditions of this Agreement, the
Company and the Selling Stockholders, severally and not jointly, grant the
Option, in the respective amounts set forth above and in Schedule II, to
the several Underwriters to purchase, severally and not jointly, up to the
maximum number of Option Shares from the Company and the Selling
Stockholders at the same price per share as the Underwriters shall pay for
the Firm Shares. The Option may be exercised only to cover over-allotments
in the sale of the Firm Shares by the Underwriters and may be exercised in
whole or in part at any time (but not more than once) on or before the 30th
day after the date of this Agreement upon written or telegraphic notice
(the "Option Shares Notice") by the Representatives to the Company no later
than 12:00 noon, Eastern time, at least two and no more than five business
days before the date specified for closing in the Option Shares Notice (the
"Option Closing Date") setting forth the aggregate number of Option Shares
to be purchased and the time and date for such purchase. On the Option
Closing Date, the Company will issue and sell, and the Selling Stockholders
will sell to the Underwriters the number of Option Shares set forth in the
Option Shares Notice (to be allocated, if the Option is exercised in part
only, first to the Selling Stockholders pro rata among them based on the
maximum number of Option Shares that may be sold by them and then to the
Company), and each Underwriter will purchase, upon the basis of the
representations, warranties and agreements of the Company and the Selling
Stockholders herein contained, such percentage of the Option Shares as is
equal to the percentage of Firm Shares that such Underwriter is purchasing,
as adjusted by the Representatives in such manner as they deem advisable to
avoid fractional shares.
2. Delivery and Payment. Delivery of the Firm Shares shall be made to the
Representatives for the accounts of the Underwriters against payment of the
purchase price by certified or official bank check payable in New York Clearing
House (next-day) funds to the
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order of the Company at the offices of Xxxxx Xxxxxxx Xxxxx & Gesmer, One
Financial Center, Boston, Massachusetts, at 10:00 a.m., Eastern time, on the
[fourth] business day following the date of this Agreement, or at such time on
such other date, not later than seven business days after the date of this
Agreement, as may be agreed upon by the Company and the Representatives (such
date being hereinafter referred to as the "Closing Date").
To the extent the Option is exercised, delivery of the Option Shares,
against payment by the Underwriters (in the manner specified above) to the
Company for the Option Shares to be sold by it and to the person or entity named
therein as custodian for the Selling Stockholders (the "Custodian") for the
Option Shares to be sold by the Selling Stockholders, will take place at the
office specified above for the Closing Date at the time and date (which may be
the Closing Date) specified in the Option Shares Notice.
Certificates evidencing the Shares shall be in definitive form and shall be
registered in such names and in such denominations as the Representatives shall
request at least two business days prior to the Closing Date or the Option
Closing Date, as the case may be, by written notice to the Company. For the
purpose of expediting the checking and packaging of certificates for the Shares,
the Company agrees to make such certificates available for inspection at least
24 hours prior to the Closing Date or the Option Closing Date, as the case may
be.
The cost of original issue tax stamps, if any, in connection with the
issuance and delivery of the Firm Shares and the Option Shares by the Company to
the respective Underwriters shall be borne by the Company. The cost of tax
stamps, if any, in connection with the sale of Option Shares by the Selling
Stockholders shall be borne by the Selling Stockholders. The Company and the
Selling Stockholders will pay and save each Underwriter and any subsequent
holder of the Shares harmless from any and all liabilities with respect to or
resulting from any failure or delay in paying Federal and state stamp and other
transfer taxes, if any, which may be payable or determined to be payable in
connection with the original issuance or sale to such Underwriter of the Firm
Shares and Option Shares sold by it or them.
3. Representations and Warranties of the Company. The Company represents,
warrants and covenants to each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 and a
registration statement (Registration No. 33-_____) on Form S-3 relating to
the Shares, including a preliminary prospectus and such amendments to such
registration statement as may have been required to the date of this
Agreement, has been prepared by the Company under the provisions of the
Securities Act of 1933, as amended (the "Act"), and the rules and
regulations (collectively referred to as the "Rules and Regulations") of
the Securities and Exchange Commission (the "Commission") thereunder, and
has been filed
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with the Commission. The term "preliminary prospectus" as used herein means
a preliminary prospectus as contemplated by Rule 430 or Rule 430A of the
Rules and Regulations included at any time as part of the registration
statement. Copies of such registration statement and amendments and of each
related preliminary prospectus have been delivered to the Representatives.
If such registration statement has not become effective, a further
amendment to such registration statement, including a form of final
prospectus, necessary to permit such registration statement to become
effective will be filed promptly by the Company with the Commission. If
such registration statement has become effective, a final prospectus
containing information permitted to be omitted at the time of effectiveness
by Rule 430A of the Rules and Regulations will be filed promptly by the
Company with the Commission in accordance with Rule 424(b) of the Rules and
Regulations. The term "Registration Statement" means the registration
statement as amended at the time it becomes or became effective (the
"Effective Date"), including financial statements and all exhibits and any
information deemed to be included therein by Rule 430A, if applicable,
together with any registration statement filed by the Company pursuant to
Rule 462(b) of the Rules and Regulations. The term "Prospectus" means the
prospectus as first filed with the Commission pursuant to Rule 424(b) of
the Rules and Regulations or, if no such filing is required, the form of
final prospectus included in the Registration Statement at the Effective
Date. Any reference herein to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
which were filed under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), on or before the Effective Date or the date of such
preliminary prospectus or the Prospectus, as the case may be. Any reference
herein to the terms "amend," "amendment" or "supplement" with respect to
the Registration Statement, any preliminary prospectus or the Prospectus
shall be deemed to refer to and include the filing of any document under
the Exchange Act after the Effective Date, or the date of any preliminary
prospectus or the Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
(b) No order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission. On the Effective Date, the
date the Prospectus is first filed with the Commission pursuant to Rule
424(b) (if required), at all times subsequent to and including the Closing
Date and, if later, the Option Closing Date and when any post-effective
amendment to the Registration Statement becomes effective or any amendment
or supplement to the Prospectus is filed with the Commission, the
Registration Statement and the Prospectus (as amended or as supplemented if
the Company shall have filed with the Commission any amendment or
supplement thereto), including the financial statements included or
incorporated by reference in the Prospectus, did or will comply with all
applicable provisions of the Act, the Exchange
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Act, the rules and regulations thereunder (the "Exchange Act Rules and
Regulations") and the Rules and Regulations and will contain all statements
required to be stated therein in accordance with the Act, the Exchange Act,
the Exchange Act Rules and Regulations and the Rules and Regulations. On
the Effective Date and when any post-effective amendment to the
Registration Statement becomes effective, no part of the Registration
Statement, the Prospectus or any such amendment or supplement did or will
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein not misleading. At the Effective Date, the date the
Prospectus or any amendment or supplement to the Prospectus is filed with
the Commission and at the Closing Date and, if later, the Option Closing
Date, the Prospectus did not or will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading. The foregoing representations and warranties in this
Section 3(b) do not apply to any statements or omissions made in reliance
on and in conformity with information relating to any Underwriter furnished
in writing to the Company by the Representatives specifically for inclusion
in the Registration Statement or Prospectus or any amendment or supplement
thereto. The Company acknowledges that the statements set forth under the
heading "Underwriting," in the last paragraph on the front cover page and
in the last two paragraphs on the inside front cover page in the Prospectus
constitute the only information relating to any Underwriter furnished in
writing to the Company by the Representatives specifically for inclusion in
the Registration Statement.
(c) The documents which are incorporated by reference in the
preliminary prospectus and the Prospectus or from which information is so
incorporated by reference, when they become effective or were filed with
the Commission, as the case may be, complied in all material respects with
the requirements of the Act or the Exchange Act, as applicable, the
Exchange Act Rules and Regulations and the Rules and Regulations; and any
documents so filed and incorporated by reference subsequent to the
Effective Date shall, when they are filed with the Commission, conform in
all material respects with the requirements of the Act and the Exchange
Act, as applicable, the Exchange Act Rules and Regulations and the Rules
and Regulations.
(d) The only subsidiaries (as defined in the Rules and Regulations)
of the Company are listed on Exhibit A hereto. The Company and each of its
subsidiaries is, and at the Closing Date will be, a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation. The Company and each of its subsidiaries
has, and at the Closing Date will have, full power and authority to conduct
all the activities conducted by it, to own or lease all the assets owned or
leased by it and to conduct its business as described in the Registration
Statement and the
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Prospectus. The Company and each of its subsidiaries is, and at the Closing
Date will be, duly licensed or qualified to do business and in good
standing as a foreign corporation in all jurisdictions in which the nature
of the activities conducted by it or the character of the assets owned or
leased by it makes such license or qualification necessary and where the
failure to be so licensed or qualified might materially and adversely
affect the Company or the business, properties, business prospects,
condition (financial or other) or results of operations of the Company. The
Company owns all of the outstanding capital stock of each of its
subsidiaries, free and clear of all claims, liens, charges and
encumbrances. Complete and correct copies of the corporate charters and of
the by-laws of the Company and each of its subsidiaries and all amendments
thereto have been delivered to the Representatives, and no changes therein
will be made subsequent to the date hereof and prior to the Closing Date
or, if later, the Option Closing Date, except for an increase in the
authorized capital stock of the Company as contemplated by the Prospectus.
(e) All of the outstanding shares of capital stock of the Company
have been duly authorized, validly issued and are fully paid and
nonassessable; the Shares have been duly authorized and when issued and
paid for as contemplated herein will be validly issued, fully paid and
nonassessable; no preemptive or similar rights with respect to any of the
Shares or the issue and sale thereof and, as of each of the Closing Date
and the Option Closing Date, as applicable, no preemptive or similar rights
will exist with respect to any shares of the Company's capital stock. The
description of the capital stock of the Company in the Registration
Statement and the Prospectus is, and at each of the Closing Date and the
Option Closing Date, as applicable, will be, complete and accurate in all
material respects. Except as set forth in the Prospectus, neither the
Company nor any of its subsidiaries has outstanding, and at each of the
Closing Date and the Option Closing Date, as applicable, will not have
outstanding, any options to purchase, or any rights or warrants to
subscribe for, or any securities or obligations convertible into, or any
contracts or commitments to issue or sell, any shares of capital stock, or
any such warrants, convertible securities or obligations, except as
disclosed in the Prospectus. All of the outstanding shares of capital stock
of each subsidiary of the Company have been duly authorized, validly issued
and are fully paid and nonassessable; and are held of record and
beneficially by the Company, free and clear of all claims, liens, charges
and encumbrances.
(f) The financial statements and schedules included or incorporated
by reference in the Registration Statement or the Prospectus present fairly
the financial condition of the Company and its subsidiaries as of the
respective dates thereof and the results of operations and cash flows of
the Company and its subsidiaries for the respective periods covered
thereby, all in conformity with generally accepted accounting principles
applied on a consistent basis throughout the entire period involved, except
as otherwise
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disclosed in the Prospectus. No other financial statements or schedules of
the Company are required by the Act, the Exchange Act, the Exchange Act
Rules and Regulations or the Rules and Regulations to be included in the
Registration Statement or the Prospectus. Xxxxxx Xxxxxxxx LLP (the
"Accountants"), who have reported on such financial statements and
schedules, are independent accountants with respect to the Company as
required by the Act and the Rules and Regulations. The summary financial
and statistical data included in the Registration Statement present fairly
the information shown therein and have been compiled on a basis consistent
with the financial statements presented therein.
(g) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus and prior to each of
the Closing Date and the Option Closing Date, as applicable, except as set
forth in, pursuant to arrangements described in or contemplated by the
Registration Statement and the Prospectus, (i) there has not been and will
not have been any change in the capitalization of the Company, or any
material adverse change in the business, properties, business prospects,
condition (financial or otherwise) or results of operations of the Company
or any of its subsidiaries, arising for any reason whatsoever, (ii) neither
the Company nor any of its subsidiaries has incurred nor will any of them
incur any liabilities or obligations, direct or contingent, nor has the
Company or any of its subsidiaries entered into nor will any of them enter
into any transactions, in either case that are material to the Company and
its subsidiaries taken as a whole, other than in the ordinary course of
business or pursuant to this Agreement and the transactions referred to
herein and (iii) the Company has not and will not have paid or declared any
dividends or other distributions of any kind on any class of its capital
stock.
(h) The Company is not an "investment company" or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an "investment
company," as such terms are defined in the Investment Company Act of 1940,
as amended.
(i) Except as set forth in the Registration Statement and the
Prospectus, there are no actions, suits or proceedings pending or, to the
Company's knowledge, threatened against or affecting the Company, any of
its subsidiaries or any of their officers in their capacity as such, before
or by any Federal or state court, commission, regulatory body,
administrative agency or other governmental body, domestic or foreign,
wherein an unfavorable ruling, decision or finding might materially and
adversely affect the Company, any of its subsidiaries or the business,
properties, business prospects, condition (financial or otherwise) or
results of operations of the Company and its subsidiaries taken as a whole.
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(j) The Company and each subsidiary has, and at each of the Closing
Date and the Option Closing Date, as applicable, will have, performed all
its obligations required to be performed by it, and is not, and at each of
the Closing Date and the Option Closing Date, as applicable, will not be,
in default, under any contract or other instrument to which it is a party
or by which its property is bound or affected, which non-performance or
default might materially and adversely affect the business, properties,
business prospects, condition (financial or other) or results of operations
of the Company and its subsidiaries taken as a whole. To the best knowledge
of the Company, no other party under any contract or other instrument to
which it or any of its subsidiaries is a party is in default in any respect
thereunder, which default might materially and adversely affect the
business, properties, business prospects, condition (financial or other) or
results of operations of the Company and its subsidiaries taken as a whole.
Neither the Company nor any of its subsidiaries is, and at each of the
Closing Date and the Option Closing Date, as applicable, will be, in
violation of any provision of its certificate of incorporation or by-laws.
(k) No consent, approval, authorization or order of, or any filing
or declaration with, any court or governmental agency or body is required
for the consummation by the Company of the transactions on its part
contemplated herein, except such as have been obtained or made under the
Act or the Rules and Regulations and such as may be required under state
securities or Blue Sky laws or the by-laws and rules of the National
Association of Securities Dealers, Inc. (the "NASD") in connection with the
purchase and distribution by the Underwriters of the Shares to be sold by
the Company.
(l) The Company has full corporate power and authority to enter
into this Agreement and the Custody Agreements. This Agreement has been,
and the Custody Agreements when executed will be, duly authorized, executed
and delivered by the Company and constitutes, or when executed will
constitute, a valid and binding agreement of the Company and is, or when
executed will be, enforceable against the Company in accordance with the
terms hereof and thereof, subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application affecting
the enforcement of creditors' rights generally and the enforcement of the
indemnification and contribution provisions of this Agreement. The
performance of this Agreement and the Custody Agreements and the
consummation of the transactions contemplated hereby and thereby will not
result in the creation or imposition of any lien, charge or encumbrance
upon any of the assets of the Company or any of its subsidiaries pursuant
to the terms or provisions of, or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, or give any
party a right to terminate any of its obligations under, or result in the
acceleration of any obligation under, the certificate of incorporation or
by-laws of the Company or any of its subsidiaries, any
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indenture, mortgage, deed of trust, voting trust agreement, loan agreement,
bond, debenture, note agreement or other evidence of indebtedness, lease,
contract or other agreement or instrument to which the Company or any of
its subsidiaries is a party or by which the Company, any of its
subsidiaries or any of their properties is bound or affected, or violate or
conflict with any judgment, ruling, decree, order, statute, rule or
regulation of any court or other governmental agency or body applicable to
the business or properties of the Company or any of its subsidiaries.
(m) The Company or one of its subsidiaries has good and marketable
title to all properties and assets described in the Prospectus as owned by
them, free and clear of all liens, charges, encumbrances or restrictions,
except such as are described in the Prospectus or are not material to the
business of the Company and its subsidiaries taken as a whole. The Company
or its subsidiaries have valid, subsisting and enforceable leases for the
properties described in the Prospectus as leased by them and which are
material.
(n) There is no document or contract of a character required to be
described in the Registration Statement or the Prospectus or to be filed as
an exhibit to the Registration Statement which is not described or filed as
required. All such contracts to which the Company or any of its
subsidiaries is a party have been duly authorized, executed and delivered
by the Company or one of its subsidiaries, constitute valid and binding
agreements of the Company or one of its subsidiaries and are enforceable
against the Company or one of its subsidiaries in accordance with the terms
thereof, subject to applicable bankruptcy, insolvency, reorganization,
moratorium or other laws of general application affecting the enforcement
of creditors' rights generally.
(o) No statement, representation, warranty or covenant made by the
Company in this Agreement or made in any certificate or document required
by Section 6 of this Agreement to be delivered to the Representatives was
or will be, when made, inaccurate, untrue or incorrect in any material
respect.
(p) Neither the Company nor any of its directors, officers or
controlling persons has taken, directly or indirectly, any action designed,
or which might reasonably be expected, to cause or result, under the Act or
otherwise, in, or which has constituted, stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale
of the Shares.
(q) No holder of securities of the Company has rights to the
registration of any securities of the Company because of the filing of the
Registration Statement which rights have not been waived by the holder
thereof or are otherwise not applicable as of the date
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hereof, other than any rights of the Selling Stockholders to register the
Option Shares that may be sold hereunder by them.
(r) The Company has filed an application to include the Shares on
the Nasdaq National Market ("Nasdaq"), and has received notification that
the inclusion has been approved, subject to notice of issuance of the
Shares.
(s) Except as disclosed in or specifically contemplated by the
Prospectus, (i) the Company and its subsidiaries have sufficient
trademarks, trade names, patent rights, mask works, copyrights, licenses,
approvals and governmental authorizations to conduct their businesses as
now conducted; (ii) the Company has no knowledge of any infringement by it
or any of its subsidiaries of trademark rights, trade name rights, patent
rights, mask works, copyrights, licenses, trade secret or other similar
rights of others; and (iii) there is no claim being made against the
Company or any of its subsidiaries, or to the best of the Company's
knowledge, any employee of the Company or any of its subsidiaries,
regarding trademark, trade name, patent, mask work, copyright, license,
trade secret or other infringement which could have a material and adverse
effect on the Company, any of its subsidiaries or the business, properties,
business prospects, condition (financial or otherwise) or results of
operations of the Company and its subsidiaries taken as a whole.
(t) The Company and each of its subsidiaries has filed all federal,
state and foreign income tax returns which have been required to be filed
and has paid all taxes and assessments received by them or any of them to
the extent that such taxes have become due.
(u) The Company or its subsidiaries own or possess all
authorizations, approvals, orders, licenses, registrations, other
certificates and permits of and from all governmental regulatory officials
and bodies, necessary to conduct their businesses as contemplated in the
Prospectus except where the failure to own or possess all such
authorizations, approvals, orders, licenses, registrations, other
certificates and permits would not materially and adversely affect the
business, properties, business prospects, condition (financial or
otherwise) or results of operations of the Company and its subsidiaries
taken as a whole; there is no proceeding pending or threatened (or any
basis therefor known to the Company) which may cause any such
authorization, approval, order, license, registration, certificate or
permit to be revoked, withdrawn, canceled, suspended or not renewed; and
the Company and each of its subsidiaries is conducting its business in
compliance with all laws, rules and regulations applicable thereto except
where such noncompliance would not materially and adversely affect the
Company, any
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of its subsidiaries or the business, properties, business
prospects, condition (financial or otherwise) or results of operations of
the Company or any of its subsidiaries.
4. Representations and Warranties of the Selling Stockholders. Each
Selling Stockholder, severally and not jointly, represents, warrants, and
covenants to each Underwriter that:
(a) Such Selling Stockholder has full power and authority to enter
into this Agreement and the Custody Agreement. All authorizations and
consents necessary for the execution and delivery by such Selling
Stockholder of the Custody Agreement, and for the execution of this
Agreement on behalf of such Selling Stockholder, have been given. Each of
the Custody Agreement and this Agreement has been duly authorized, executed
and delivered by or on behalf of such Selling Stockholder and constitutes a
valid and binding agreement of such Selling Stockholder and is enforceable
against such Selling Stockholder in accordance with the terms thereof and
hereof, except as limited by applicable bankruptcy and similar laws.
(b) Such Selling Stockholder now has, and at the time of delivery
thereof hereunder will have, (i) good and marketable title to the Shares to
be sold by such Selling Stockholder hereunder, free and clear of all liens,
encumbrances and claims whatsoever (other than pursuant to the Custody
Agreement), and (ii) full legal right and power, and all authorizations and
approvals required by law, to sell, transfer and deliver such Shares to the
Underwriters hereunder and to make the representations, warranties and
agreements made by such Selling Stockholder herein. Upon the delivery of
and payment for such Shares hereunder, such Selling Stockholder will
deliver good and marketable title thereto, free and clear of all liens,
encumbrances and claims whatsoever.
(c) On the Option Closing Date, all stock transfer or other taxes
(other than income taxes) which are required to be paid in connection with
the sale and transfer of the Shares to be sold by such Selling Stockholder
to the several Underwriters hereunder will have been fully paid or provided
for by such Selling Stockholder and all laws imposing such taxes will have
been fully complied with.
(d) The performance of this Agreement and the consummation of the
transactions contemplated hereby will not result in the creation or
imposition of any lien, charge or encumbrance upon any of the assets of
such Selling Stockholder pursuant to the terms or provisions of, or result
in a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the acceleration of any obligation
under, if such Selling Stockholder is a corporation or partnership, the
organizational documents of such Selling Stockholder, or, as to all such
Selling Stockholders, any indenture,
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mortgage, deed of trust, voting trust agreement, loan agreement, bond,
debenture, note agreement or other evidence of indebtedness, lease,
contract or other agreement or instrument to which such Selling Stockholder
is a party or by which such Selling Stockholder or any of its property is
bound or affected, or under any ruling, decree, judgment, order, statute,
rule or regulation of any court or other governmental agency or body having
jurisdiction over such Selling Stockholder or the property of such Selling
Stockholder.
(e) No consent, approval, authorization or order of, or any filing
or declaration with, any court or governmental agency or body is required
for the consummation by such Selling Stockholder of the transactions on its
part contemplated herein and in the Custody Agreement, except such as have
been obtained under the Act or the Rules and Regulations and such as may be
required under state securities or Blue Sky laws or the by-laws and rules
of the NASD in connection with the purchase and distribution by the
Underwriters of the Shares to be sold by such Selling Stockholder.
(f) Such Selling Stockholder has no knowledge of any material fact
or condition not set forth in the Registration Statement or the Prospectus
which has adversely affected, or may adversely affect, the business,
properties, business prospects, condition (financial or otherwise) or
results of operations of the Company and its subsidiaries, and the sale of
the Shares proposed to be sold by such Selling Stockholder is not prompted
by any such knowledge.
(g) All information with respect to such Selling Stockholder
contained in the Registration Statement and the Prospectus (as amended or
supplemented, if the Company shall have filed with the Commission any
amendment or supplement thereto) complied and will comply with all
applicable provisions of the Act and the Rules and Regulations, contains
and will contain all statements required to be stated therein in accordance
with the Act and the Rules and Regulations, and does not and will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein not misleading.
(h) To the knowledge of such Selling Stockholder, without
conducting an independent inquiry, the representations and warranties of
the Company contained in Section 3 are true and correct.
(i) Other than as permitted by the Act and the Rules and
Regulations, such Selling Stockholder has not distributed and will not
distribute any preliminary prospectus, the Prospectus or any other offering
material in connection with the offering and sale of the Shares. Such
Selling Stockholder has not taken, directly or indirectly, any action
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designed, or which might reasonably be expected, to cause or result in,
under the Act or otherwise, or which has caused or resulted in,
stabilization or manipulation of the price of any security of the Company
to facilitate the sale or resale of the Shares.
(j) Certificates in negotiable form for the Option Shares (or
notices of exercise of options to purchase the Option Shares, as the case
may be) to be sold hereunder by such Selling Stockholders have been placed
in custody, for the purpose of making delivery of such Option Shares under
this Agreement, under the Custody Agreement. Such Selling Stockholder
agrees that the Shares represented by the certificates held in custody for
him under the Agreement and Custody Agreement are for the benefit of and
coupled with and subject to the interest hereunder of the Custodian, the
Attorneys, the Underwriters, each other Selling Stockholder and the
Company, that the arrangements made by such Selling Stockholder for such
custody and the appointment of the Custodian and the Attorneys by such
Selling Stockholder are irrevocable, and that the obligations of such
Selling Stockholder hereunder shall not be terminated by operation of law,
whether by the death, disability, incapacity or liquidation of any Selling
Stockholder or the occurrence of any other event. If any Selling
Stockholder should die, become disabled or incapacitated or is liquidated
or if any other such event should occur before the delivery of the Shares
hereunder, certificates for the Shares shall be delivered by the Custodian
in accordance with the terms and conditions of this Agreement and actions
taken by the Attorneys and the Custodian pursuant to the Custody Agreement
shall be as valid as if such death, liquidation, incapacity or other event
had not occurred, regardless of whether or not the Custodian or the
Attorneys, or either of them, shall have received notice thereof.
5. Agreements of the Company and the Selling Stockholders. The Company
and the Selling Stockholders (as to Section 5 (n) and (o) as indicated therein)
agree, severally and not jointly, with the several Underwriters as follows:
(a) The Company will not, either prior to the Effective Date or
thereafter during such period as the Prospectus is required by law to be
delivered in connection with sales of the Shares by an Underwriter or
dealer, file any amendment or supplement to the Registration Statement or
the Prospectus, unless a copy thereof shall first have been submitted to
the Representatives within a reasonable period of time prior to the filing
thereof and the Representatives shall not have objected thereto.
(b) The Company will use its best efforts to cause the Registration
Statement to become effective, and will notify the Representatives
promptly, and will confirm such advice in writing, (i) when the
Registration Statement has become effective and when any post-effective
amendment thereto becomes effective, (ii) of any request by the
-13-
Commission for amendments or supplements to the Registration Statement or
the Prospectus or for additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose or the threat thereof, (iv) of the happening of any event during
the period mentioned in the second sentence of Section 5(e) that in the
judgment of the Company makes any statement made in the Registration
Statement or the Prospectus untrue or that requires the making of any
changes in the Registration Statement or the Prospectus in order to make
the statements therein, in light of the circumstances in which they are
made, not misleading and (v) of receipt by the Company or any
representative or attorney of the Company of any other communication from
the Commission relating to the Company, the Registration Statement, any
preliminary prospectus or the Prospectus. If at any time the Commission
shall issue any order suspending the effectiveness of the Registration
Statement, the Company will make every reasonable effort to obtain the
withdrawal of such order at the earliest possible moment. If the Company
has omitted any information from the Registration Statement pursuant to
Rule 430A of the Rules and Regulations, the Company will comply with the
provisions of and make all requisite filings with the Commission pursuant
to said Rule 430A and notify the Representatives promptly of all such
filings.
(c) The Company will furnish to each of the Representatives,
without charge, two signed copies of the Registration Statement and of any
post-effective amendment thereto, including financial statements and
schedules, and all exhibits thereto and will furnish to the
Representatives, without charge, for transmittal to each of the other
Underwriters, a copy of the Registration Statement and any post-effective
amendment thereto, including financial statements and schedules but without
exhibits.
(d) The Company will comply with all the provisions of any
undertakings contained in the Registration Statement.
(e) On the Effective Date, and thereafter from time to time, the
Company will deliver to each of the Underwriters, without charge, as many
copies of the Prospectus or any amendment or supplement thereto as the
Representatives may reasonably request for the purposes contemplated by
this Agreement. The Company consents to the use of the Prospectus or any
amendment or supplement thereto by the several Underwriters and by all
dealers to whom the Shares may be sold, both in connection with the
offering or sale of the Shares and for any period of time thereafter during
which the Prospectus is required by law to be delivered in connection
therewith. If during such period of time any event shall occur which in the
judgment of the Company or counsel to the Underwriters should be set forth
in the Prospectus in order to make any statement therein, in the light of
the circumstances under which it was made, not misleading, or if it is
-14-
necessary to supplement or amend the Prospectus to comply with law, the
Company will forthwith prepare and duly file with the Commission an
appropriate supplement or amendment thereto, and will deliver to each of
the Underwriters, without charge, such number of copies of such supplement
or amendment to the Prospectus as the Representatives may reasonably
request for the purposes contemplated by this Agreement. The Company shall
not file any document under the Exchange Act before the termination of the
offering of the Shares by the Underwriters if such document would be deemed
to be incorporated by reference into the Prospectus which is not approved
by the Representatives after reasonable notice thereof.
(f) Prior to any public offering of the Shares, the Company will
cooperate with the Representatives and counsel to the Underwriters in
connection with the registration or qualification of the Shares for offer
and sale under the securities or Blue Sky laws of such jurisdictions as the
Representatives may request; provided, that in no event shall the Company
be obligated to qualify to do business in any jurisdiction where it is not
now so qualified or to take any action which would subject it to general
service of process in any jurisdiction where it is not now so subject.
(g) The Company will, so long as required under the Rules and
Regulations, furnish to its stockholders on a timely basis after the end of
each fiscal year an annual report (including a balance sheet and statements
of operations, stockholders' equity and cash flow of the Company and its
consolidated subsidiaries certified by independent public accountants) and,
as soon as practicable after the end of each of the first three quarters of
each fiscal year (beginning with the fiscal quarter ending after the
effective date of the Registration Statement), consolidated summary
financial information of the Company and its subsidiaries for such quarter
in reasonable detail.
(h) During the period of five years commencing on the Effective
Date, the Company will furnish to the Representatives and each other
Underwriter who may so request copies of such financial statements and
other periodic and special reports as the Company may from time to time
distribute generally to the holders of any class of its capital stock, and
will furnish to the Representatives and each other Underwriter who may so
request a copy of each annual or other report it shall be required to file
with the Commission.
(i) The Company will make generally available to holders of its
securities as soon as may be practicable but in no event later than the
last day of the fifteenth full calendar month following the calendar
quarter in which the Effective Date falls, an earnings statement (which
need not be audited but shall be in reasonable detail) for a
-15-
period of 12 months ended commencing after the Effective Date, and
satisfying the provisions of Section 11(a) of the Act (including Rule 158
of the Rules and Regulations).
(j) Whether or not the transactions contemplated by this Agreement
are consummated or this Agreement is terminated, the Company will pay, or
reimburse if paid by the Representatives, all costs and expenses incident
to the performance of the obligations of the Company and the Selling
Stockholders under this Agreement, including but not limited to costs and
expenses of or relating to (i) the preparation, printing and filing of the
Registration Statement and exhibits to it, each preliminary prospectus,
Prospectus and any amendment or supplement to the Registration Statement or
Prospectus, (ii) the preparation and delivery of certificates representing
the Shares, (iii) the printing of this Agreement, the Agreement Among
Underwriters, any Selected Dealer Agreements, any Underwriters'
Questionnaires or Powers of Attorney, the Custody Agreements and the Powers
of Attorney, (iv) furnishing (including costs of shipping and mailing) such
copies of the Registration Statement, the Prospectus and any preliminary
prospectus, and all amendments and supplements thereto, as may be requested
for use in connection with the offering and sale of the Shares by the
Underwriters or by dealers to whom Shares may be sold, (v) the quotation of
the Shares on Nasdaq, (vi) any filings required to be made by the
Underwriters with the NASD, and the fees, disbursements and other charges
of counsel for the Underwriters in connection therewith, (vii) the
registration or qualification of the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions designated pursuant to
Section 5(f), including the fees, disbursements and other out-of-pocket
expenses of counsel to the Underwriters in connection therewith, and the
preparation and printing of preliminary, supplemental and final Blue Sky
memoranda, (viii) fees, disbursements and other charges of counsel to the
Company (but not those of counsel for the Underwriters, except as otherwise
provided herein) and (ix) the transfer agent for the Shares.
(k) If this Agreement shall be terminated by the Company or the
Selling Stockholders pursuant to any of the provisions hereof (otherwise
than pursuant to Section 9 hereof) or if for any reason the Company or any
Selling Stockholder shall be unable to perform its or his obligations
hereunder, the Company will reimburse the several Underwriters for all out-
of-pocket expenses (including the fees, disbursements and other charges of
counsel to the Underwriters) reasonably incurred by them in connection
herewith.
(l) The Company will not at any time, directly or indirectly, take
any action designed, or which might reasonably be expected, to cause or
result in, or which will constitute, stabilization of the price of the
shares of Common Stock to facilitate the sale or resale of any of the
Shares.
-16-
(m) The Company will apply the net proceeds from the offering and
sale of the Shares to be sold by the Company in the manner set forth in the
Prospectus under "Use of Proceeds."
(n) The Company, S. Xxxxx Xxxxxxxxxx and Xxx X. Xxxxx will not,
without the prior written consent of Xxxxxxx & Company, Inc., offer to
sell, sell or otherwise dispose of (or enter into any transaction which is
designed to, or could be expected to, result in the disposition by any
person of), directly or indirectly, any shares of Common Stock or rights to
acquire such shares (other than pursuant to employee stock option and
purchase plans described in the Prospectus), for a period of 180 days after
the date of the Prospectus; provided, however, that Messrs. Xxxxxxxxxx and
Xxxxx will no longer be bound by such restriction if all of the Option
Shares that may be sold by them pursuant to this Agreement are not
purchased by the Underwriters as provided herein.
(o) As soon as any Selling Stockholder is advised thereof, such
Selling Stockholder will advise the Representatives and confirm such advice
in writing, (i) of receipt by such Selling Stockholder, or by any
representative of such Selling Stockholder, of any communication from the
Commission relating to the Registration Statement, the Prospectus or any
preliminary prospectus, or any notice or order of the Commission relating
to the Company or any of the Selling Stockholders in connection with the
transactions contemplated by this Agreement and (ii) of the happening of
any event during the period from and after the Effective Date that in the
judgment of such Selling Stockholder makes any statement made in the
Registration Statement or the Prospectus untrue or that requires the making
of any changes in the Registration Statement or the Prospectus in order to
make the statements therein, in light of the circumstances in which they
were made, not misleading.
6. Conditions of the Obligations of the Underwriters. The obligations of
each Underwriter hereunder are subject to the following conditions:
(a) Notification that the Registration Statement has become
effective shall be received by the Representatives not later than 5:30
p.m., Eastern time, on the date of this Agreement or at such later date and
time as shall be consented to in writing by the Representatives, and all
filings required by Rule 424 and Rule 430A of the Rules and Regulations
shall have been made.
(b)(i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall be pending or threatened
-17-
by the Commission, (ii) no order suspending the effectiveness of the
Registration Statement or the qualification or registration of the Shares
under the securities or Blue Sky laws of any jurisdiction shall be in
effect and no proceeding for such purpose shall be pending before or
threatened or contemplated by the Commission or the authorities of any such
jurisdiction, (iii) any request for additional information on the part of
the staff of the Commission or any such authorities shall have been
complied with to the satisfaction of the staff of the Commission or such
authorities and (iv) after the date hereof no amendment or supplement to
the Registration Statement or the Prospectus shall have been filed unless a
copy thereof was first submitted to the Representatives and the
Representatives do not object thereto in good faith, and the
Representatives shall have received certificates, dated the Closing Date
and the Option Closing Date and signed by the Chief Executive Officer and
the Chief Financial Officer of the Company (who may, as to proceedings
threatened, rely upon the best of their information and belief), to the
effect of clauses (i), (ii) and (iii).
(c) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, (i) there shall not have
been a material adverse change in the general affairs, business, business
prospects, properties, management, condition (financial or otherwise) or
results of operations of the Company and its subsidiaries taken as a whole,
whether or not arising from transactions in the ordinary course of
business, in each case other than as set forth in or contemplated by the
Registration Statement and the Prospectus and (ii) neither the Company nor
any of its subsidiaries shall have sustained any material loss or
interference with its business or properties from fire, explosion, flood or
other casualty, whether or not covered by insurance, or from any labor
dispute or any court or legislative or other governmental action, order or
decree, which is not set forth in the Registration Statement and the
Prospectus, if in the judgment of the Representatives any such development
makes it impracticable or inadvisable to consummate the sale and delivery
of the Shares by the Underwriters at the public offering price.
(d) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there shall have been no
litigation or other proceeding instituted against the Company, any of its
subsidiaries or any of their officers or directors in their capacities as
such, before or by any Federal, state or local court, commission,
regulatory body, administrative agency or other governmental body, domestic
or foreign, in which litigation or proceeding an unfavorable ruling,
decision or finding is not adequately covered by insurance and would, in
the judgment of the Representatives, materially and adversely affect the
business, properties, business prospects, condition (financial or
otherwise) or results of operations of the Company and its subsidiaries
taken as a whole, if in the judgment of the Representatives any such
-18-
development makes it impracticable or inadvisable to consummate the sale
and delivery of the Shares by the Underwriters at the public offering
price.
(e) Each of the representations and warranties of the Company and
the Selling Stockholders contained herein shall be true and correct in all
material respects at the Closing Date and, with respect to the Option
Shares, at the Option Closing Date, except for changes in the ordinary
course of business or contemplated by the Registration Statement or
Prospectus, and all covenants and agreements contained herein to be
performed on the part of the Company and the Selling Stockholders and all
conditions contained herein to be fulfilled or complied with by the Company
and the Selling Stockholders at or prior to the Closing Date and, with
respect to the Option Shares, at or prior to the Option Closing Date, shall
have been duly performed, fulfilled or complied with.
(f) The Representatives shall have received an opinion, dated the
Closing Date and, with respect to the Option Shares, the Option Closing
Date, satisfactory in form and substance to the Representatives and counsel
for the Underwriters from Brown, Rudnick, Freed & Gesmer, P.C., counsel to
the Company and the Selling Stockholders, with respect to the matters set
forth in Annex A hereto.
(g) The Representatives shall have received an opinion, dated the
Closing Date and, with respect to the Option Shares, the Option Closing
Date, satisfactory in form and substance to the Representatives and counsel
for the Underwriters from __________, patent counsel to the Company, with
respect to the matters set forth in Annex B hereto.
(h) The Representatives shall have received an opinion, dated the
Closing Date and the Option Closing Date, from Xxxxx, Xxxxxxx & Xxxxxxxxx,
counsel to the Underwriters, with respect to the incorporation of the
Company, the validity of the Shares being delivered at such date, the
Registration Statement, the Prospectus and this Agreement, which opinion
shall be satisfactory in all respects to the Representatives.
(i) Concurrently with the execution and delivery of this Agreement,
the Accountants shall have furnished to the Representatives a letter, dated
the date of its delivery, addressed to the Representatives and in form and
substance satisfactory to the Representatives, confirming that they are
independent accountants with respect to the Company as required by the Act
and the Rules and Regulations. At the Closing Date and, as to the Option
Shares, the Option Closing Date, the Accountants shall have furnished to
the Representatives a letter, dated the date of its delivery, which shall
reaffirm all of the statements made in their initial letter.
-19-
(j) Concurrently with the execution and delivery of this Agreement
and at the Closing Date and, as to the Option Shares, the Option Closing
Date, there shall be furnished to the Representatives an accurate
certificate, dated the date of its delivery, signed by each of the Chief
Executive Officer and the Chief Financial Officer of the Company, in form
and substance satisfactory to the Representatives, to the effect that:
(i) Each signer of such certificate has carefully examined the
Registration Statement and the Prospectus (including any documents filed
under the Exchange Act and deemed to be incorporated by reference into the
Prospectus) and (A) as of the date of such certificate, such documents are
true and correct in all material respects and do not omit to state a
material fact required to be stated therein or necessary in order to make
the statements therein not untrue or misleading and (B), in the case of the
certificate delivered at the Closing Date and the Option Closing Date,
since the Effective Date no event has occurred as a result of which it is
necessary to amend or supplement the Prospectus in order to make the
statements therein not untrue or misleading, and there has been no document
required to be filed under the Exchange Act and the Exchange Act Rules and
Regulations that upon such filing would be deemed to be incorporated by
reference into the Prospectus that has not been so filed.
(ii) Each of the representations and warranties of the Company
contained in this Agreement were, when originally made, and are, at the
time such certificate is delivered, true and correct in all material
respects.
(iii) Each of the covenants required to be performed by the
Company herein on or prior to the date of such certificate has been duly,
timely and fully performed and each condition herein required to be
satisfied or fulfilled on or prior to the date of such certificate has been
duly, timely and fully satisfied or fulfilled.
(k) Concurrently with the execution and delivery of this Agreement
and at the Option Closing Date, there shall have been furnished to the
Representatives an accurate certificate, dated the date of its delivery,
signed by the Attorneys on behalf of each of the Selling Stockholders, in
form and substance satisfactory to the Representatives, to the effect that
the representations and warranties of each of the Selling Stockholders
contained herein are true and correct in all material respects on and as of
the date of such certificate as if made on and as of the date of such
certificate, and each of the covenants and conditions required herein to be
performed or complied with by the Selling Stockholders on or prior to the
date of such certificate has been duly, timely and fully performed or
complied with.
-20-
(l) The Shares shall be qualified for sale in such jurisdictions as
the Representatives may reasonably request and each such qualification
shall be in effect and not subject to any stop order or other proceeding on
the Closing Date or the Option Closing Date.
(m) Prior to the Closing Date, the Shares shall have been duly
authorized for inclusion on Nasdaq upon official notice of issuance.
(n) The Company and the Selling Stockholders shall have furnished
to the Representatives such certificates, in addition to those specifically
mentioned herein, as the Representatives may have reasonably requested as
to the accuracy and completeness at the Closing Date and the Option Closing
Date of any statement in the Registration Statement or the Prospectus or
any documents filed under the Exchange Act and deemed to be incorporated by
reference into the Prospectus, as to the accuracy at the Closing Date and
the Option Closing Date of the representations and warranties of the
Company and the Selling Stockholders herein, as to the performance by the
Company and the Selling Stockholders of its and their respective
obligations hereunder, or as to the fulfillment of the conditions
concurrent and precedent to the obligations hereunder of the
Representatives.
7. Indemnification.
(a) Each of the Company and S. Xxxxx Xxxxxxxxxx and Xxx X. Xxxxx
(the "Principal Selling Stockholders"), jointly and severally, will
indemnify and hold harmless each Underwriter, the directors, officers,
employees and agents of each Underwriter and each person, if any, who
controls each Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, from and against any and all losses,
claims, liabilities, expenses and damages (including any and all
investigative, legal and other expenses reasonably incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding
or any claim asserted), to which they, or any of them, may become subject
under the Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims,
liabilities, expenses or damages arise out of or are based on any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus, the Registration Statement or the Prospectus or any
amendment or supplement to the Registration Statement or the Prospectus or
in any documents filed under the Exchange Act and deemed to be incorporated
into the Prospectus, or the omission or alleged omission to state in such
document a material fact required to be stated in it or necessary to make
the statements in it not misleading in light of the circumstances in which
they were made; provided that (i) the Company and the Principal Selling
-------- ----
Stockholders will not be liable to
-21-
the extent that such loss, claim, liability, expense or damage arises from
the sale of the Shares in the public offering to any person by an
Underwriter and is based on an untrue statement or omission or alleged
untrue statement or omission made in reliance on and in conformity with
information relating to any Underwriter furnished in writing to the Company
by the Representatives on behalf of any Underwriter expressly for inclusion
in the Registration Statement, the preliminary prospectus or the
Prospectus; (ii) the Company and the Principal Selling Stockholders will
not be liable to any Underwriter, the directors, officers, employees or
agents of such Underwriter or any person controlling such Underwriter with
respect to any loss, claim, liability, expense, charge or damage arising
out of or based on any untrue statement or omission or alleged untrue
statement or omission or alleged omission to state a material fact in the
preliminary prospectus which is corrected in the Prospectus if the person
asserting any such loss, claim, liability, charge or damage purchased
Shares from such Underwriter but was not sent or given a copy of the
Prospectus at or prior to the written confirmation of the sale of such
Shares to such person; and (iii) the liability of each Principal Selling
Stockholder under the foregoing indemnity agreement in this Section 7 shall
not exceed the lesser of (A) that percentage of the total amount of such
losses, claims, liabilities, expenses and damages indemnified under this
Section 7 which equal the percentage obtained by dividing the total number
of Shares sold by such Principal Selling Stockholder hereunder by the total
number of Shares sold hereunder, or (B) the total public offering price of
the Option Shares sold by such Principal Selling Stockholder under this
Agreement, less underwriters' discounts and commissions. The Company and
the Principal Selling Stockholders acknowledge that the statements set
forth under the heading "Underwriting," in the last paragraph on the front
cover page and in the last two paragraphs on the inside front cover page,
in the preliminary prospectus and the Prospectus, constitute the only
information relating to any Underwriter furnished in writing to the Company
by the Representatives on behalf of the Underwriters expressly for
inclusion in the Registration Statement, the preliminary prospectus or the
Prospectus. This indemnity agreement will be in addition to any liability
that the Company or the Principal Selling Stockholders might otherwise
have.
Each of the Selling Stockholders other than the Principal Selling
Stockholders, severally and not jointly, will indemnify and hold harmless
each Underwriter, the directors, officers, employees and agents of each
Underwriter and each person, if any, who controls each Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, liabilities, expenses and
damages (including any and all investigative, legal and other expenses
reasonably incurred in connection with, and any amount paid in settlement
of, any action, suit or proceeding or any claim asserted), to which they,
or any of them, may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses,
-22-
claims, liabilities, expenses or damages arise out of or are based on any
untrue statement or alleged untrue statement of a material fact contained
in any preliminary prospectus, the Registration Statement or the Prospectus
or any amendment or supplement to the Registration Statement or the
Prospectus or in any documents filed under the Exchange Act and deemed to
be incorporated into the Prospectus, or the omission or alleged omission to
state in such document a material fact required to be stated in it or
necessary to make the statements in it not misleading in light of the
circumstances in which they were made, but only insofar as losses, claims,
liabilities, expenses or damages arise out of or are based on any such
untrue statement or omission or alleged untrue statement or omission that
specifically and exclusively relates to such Selling Stockholder; provided
--------
that (i) the Company and such Selling Stockholders will not be liable to
----
any Underwriter, the directors, officers, employees or agents of such
Underwriter or any person controlling such Underwriter with respect to any
loss, claim, liability, expense, charge or damage arising out of or based
on any untrue statement or omission or alleged untrue statement or omission
or alleged omission to state a material fact in the preliminary prospectus
which is corrected in the Prospectus if the person asserting any such loss,
claim, liability, charge or damage purchased Shares from such Underwriter
but was not sent or given a copy of the Prospectus at or prior to the
written confirmation of the sale of such Shares to such person; and (ii)
the liability of each such Selling Stockholder under the foregoing
indemnity agreement in this paragraph shall not exceed the lesser of (A)
that percentage of the total amount of such losses, claims, liabilities,
expenses and damages indemnified under this Section 7 which equal the
percentage obtained by dividing the total number of Shares sold by such
Selling Stockholder hereunder by the total number of Shares sold hereunder,
or (B) the total public offering price of the Option Shares sold by such
Selling Stockholder under this Agreement, less underwriters' discounts and
commissions. This indemnity agreement will be in addition to any liability
that the Company or such Selling Stockholders might otherwise have.
(b) Each Underwriter will indemnify and hold harmless the
Company, the Selling Stockholders, each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, each director of the Company and each officer of the Company
who signs the Registration Statement to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only insofar as losses,
claims, liabilities, expenses or damages arise out of or are based on any
untrue statement or omission or alleged untrue statement or omission made
in reliance on and in conformity with information relating to any
Underwriter furnished in writing to the Company by the Representatives on
behalf of such Underwriter expressly for use in the Registration Statement,
the preliminary prospectus or the Prospectus. The Company and
-23-
the Selling Stockholders acknowledge that the statements set forth under
the heading "Underwriting," in the last paragraph on the front cover page
and in the last two paragraphs on the inside front cover page, in the
preliminary prospectus and the Prospectus, constitute the only information
relating to any Underwriter furnished in writing to the Company by the
Representatives on behalf of the Underwriters expressly for inclusion in
the Registration Statement, the preliminary prospectus or the Prospectus.
This indemnity will be in addition to any liability that each Underwriter
might otherwise have.
(c) Any party that proposes to assert the right to be indemnified
under this Section 7 will, promptly after receipt of notice of commencement
of any action against such party in respect of which a claim is to be made
against an indemnifying party or parties under this Section 7, notify each
such indemnifying party of the commencement of such action, enclosing a
copy of all papers served, but the omission so to notify such indemnifying
party will not relieve it from any liability that it may have to any
indemnified party under the foregoing provisions of this Section 7 unless,
and only to the extent that, such omission results in the loss of
substantive rights or defenses by the indemnifying party. If any such
action is brought against any indemnified party and it notifies the
indemnifying party of its commencement, the indemnifying party will be
entitled to participate in and, to the extent that it elects by delivering
written notice to the indemnified party promptly after receiving notice of
the commencement of the action from the indemnified party, jointly with any
other indemnifying party similarly notified, to assume the defense of the
action, with counsel reasonably satisfactory to the indemnified party, and
after notice from the indemnifying party to the indemnified party of its
election to assume the defense, the indemnifying party will not be liable
to the indemnified party for any legal or other expenses except as provided
below and except for the reasonable costs of investigation subsequently
incurred by the indemnified party in connection with the defense. The
indemnified party will have the right to employ its own counsel in any such
action, but the fees, expenses and other charges of such counsel will be at
the expense of such indemnified party unless (i) the employment of counsel
by the indemnified party has been authorized in writing by the indemnifying
party, (ii) the indemnified party has reasonably concluded (based on advice
of counsel) that there may be legal defenses available to it or other
indemnified parties that are different from or in addition to those
available to the indemnifying party, (iii) a conflict or potential conflict
exists (based on advice of counsel to the indemnified party) between the
indemnified party and the indemnifying party (in which case the
indemnifying party will not have the right to direct the defense of such
action on behalf of the indemnified party) or (iv) the indemnifying party
has not in fact employed counsel to assume the defense of such action
within a reasonable time after receiving notice of the commencement of the
action, in each of which cases the reasonable fees, disbursements and other
charges of counsel will
-24-
be at the expense of the indemnifying party or parties. It is understood
that the indemnifying party or parties shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for
the reasonable fees, disbursements and other charges of more than one
separate firm admitted to practice in such jurisdiction at any one time for
all such indemnified party or parties. All such fees, disbursements and
other charges will be reimbursed by the indemnifying party promptly as they
are incurred. Any indemnifying party will not be liable for any settlement
of any action or claim effected without its written consent (which consent
will not be unreasonably withheld).
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in the foregoing
paragraphs of this Section 7 is applicable in accordance with its terms but
for any reason is held to be unavailable from the Company, the Selling
Stockholders or the Underwriters, the Company, the Selling Stockholders and
the Underwriters will contribute to the total losses, claims, liabilities,
expenses and damages (including any investigative, legal and other expenses
reasonably incurred in connection with, and any amount paid in settlement
of, any action, suit or proceeding or any claim asserted, but after
deducting any contribution received by the Company or the Selling
Stockholders from persons other than the Underwriters, such as persons who
control the Company or the Selling Stockholders within the meaning of the
Act, officers of the Company who signed the Registration Statement and
directors of the Company, who also may be liable for contribution) to which
the Company or the Selling Stockholders and any one or more of the
Underwriters may be subject in such proportion as shall be appropriate to
reflect the relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other. The
relative benefits received by the Company and the Selling Stockholders on
the one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company and the Selling Stockholders
bear to the total underwriting discounts and commissions received by the
Underwriters. If, but only if, the allocation provided by the foregoing
sentence is not permitted by applicable law, the allocation of contribution
shall be made in such proportion as is appropriate to reflect not only the
relative benefits referred to in the foregoing sentence but also the
relative fault of the Company and the Selling Stockholders, on the one
hand, and the Underwriters, on the other, with respect to the statements or
omissions which resulted in such loss, claim, liability, expenses or
damage, or action in respect thereof, as well as any other relevant
equitable considerations with respect to such offering. Such relative
fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company or the
Representatives on behalf of the Underwriters, the intent of the parties
and their relative knowledge, access to information and opportunity to
correct or prevent such statement or
-25-
omission. The Company, the Selling Stockholders and the Underwriters agree
that it would not be just and equitable if contributions pursuant to this
Section 7(d) 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 into account the equitable
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, liability, expense or
damage, or action in respect thereof, referred to above in this Section
7(d) shall be deemed to include, for purpose of this Section 7(d), any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7(d), no Underwriter shall
be required to contribute any amount in excess of the underwriting
discounts received by it, no Selling Stockholder shall be required to
contribute any amount in excess of the aggregate public offering price of
the Shares sold by the Selling Stockholder to the Underwriters net of the
underwriting discounts and commissions, and no person found guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Act) will be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations to
contribute as provided in this Section 7(d) are several in proportion to
their respective underwriting obligations and not joint. For purposes of
this Section 7(d), any person who controls a party to this Agreement within
the meaning of the Act will have the same rights to contribution as that
party, and each officer of the Company who signed the Registration
Statement will have the same rights to contribution as the Company, subject
in each case to the provisions hereof. Any party entitled to contribution,
promptly after receipt of notice of commencement of any action against any
such party in respect of which a claim for contribution may be made under
this Section 7(d), will notify any such party or parties from whom
contribution may be sought, but the omission so to notify will not relieve
the party or parties from whom contribution may be sought from any other
obligation it or they may have under this Section 7(d). No party will be
liable for contribution with respect to any action or claim settled without
its written consent (which consent will not be unreasonably withheld).
(e) The indemnity and contribution agreements contained in this
Section 7 and the representations and warranties of the Company and the
Selling Stockholders contained in this Agreement shall remain operative and
in full force and effect regardless of (i) any investigation made by or on
behalf of the Underwriters, (ii) acceptance of any of the Shares and
payment therefor or (iii) any termination of this Agreement. No Selling
Stockholder shall have any liability under this Section 7 if the Option is
not exercised in whole or in part by the Underwriters, or if the Option
Shares as to which the Option is exercised are not paid for by the
Underwriters as provided herein.
-26-
8. Termination. The obligations of the several Underwriters under this
Agreement may be terminated at any time on or prior to the Closing Date (or,
with respect to the Option Shares, on or prior to the Option Closing Date), by
notice to the Company from the Representatives, without liability on the part of
any Underwriter to the Company or any Selling Stockholder if, prior to delivery
and payment for the Shares, or the Option Shares, as the case may be, in the
sole judgment of the Representatives, (i) trading in any of the equity
securities of the Company shall have been suspended by the Commission, by an
exchange that lists the Shares or by Nasdaq, (ii) trading in securities
generally on the New York Stock Exchange shall have been suspended or limited or
minimum or maximum prices shall have been generally established on such
exchange, or additional material governmental restrictions, not in force on the
date of this Agreement, shall have been imposed upon trading in securities
generally by such exchange or by order of the Commission or any court or other
governmental authority, (iii) a general banking moratorium shall have been
declared by either Federal or New York State authorities or (iv) any material
adverse change in the financial or securities markets in the United States or in
political, financial or economic conditions in the United States or any outbreak
or material escalation of hostilities or other calamity or crisis shall have
occurred, the effect of which is such as to make it, in the sole judgment of the
Representatives, impracticable to market the Shares.
9. Substitution of Underwriters. If any one or more of the Underwriters
shall fail or refuse to purchase any of the Firm Shares which it or they have
agreed to purchase hereunder, and the aggregate number of Firm Shares which such
defaulting Underwriter or Underwriters agreed but failed or refused to purchase
is not more than one-tenth of the aggregate number of Firm Shares, the other
Underwriters shall be obligated, severally, to purchase the Firm Shares which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase, in the proportions which the number of Firm Shares which they have
respectively agreed to purchase pursuant to Section 1 bears to the aggregate
number of Firm Shares which all such non-defaulting Underwriters have so agreed
to purchase, or in such other proportions as the Representatives may specify;
provided that in no event shall the maximum number of Firm Shares which any
Underwriter has become obligated to purchase pursuant to Section 1 be increased
pursuant to this Section 9 by more than one-ninth of such number of Firm Shares
without the prior written consent of such Underwriter. If any Underwriter or
Underwriters shall fail or refuse to purchase any Firm Shares and the aggregate
number of Firm Shares which such defaulting Underwriter or Underwriters agreed
but failed or refused to purchase exceeds one-tenth of the aggregate number of
the Firm Shares and arrangements satisfactory to the Representatives and the
Company for the purchase of such Firm Shares are not made within 48 hours after
such default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or any Selling Stockholder or the Company for the
purchase or sale of any Shares under this Agreement. In any such case either
the Representatives or the Company and the Attorneys shall have the right to
postpone the Closing Date, but in no event for longer than seven days, in order
that the required changes, if any, in the Registration Statement and the
-27-
Prospectus or in any other documents or arrangements may be effected. Any
action taken pursuant to this Section 9 shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
10. Miscellaneous. Notice given pursuant to any of the provisions of this
Agreement shall be in writing and, unless otherwise specified, shall be mailed
or delivered (a) if to the Company or any Selling Stockholder, at the office of
the Company, 000 Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000, Attention: Chief Executive
Officer, with a copy to Xxxxxxxx X. Xxxx, Esq., Brown, Rudnick, Freed & Gesmer,
P.C., Xxx Xxxxxxxxx Xxxxxx, Xxxxxx, XX 00000; or (b) if to the Underwriters, to
the Representatives at the offices of Xxxxxxx & Company, Inc., 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Finance Department, with a copy
to Xxxxx X. Xxxxxx, Xx., Xxx., Xxxxx, Xxxxxxx & Xxxxxxxxx, 000 Xxxx Xxxxxx,
Xxxxxx, XX 00000. Any such notice shall be effective only upon receipt. Any
notice under Sections 8 or 9 hereof may be made by telex or telephone, but if so
made shall be confirmed in writing.
This Agreement has been and is made solely for the benefit of the several
Underwriters, the Company and the Selling Stockholders and of the controlling
persons, directors and officers referred to in Section 7, and their respective
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. The term "successors and assigns" as used
in this Agreement shall not include a purchaser, as such purchaser, of Shares
from any of the several Underwriters.
With respect to any obligation of the Company and the Selling Stockholders
hereunder to make any payment, to indemnify for any liability or to reimburse
for any expense, notwithstanding the fact that such obligation is a joint and
several obligation of the Company and the Selling Stockholders, the Underwriters
(or any other person to whom such payment, indemnification or reimbursement is
owed) may pursue the Company with respect thereto prior to pursuing any Selling
Stockholder.
Any action required or permitted to be made by the Representatives under
this Agreement may be taken by them jointly or by Xxxxxxx & Company, Inc.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to contracts made and to be performed
entirely within such State.
This Agreement may be signed in two or more counterparts with the same
effect as if the signatures thereto and hereto were upon the same instrument.
-28-
In case any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
The Company, the Selling Stockholders and the Underwriters each hereby
waive any right they may have to a trial by jury in respect of any claim based
upon or arising out of this Agreement or the transactions contemplated hereby.
[Remainder of page intentionally left blank]
-29-
Please confirm that the foregoing correctly sets forth the agreement among
the Company and the several Underwriters.
Very truly yours,
HOLOGIC, INC.
By: ______________________________
Title: Chief Executive Officer
THE SELLING STOCKHOLDERS NAMED IN
SCHEDULE II ATTACHED HERETO
By: ______________________________
Attorney-in-Fact
Confirmed as of the date first above mentioned:
XXXXXXX & COMPANY, INC.
XXXXXX XXXXXXX INCORPORATED
XXXXX, XXXXXXXX & XXXX, INC.
Acting on behalf of themselves and as the
Representatives of the other several Under-
writers named in Schedule I hereof.
By: XXXXXXX & COMPANY, INC.
By: ___________________________
Title: Managing Director
By: XXXXXX XXXXXXX INCORPORATED
By: ___________________________
Title:
XXXXX, XXXXXXXX & XXXX, INC.
By: ___________________________
Title:
-30-
SCHEDULE I
UNDERWRITERS
NUMBER OF
FIRM SHARES TO
NAME OF UNDERWRITER BE PURCHASED
------------------- ------------
Xxxxxxx & Company, Inc..........................
Xxxxxx Xxxxxxx Incorporated.....................
Xxxxx, Xxxxxxxx & Xxxx, Inc.....................
Total................ 1,200,000
=========
-31-
SCHEDULE II
SELLING STOCKHOLDERS
TOTAL NUMBER OF OPTION
NAME OF SELLING STOCKHOLDER SHARES TO BE SOLD
--------------------------- -----------------
S. Xxxxx Xxxxxxxxxx................... 60,000
Xxx X. Xxxxx.......................... 60,000
Xxxxx X. Nak.......................... 5,000
Xxxxx Xxxxxx.......................... 3,000
Xxxxxxx X. Xxxx....................... 1,000
Xxxxxx Xxxxx.......................... 5,000
-----
Total.................... 134,000
=======
-32-
EXHIBIT A
---------
SUBSIDIARIES
------------
-33-
ANNEX A
-------
MATTERS TO BE COVERED IN OPINION OF COMPANY COUNSEL
---------------------------------------------------
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, is duly qualified to do business
and is in good standing as a foreign corporation in each
jurisdiction in which its ownership or leasing of property or the
conduct of its business requires such qualification (except where
non-qualification would not have a material and adverse affect on
the business, properties, business prospects, condition
(financial or otherwise) or results of operations of the Company
and its subsidiaries taken as a whole (a "Material Adverse
Effect")) and has the corporate power and authority necessary to
own or hold its properties and conduct the businesses in which it
is engaged; each of the U. S. subsidiaries of the Company has
been duly incorporated and is validly existing as a corporation
in good standing under the laws of its jurisdiction of
incorporation; is duly qualified to do business and is in good
standing as a foreign corporation in each jurisdiction in which
its ownership or leasing of property or the conduct of its
business requires such qualification (except where non-
qualification would not have a Material Adverse Effect) and has
all corporate power and authority necessary to own or hold its
properties and conduct the business in which it is engaged;
(ii) The Company has capital stock authorized and
outstanding as set forth in the Prospectus under the caption
"Description of Capital Stock," and all of the issued and
outstanding shares of capital stock of the Company (including the
Shares delivered on the date of such opinion) have been duly
authorized and validly issued, are fully paid and non-assessable
and conform, in all material respects, to the description
thereof contained in the Prospectus; the certificates for the
Shares are in due and proper form under Delaware law; and all of
the issued and outstanding shares of capital stock of each U. S.
subsidiary of the Company have been duly authorized and validly
issued and are fully paid and non-assessable and (except for
directors' qualifying shares and except as set forth in the
Prospectus) are owned of record, and to the best of such
counsel's knowledge beneficially, directly or indirectly by the
Company, to the best of such counsel's knowledge free and clear
of all liens, encumbrances, equities or claims;
-34-
(iii) There are no preemptive or other rights to
subscribe for or to purchase, nor any restriction upon the voting
or transfer of, any shares of Common Stock pursuant to the
Company's charter or by-laws or any agreement or other instrument
known to such counsel;
(iv) To the best of such counsel's knowledge and other
than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of
its subsidiaries is a party or of which any property or assets of
the Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries,
would have a Material Adverse Effect; and, to the best of such
counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others
which are required to be disclosed in the Prospectus and which
are not now disclosed;
(v) The Registration Statement was declared effective
under the Securities Act as of the date and time specified in
such opinion, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) of the Rules and
Regulations specified in such opinion on the date specified
therein and no stop order suspending the effectiveness of the
Registration Statement has been issued and, to the knowledge of
such counsel, no proceeding for that purpose is pending or
threatened by the Commission;
(vi) The Registration Statement and the Prospectus and any
further amendments or supplements thereto (other than the
financial statements and related schedules and notes therein and
other financial and statistical data, as to which such counsel
need express no opinion) comply as to form in all material
respects with the requirements of the Securities Act and the
Rules and Regulations; and the documents incorporated by
reference in the Prospectus (other than the financial statements
and related schedules and notes therein and other financial and
statistical data, as to which such counsel need express no
opinion), when they were filed with the Commission, complied as
to form in all material respects with the requirements of the
Exchange Act and the Exchange Act Rules and Regulations;
-35-
(vii) The statements under the caption "Description of
Capital Stock" in the Prospectus, insofar as such statements
constitute a summary of documents referred to therein or matters
of law, are accurate summaries in all material respects and
fairly and correctly present the information called for with
respect to such documents and matters;
(viii) To the best of such counsel's knowledge, there are
no contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the
Registration Statement by the Securities Act or by the Rules and
Regulations which have not been described or filed as exhibits to
the Registration Statement or incorporated therein by reference
as permitted by the Rules and Regulations;
(ix) This Agreement has been duly authorized, executed
and delivered by the Company;
(x) The issue and sale of the Shares being delivered on
the date of such opinion by the Company and the performance by
the Company of its obligations under this Agreement and the
consummation of the transactions contemplated hereby do not
conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the
Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of
the property or assets of the Company or any of its subsidiaries
is subject, nor will such actions result in any violation of the
provisions of the charter or by-laws of the Company or any of its
subsidiaries or any statute or any order, rule or regulation
known to such counsel of any court or governmental agency or body
having jurisdiction over the Company or any of its U. S.
subsidiaries or any of their properties or assets; and, except
for the registration of the Shares under the Securities Act and
such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act, the
rules and regulations of the NASD, and applicable state
securities laws in connection with the purchase and distribution
of the Shares by the Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any
such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement by the
Company and the consummation of the transactions contemplated
hereby; and
-36-
(xi) To the best of such counsel's knowledge, there are no
contracts, agreements or understandings between the Company and
any person granting such person the right (other than rights
which have been waived or satisfied) to require the Company to
file a registration statement under the Securities Act with
respect to any securities of the Company owned or to be owned by
such person or to require the Company to include such securities
in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any
other registration statement filed by the Company under the
Securities Act.
[The following clauses are applicable to the opinion to
be furnished on the Option Closing Date only.]
(xii) Each Selling Stockholder has the power and
authority to enter into this Agreement and the Custody Agreement;
the execution, delivery and performance of his obligations under
this Agreement and the Custody Agreement by each Selling
Stockholder do not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a
default under, any statute, any indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known to
such counsel to which any Selling Stockholder is a party or by
which any Selling Stockholder is bound or to which any of the
property or assets of any Selling Stockholder is subject, nor
will such actions result in any violation of the provisions of
any statute or any order, rule or regulation known to such
counsel of any court or governmental agency or body having
jurisdiction over any Selling Stockholder or the property or
assets of any Selling Stockholder; and, except for the
registration of the Shares under the Securities Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act, the
rules and regulations of the NASD, and applicable state
securities laws in connection with the purchase and distribution
of the Shares by the Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any
such court or governmental agency or body is required for the
execution, delivery and performance of this Agreement or the
Custody Agreement by each Selling Stockholder and the
consummation by each Selling Stockholder of the transactions
contemplated hereby and thereby;
-37-
(xiii) This Agreement has been duly authorized, executed
and delivered by or on behalf of each Selling Stockholder;
(xiv) The Custody Agreement has been duly authorized,
executed and delivered by each Selling Stockholder and constitute
the valid and binding agreement of each Selling Stockholder,
enforceable in accordance with their respective terms;
(xv) Immediately prior to the Option Closing Date, to the
best of such counsel's knowledge each Selling Stockholder had
good and valid title to the shares of Stock to be sold by each
Selling Stockholder under this Agreement, free and clear of all
liens, encumbrances, equities or claims, and full right, power
and authority to sell, assign, transfer and deliver such shares
to be sold by each Selling Stockholder hereunder; and
(xvi) Each of the several Underwriters (assuming they are
bona fide purchasers as defined in Section 8-302 of the
Massachusetts Uniform Commercial Code) will acquire good and
valid title to the shares of Stock to be sold by each Selling
Stockholder under this Agreement, free and clear of all liens,
encumbrances, equities or claims.
Such counsel shall also have furnished to the Representatives a
written statement, addressed to the Underwriters and dated as of the
applicable Closing Date to the effect that (x) such counsel has acted
as counsel to the Company in connection with the preparation of the
Registration Statement and in connection therewith has participated in
conferences with officers and other representatives of the Company,
and representatives of the independent public accountants for the
Company, at which conferences the contents of the Registration
Statement and the Prospectus and related matters were discussed, and
(y) based on the foregoing, no facts have come to the attention of
such counsel which lead it to believe that (I) the Registration
Statement, as of the Effective Date, contained any untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein
not misleading, or that the Prospectus contains any untrue statement
of a material fact or omits to state a material fact required to be
stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not
misleading or (II) any document incorporated by reference in the
Prospectus, when it was filed with the Commission, contained an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the
-38-
statements therein, in light of the circumstances under which they
were made, not misleading (provided that such counsel need express no
view with respect to the financial statements and the related
schedules and notes and other financial or statistical data included
or incorporated by reference therein). The foregoing opinion and
statement may be qualified by a statement to the effect that such
counsel does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus except for the statements
made in the Prospectus under the caption "Description of Capital
Stock" insofar as such statements relate to the Shares and concern
legal matters.
-39-
ANNEX B
-------
MATTERS TO BE COVERED IN OPINION OF PATENT COUNSEL TO THE COMPANY
-----------------------------------------------------------------
(i) Schedule I to such opinion identifies, as of [applicable
Closing Date], all U.S. patents and U.S. applications known to such
counsel and filed by the Company, in which the Company currently has an
interest. As of [recent specified date], the Company was listed in the
records of the U.S. Patent and Trademark Office (the "PTO") as a holder
of record of each of the patents and patent applications listed in
Schedule I. The patent rights to the applications listed in Schedule I,
to the best of such counsel's knowledge, have been assigned to the
Company. Based on a search of the documents of record in the PTO as of
[recent specified date], a review of the Company records through that
date, and a review of the certificate of an officer of the Company, such
counsel has no knowledge of any facts which would preclude the Company
from having clear title to the patents and patent applications listed in
Schedule I.
(ii) To the best of such counsel's knowledge, none of the claims
of the patents set forth in Schedule I is invalid or unenforceable.
Each of the applications set forth in Schedule I is pending in the PTO,
and such counsel is unaware of any defects in the prosecution of any
such application that would irrevocably foreclose pursuit of the patent
rights thereunder.
(iii) To the best of such counsel's knowledge, there is no
pending or threatened action, suit, proceeding, or claim by others that
the Company is infringing any patent.
(iv) To the best of such counsel's knowledge, there are no legal
or governmental proceedings pending relating to the patents or
applications set forth in Schedule I, other than review of pending
applications for patent, including appeal proceedings, and to the best
of such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or others.
(v) To the best of such counsel's knowledge, there is no pending
action, suit, proceeding or claim by others challenging the validity of
any claim of the patents set forth in Schedule I. To the best of such
counsel's knowledge, there is no interference proceeding or public use
proceeding with respect to any application set forth in Schedule I.
-40-
