Exhibit 1.1
9,800,000
EON LABS, INC.
COMMON STOCK
FORM OF UNDERWRITING AGREEMENT
May __, 2002
CREDIT SUISSE FIRST BOSTON CORPORATION
XXXXXXX, XXXXX & CO.
BANC OF AMERICA SECURITIES LLC
CIBC WORLD MARKETS CORP.,
As Representatives of the Several Underwriters,
c/o Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. INTRODUCTORY. Eon Labs, Inc., a Delaware corporation ("COMPANY"),
proposes to issue and sell 9,380,540 shares of its common stock, par value $.01
per share ("SECURITIES") and the stockholders listed in Schedule A hereto
("SELLING STOCKHOLDERS") propose to sell an aggregate of 419,460 outstanding
shares of the Securities (such 9,800,000 shares of Securities being hereinafter
referred to as the "FIRM SECURITIES") The Company also proposes to issue and
sell to the Underwriters, at the option of the Underwriters, an aggregate of not
more than 1,470,000 additional shares of its Securities, as set forth below
(such 1,470,000 additional shares being hereinafter referred to as the "OPTIONAL
SECURITIES"). The Firm Securities and the Optional Securities are herein
collectively called the "OFFERED SECURITIES".
As part of the offering contemplated by this Agreement, Credit Suisse
First Boston Corporation (the "DESIGNATED UNDERWRITER") has agreed to reserve
out of the Firm Securities purchased by it under this Agreement, up to 490,000
shares, for sale to the Company's directors, officers, employees and other
parties associated with the Company (collectively, "PARTICIPANTS"), as set forth
in the Prospectus (as defined herein) under the heading "Underwriting" (the
"DIRECTED SHARE PROGRAM"). The Firm Securities to be sold by the Designated
Underwriter pursuant to the Directed Share Program (the "DIRECTED SHARES") will
be sold by the Designated Underwriter pursuant to this Agreement at the public
offering price. Any Directed Shares not subscribed for by the end of the
business day on which this Agreement is executed will be offered to the public
by the Underwriters as set forth in the Prospectus.
The Company and the Selling Stockholders hereby agree with the several
Underwriters named in Schedule B hereto ("UNDERWRITERS") as follows:
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING
STOCKHOLDERS. (a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement (No. 333-83638) relating to the
Offered Securities, including a form of prospectus, has been filed with
the Securities and Exchange Commission ("COMMISSION") and either (i)
has been declared effective under the Securities Act of 1933 ("ACT")
and is not proposed to be amended or (ii) is proposed to be amended by
amendment or post-effective amendment. If such registration statement
("INITIAL REGISTRATION STATEMENT") has been declared effective, either
(i) an additional registration statement ("ADDITIONAL REGISTRATION
STATEMENT")
relating to the Offered Securities may have been filed with the
Commission pursuant to Rule 462(b) ("RULE 462(b)") under the Act and,
if so filed, has become effective upon filing pursuant to such Rule and
the Offered Securities all have been duly registered under the Act
pursuant to the initial registration statement and, if applicable, the
additional registration statement or (ii) such an additional
registration statement is proposed to be filed with the Commission
pursuant to Rule 462(b) and will become effective upon filing pursuant
to such Rule and upon such filing the Offered Securities will all have
been duly registered under the Act pursuant to the initial registration
statement and such additional registration statement. If the Company
does not propose to amend the initial registration statement or if an
additional registration statement has been filed and the Company does
not propose to amend it, and if any post-effective amendment to either
such registration statement has been filed with the Commission prior to
the execution and delivery of this Agreement, the most recent amendment
(if any) to each such registration statement has been declared
effective by the Commission or has become effective upon filing
pursuant to Rule 462(c) ("RULE 462(c)") under the Act or, in the case
of the additional registration statement, Rule 462(b). For purposes of
this Agreement, "EFFECTIVE TIME" with respect to the initial
registration statement or, if filed prior to the execution and delivery
of this Agreement, the additional registration statement means (i) if
the Company has advised the Representatives that it does not propose to
amend such registration statement, the date and time as of which such
registration statement, or the most recent post-effective amendment
thereto (if any) filed prior to the execution and delivery of this
Agreement, was declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c), or (ii) if the Company
has advised the Representatives that it proposes to file an amendment
or post-effective amendment to such registration statement, the date
and time as of which such registration statement, as amended by such
amendment or post-effective amendment, as the case may be, is declared
effective by the Commission. If an additional registration statement
has not been filed prior to the execution and delivery of this
Agreement but the Company has advised the Representatives that it
proposes to file one, "EFFECTIVE TIME" with respect to such additional
registration statement means the date and time as of which such
registration statement is filed and becomes effective pursuant to Rule
462(b). "EFFECTIVE DATE" with respect to the initial registration
statement or the additional registration statement (if any) means the
date of the Effective Time thereof. The initial registration statement,
as amended at its Effective Time, including all information contained
in the additional registration statement (if any) and deemed to be a
part of the initial registration statement as of the Effective Time of
the additional registration statement pursuant to the General
Instructions of the Form on which it is filed and including all
information (if any) deemed to be a part of the initial registration
statement as of its Effective Time pursuant to Rule 430A(b) ("RULE
430A(b)") under the Act, is hereinafter referred to as the "INITIAL
REGISTRATION STATEMENT". The additional registration statement, as
amended at its Effective Time, including the contents of the initial
registration statement incorporated by reference therein and including
all information (if any) deemed to be a part of the additional
registration statement as of its Effective Time pursuant to Rule
430A(b), is hereinafter referred to as the "ADDITIONAL REGISTRATION
STATEMENT". The Initial Registration Statement and the Additional
Registration Statement are herein referred to collectively as the
"REGISTRATION STATEMENTS" and individually as a "REGISTRATION
STATEMENT". The form of prospectus relating to the Offered Securities,
as first filed with the Commission pursuant to and in accordance with
Rule 424(b) ("RULE 424(b)") under the Act or (if no such filing is
required) as included in a Registration Statement, is hereinafter
referred to as the "PROSPECTUS". No document has been or will be
prepared or distributed in reliance on Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registration Statement
is prior to the execution and delivery of this Agreement: (i) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all respects to the requirements of
the Act and the rules and regulations of the Commission ("RULES AND
REGULATIONS") and did not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, (ii) on the
Effective Date of the Additional Registration Statement (if any), each
Registration Statement conformed, or will conform, in all material
respects to the requirements of the Act and the Rules and Regulations
and did not include, or will not include, any untrue statement of a
material fact and did not omit, or will
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not omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) on
the date of this Agreement, the Initial Registration Statement and, if
the Effective Time of the Additional Registration Statement is prior to
the execution and delivery of this Agreement, the Additional
Registration Statement each conforms, and at the time of filing of the
Prospectus pursuant to Rule 424(b) or (if no such filing is required)
at the Effective Date of the Additional Registration Statement in which
the Prospectus is included, each Registration Statement and the
Prospectus will conform, in all respects to the requirements of the Act
and the Rules and Regulations, and neither of such documents includes,
or will include, any untrue statement of a material fact or omits, or
will omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading. If the
Effective Time of the Initial Registration Statement is subsequent to
the execution and delivery of this Agreement: on the Effective Date of
the Initial Registration Statement, the Initial Registration Statement
and the Prospectus will conform in all respects to the requirements of
the Act and the Rules and Regulations, neither of such documents will
include any untrue statement of a material fact or will omit to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading, and no Additional Registration
Statement has been or will be filed. The two preceding sentences do not
apply to statements in or omissions from a Registration Statement or
the Prospectus based upon written information furnished to the Company
by any Underwriter through the Representatives specifically for use
therein, it being understood and agreed that the only such information
is that described as such in Section 7(c) hereof.
(iii) The Company has been duly incorporated and is a validly
existing corporation in good standing under the laws of the State of
Delaware, with corporate power and authority to own its properties and
conduct its business as described in the Prospectus; and the Company is
duly qualified to do business as a foreign corporation in good standing
in all other jurisdictions in which its ownership or lease of property
or the conduct of its business requires such qualification, except to
the extent the failure to be so qualified would not have a material
adverse effect on the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries
taken as a whole ("Material Adverse Effect").
(iv) Each subsidiary of the Company has been duly incorporated and
is a validly existing corporation or other business organization, as
the case may be, in good standing under the laws of the jurisdiction of
its incorporation or organization, with power and authority (corporate
and other) to own its properties and conduct its business as described
in the Prospectus; and each subsidiary of the Company is duly qualified
to do business as a foreign corporation or other business organization,
as the case may be, in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its business
requires such qualification, except where the failure to be so
qualified would not have a Material Adverse Effect; all of the issued
and outstanding capital stock or other ownership interests of each
subsidiary of the Company has been duly authorized and, in the case of
each subsidiary that is a corporation, validly issued and is fully paid
and nonassessable; and the capital stock or other ownership interests
of each subsidiary owned by the Company, directly or through
subsidiaries, is owned free from liens, encumbrances and defects.
(v) The Board of Directors of Hexal Pharmaceuticals, Inc. ("HPI")
has adopted resolutions (the "EHI Merger Resolutions") authorizing the
merger of Eon Holdings, Inc. ("EHI") with and into HPI, with HPI
continuing as the surviving corporation (the "EHI Merger") and
approving the filing of a certificate of merger (the "EHI Merger
Certificate") with the Secretary of State of the State of Delaware. The
Board of Directors of HPI and the sole stockholder of HPI have adopted
resolutions (the "HPI Merger Resolutions") authorizing the merger of
HPI with and into the Company, with the Company continuing as the
surviving corporation (the "HPI Merger," and together with the EHI
Merger, the "Reorganization Mergers") and approving the filing of a
certificate of merger (the "HPI Merger Certificate" and together with
the EHI Merger Resolutions, the EHI Merger Certificates and the HPI
Merger Resolutions, the "Reorganization Documents") with the Secretary
of State of the State of Delaware, following the consummation of the
EHI Merger. The EHI Merger Resolutions and the HPI Merger Resolutions
have been duly adopted,
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the Reorganization Mergers have been consummated in accordance with the
provisions of Section 253 of the Delaware General Corporation Law (the
"DGCL") and no other corporate proceedings on the part of HPI, EHI or
the Company are necessary to consummate the Reorganization Mergers.
(vi) The Reorganization Documents will conform in all material
respects to the respective statements relating thereto contained in the
Prospectus. The Company has delivered to the Representatives complete
and correct copies of the Reorganization Documents and there have been
no amendments, alterations, modification or waivers thereto or in the
exhibits or schedules thereto.
(vii) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized; all outstanding
shares of capital stock of the Company are, and, when the Offered
Securities have been delivered and paid for in accordance with this
Agreement on each Closing Date (as defined below), such Offered
Securities will have been, validly issued, fully paid and nonassessable
and will conform to the description thereof contained in the
Prospectus; and the stockholders of the Company have no preemptive
rights with respect to the Securities.
(viii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like
payment in connection with this offering.
(ix) Except for the Warrant Agreement, dated as of December 5,
2000 (the "Warrant Agreement"), by and among the Company and the
warrantholders named therein (the "Warrantholders"), there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the 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 Act. All rights of the Warrantholders to require the
Company to file a registration statement under the Act or to require
the Company to register securities pursuant to the Registration
Statement or in any other registration statement filed by the Company
in connection with the Company's initial public offering have either
been fully satisfied or waived in accordance with the terms of the
Warrant Agreement and the Warrantholders do not have any other rights
to require the Company to file a registration statement or to require
the Company's to register securities pursuant to the Registration
Statement or any other registration statement filed by the Company in
connection with the Company's initial public offering.
(x) The Offered Securities have been approved for listing on the
Nasdaq Stock Market's National Market subject to notice of issuance.
(xi) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement in
connection with the issuance and sale of the Offered Securities by the
Company, except such as have been obtained and made under the Act and
such as may be required under state securities laws.
(xii) The execution, delivery and performance of this Agreement,
and the issuance and sale of the Offered Securities will not result in
a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, rule, regulation or order of
any governmental agency or body or any court, domestic or foreign,
having jurisdiction over the Company or any subsidiary of the Company
or any of their properties, or any agreement or instrument to which the
Company or any such subsidiary is a party or by which the Company or
any such subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is subject, except where such breach,
violation or default would not have a Material Adverse Effect. The
execution, delivery and performance of this Agreement, and the issuance
and sale of the Offered Securities will not result in a breach of the
charter or by-laws of the Company or any such subsidiary, and the
Company has
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full power and authority to authorize, issue and sell the Offered
Securities as contemplated by this Agreement.
(xiii) This Agreement has been duly authorized, executed and
delivered by the Company.
(xiv) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties and
all other properties and assets owned by them, in each case free from
liens, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made thereof
by them; and except as disclosed in the Prospectus, the Company and its
subsidiaries hold any leased real or personal property under valid and
enforceable leases with no exceptions that would materially interfere
with the use made or to be made thereof by them.
(xv) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental
agencies or bodies necessary to conduct the business now operated by
them and have not received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(xvi) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
would be reasonably likely to have a Material Adverse Effect.
(xvii) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate rights to inventions, know-how,
patents, copyrights, confidential information, trademarks, trade names
and other intellectual property (collectively, "INTELLECTUAL PROPERTY
RIGHTS") necessary to conduct the business now operated by them, or
presently employed by them, and except as disclosed in the Prospectus,
have not received any notice of infringement of or conflict with
asserted rights of others with respect to any intellectual property
rights that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(xviii) Except as disclosed in the Prospectus, neither the Company
nor any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any
court, domestic or foreign, relating to the use, disposal or release of
hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic
substances (collectively, "ENVIRONMENTAL laws"), owns or operates any
real property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any
claim relating to any environmental laws, which violation,
contamination, liability or claim would individually or in the
aggregate have a Material Adverse Effect; and the Company is not aware
of any pending investigation which might lead to such a claim.
(xix) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of
its subsidiaries or any of their respective properties that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to
perform its obligations under this Agreement, or which are otherwise
material in the context of the sale of the Offered Securities; and no
such actions, suits or proceedings are threatened or, to the Company's
knowledge, contemplated.
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(xx) The financial statements included in each Registration
Statement and the Prospectus (taken together with the related notes and
schedules thereto) present fairly the financial position of the Company
and its consolidated subsidiaries as of the dates shown and their
results of operations and cash flows for the periods shown, and such
financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States applied
on a consistent basis and the schedules included in each Registration
Statement present fairly the information required to be stated therein;
and the assumptions used in preparing the pro forma financial
statements included in each Registration Statement and the Prospectus
provide a reasonable basis for presenting the significant effects
directly attributable to the transactions or events described therein,
the related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical
financial statement amounts.
(xxi) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included in the Prospectus there
has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole, and, except as
disclosed in or contemplated by the Prospectus, there has been no
dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(xxii) Except as disclosed in the Prospectus, the Company and each
of its subsidiaries is in compliance with all applicable laws,
statutes, ordinances, rules and regulations and has filed all
applications and has obtained all necessary licenses, permits and
approvals or other regulatory authorizations, including but not limited
to those of the Food and Drug Administration (the "FDA"), the Federal
Trade Commission, the Drug Enforcement Administration, and the United
States Environmental Protection Agency (including, without limitation,
all FDA approvals necessary for the manufacturing and marketing of the
products and, to the extent applicable, products under development
(collectively, the "Products") and all applicable approvals, clearances
and registrations required by any Governmental Entity, to permit any
manufacturing, distribution, sales, marketing or human research and
development activities of the Company and each of its subsidiaries with
respect to each Product), except where the failure to do so would not
have a Material Adverse Effect.
(xxiii) The FDA has not (i) commenced, or, to the Company's
knowledge, threatened to initiate, and the Company is not aware of any
pending investigation which might lead to, any action to withdraw its
approval, place marketing restrictions, or request the recall of any
Product, or enjoin or place restrictions on the production of any
Product of the Company, or (ii) commenced or, to the Company's
knowledge, threatened to initiate, and the Company is not aware of any
pending investigation which might lead to, any action to withdraw its
approval of any facility of the Company or its subsidiaries.
(xxiv) Except as disclosed in the Prospectus, the Company and its
subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
customary in the businesses in which they are engaged or propose to
engage after giving effect to the transactions described in the
Prospectus, including, without limitation, insurance covering clinical
trial liability, product liability and real or personal property owned
or leased against theft, damage, destruction, act of vandalism and all
other risks customarily insured against. All policies of insurance and
fidelity or surety bonds insuring the Company or any of its
subsidiaries or the Company's or its subsidiaries' respective
businesses, assets, employees, officers and directors are in full force
and effect, the Company and each of its subsidiaries are in compliance
with the terms of such policies and instruments in all material
respects, and neither the Company nor any of its subsidiaries has any
reason to believe that it will not be able to renew its existing
insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue
its respective business at a cost substantially the same as the cost of
such existing insurance coverage. Neither the Company nor any of its
subsidiaries has been denied any insurance coverage that it has sought
or for which it has applied.
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(xxv) The Company will subject to the reporting requirements of
either Section 13 or Section 15(d) of the Securities Exchange Act of
1934 and files reports with the Commission on the Electronic Data
Gathering, Analysis, and Retrieval (XXXXX) system.
(xxvi) The Company is not and, after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940.
(xxvii) Furthermore, the Company represents and warrants to the
Underwriters that (i) the Registration Statement, the Prospectus and
any preliminary prospectus comply, and any further amendments or
supplements thereto will comply, with any applicable laws or
regulations of foreign jurisdictions in which the Prospectus or any
preliminary prospectus, as amended or supplemented, if applicable, are
distributed in connection with the Directed Share Program, and that
(ii) no authorization, approval, consent, license, order, registration
or qualification of or with any government, governmental
instrumentality or court, other than such as have been obtained, is
necessary under the securities law and regulations of foreign
jurisdictions in which the Directed Shares are offered outside the
United States.
(xxviii) The Company has not offered, or caused the Underwriters
to offer, any offered Securities to any person pursuant to the Directed
Share Program with the specific intent to unlawfully influence (i) a
customer or supplier of the Company to alter the customer's or
supplier's level or type of business with the Company or (ii) a trade
journalist or publication to write or publish favorable information
about the Company or its products.
(b) Each Selling Stockholder severally and not jointly represents and
warrants to, and agrees with, the several Underwriters that:
(i) Such Selling Stockholder has and on the First Closing Date
hereinafter mentioned will have valid and unencumbered title to the
Firm Securities to be delivered by such Selling Stockholder on the
First Closing Date and full right, power and authority to enter into
this Agreement and to sell, assign, transfer and deliver the Firm
Securities to be delivered by such Selling Stockholder on the First
Closing Date hereunder; and upon the delivery of and payment for the
Firm Securities on the First Closing Date hereunder the several
Underwriters will acquire valid and unencumbered title to the Firm
Securities to be delivered by such Selling Stockholder on the First
Closing Date.
(ii) The information in the Registration Statement under the
caption "Principal and Selling Stockholders" which specifically relates
to such Selling Stockholder does not, and will not on the Closing Date,
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(iii) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between such Selling
Stockholder and any person that would give rise to a valid claim
against such Selling Stockholder, the Company or any Underwriter for a
brokerage commission, finder's fee or other like payment in connection
with this offering.
3. PURCHASE, SALE AND DELIVERY OF OFFERED SECURITIES. On the basis
of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company and each
Selling Stockholder agrees, severally and not jointly, to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to
purchase from the Company and each Selling Stockholder, at a purchase price
of $ per share, the number of Firm Securities set forth below the
caption "Company" or "Selling Stockholder", as the case may be, and opposite
the name of each Underwriter in Schedule B hereto.
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The Company and each Selling Stockholder will deliver the Firm
Securities to the Representatives for the accounts of the Underwriters, against
payment of the purchase price in Federal (same day) funds by official bank check
or checks or wire transfer to an account at a bank acceptable to Credit Suisse
First Boston Corporation ("CSFBC") drawn to the order of Eon Labs, Inc. in the
case of 9,380,540 shares of Firm Securities and the Selling Stockholders in the
case of 419,460 shares of Firm Securities at the office of Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP ("SKADDEN, ARPS") located at Xxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, at 9:00 A.M., New York time, on May __, 2002, or at such other time
not later than seven full business days thereafter as CSFBC and the Company
determine, such time being herein referred to as the "FIRST CLOSING DATE". For
purposes of Rule 15c6-1 under the Securities Exchange Act of 1934, the First
Closing Date (if later than the otherwise applicable settlement date) shall be
the settlement date for payment of funds and delivery of securities for all the
Offered Securities sold pursuant to the offering. The certificates for the Firm
Securities so to be delivered will be in definitive form, in such denominations
and registered in such names as CSFBC requests and will be made available for
checking and packaging at the above office of Skadden, Arps at least 24 hours
prior to the First Closing Date.
In addition, upon written notice from CSFBC given to the Company from
time to time not more than 30 days subsequent to the date of the Prospectus, the
Underwriters may purchase all or less than all of the Optional Securities at the
purchase price per Security to be paid for the Firm Securities. The Company
agrees to sell to the Underwriters the number of shares of Optional Securities
specified in such notice and the Underwriters agree, severally and not jointly,
to purchase such Optional Securities. Such Optional Securities shall be
purchased for the account of each Underwriter in the same proportion as the
number of Firm Securities set forth opposite such Underwriter's name bears to
the total number of Firm Securities (subject to adjustment by CSFBC to eliminate
fractions) and may be purchased by the Underwriters only for the purpose of
covering over-allotments made in connection with the sale of the Firm
Securities. No Optional Securities shall be sold or delivered unless the Firm
Securities previously have been, or simultaneously are, sold and delivered. The
right to purchase the Optional Securities or any portion thereof may be
exercised from time to time and to the extent not previously exercised may be
surrendered and terminated at any time upon notice by CSFBC to the Company.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Company will deliver the
Optional Securities being purchased on each Optional Closing Date to the
Representatives for the accounts of the several Underwriters, against payment of
the purchase price therefor in Federal (same day) funds by official bank check
or checks or wire transfer to an account at a bank acceptable to CSFBC drawn to
the order of the Company at the above office of Skadden, Arps. The certificates
for the Optional Securities being purchased on each Optional Closing Date will
be in definitive form, in such denominations and registered in such names as
CSFBC requests upon reasonable notice prior to such Optional Closing Date and
will be made available for checking and packaging at the above office of
Skadden, Arps at a reasonable time in advance of such Optional Closing Date.
4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. CERTAIN AGREEMENTS OF THE COMPANY AND THE SELLING STOCKHOLDERS. (i)
The Company agrees with the several Underwriters and the Selling Stockholders
that:
(a) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Company will
file the Prospectus with the Commission pursuant to and in accordance
with subparagraph (1) (or, if applicable and if consented to by CSFBC,
subparagraph (4)) of Rule 424(b) not later than the earlier of (A) the
second business day following the execution and delivery of this
Agreement or (B) the fifteenth business day after the Effective Date of
the Initial Registration Statement.
8
The Company will advise CSFBC promptly of any such filing pursuant to
Rule 424(b). If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement and
an additional registration statement is necessary to register a portion
of the Offered Securities under the Act but the Effective Time thereof
has not occurred as of such execution and delivery, the Company will
file the additional registration statement or, if filed, will file a
post-effective amendment thereto with the Commission pursuant to and in
accordance with Rule 462(b) on or prior to 10:00 P.M., New York time,
on the date of this Agreement or, if earlier, on or prior to the time
the Prospectus is printed and distributed to any Underwriter, or will
make such filing at such later date as shall have been consented to by
CSFBC.
(b) The Company will advise CSFBC promptly of any proposal to
amend or supplement the initial or any additional registration
statement as filed or the related prospectus or the Initial
Registration Statement, the Additional Registration Statement (if any)
or the Prospectus and will not effect such amendment or supplementation
without CSFBC's consent; and the Company will also advise CSFBC
promptly of the effectiveness of each Registration Statement (if its
Effective Time is subsequent to the execution and delivery of this
Agreement) and of any amendment or supplementation of a Registration
Statement or the Prospectus and of the institution by the Commission of
any stop order proceedings in respect of a Registration Statement and
will use its reasonable best efforts to prevent the issuance of any
such stop order and to obtain as soon as possible its lifting, if
issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company will promptly notify CSFBC of such event and will promptly
prepare and file with the Commission, at its own expense, an amendment
or supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither CSFBC's consent
to, nor the Underwriters' delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section
6.
(d) As soon as practicable, but not later than the Availability
Date (as defined below), the Company will make generally available to
its securityholders an earnings statement covering a period of at least
12 months beginning after the Effective Date of the Initial
Registration Statement (or, if later, the Effective Date of the
Additional Registration Statement) which will satisfy the provisions of
Section 11(a) of the Act. For the purpose of the preceding sentence,
"AVAILABILITY DATE" means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes such
Effective Date, except that, if such fourth fiscal quarter is the last
quarter of the Company's fiscal year, "AVAILABILITY DATE" means the
90th day after the end of such fourth fiscal quarter.
(e) The Company will furnish to the Representatives copies of each
Registration Statement (five of which will be signed and will include
all exhibits), each related preliminary prospectus, and, so long as a
prospectus relating to the Offered Securities is required to be
delivered under the Act in connection with sales by any Underwriter or
dealer, the Prospectus and all amendments and supplements to such
documents, in each case in such quantities as CSFBC requests. The
Prospectus shall be so furnished on or prior to 3:00 P.M., New York
time, on the business day following the later of the execution and
delivery of this Agreement or the Effective Time of the Initial
Registration Statement. All other documents shall be so furnished as
soon as available. The Company will pay the expenses of printing and
distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFBC
designates; provided, however, that the Company is not
9
obliged to qualify as a foreign corporation in any jurisdiction in
which it is not so qualified or take any action that would subject it
to service of process in any jurisdiction in which it is not presently
subject. The Company will continue such qualifications in effect so
long as required for the distribution.
(g) The Company agrees with the several Underwriters that the
Company will pay all expenses incident to the performance of the
obligations of the Company and the Selling Stockholders, as the case
may be, under this Agreement, for any filing fees and other expenses
(including fees and disbursements of counsel) incurred in connection
with qualification of the Offered Securities for sale under the laws of
such jurisdictions as CSFBC designates and the printing of memoranda
relating thereto for the filing fee incident to the review by the
National Association of Securities Dealers, Inc. of the Offered
Securities, for any travel expenses of the Company's officers and
employees, for any transfer taxes on the sale by the Selling
Stockholders of the Offered Securities to the Underwriters and any
other expenses of the Company in connection with attending or hosting
meetings with prospective purchasers of the Offered Securities and for
expenses incurred in distributing preliminary prospectuses and the
Prospectus (including any amendments and supplements thereto) to the
Underwriters.
(h) For a period of 180 days after the date of the initial public
offering of the Offered Securities, the Company will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under
the Act relating to, any additional shares of its Securities or
securities convertible into or exchangeable or exercisable for any
shares of its Securities, or publicly disclose the intention to make
any such offer, sale, pledge, disposition or filing, without the prior
written consent of CSFBC, except (i) issuances of Securities pursuant
to the exercise of employee stock options outstanding on the date
hereof, (ii) grants of employee stock options pursuant to the terms of
any plan in effect on the date hereof or (iii) the issuance of
Securities to Hexal AG immediately following the First Closing Date,
upon the capitalization of $24 million principal amount of debt, plus
accrued interest from December 31, 2001 through the date of such
capitalization, as described in the Prospectus.
(i) In connection with the Directed Share Program, the Company
will ensure that the Directed Shares will be restricted to the extent
required by the National Association of Securities Dealers, Inc. (the
"NASD") or the NASD rules from sale, transfer, assignment, pledge or
hypothecation for a period of three months following the date of the
effectiveness of the Registration Statement. The Designated Underwriter
will notify the Company as to which Participants will need to be so
restricted. The Company will direct the transfer agent to place stop
transfer restrictions upon such securities for such period of time.
(j) The Company will pay all fees and disbursements of counsel
incurred by the Underwriters in connection with the Directed Shares
Program and stamp duties, similar taxes or duties or other taxes, if
any, incurred by the underwriters in connection with the Directed Share
Program.
(k) The Company will use its reasonable best efforts to do and
perform all things required or necessary to be done and performed
pursuant to the terms of the Warrant Agreement in order to enforce the
Company's rights thereunder, specifically including, without
limitation, their rights under Section 9(a) of the Warrant Agreement to
prohibit the Warrantholders from selling or otherwise transferring or
disposing of any securities held by such Warrantholder for a period of
180 days following the date of the initial public offering.
Furthermore, the Company covenants with the Underwriters that the
Company will comply with all applicable securities and other applicable laws,
rules and regulations in each foreign jurisdiction in which the Directed Shares
are offered in connection with the Directed Share Program.
(ii) Each of the Selling Stockholders agrees with the several
underwriters that:
(a) For a period of 180 days after the date of the initial public
offering of the Offered
10
Securities, not to offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, any additional shares of the
Securities of the Company or securities convertible into or
exchangeable or exercisable for any shares of Securities, enter into a
transaction which would have the same effect, or enter into any swap,
hedge or other arrangement that transfers, in whole or in part, any of
the economic consequences of ownership of the Securities, whether any
such aforementioned transaction is to be settled by delivery of the
Securities or such other securities, in cash or otherwise, or publicly
disclose the intention to make any such offer, sale, pledge or
disposition, or enter into any such transaction, swap, hedge or other
arrangement, without, in each case, the prior written consent of CSFBC.
(b) Such Selling Stockholder will deliver to CSFBC, attention:
Transactions Advisory Group, on or prior to the First Closing Date, a
properly completed and executed United States Treasury Department Form
W-9 (or other applicable form or statement specified by Treasury
Department regulations in lieu thereof).
6. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholders, as
applicable, herein, to the accuracy of the statements of Company officers made
pursuant to the provisions hereof, to the performance by the Company and the
Selling Stockholders, as applicable, of their obligations hereunder and to the
following additional conditions precedent:
(a) The Representatives shall have received a letter, dated the
date of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on the date of this Agreement or, if the Effective
Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing
of the amendment or post-effective amendment to the registration
statement to be filed shortly prior to such Effective Time), of
PricewaterhouseCoopers LLP, confirming that they are independent public
accountants within the meaning of the Act and the applicable published
Rules and Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements examined by them
and included in the Registration Statements comply as to form
in all material respects with the applicable accounting
requirements of the Act and the related published Rules and
Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on the unaudited condensed financial statements
included in the Registration Statements;
(iii) on the basis of the review referred to in clause (ii)
above, a reading of the latest available interim financial
information of the Company, inquiries of officials of the
Company who have responsibility for financial and accounting
matters and other specified procedures, nothing came to their
attention that caused them to believe that:
(A) the unaudited financial statements
included in the Registration Statements do not comply
as to form in all material respects with the
applicable accounting requirements of the Act and the
related published Rules and Regulations or any
material modifications should be made to such
unaudited financial statements for them to be in
conformity with generally accepted accounting
principles
(B) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three
business days prior to the date of this Agreement,
there was any change in the capital stock or
11
any increase in short-term indebtedness or long-term
debt of the Company and its consolidated subsidiaries
or, at the date of the latest available balance sheet
read by such accountants, there was any decrease in
consolidated net current assets or net assets, as
compared with amounts shown on the latest balance
sheet included in the Prospectus; or
(C) for the period from the closing date of
the latest income statement included in the
Prospectus to the closing date of the latest
available income statement read by such accountants
there were any decreases, as compared with the
corresponding period of the previous year in
consolidated net sales or net operating income, or in
the total or per share amounts of consolidated income
before extraordinary items or net income.
except in all cases set forth in clauses (B) and (C) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; and
(iv) they have compared dollar amounts (or percentages
derived from such dollar amounts) and other financial
information specified by the Representatives contained in
the Registration Statements (in each case to the extent
that such dollar amounts, percentages and other financial
information are derived from the general accounting records
of the Company and its subsidiaries subject to the internal
controls of the Company's accounting system or are derived
directly from such records by analysis or computation) with
the results obtained from inquiries, a reading of such
general accounting records and other procedures specified
in such letter and have found such dollar amounts,
percentages and other financial information to be in
agreement with such results, except as otherwise specified
in such letter.
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statement is subsequent to the execution and
delivery of this Agreement, "REGISTRATION STATEMENTS" shall mean the
initial registration statement as proposed to be amended by the
amendment or post-effective amendment to be filed shortly prior to its
Effective Time, (ii) if the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement but
the Effective Time of the Additional Registration is subsequent to such
execution and delivery, "REGISTRATION STATEMENTS" shall mean the
Initial Registration Statement and the additional registration
statement as proposed to be filed or as proposed to be amended by the
post-effective amendment to be filed shortly prior to its Effective
Time, and (iii) "PROSPECTUS" shall mean the prospectus included in the
Registration Statements.
(b) If the Effective Time of the Initial Registration
Statement is not prior to the execution and delivery of this Agreement,
such Effective Time shall have occurred not later than 10:00 P.M., New
York time, on the date of this Agreement or such later date as shall
have been consented to by CSFBC. If the Effective Time of the
Additional Registration Statement (if any) is not prior to the
execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of
this Agreement or, if earlier, the time the Prospectus is printed and
distributed to any Underwriter, or shall have occurred at such later
date as shall have been consented to by CSFBC. If the Effective Time of
the Initial Registration Statement is prior to the execution and
delivery of this Agreement, the Prospectus shall have been filed with
the Commission in accordance with the Rules and Regulations and Section
5(a) of this Agreement. Prior to such Closing Date, no stop order
suspending the effectiveness of a Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of any Selling Stockholder, the Company
or the Representatives, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the
12
condition (financial or other), business, properties or results of
operations of the Company and its subsidiaries taken as one enterprise
which, in the judgment of a majority in interest of the Underwriters
including the Representatives, is material and adverse and makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities; (ii)
any downgrading in the rating of any debt securities of the Company by
any "nationally recognized statistical rating organization" (as defined
for purposes of Rule 436(g) under the Act), or any public announcement
that any such organization has under surveillance or review its rating
of any debt securities of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating) (iii) any change in U.S. or
international financial, political or economic conditions or currency
exchange rates or exchange controls as would, in the judgment of a
majority in interest of the Underwriters including the Representatives,
be likely to prejudice materially the success of the proposed issue,
sale or distribution of the Offered Securities, whether in the primary
market or in respect of dealings in the secondary market; (iv) any
material suspension or material limitation of trading in securities
generally on the New York Stock Exchange, or any setting of minimum
prices for trading on such exchange, or any suspension of trading of
any securities of the Company on any exchange or in the
over-the-counter market; (v) any banking moratorium declared by U.S.
Federal or, New York authorities; (vi) any major disruption of
settlements of securities or clearance services in the United States or
(vii) any attack on, outbreak or escalation of hostilities or act of
terrorism involving the United States, any declaration of war by
Congress or any other national or international calamity or emergency
if, in the judgment of a majority in interest of the Underwriters
including the Representatives, the effect of any such attack, outbreak,
escalation, act, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities.
(d) The Representatives shall have received an opinion, dated
such Closing Date, of Xxxxxxx Xxxx & Xxxxxxxxx, counsel for the
Company, to the effect that:
(i) The Company is a validly existing corporation in
good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and
conduct its business as described in the Prospectus; and the
Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its
business requires such qualification, except to the extent the
failure to be so qualified would not have a Material Adverse
Effect;
(ii) Each subsidiary of the Company is a validly
existing corporation or other business organization, as the
case may be, in good standing under the laws of the
jurisdiction of its incorporation, with power and authority to
own its properties and conduct its business as described in
the Prospectus; and each subsidiary of the Company is duly
qualified to do business as a foreign corporation or other
business organization, as the case may be, in good standing in
all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such
qualification, except to the extent the failure to be so
qualified would not have a Material Adverse Effect; all of the
issued and outstanding capital stock or other ownership
interests of each subsidiary of the Company has been duly
authorized and, in the case of each subsidiary that is a
corporation, validly issued and is fully paid and
nonassessable; and the capital stock or other ownership
interests of each subsidiary owned by the Company, directly or
through subsidiaries, is owned free from liens, encumbrances
and defects.
(iii) The Offered Securities delivered on such
Closing Date and all other outstanding shares of the Common
Stock of the Company have been duly authorized and, when
issued and delivered to the Underwriters against payment
therefore in accordance with this Underwriting Agreement,
validly issued, fully paid and nonassessable and will conform
to the description thereof contained in the Prospectus; and
the stockholders of the Company have no preemptive rights with
respect to the Securities under the DGCL or
13
any contract filed as an exhibit or required to be filed as an
exhibit to the Registration Statement, or, to such counsel's
knowledge, any other agreement to which the Company is a party
or by which the Company is bound;
(iv) Except for the Warrant Agreement, dated as of
December 5, 2000 by and among the Company and the
Warrantholders, there are no contracts, agreements or
understandings known to such counsel between the Company and
any person granting such person the right to require the
Company to file a registration statement under the 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 Act. All rights of the Warrantholders to
require the Company to file a registration statement under the
Act or to require the Company to register securities pursuant
to the Registration Statement or in any other registration
statement filed by the Company in connection with the
Company's initial public offering have either been fully
satisfied or waived in accordance with the terms of the
Warrant Agreement and the Warrantholders do not have any other
rights to require the Company to file a registration statement
or to require the Company to register securities pursuant to
the Registration Statement or any other registration statement
filed by the Company in connection with the Company's initial
public offering;
(v) No consent, approval, authorization or order of,
or filing with, any governmental agency or body or any court
is required for the consummation of the transactions
contemplated by this Agreement in connection with the issuance
or sale of the Offered Securities by the Company, except such
as have been obtained and made under the Act and such as may
be required under state securities laws;
(vi) The execution, delivery and performance of this
Agreement and the issuance and sale of the Offered Securities
will not result in a breach or violation of any of the terms
and provisions of, or constitute a default under, any statute,
any rule, regulation or order of any governmental agency or
body or any court having jurisdiction over the Company or any
subsidiary of the Company or any of their properties of which
counsel has knowledge, or any agreement or instrument to which
the Company or any such subsidiary is a party or by which the
Company or any such subsidiary is bound or to which any of the
properties of the Company or any such subsidiary is subject
and which is filed as an exhibit or required to be filed as an
exhibit to the Registration Statement or of which such counsel
has knowledge, or the charter or by-laws of the Company or any
such subsidiary, and the Company has corporate power and
authority to authorize, issue and sell the Offered Securities
as contemplated by this Agreement;
(vii) The Initial Registration Statement was declared
effective under the Act as of the date and time specified in
such opinion, the Additional Registration Statement (if any)
was filed and became effective under the Act as of the date
and time (if determinable) specified in such opinion, the
Prospectus either was filed with the Commission pursuant to
the subparagraph of Rule 424(b) specified in such opinion on
the date specified therein or was included in the Initial
Registration Statement or the Additional Registration
Statement (as the case may be), and, to the best of the
knowledge of such counsel, no stop order suspending the
effectiveness of a Registration Statement or any part thereof
has been issued and no proceedings for that purpose have been
instituted or are pending or threatened under the Act, and
each Registration Statement and the Prospectus, and each
amendment or supplement thereto, as of their respective
effective or issue dates, complied as to form in all material
respects with the requirements of the Act and the Rules and
Regulations.
14
Such counsel shall state that, in connection with
the preparation of the Registration Statement it has
participated in conferences with officers and other
representatives of the Company, representatives of the
independent certified public accountants of the Company and
the Underwriters at which the contents of the Registration
Statement, the Prospectus and related matters were discussed
and, although such counsel has not undertaken to investigate
or verify independently, and does not assume responsibility
for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement or any amendments or
supplements thereto, no facts have come to such counsel's
attention that would lead them to believe that any part of a
Registration Statement or any amendment thereto, as of its
effective date or as of such Closing Date, contained any
untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading or that the
Prospectus or any amendment or supplement thereto, as of its
issue date or as of such Closing Date, contained any untrue
statement of a material fact or omitted to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; the descriptions in the Registration Statements
and Prospectus of contracts and other documents are accurate
and fairly present the information required to be shown; and
such counsel do not know of any contracts or documents of a
character required to be described in a Registration Statement
or the Prospectus or to be filed as exhibits to a Registration
Statement which are not described and filed as required; it
being understood that such counsel need express no opinion as
to the financial statements or other financial data contained
in the Registration Statements or the Prospectus;
(viii) The Company is not and, after giving effect to
the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as defined in
Investment Company Act of 1940;
(xix) This Agreement has been duly authorized,
executed and delivered by the Company;
(xx) The EHI Merger Resolutions and the HPI Merger
Resolutions have been duly adopted, the Reorganization Mergers
have been consummated in accordance with the provisions of
Section 253 of the DGCL, no other corporate proceedings on the
part of HPI, EHI or the Company are necessary to consummate
the Reorganization Mergers and the consummation by the
Company, EHI and HPI of the transactions contemplated by the
Reorganization Documents will not result in a breach or
violation of any of the terms and provisions of, or constitute
a default under, any statute, any rule, regulation or order of
any governmental agency or body or any court having
jurisdiction over the Company, EHI, HPI, any of their
subsidiaries or any of their properties, or any agreement or
instrument to which the Company, EHI, HPI or any of their
subsidiaries is a party or by which the Company, EHI, HPI or
any of their subsidiaries is bound or to which any of the
properties of the Company, EHI, HPI or any of their
subsidiaries is subject, or the charter or by-laws of the
Company, EHI, HPI or any of their subsidiaries
(e) The Representatives shall have received an opinion, dated
the First Closing Date, of Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP, counsel for
the Selling Stockholders, PROVIDED, THAT opinions given on behalf of
Quai, Ltd will assume Delaware law except as otherwise expressly
provided, and PROVIDED, FURTHER, THAT opinions given with respect to
the Uniform Commercial Code as in effect in the State of New York (the
"UCC") will assume that the UCC is the same as the Uniform Commercial
Code as in effect in the Commonwealth of Massachusetts, to the effect
that:
(i) The Selling Stockholders will be, immediately
prior to the Closing Date, the sole registered owners of the
Firm Securities to be sold by such Selling Stockholders as set
forth on Schedule A to the Underwriting Agreement. Upon
delivery of the Firm
15
Securities to be sold by such Selling Stockholders to the
Underwriters against payment therefore as contemplated by the
Underwriting Agreement and registration of such Firm
Securities in the names of the Underwriters in the stock
records of the Company, the Underwriters will have acquired
all right, title and interest of such Selling Stockholders in
and to such Firm Securities, free and clear of all adverse
claims. For purposes of this opinion, we have assumed that the
Underwriters will have purchased the Firm Securities for value
and without notice of any adverse claim within the meaning of
Section 8-102 of the UCC and will take possession at the
closing of the certificates representing the Firm Securities
and the instruments pursuant to which such Selling
Stockholders have assigned their respective portion of the
Firm Securities to the Underwriters. The term "adverse claim"
as used in this opinion does not include (A) any claim which
arises through the Underwriters or any person claiming through
the Underwriters (such as any security interest the
Underwriters may have granted in the Securities) and (B) any
adverse interest which would not be extinguished upon the
purchase of the Firm Securities by a person who qualifies as a
"bona fide purchaser" or "protected purchaser" under Section
8-303 of the UCC. We advise you that we have no actual
knowledge of the existence of any interest of the kind
specified in clause (B) of the preceding sentence. We have
also assumed that such Underwriters' rights are not limited by
subsection (3) of Section 8-302 of the UCC.
(ii) No consent, approval, authorization or order of,
or filing with, governmental agency or body or any court is
required to be obtained or made by any such Selling
Stockholder for the consummation of the transactions
contemplated by this Agreement in connection with the sale of
the Firm Securities sold by such Selling Stockholder, except
such as have been obtained and made under the Act and such as
may be required under state securities laws;
(iii) The execution, delivery and performance of this
Agreement by each such Selling Stockholder and the
consummation by each such Selling Stockholder of the
transactions herein contemplated will not result in a breach
or violation of any of the terms, and provisions of, or
constitute a default under, any statute, any rule, regulation
or, to the knowledge of such counsel, order of any
governmental agency or body or any court having jurisdiction
over any Selling Stockholder or any of the properties of any
Selling Stockholder that is not a natural person or, to the
knowledge of such counsel, any agreement or instrument to
which any Selling Stockholder that is not a natural person is
a party or by which any Selling Stockholder is bound or to
which any of the properties of any such Selling Stockholder
that is not a natural person is subject or the charter or
by-laws of any such Selling Stockholder which is a
corporation; and
(iv) This Agreement has been duly authorized,
executed and delivered by each Selling Stockholder.
(f) The Representatives shall have received opinions, dated
such Closing Date, of Cohen, Pontani, Xxxxxxxxx & Pavane and St. Onge,
Xxxxxxx Xxxxxxxx and Reens LLC, patent counsel for the Company, to the
effect that:
(i) The information in the Registration Statement
under "Risk Factors -Risks Related to Our Business -Patent
litigation is common, can be expensive, may delay or prevent
entry of our products into the market, and, in some cases may
result in damages" to the extent that it constitutes matters
of patent law, summaries of legal matters relating to patents,
patent documents, patent proceedings, or legal conclusions
relating to patents, has been reviewed by such counsel and is
correct in all material respects and fairly and correctly
presents the information called for with respect thereto.
(ii) The information in the Registration Statement
under "Business- Generic Pharmaceutical Industry; Our
Strategy; Product Development; Government Regulation;
16
and Legal Proceedings" to the extent that it constitutes
matters of patent law, summaries of legal matters relating to
patents, patent documents, patent proceedings, or legal
conclusions relating to patents, has been reviewed by such
counsel and is correct in all material respects and fairly and
correctly presents the information called for with respect
thereto; provided, that with respect to information provided
in "Business - Legal Proceedings", this opinion will only
cover information relating to the Novartis and Apotex
litigations.
(iii) Except as disclosed in the Registration
Statement, to the best knowledge and information of such
counsel, there are no pending or threatened legal or
governmental proceedings, nor allegations by any person, of or
relating to patent infringement, by the Company or of the
Company's patent rights and, to the best of their knowledge
and information, no such proceedings are threatened or
contemplated.
(iv) Nothing has come to the attention of such
counsel that leads them to believe that, with respect to any
proceedings or allegations against the Company that are the
subject of the foregoing opinions, the Registration Statement,
at the time it became effective, contained an untrue statement
of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus, in
light of the circumstances under which they were made, as of
its date or at the Closing Date or the Optional Closing Date,
as the case may be, included or includes an untrue statement
of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not
misleading.
(g) The Representatives shall have received an opinion, dated
such Closing Date, of Xxxxxx, Xxxxx and Xxxxx, P.C., regulatory counsel
for the Company, to the effect that:
(i) The information in the Registration Statement
under the captions "Risk Factors--Risks Related To Our
Business--We are subject to government regulation that
increases our costs and, if we are unable to obtain regulatory
approvals, it could prevent us from marketing or selling our
products; Proposed FDA regulations and recent FDA guidelines
and rules granting pediatric extensions may impair our ability
to utilize fully the 180-day generic marketing exclusivity
period for patent challenges, substantially diminishing the
value of a favorable ruling; and If brand-name manufacturers'
legislative and regulatory efforts to limit the use of
generics are successful, then our sales of products subject to
these efforts may suffer" are accurate statements or summaries
of the United States Food and Drug Administration laws and
regulations therein set forth and nothing has come to such
counsel's attention that causes them to believe that the
above-referenced portions of the Registration Statement and
the Prospectus contain any untrue statement of a material fact
or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein,
in the light of the circumstances under which they were made,
not misleading.
(ii) The information in the Registration Statement
under the captions "Business Generic Pharmaceutical Industry;
Annual Product Approvals; Government Regulation; and Legal
Proceedings" are accurate statements or summaries of the
United States Food and Drug Administration laws and
regulations therein set forth and nothing has come to such
counsel's attention that causes them to believe that the
above-referenced portions of the Registration Statement and
Prospectus contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading.
17
(iii) Except as disclosed in the Registration
Statement, there are, to the knowledge of such counsel, no
adverse legal or governmental proceedings pending relating to
products or potential products of the Company, or any such
proceedings threatened or contemplated by governmental
authorities or others.
(h) The Representatives shall have received from Skadden,
Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the Underwriters, such
opinion or opinions, dated such Closing Date, with respect to the
incorporation of the Company, the validity of the Offered Securities
being offered by the Company and delivered on such Closing Date, the
Registration Statements, the Prospectus and other related matters as
the Representatives may require, and the Selling Stockholders and the
Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(i) The Representatives shall have received a certificate,
dated such Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that: the representations and warranties of
the Company in this Agreement are true and correct; the Company has
complied with all agreements and satisfied all conditions on its part
to be performed or satisfied hereunder at or prior to such Closing
Date; no stop order suspending the effectiveness of any Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are contemplated by the Commission; the Additional
Registration Statement (if any) satisfying the requirements of
subparagraphs (1) and (3) of Rule 462(b) was filed pursuant to Rule
462(b), including payment of the applicable filing fee in accordance
with Rule 111(a) or (b) under the Act, prior to the time the Prospectus
was printed and distributed to any Underwriter; and, subsequent to the
dates of the most recent financial statements in the Prospectus, there
has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as a whole except as set forth
in or contemplated by the Prospectus or as described in such
certificate.
(j) The Representatives shall have received a certificate,
dated the First Closing Date, of an authorized officer of each Selling
Stockholder in which such officers, to the best of their knowledge
after reasonable investigation, shall state that: the representations
and warranties of such Selling Stockholder in this Agreement are true
and correct and such Selling Stockholder has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to the First Closing Date.
(k) The Representatives shall have received a letter, dated
such Closing Date, of PricewaterhouseCoopers, LLP which meets the
requirements of subsection (a) of this Section, except that the
specified date referred to in such subsection will be a date not more
than three days prior to such Closing Date for the purposes of this
subsection.
(l) On or prior to the date of this Agreement, the
Representatives shall have received lockup letters from each of the
executive officers and directors of the Company and other existing
stockholders and option holders listed on Schedule C hereto and each of
the Selling Stockholders listed on Schedule A hereto.
(m) On or prior to the date of this Agreement, the Company and
the Representatives shall have provided notice to the Warrantholders,
in accordance with the terms of Section 9(a) of the Warrant Agreement,
requesting that each Warrantholder not sell or otherwise transfer or
dispose of any of the Company's securities held by such Warrantholder
for a period of 180 days following the date of the initial public
offering.
(n) Each Selling Stockholder will deliver to CSFBC a properly
completed and executed United States Treasury Department Form W-9 (or
other applicable form or statement specified by Treasury Department
regulations in lieu thereof).
18
(o) On or prior to the First Closing Date, (i) the
Reorganization Mergers shall have been consummated, (ii) such
transactions shall continue to be in full force and effect in
accordance with the terms thereof and (iii) the Company shall have
provided to the Representatives and counsel to the Representatives
copies of all material closing documents delivered to the parties
relating to the Reorganization Documents.
The Selling Stockholders and the Company will furnish the Representatives with
such conformed copies of such opinions, certificates, letters and documents as
the Representatives reasonably requests. CSFBC may in its sole discretion waive
on behalf of the Underwriters compliance with any conditions to the obligations
of the Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below.
The Company agrees to indemnify and hold harmless the Designated
Underwriter and each person, if any, who controls the Designated Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act (the "DESIGNATED ENTITIES"), from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) (i) caused by any untrue statement or
alleged untrue statement of a material fact contained in any material prepared
by or with the consent of the Company for distribution to Participants in
connection with the Directed Share Program or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; (ii) caused by the
failure of any Participant to pay for and accept delivery of Directed Shares
that the Participant agreed to purchase; or (iii) related to, arising out of, or
in connection with the Directed Share Program, other than losses, claims,
damages or liabilities (or expenses relating thereto) that are finally
judicially determined to have resulted from the bad faith or gross negligence of
the Designated Entities.
(b) The Selling Stockholders, jointly and not severally, will indemnify
and hold harmless each Underwriter, its partners, directors and officers and
each person, if any, who controls such Underwriter within the meaning of Section
15 of the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Selling Stockholders will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based
19
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below. In no event shall the
liability of any Selling Stockholder for indemnification under this Section 7(b)
exceed the lesser of (i) the total proceeds (net of any underwriting discount)
received by such Selling Stockholder from the sale of Shares and (ii) the
proportion of the total of such losses, claims, damages or liabilities equal to
the proportion of the Shares being sold by such Selling Stockholder to the total
number of Shares being sold hereunder.
(c) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any who
controls the Company within the meaning of Section 15 of the Act, and each
Selling Stockholder and each person, if any, who controls any Selling
Stockholder within the meaning of Section 15 of the Act, against any losses,
claims, damages or liabilities to which the Company, any Selling Stockholder or
any controlling person may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any Registration Statement, the Prospectus, or
any amendment or supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred, it being understood and agreed that the only such
information furnished by any Underwriter consists of (i) the following
information in the Prospectus furnished on behalf of each Underwriter: the
concession and reallowance figures appearing in the fourth paragraph under the
caption "Underwriting" and the information contained in the sixth paragraph
under the caption "Underwriting".
(d) Promptly after receipt by an indemnified party under this Section
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a), (b) or (c) above. In case any such action
is brought against any indemnified party and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. Notwithstanding
anything contained herein to the contrary, if indemnity may be sought pursuant
to the last paragraph in Section 7 (a) hereof in respect of such action or
proceeding, then in addition to such separate firm for the indemnified parties,
the indemnifying party shall be liable for the reasonable fees and expenses of
not more than one separate firm (in addition to any local counsel) for the
Designated Underwriter for the defense of any losses, claims, damages and
liabilities arising out of the Directed Share Program, and all persons, if any,
who control the Designated Underwriter within the meaning of either Section 15
of the Act of Section 20 of the Exchange Act. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement (i) includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act by
or on behalf of an indemnified party.
20
(e) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a), (b)
or (c) above, then each indemnifying party shall contribute to the amount paid
or payable by such indemnified party as a result of the losses, claims, damages
or liabilities referred to in subsection (a), (b) or (c) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the Underwriters on the
other from the offering of the Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Selling Stockholders on
the one hand and the Underwriters on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Selling Stockholders on the one hand and the
Underwriters on the other shall be deemed to be in the same 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. The relative fault shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, the Selling
Stockholders or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. In determining, among the Selling Stockholders and the
Company, the individual amounts to be contributed to the Underwriters by each
Selling Stockholder and the Company pursuant to this Section 7(e), each Selling
Stockholder and the Company shall contribute in such proportion as is
appropriate to reflect the relative fault of the Company and each Selling
Stockholder in connection with the statements and omissions which resulted in
such losses, claims, damages or liabilities as well as any other relevant
equitable considerations, that caused contribution by the Company and the
Selling Stockholders to the Underwriters to be required under this Section 7(e);
provided, that, except as otherwise expressly provided in Section 7 hereof, in
no case will the amount to be contributed to the Underwriters pursuant to this
Section 7(e) be limited by the determination of the amounts to be contributed to
the Underwriters by each Selling Stockholder and the Company. The relative fault
of each Selling Stockholder and the Company shall be determined by reference to,
among other things, whether any such 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 such Selling Stockholder, and on each
Selling Stockholder's and the Company's intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (e) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (e). Notwithstanding the
provisions of this subsection (e), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders under
this Section shall be in addition to any liability which the Company and the
Selling Stockholders may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls any Underwriter within the
meaning of the Act; and the obligations of the Underwriters under this Section
shall be in addition to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company, to each officer of the Company who has signed a
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Act.
8. DEFAULT OF UNDERWRITERS. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are
21
obligated to purchase on such Closing Date, CSFBC may make arrangements
satisfactory to the Company and the Selling Stockholders for the purchase of
such Offered Securities by other persons, including any of the Underwriters, but
if no such arrangements are made by such Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Offered Securities that such defaulting
Underwriters agreed but failed to purchase on such Closing Date. If any
Underwriter or Underwriters so default and the aggregate number of shares of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements satisfactory to
CSFBC, the Company and the Selling Stockholders for the purchase of such Offered
Securities by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter, the Company or the Selling Stockholders, except as
provided in Section 9 (provided that if such default occurs with respect to
Optional Securities after the First Closing Date, this Agreement will not
terminate as to the Firm Securities or any Optional Securities purchased prior
to such termination). As used in this Agreement, the term "Underwriter" includes
any person substituted for an Underwriter under this Section. Nothing herein
will relieve a defaulting Underwriter from liability for its default.
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholders, the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, any Selling
Stockholders, the Company or any of their respective representatives, officers
or directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Company, the Selling Stockholders and the Underwriters
pursuant to Section 7 shall remain in effect, and if any Offered Securities have
been purchased hereunder the representations and warranties in Section 2 and all
obligations under Section 5 shall also remain in effect. If the purchase of the
Offered Securities by the Underwriters is not consummated for any reason other
than solely because of the termination of this Agreement pursuant to Section 8
or the occurrence of any event specified in clause (iii), (iv), (v), (vi) or
(vii) of Section 6(c), the Company will reimburse the Underwriters for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Offered Securities.
10. NOTICES. All communications hereunder will be in writing and:
(a) if sent to the Underwriters, will be mailed,
delivered or telegraphed and confirmed to the Representatives
c/o Credit Suisse First Boston Corporation, Eleven Madison
Avenue, New York, N.Y. 10010-3629, Attention: Transactions
Advisory Group; provided, however that any notice to an
Underwriter pursuant to Section 7 will be mailed, delivered or
telegraphed and confirmed to such Underwriter;
(b) if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at Eon Labs, Inc., 000-00
Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxx Xxxx, 00000 Attention:
Xxxxxxx Xxxxx, Ph.D.; and
(c) if sent to a Selling Stockholder, will be mailed,
delivered or telegraphed and confirmed to the address set
forth opposite such Selling Stockholder's name on Schedule A
hereto.
11. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
22
12. REPRESENTATION OF UNDERWRITERS. The Representatives will act for
the several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representatives jointly or by CSFBC will be binding
upon all the Underwriters.
13. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
23
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement among the
Selling Stockholders, Company and the several Underwriters in accordance with
its terms.
Very truly yours,
EON LABS, INC.
By
--------------------------------
Name:
Title:
CANAAN CAPITAL OFFSHORE
LIMITED PARTNERSHIP, C.V.
By
--------------------------------
Name:
Title:
CANAAN CAPITAL LIMITED
PARTNERSHIP
By
--------------------------------
Name:
Title:
QUAI, LTD.
By
--------------------------------
Name:
Title:
XXXXXXX X. XXXXX
By
--------------------------------
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first above
written.
CREDIT SUISSE FIRST BOSTON CORPORATION
By:
-----------------------------------
Name:
Title:
Acting on behalf of themselves and as the
Representatives of the several
Underwriters
By CREDIT SUISSE FIRST BOSTON CORPORATION
By
-----------------------------------
Name:
Title:
SCHEDULE A
NUMBER OF
FIRM
SECURITIES
SELLING STOCKHOLDER TO BE SOLD
------------------- ----------
Canaan Capital Limited Partnership
Canaan Capital Offshore Limited Partnership, C.V.
Quai, Ltd.
Xxxxxxx X. Xxxxx.
The address of each of the Selling Stockholders is
c/o Canaan Partners
000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Total...........................................................
-------------
=============
SCHEDULE B
NUMBER OF FIRM SECURITIES TOTAL
TO BE SOLD BY NUMBER OF
-------------------------- FIRM SECURITIES
SELLING TO BE
UNDERWRITER COMPANY STOCKHOLDER PURCHASED
----------- ------- ----------- ---------
Credit Suisse First Boston Corporation
Xxxxxxx, Sachs & Co.
Banc of America Securities LLC
CIBC World Markets Corp.
---------- ---------- ----------
Total...........................................
========== ==========
SCHEDULE C
LIST OF OFFICERS, DIRECTORS, STOCKHOLDERS AND OPTION HOLDERS
SIGNING LOCK-UP AGREEMENTS.
Santo Holding Deutschland (GmbH)
Hexal AG
Xxxxxxxx Xxxxx
Xxxxxxx X. Xxxx
Xxxxx X. Xxxxx Xxxx
Xxxxxx X. Xxxxxxxxxxxxx
Xxxxx X. Xxxxxxx
Xxxxxxx Xxxxx
Xxxxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxx
Xxxxxxx Xxxx
Siyawosh Xxxxxxxxx
Xxxxx Salmon
Xxxxx Xxxxx
Xxxxxx XxXxxxxxx
Xxxxxxxxxxx XxXxxxx
Xxxxxx Xxxxxx
Varikolathu Xxxxxxx
Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Xxxxxxx Xxxx Xxxxxxx
Xxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxx, Xx.
Xxxxxx X. Nurse
Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Xxxxxxx X. Xxxx
Xxxxxxxx Xxxx
Xxxxx X. Xxxxx
Xxxxx Xxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xxxx Xxxxx Xxxx
Xxxxxxxxxxx Xxxxxxxxx
