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EXHIBIT 1.1
Molecular Devices Corporation
1,600,000 Shares of Common Stock*
(par value $.001 per share)
UNDERWRITING AGREEMENT
New York, New York
[____], 2000
ING Barings LLC
Bear, Xxxxxxx & Co. Inc.
Xxxxxx Xxxxxx Partners LLC
Warburg Dillon Read LLC
c/o ING Barings LLC
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Each of Molecular Devices Corporation, a Delaware corporation (the
COMPANY), and the selling stockholders named in Schedule I hereto (each, a
SELLING STOCKHOLDER and, collectively, the SELLING STOCKHOLDERS) respectively
proposes, subject to the terms and conditions stated herein, severally and not
jointly, to issue or sell to the several underwriters named in Schedule II
hereto (the UNDERWRITERS) (i) in the case of such issue and sale by the Company,
(A) 1,500,000 shares (the COMPANY FIRM SHARES) of the Company's common stock,
par value $0.001 per share (the COMMON STOCK), and (B) for the sole purpose of
covering over-allotments in connection with the sale of the Firm Shares (as
defined below), at the option of the Underwriters, up to an additional 221,700
shares of Common Stock (the COMPANY OPTION SHARES), (ii) in the case of such
sale by each Selling Stockholder listed as a Firm Selling Stockholder on
Schedule I hereto (each, a FIRM SELLING STOCKHOLDER), the number of shares of
Common Stock set forth opposite the name of such Firm Selling Stockholder on
Schedule I hereto (the SELLING STOCKHOLDER FIRM SHARES and, together with the
Company Firm Shares, the FIRM SHARES) and (iii) in the case of such sale by each
Selling Stockholder listed as an Option Selling Stockholder on Schedule I hereto
(each, an OPTION SELLING STOCKHOLDER), for the sole purpose of covering
over-allotments in connection with the sale of the Firm Shares, at the option of
the Underwriters, up to the number
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* Plus the option to purchase up to an additional 240,000 shares of Common
Stock to cover over-allotments described herein.
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of shares of Common Stock set forth opposite the name of such Option Selling
Stockholder on Schedule I hereto (the SELLING STOCKHOLDER OPTION SHARES and,
together with the Company Option Shares, the OPTION SHARES). The aggregate
number of Selling Stockholder Firm Shares is 100,000, and the aggregate number
of Selling Stockholder Option Shares is 18,300. The Option Shares and the Firm
Shares are sometimes referred to herein collectively as the SHARES.
1. Representations and Warranties of the Company. The Company represents
and warrants to and agrees with each of the Underwriters that:
(a) The Company has prepared and filed with the Securities and
Exchange Commission (the COMMISSION) a registration statement on Form S-3 (No.
333-32734), for the registration of the Shares under the Securities Act of 1933,
as amended (the 1933 ACT). Such registration statement, including the
prospectus, financial statements and schedules, exhibits and all other documents
filed as a part thereof, as amended through the time of effectiveness of such
registration statement, and the documents filed by the Company with the
Commission under the Securities Exchange Act of 1934, as amended (the 1934 ACT),
that are or are deemed to be incorporated by reference in the Prospectus (as
defined below) pursuant to Item 12 of Form S-3 under the 1933 Act (the
INCORPORATED DOCUMENTS) and any information deemed to be a part thereof as of
the time of such effectiveness pursuant to Rule 430A or Rule 434 of the rules
and regulations of the Commission under the 1933 Act (the 1933 ACT REGULATIONS),
is herein called the REGISTRATION STATEMENT. Any registration statement filed by
the Company pursuant to Rule 462(b) of the 1933 Act Regulations is herein called
the RULE 462(b) REGISTRATION STATEMENT, and from and after the date and time of
filing of the Rule 462(b) Registration Statement, the term REGISTRATION
STATEMENT as used herein includes the Rule 462(b) Registration Statement. The
prospectus, in the form first filed with the Commission pursuant to Rule 424(b)
of the 1933 Act Regulations or filed as part of the Registration Statement at
the time of effectiveness if no filing under Rule 424(b) or Rule 434 of the 1933
Act Regulations is required, including in either case the Incorporated Documents
at the time thereof, is herein called the PROSPECTUS. The term PRELIMINARY
PROSPECTUS as used herein means a preliminary prospectus included in the
Registration Statement at the time it is declared effective as described in Rule
430A of the 1933 Act Regulations, including the Incorporated Documents at such
time. Notwithstanding the foregoing, if the Company has, with the consent of ING
Barings LLC (ING BARINGS), elected to rely upon Rule 434 of the 1933 Act
Regulations, the term PRELIMINARY PROSPECTUS as used herein means the Company's
prospectus subject to completion dated [_____], 2000, including the Incorporated
Documents as of such date, and the term PROSPECTUS as used herein means such
preliminary prospectus, together with the applicable term sheet (the TERM SHEET)
prepared and filed by the Company with the Commission under Rules 434 and 424(b)
of the 1933 Act Regulations, and all references in this Agreement to the date of
the Prospectus shall mean the date of the Term Sheet. All references in this
Agreement to the Registration Statement, the Rule 462(b) Registration Statement,
any preliminary prospectus, the Prospectus or the Term Sheet, or any amendments
or supplements to any of the foregoing, shall include any copy thereof filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval System (XXXXX). For purposes of this Agreement, the words AMEND or
AMENDMENT or SUPPLEMENT or SUPPLEMENTED with respect to the Registration
Statement or the Prospectus means amendments or supplements to the Registration
Statement or the Prospectus, as well as Incorporated Documents filed after the
date of effectiveness of the Registration Statement or the filing of the
Prospectus under Rule 424(b) or Rule 434 of the 1933 Act Regulations, as the
case may be.
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(b) Each preliminary prospectus and the Prospectus, if filed by
electronic transmission pursuant to XXXXX (except as may be permitted by
Regulation S-T under the 1933 Act), was identical to the copy thereof delivered
to the Underwriters for use in connection with the offer and sale of the Shares.
At the time of the effectiveness of the Registration Statement or the
effectiveness of any Rule 462(b) Registration Statement and any post-effective
amendment thereto, when the Prospectus is first filed with the Commission
pursuant to Rule 424(b) or Rule 434 of the 1933 Act Regulations, when any
supplement to or amendment of the Prospectus is filed with the Commission and at
the Closing Date and the Additional Closing Date (each as defined in Section 3
hereof), as applicable, (i) the Registration Statement and the Prospectus and
any amendments thereof and supplements thereto complied (and, in the event of
any of the aforementioned filings that may occur in the future, will, at the
time of each such filing, comply) with the applicable provisions of the 1933 Act
and the 1933 Act Regulations, did not and will not contain an untrue statement
of a material fact and did not and will not omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading and (ii) each Incorporated Document as originally filed
complied as to form when so filed in all material respects with the applicable
requirements of the 1934 Act and the 1934 Act Regulations. When any related
preliminary prospectus was first filed with the Commission (whether filed as
part of the Registration Statement for the registration of the Shares or any
amendment thereto or pursuant to Rule 424(a) of the 1933 Act Regulations) and
when any amendment thereof or supplement thereto was first filed with the
Commission, such preliminary prospectus and any amendments thereof and
supplements thereto complied with the applicable provisions of the 1933 Act and
the 1933 Act Regulations and did not contain an untrue statement of a material
fact and did not omit to state any material fact required to be stated therein
or necessary in order to make the statements therein not misleading. No
representation and warranty is made in this Section 1(b), however, with respect
to the statements set forth in the first (including the table), third, seventh,
eighth and twelfth paragraphs under "Underwriting" in, and the last paragraph on
the cover page of, the Prospectus (the UNDERWRITING INFORMATION). If Rule 434 of
the 1933 Act Regulations is used, the Company will comply with the requirements
thereof. The Commission has not issued any stop order suspending the
effectiveness of the Registration Statement or any order preventing or
suspending the use of the Prospectus or any preliminary prospectus or, to the
knowledge of the Company, instituted proceedings for that purpose.
(c) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with full
corporate power and authority to own, lease and operate its properties and
engage in the business in which it is engaged or in which it proposes to engage
as described in the Registration Statement, each preliminary prospectus and the
Prospectus. The Company is duly registered and qualified to do business as a
foreign corporation in good standing in each jurisdiction where the character,
location, ownership or leasing of its properties (owned, leased or licensed) or
the nature or conduct of its business requires such registration or
qualification, except where the failure to be so qualified would not,
individually or in the aggregate, result in a material adverse effect on or
affecting the business, operations, assets, properties, condition (financial or
other), stockholders' equity, prospects or results of operations of the Company
and its subsidiaries taken as a whole (a MATERIAL ADVERSE EFFECT).
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(d) The Company has no subsidiaries (as defined in the 1933 Act
Regulations), other than Skatron Instruments, AS, Molecular Devices Limited,
Molecular Devices FSC, Inc. and Molecular Devices GmbH (each, a SUBSIDIARY and,
collectively, the SUBSIDIARIES), each of which is a wholly-owned subsidiary of
the Company. The Company does not own or control, directly or indirectly, any
shares of stock or any other equity or long-term debt securities of any
corporation or have any equity interest in any firm, partnership, joint venture,
association, or other entity other than the Subsidiaries, except for the
Company's security holdings in JCR Pharmaceuticals Co., Ltd. All the outstanding
share capital of each Subsidiary has been duly and validly authorized and issued
and is fully paid and nonassessable, is owned solely by the Company and is free
and clear of any security interest, pledge, claim (legal or equitable), lien,
charge, equity, mortgage, encumbrance or other restriction (each, a LIEN),
shareholders' agreements, voting trusts or defects of title. Each Subsidiary has
been duly organized and is validly existing as a corporation in good standing
under the laws of its jurisdiction of organization, with full power and
authority to own, lease and operate its properties and conduct the business in
which it is engaged or in which it proposes to engage. Each Subsidiary is duly
registered and qualified as a foreign corporation in good standing in each
jurisdiction where the character, location, ownership or leasing of its
properties or the nature or conduct of its business requires such registration
or qualification, except where the failure to be so qualified would not have a
Material Adverse Effect. No Subsidiary is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on its share capital, from repaying to the Company any loans or
advances to it from the Company or from transferring any of its property or
assets to the Company or any other subsidiary of the Company.
(e) Ernst & Young LLP, the accountants who have expressed their
opinion with respect to the consolidated financial statements (including the
related notes and supporting schedules) of the Company and the Subsidiaries
filed with the Commission as a part of the Registration Statement, each
preliminary prospectus and the Prospectus, are, with respect to the Company and
the Subsidiaries, independent public accountants as required by the 1933 Act and
the 1933 Act Regulations and the 1934 Act and the rules and regulations of the
Commission under the 1934 Act (the 1934 ACT REGULATIONS).
(f) As of the date hereof, the Company has an authorized
capitalization as set forth in the Registration Statement, each preliminary
prospectus and the Prospectus and there has been no material change in its
capitalization since that date. All outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid and
nonassessable, have been issued in compliance with all federal and state
securities laws and were not issued in violation of any preemptive right, resale
right, right of first refusal or similar right. The authorized and outstanding
capital stock of the Company conforms to the description thereof contained in
the Registration Statement, each preliminary prospectus and the Prospectus (and
such description correctly states the substance of the provisions of the
instruments defining the capital stock of the Company). Except as described in
the Registration Statement, each preliminary prospectus and the Prospectus,
there are no authorized or outstanding rights (including, without limitation,
preemptive rights, co-sale rights, resale rights, rights of first refusal or
similar rights), warrants or options to acquire, or instruments convertible into
or exercisable or exchangeable for, any share of capital stock or other equity
interest or ownership interest in the Company or any Subsidiary or any contract,
commitment, agreement,
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understanding or arrangement of any kind relating to the issuance of any capital
stock or other equity interest or ownership interest in the Company or any
Subsidiary or any such convertible or exercisable or exchangeable securities or
instruments or any such rights, warrants or options, except for any such rights
that have been effectively waived in writing so as not to be exercisable in
connection with the registration, offer or sale of the Shares. The Shares to be
issued pursuant to this Agreement will not be issued in violation of any
preemptive right, co-sale right, resale right, right of first refusal or similar
right. The description of the Company's stock option, stock bonus and other
stock plans or arrangements, and the options or other rights granted thereunder,
set forth in the Registration Statement, each preliminary prospectus and the
Prospectus accurately and fairly presents in all material respects the
information required to be shown with respect to such plans, arrangements,
options and rights. The Shares have been duly authorized for issuance and, when
issued and delivered to and paid for by the Underwriters pursuant to this
Agreement, will be validly issued, fully paid and nonassessable, good title to
the Shares will be transferred to the Underwriters free and clear of any Liens
and the certificates representing the Shares will be in valid and sufficient
form.
(g) There is (i) no action, suit or proceeding or, to the knowledge
of the Company, investigation, before or by any court, arbitrator or
governmental agency, body or official, domestic or foreign, pending or, to the
knowledge of the Company, threatened or contemplated, as to which the Company or
any Subsidiary is (or, to the extent threatened or contemplated, will be) a
party or as to which the business, assets or property of the Company or any
Subsidiary (or, to the extent threatened or contemplated, will be) subject, (ii)
no statute, rule, regulation or order that has been enacted, adopted or issued
by any governmental agency, body or official, and (iii) no injunction,
restraining order or order of any nature that has been issued by a federal or
state court or foreign court of competent jurisdiction to which the Company or
any Subsidiary is or will be subject or affecting the business, assets or
property of the Company or any Subsidiary, that could reasonably be expected to
(in the case of clauses (i), (ii) and (iii) above), individually or in the
aggregate, whether or not arising from transactions in the ordinary course of
business, have a Material Adverse Effect, be required to be disclosed in the
Registration Statement, each preliminary prospectus or the Prospectus or
materially and adversely affect the ability of the Company to perform its
obligations under this Agreement. There are no legal or administrative
proceedings, Contracts (as defined in Section 1(l) hereof) or documents
concerning the Company or any Subsidiary of a character that would be required
to be described in or filed as an exhibit to a registration statement on Form
S-3 under the 1933 Act that are not described or filed, as required, in the
Registration Statement, each preliminary prospectus and the Prospectus.
(h) The consolidated financial statements of the Company and the
Subsidiaries, together with the related notes thereto, incorporated by reference
in the Registration Statement, each preliminary prospectus and the Prospectus,
present fairly the consolidated financial position and the consolidated results
of operations, changes in stockholders' equity and changes in cash flows of the
Company and the Subsidiaries as of the respective dates and for the respective
periods specified therein. All of such financial statements and related notes
have been prepared in conformity with generally accepted accounting principles
as applied in the United States applied on a consistent basis throughout the
periods involved and comply as to form in all material respects with the
applicable accounting requirements included in Regulation S-X under the 1933 Act
and the 1934 Act (REGULATION S-X). The supporting schedules and tables included
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or incorporated by reference in the Registration Statement, each preliminary
prospectus and the Prospectus, and the financial data set forth under
"Prospectus Summary--Summary Consolidated Financial Data" and "Selected
Consolidated Financial Data" in the Prospectus and each preliminary prospectus,
fairly present the information purported to be shown thereby at the respective
dates thereof and for the respective periods covered thereby and have been
presented on a basis consistent with that of the audited financial statements
therein. No other financial statements or supporting schedules are required by
the 1933 Act or the 1933 Act Regulations or the 1934 Act or the 1934 Act
Regulations (including Regulation S-X) to be included therein.
(i) Subsequent to the respective dates as of which information is
given in the Registration Statement, each preliminary prospectus and the
Prospectus, there has not been (i) any loss or adverse change, or any
development that could reasonably be expected to result in a loss or adverse
change in or affecting the business, properties, management, assets, prospects,
stockholders' equity, operations, condition (financial or other), or results of
operations of the Company and its Subsidiaries taken as a whole, (ii) any
transaction entered into by the Company or any Subsidiary, except transactions
in the ordinary course of business, (iii) any obligation, direct or contingent,
incurred by the Company or any Subsidiary that is material to the Company and
the Subsidiaries taken as a whole, except for liabilities or obligations that
are reflected in the Registration Statement, the preliminary prospectus and the
Prospectus, (iv) any change in the capital stock or outstanding indebtedness of
the Company or (v) any dividend or distribution of any kind declared, paid or
made on the capital stock of the Company, which in any case described in clause
(i), )(ii), (iii), (iv) or (v) above, could reasonably be expected to,
individually or in the aggregate, have a Material Adverse Effect or materially
and adversely affect the ability of the Company to perform its obligations under
this Agreement.
(j) The Company and the Subsidiaries have good and marketable title
to all properties and assets described in the Registration Statement, each
preliminary prospectus and the Prospectus as being owned by them, free and clear
of all Liens except Liens for taxes not yet due and payable. The Company and the
Subsidiaries have valid and enforceable leases for the properties leased by
them, the Company and the Subsidiaries enjoy peaceful and undisturbed possession
under all such leases with such exceptions as do not materially interfere with
the use thereof made by the Company and the Subsidiaries, and such leases
conform in all material respects to the descriptions thereof set forth in the
Registration Statement, each preliminary prospectus and the Prospectus. The
Company and the Subsidiaries own, lease or otherwise have rights to use all
properties and assets as are important to their respective operations as now
conducted and as proposed to be conducted.
(k) The Company and the Subsidiaries have all requisite corporate
power and authority, and all licenses, certificates, approvals, consents,
concessions, qualifications, orders, registrations, authorizations and permits
from all federal, state, foreign and other governmental and regulatory agencies,
bodies and authorities (collectively, PERMITS) that are material to and
necessary for the conduct of the business of the Company and the Subsidiaries as
such business is currently conducted. The Company reasonably believes that it
will be able to obtain Permits that are material to and necessary for the
conduct of the business of the Company and the Subsidiaries as such business is
proposed to be conducted as described in the Registration Statement, each
preliminary prospectus and the Prospectus. All such Permits are valid and in
full force and effect and there is no proceeding pending or, to the best
knowledge of the Company,
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threatened, that could reasonably be expected to cause any such Permit to be
withdrawn, canceled, suspended or not renewed. The Company and the Subsidiaries
are not in violation of, or in default under, and have fulfilled and performed
all their obligations with respect to, such Permits, except as would not have a
Material Adverse Effect. No event has occurred that allows or would allow
revocation or termination of any such Permit or result in any material
impairment of the rights of the holder of any such Permit. The Contracts to
which the Company or any Subsidiary is a party are valid and binding agreements,
enforceable against the Company and such Subsidiary in accordance with their
terms and, to the best of the Company's knowledge, the other contracting party
or parties thereto are not in breach or default under any of such Contracts.
(l) The Company and each Subsidiary are not (i) in violation of
their respective certificates or articles of incorporation, as amended, or
bylaws, as amended, or (ii) in breach of or default in the performance or
observance of any obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, franchise, joint venture, deed of
trust, bond, note, lease, Permit or other agreement or instrument to which the
Company or such Subsidiary is a party or by which the Company or such Subsidiary
may be bound or to which any of the property or assets of the Company or such
Subsidiary is subject (each, a CONTRACT), or in violation of any law, order,
rule, regulation, writ, injunction or decree of any court or governmental
agency, body or authority, except in the case of this clause (ii) for such
breaches, defaults or violations that could not reasonably be expected to,
individually or in the aggregate, have a Material Adverse Effect or materially
and adversely affect the ability of the Company to perform its obligations under
this Agreement.
(m) The Company and the Subsidiaries own, possess, license or have
rights to use all patents, patent applications, trademarks, trademark
applications, service marks, service xxxx applications, tradenames, inventions,
discoveries, concepts, ideas, techniques, methods, source codes, object codes,
copyrights, manufacturing processes, formulas, computer software, databases,
works of authorship, technology, trade secrets, know-how and other unpatented or
unpatentable proprietary or confidential information, collaborative research
agreements, systems or procedures and material intangible property and assets
(collectively, INTELLECTUAL PROPERTY) necessary to the conduct of their business
as currently conducted and as proposed to be conducted. The Company reasonably
believes that the Company and the Subsidiaries will be able to own or possess
adequate licenses or other rights to use all Intellectual Property necessary to
the conduct of their business as proposed to be conducted as described in the
Registration Statement. The Registration Statement, each preliminary prospectus
and the Prospectus fairly and accurately describe the Company's rights with
respect to Intellectual Property. Neither the Company nor any Subsidiary has
received any notice of, and otherwise has no knowledge of, any infringement of
or conflict with asserted rights or claims of others with respect to any
Intellectual Property and the Company is unaware of any fact that could form a
reasonable basis for any such claim.
(n) Rights that any other party may have in the Patent Rights (as
defined in Schedule 1(n) hereto) will not have a Material Adverse Effect or
materially and adversely affect the ability of the Company to perform its
obligations under this Agreement. There are no outstanding licenses or other
agreements that relate to or restrict the Company's use of the Patent Rights in
a manner that could reasonably be expected to have a Material Adverse Effect. No
Patent has been or is now involved in any interference, reissue, reexamination
or opposition
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proceeding in the United States Patent and Trademark Office. To the knowledge of
the Company, there is no patent or patent application of any person that
conflicts in any material respect with any Patent or invalidates any claim the
Company has in any Patent or Patent application. With regard to the Patent
Rights, the Company has no knowledge of any unpaid maintenance fees, any patents
that have lapsed or any abandonment of applications, except as set forth on
Schedule 1(n) hereto, and knows of no reason why any patent applications should
not be allowed. There are no claims, actions or proceedings, pending or to the
Company's best knowledge, threatened, challenging the validity of any of its
claims in any of the Intellectual Property. To the knowledge of the Company,
there is no prior art that may render any Patent Right invalid or a Patent
Application (as defined in Schedule 1(n) hereto) unpatentable.
(o) The Company is the sole and exclusive owner of all right, title
and interest in the registered trademarks and service marks listed on Schedule
1(n) hereto (collectively, REGISTERED MARKS). The Company has applied for the
United States trademarks and service marks listed on Schedule 1(n) hereto
(collectively, APPLIED MARKS). The Company has not allowed any Applied Marks or
Registered Marks to be abandoned or canceled or to lapse, except as set forth on
Schedule 1(n) hereto. The Company has no knowledge of any claims, actions or
proceedings, pending or threatened, challenging the validity of any of the
Registered Marks or the registration of any Applied Marks. The Company has no
knowledge of the existence of trademarks or service marks, or trademark or
service xxxx applications, owned by third parties that may have, individually or
in the aggregate, a Material Adverse Effect or materially and adversely affect
the ability of the Company to perform its obligations under this Agreement. The
Company has registered with Network Solutions, Inc. the Internet domain name
"xxx.xxxxxx.xxx." The Company has no knowledge of a registered trademark held by
a third party that may be used to prevent the Company from using such domain
name. The Company has taken all reasonable steps to secure, protect and maintain
such domain name and the Registered Marks and Applied Marks listed on Schedule
1(n) hereto.
(p) The Software (as defined below) owned or purported to be owned
by the Company or any Subsidiary was either (i) developed by employees of the
Company or such Subsidiary within the scope of their employment, (ii) developed
by independent contractors who have assigned their rights to the Company or such
Subsidiary pursuant to written agreements or (iii) otherwise lawfully acquired
by the Company or such Subsidiary from a third party pursuant to a Contract. The
Software does not contain any programming code, documentation or other materials
or development environments that embody Intellectual Property rights of any
person other than the Company except for such materials or development
environments obtained by the Company or the Subsidiaries from other persons who
make such materials or development environments generally available on
non-discriminatory commercial terms. The term SOFTWARE as used herein means any
and all (A) computer programs, including any and all software implementations of
algorithms, models and methodologies, whether in source code or object code, (B)
databases and compilations, including any and all data and collections of data,
whether machine readable or otherwise, (C) descriptions, schematics, flow-charts
and other work product used to design, plan, organize and develop any of the
foregoing and (D) all documentation, including user manuals and training
materials, relating to any of the foregoing.
(q) The Company and the Subsidiaries have filed on a timely basis
with the appropriate taxing authorities (or have received an extension for
filing with respect to) all
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necessary federal, state and foreign income and franchise tax returns, reports
and other information required to be filed by them. Each such tax return, report
or other information was, when filed, accurate and complete in all material
respects. The Company and the Subsidiaries have duly paid, or have made adequate
charges, accruals and reserves in the financial statements for, all such taxes
required to be paid by them and any other assessment, fine or penalty levied
against them, for all periods as to which the tax liability of the Company or
the Subsidiaries has not been finally determined. No tax deficiency has been or,
to the best of the Company's knowledge, might be asserted or contemplated
against the Company or any Subsidiary.
(r) The Company and the Subsidiaries are insured by recognized,
financially sound and reputable institutions with policies in such amounts and
with such deductibles and covering such risks as are generally deemed adequate
and customary for their business, including, without limitation, policies
covering real and personal property owned or leased by the Company and the
Subsidiaries against theft, damage, destruction, acts of vandalism and
earthquakes, general liability and directors and officers liability, all of
which insurance is in full force and effect. The Company has no reason to
believe that it or the Subsidiaries will not be able to (i) renew its existing
insurance coverage as and when such policies expire or (ii) obtain comparable
coverage from similar institutions as may be necessary or appropriate to conduct
its business as now conducted and at a cost that would not result in a Material
Adverse Effect or materially and adversely affect the ability of the Company to
perform its obligations under this Agreement. Neither of the Company nor any
Subsidiary has been denied any insurance coverage that it has sought or for
which it has applied.
(s) Neither the Company nor any Subsidiary is involved in any labor
dispute, disturbance, lockout, slowdown or stoppage of employees, and, to the
knowledge of the Company, no such dispute or disturbance is threatened or
imminent. The Company is not aware of any existing or imminent labor disturbance
by the employees of any of its principal suppliers, subassemblers, value added
resellers, subcontractors, original equipment manufacturers, authorized dealers
or international distributors that could reasonably be expected to result in a
Material Adverse Effect or materially and adversely affect the ability of the
Company to perform its obligations under this Agreement.
(t) In the ordinary course of its business, the Company periodically
reviews the effect of Environmental Laws (as defined below) on the business,
operations and properties of the Company and the Subsidiaries, in the course of
which it identifies and evaluates associated costs and liabilities (including,
without limitation, any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws, or any Permit, any
related constraints on operating activities and any potential liabilities to
third parties). On the basis of such review, the Company and the Subsidiaries
(i) are in compliance in all material respects with all applicable foreign,
United States federal, state and local environmental laws, rules, regulations,
treaties, statutes and codes relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes, pollutants
or contaminants (ENVIRONMENTAL LAWS), (ii) have received all Permits required of
them under applicable Environmental Laws to conduct their business as currently
conducted, (iii) are in compliance in all material respects with all terms and
conditions of any such Permit and (iv) have not received notice of any actual or
potential liability for the investigation or remediation of any disposal or
release of hazardous or toxic substances or wastes, pollutants or contaminants.
No action,
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proceeding, revocation proceeding, writ, injunction or claim is pending or, to
the knowledge of the Company, threatened, relating to the Environmental Laws or
to the Company's or the Subsidiaries' activities involving Hazardous Materials.
HAZARDOUS MATERIALS means any material or substance (A) that is prohibited or
regulated by any Environmental Law or (B) that has been designated or regulated
by any governmental body or authority as radioactive, toxic, hazardous or
otherwise a danger to health, reproduction or the environment. Neither the
Company nor any Subsidiary has been named as a "potentially responsible party"
under the Comprehensive Environmental Response, Compensation and Liability Act
of 1980, as amended.
(u) Neither the Company nor any Subsidiary has engaged in the
generation, use, manufacture, transportation or storage of any Hazardous
Materials on any of the Company's or any Subsidiary's properties or former
properties, except in compliance in all material respects with all applicable
Environmental Laws. No Hazardous Materials have been treated or disposed of on
any of the Company's or the Subsidiaries' properties or on properties formerly
owned or leased by the Company or the Subsidiaries during the time of such
ownership or lease, except in compliance with Environmental Laws.
(v) No payments or inducements have been made or given, directly or
indirectly, to any federal or local official or candidate for any federal or
state office in the United States or foreign offices by the Company or any
Subsidiary, by any of their officers, directors, employees or agents or, to the
knowledge of the Company, by any other person in connection with any
opportunity, Contract, Permit, certificate, consent, order, approval, waiver or
other authorization relating to the business of the Company or the Subsidiaries,
except for such payments or inducements as were lawful under applicable written
laws, rules and regulations. Neither the Company nor any Subsidiary, nor any
director, officer, agent, employee or, to the knowledge of the Company, other
person associated with or acting on behalf of the Company or the Subsidiaries,
(i) has used any corporate funds for any unlawful contribution, gift,
entertainment or other unlawful expense relating to political activity; (ii)
made any direct or indirect unlawful payment to any government official or
employee from corporate funds; (iii) violated or is in violation of any
provision of the Foreign Corrupt Practices Act of 1977; or (iv) made any bribe,
unlawful rebate, payoff, influence payment, kickback or other unlawful payment
in connection with the business of the Company or the Subsidiaries.
(w) Neither the Company nor any Subsidiary has any liability for any
prohibited transaction (within the meaning of Section 4975(c) of the Internal
Revenue Code of 1986, as amended (the CODE), or Part 4 of Title I of the
Employee Retirement Income Security Act of 1974, as amended (ERISA)) (or an
accumulated funding deficiency within the meaning of Section 412 of the Code or
Section 302 of ERISA), or any complete or partial withdrawal liability (within
the meaning of Section 4201 of ERISA), with respect to any pension, profit
sharing or other plan that is subject to ERISA, to which the Company and any
Subsidiary make or ever have made a contribution and in which any employee of
the Company and any Subsidiary is or has ever been a participant. With respect
to such plans, the Company and such Subsidiary are in compliance in all material
respects with all applicable provisions of ERISA.
(x) The Company and the Subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or specific
authorization, (ii) transactions are
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appropriately recorded to permit preparation of financial statements in
conformity with United States generally accepted accounting principles and to
maintain accountability for assets, (iii) access to assets is permitted only in
accordance with management's general or specific authorization, (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences and (v) assets are properly accounted for and safeguarded against
loss from unauthorized use. The Company has not received from its independent
public accountants a letter describing, or been informed by them of, a
substantial or material deficiency in the Company's internal accounting controls
in connection with their audit of the Company's financial statements
incorporated by reference in the Registration Statement, each preliminary
prospectus and the Prospectus.
(y) There are no outstanding loans, advances (except normal advances
for business expenses in the ordinary course of business) or guarantees of
indebtedness by the Company or any Subsidiary to or for the benefit of any of
the officers or directors or shareholders of the Company or any Subsidiary or
any of the members of the families of any of them, except as disclosed in the
Registration Statement, each preliminary prospectus and the Prospectus.
(z) No consent, approval, registration, authorization, filing,
qualification, Permit or order of or with any court or supervisory, regulatory,
administrative or governmental agency, body or authority, arbitrator or others
(including securityholders) is required in connection with the execution and
delivery of this Agreement, the issuance, sale or delivery of the Shares to be
issued, sold and delivered by the Company hereunder, or the consummation of any
other of the transactions contemplated herein or the fulfillment of the terms
hereof, except the registration under the 1933 Act of the Shares and such
consents, approvals, registrations, authorizations, filings, qualifications,
Permits or orders as may be required under the state securities or "blue sky"
laws or the bylaws and rules of the National Association of Securities Dealers,
Inc. (the NASD) or as have been obtained and that are in full force and effect
in connection with the offer, purchase and distribution by the Underwriters of
the Shares.
(aa) The execution, delivery and performance by the Company of this
Agreement and the issuance and sale of the Shares and the consummation of the
transactions contemplated herein have been duly authorized by all necessary
corporate action. Neither the issuance, offer, sale or delivery of the Shares,
the execution, delivery and performance by the Company of this Agreement nor the
compliance by the Company with all the provisions hereof nor the consummation of
the transactions contemplated hereby (i) conflicts with or will conflict with,
or constitutes or will constitute a breach or violation of or a default under
(or an event that, with notice or lapse of time or both, would constitute such a
breach, violation or default), or results in or will result in the imposition of
a Lien upon any property or assets of the Company or any Subsidiary under any of
the terms or provisions of the certificate of incorporation or by-laws or other
organizational or constitutive documents of the Company or any Subsidiary, (ii)
conflicts with or will conflict with or constitutes or will constitute a breach
or violation of, or a default under (or an event that with notice or the lapse
of time or both would constitute a default) or the loss of any material benefit
under, or the termination of, or results in or will result in the creation or
imposition of any Lien upon any property or assets of the Company or any
Subsidiary pursuant to, any Contract or (iii) violates or conflicts with or will
violate or conflict with any law, statute, rule or regulation applicable to the
Company or any Subsidiary or any
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judgment, decree or order applicable to the Company or any Subsidiary of any
court or supervisory, regulatory, administrative or governmental agency, body or
authority, or arbitrator having jurisdiction over the Company or any Subsidiary
or any of their respective properties or assets.
(bb) The Company has full corporate power and authority to enter
into this Agreement and to perform the transactions contemplated hereby. This
Agreement and the transactions contemplated herein have been duly and validly
authorized, executed and delivered by the Company and this Agreement constitutes
the legal, valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except as the enforceability thereof may
be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium
or other laws now or hereafter in effect relating to or affecting creditors'
rights generally and (ii) general principles of equity (regardless of whether
such enforcement is considered in a proceeding in equity or at law) and except
to the extent that the provisions of Section 7 hereof may be limited by
applicable federal or state securities laws or unenforceable as against public
policy.
(cc) The Company has duly and validly authorized the issuance and
sale of the Shares. The description of the Shares in the Registration Statement,
each preliminary prospectus and the Prospectus is accurate in all material
respects.
(dd) The Company is not now, and as a result of the offer and sale
of the Shares in the manner contemplated in this Agreement, the Registration
Statement, each preliminary prospectus and the Prospectus and the application of
the net proceeds of such sale as described in under "Use of Proceeds" in the
Prospectus and each preliminary prospectus will not be, an "investment company"
or an "affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended (the INVESTMENT COMPANY ACT), without taking account of any exemption
arising out of the number or type of holders of the Company's securities.
(ee) The Company has not incurred any liability for a fee,
commission or other compensation on account of the employment of a broker or
finder in connection with the transactions contemplated by this Agreement other
than the discount contemplated hereby.
(ff) Neither the Company nor any Subsidiary nor, to the Company's
best knowledge, any of its or their officers, directors or affiliates (as
defined in Rule 501(b) of the 1933 Act Regulations) has taken or will take,
directly or indirectly, any action designed to cause or to result in or that has
constituted, or might reasonably be expected to cause or result in or
constitute, under the 1934 Act or otherwise, the stabilization or manipulation
of the price of any security of the Company to facilitate the sale or resale of
the Shares.
(gg) The Company has not distributed and will not distribute, prior
to the later of (i) the Additional Closing Date, if applicable, and (ii) the
completion of the distribution of the Shares by the Underwriters and dealers,
any offering material (including, without limitation, content on its website, if
any, that may be deemed to be offering material) in connection with the offering
and sale of the Shares other than any preliminary prospectus and the Prospectus.
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(hh) There are no holders of securities of the Company that by
reason of the filing of the Registration Statement or otherwise in connection
with the sale of the Shares contemplated hereby have the right to request or
demand that the Company register under the 1933 Act any of their securities in
connection with the Registration Statement, except for any such rights that have
been effectively waived in writing so as not to be exercisable in connection
with the registration, offer or sale of the Shares.
(ii) There is no tax, duty, levy, impost, deduction, charge or
withholding imposed by any political subdivision or taxing authority by virtue
of the execution, delivery, performance or enforcement, or to ensure the
legality, validity or admissibility into evidence, of this Agreement, and
neither is it necessary that the Shares be submitted to, or filed or recorded
with, any court or other authority to ensure such legality, validity,
enforceability or admissibility into evidence. There are no transfer taxes or
other similar fees or charges under federal law or the laws of any state, or any
political subdivision thereof, required to be paid in connection with the
execution and delivery of this Agreement or the issuance and sale by the Company
of the Shares.
(jj) All necessary actions, authorizations, conditions and things
reasonably required to be taken, given, fulfilled and done by the Company and
the Subsidiaries on or prior to the date of this Agreement, have been, or on the
Closing Date or the Additional Closing Date, if applicable, will have been
taken, given, fulfilled and done in connection with (i) the issue of the
Prospectus, (ii) the execution and delivery of this Agreement, (iii) the
execution, delivery and issuance of the Shares, (iv) the compliance with all
provisions of this Agreement to be performed or complied with by such date and
(v) the right of any holders of securities of the Company to request or demand
that the Company register under the 1933 Act any of their securities in
connection with the Registration Statement.
(kk) There are no issues related to the Company's or any
Subsidiary's preparedness for or reaction to the Year 2000 that (i) are of a
character required to be described or referred to in the Registration Statement,
each preliminary prospectus or the Prospectus that have not been accurately
described therein or (ii) could result in any Material Adverse Effect or might
materially adversely affect their properties, assets or rights. The Company and
the Subsidiaries have inquired of all their material vendors as to their
preparedness for the Year 2000 and the Company has disclosed in the Registration
Statement, each preliminary prospectus and the Prospectus any issues that could
result in a Material Adverse Effect or adversely affect the ability of the
Company to perform its obligations under this Agreement or be otherwise
important in the context of the sale of the Shares.
(ll) The Common Stock is registered pursuant to Section 12(g) of the
1934 Act and is quoted on the Nasdaq National Market, and the Company has taken
no action designed to, or likely to have the effect of, terminating the
registration of the Common Stock under the 1934 Act or delisting the Common
Stock from the Nasdaq National Market, nor has the Company received any
notification that the Commission or the Nasdaq National Market is contemplating
terminating such registration or listing.
(mm) The Company has timely and properly filed with the Commission
all reports and other documents required to have been filed by it with the
Commission pursuant to the 1933 Act or the 1933 Act Regulations or the 1934 Act
or the 1934 Act Regulations. True and
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complete copies of all such reports and other documents have been delivered to
the Underwriters or counsel for the Underwriters.
(nn) Except as described in the Registration Statement, any
preliminary prospectus and the Prospectus, and except in connection with
exercises of outstanding options to acquire not more than [_____] shares of
Common Stock, the Company has not sold or issued any shares of capital stock
within the six month period preceding the date of the Prospectus, all of which
sales and issuances were made in compliance with the 1933 Act and the 1933 Act
Regulations.
(oo) The information contained in the Registration Statement, any
preliminary prospectus or the Prospectus regarding the Company's expectations,
plans and intentions, and any other information that constitutes
"forward-looking" information within the meaning of the 1933 Act and the 1933
Act Regulations or the 1934 Act and the 1934 Act Regulations and were made by
the Company on a reasonable basis and reflect the Company's good faith estimate
of the matters described therein.
(pp) Each officer and director of the Company named under
"Management" in the Prospectus, each of the Selling Stockholders and each of
Alafi Capital Company, the Xxxxxx X. XxXxxxxxx and Xxxxxx X. XxXxxxxxx Trust and
Anvest, L.P. (such stockholders of the Company, together with such officers and
directors, the LOCKED-UP PARTIES) has agreed to sign an agreement substantially
in the form attached hereto as Exhibit A (the LOCK-UP AGREEMENTS). The Company
also has provided to counsel for the Underwriters true, accurate and complete
copies of all of the Lock-up Agreements presently in effect or effected hereby.
The Company has given "no transfer" instructions to its transfer agent and
registrar with respect to such securities.
Any certificate signed by an officer of the Company and delivered to
the Underwriters or to counsel for the Underwriters shall be deemed to be a
representation and warranty by the Company to each Underwriter as to the matters
set forth therein.
2. Representations and Warranties of the Selling Stockholders.
(a) Each Selling Stockholder, severally and not jointly, represents
and warrants to each Underwriter that:
(i) Such Selling Stockholder is the lawful owner of the Shares to
be sold by such Selling Stockholder pursuant to this Agreement and has,
and on the Closing Date and the Additional Closing Date, if applicable,
will have, good and clear title to such Shares, free of all restrictions
on transfer, liens, encumbrances, security interests, equities and
claims whatsoever. [Such Shares are certificated securities in
registered form and not held by or through any securities intermediary
within the meaning of the New York Uniform Commercial Code (the NYUCC).
Upon delivery to an Underwriter or its agent of such Shares endorsed in
blank or registered in the name of such Underwriter, such Underwriter
will be a "protected purchaser" (as defined in Section 8-303 of the
NYUCC) of such Shares and will acquire its interest in such Shares free
of any adverse claim. Upon payment for such Shares pursuant to this
Agreement on the Closing Date and the Additional Closing Date, if
applicable, and the crediting by The Depository Trust
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Company (DTC) of such Shares to the Underwriters' securities accounts,
the Underwriters will acquire a security entitlement (within the meaning
of Section 8-501 of the NYUCC) in respect of such Shares to be purchased
by them and no action (whether framed in conversion, replevin,
constructive trust, equitable lien or other theory) based on an adverse
claim to such Shares may be asserted against the Underwriters.] [Upon
delivery of and payment for the Shares to be sold by such Selling
Stockholder pursuant to this Agreement on the Closing Date and the
Additional Closing Date, if applicable, good and clear title to such
Shares will pass to the Underwriters, free of all restrictions on
transfer, liens, encumbrances, security interests and claims
whatsoever.]
(ii) Such Selling Stockholder has, and on the Closing Date and
the Additional Closing Date, if applicable, will have, full legal right,
power and authority to enter into this Agreement, the Custody Agreement
signed by such Selling Stockholder and [Transfer Agent], as Custodian,
relating to the deposit of the Shares to be sold by such Selling
Stockholder (the CUSTODY AGREEMENT) and the Power of Attorney of such
Selling Stockholder appointing certain individuals as such Selling
Stockholder's attorneys-in-fact (the ATTORNEYS) to the extent set forth
therein, relating to the transactions contemplated hereby and by the
Registration Statement and the Custody Agreement (the POWER OF ATTORNEY)
and to sell, assign, transfer and deliver such Shares in the manner
provided herein and therein. This Agreement has been duly executed and
delivered by, and is a valid and binding agreement of, such Selling
Stockholder, enforceable against such Selling Stockholder in accordance
with its terms, except as rights to indemnification thereunder may be
limited by applicable law and except as the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or affecting creditors' rights generally or by
general equitable principles.
(iii) The Custody Agreement of such Selling Stockholder has been
duly authorized, executed and delivered by such Selling Stockholder and
is a valid and binding agreement of such Selling Stockholder,
enforceable in accordance with its terms.
(iv) The Power of Attorney of such Selling Stockholder has been
duly authorized, executed and delivered by such Selling Stockholder and
is a valid and binding instrument of such Selling Stockholder,
enforceable in accordance with its terms, and, pursuant to such Power of
Attorney, such Selling Stockholder has, among other things, authorized
the Attorneys, or any one of them, to execute and deliver on such
Selling Stockholder's behalf, this Agreement and any other document that
they, or any one of them, may deem necessary or desirable in connection
with the transactions contemplated hereby and thereby and to deliver the
Shares to be sold by such Selling Stockholder pursuant to this
Agreement.
(v) The execution, delivery and performance of this Agreement and
the Custody Agreement and the Power of Attorney of such Selling
Stockholder by or on behalf of such Selling Stockholder, the compliance
by such Selling Stockholder with all the provisions hereof and thereof
and the consummation of the transactions contemplated hereby and thereby
will not (A) require any consent, approval, authorization or other order
of, or qualification with, any court or governmental body or agency
(except such as may be required under the state securities or "blue sky"
laws), (B) conflict with or
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constitute a breach of any of the terms or provisions of, or a default
under, any indenture, loan agreement, mortgage, lease or other material
agreement or instrument to which such Selling Stockholder is a party or
by which such Selling Stockholder or any property of such Selling
Stockholder is bound or (C) violate or conflict with any applicable law
or any rule, regulation, judgment, order or decree of any court or any
governmental body or agency having jurisdiction over such Selling
Stockholder or any property of such Selling Stockholder.
(vi) Neither such Selling Stockholder, nor any person acting on
behalf of such Selling Stockholder, has taken, directly or indirectly,
any action designed to stabilize or manipulate the price of any security
of the Company, or that has constituted or that might in the future
reasonably be expected to cause or result in stabilization or
manipulation of the price of any security of the Company, to facilitate
the sale or resale of the Shares or otherwise.
(vii) Each certificate signed by or on behalf of such Selling
Stockholder and delivered to the Underwriters or counsel for the
Underwriters shall be deemed to be a representation and warranty by such
Selling Stockholder to the Underwriters as to the matters covered
thereby.
(b) Each Selling Stockholder listed as a Group A Selling Stockholder
on Schedule I hereto (each, a GROUP A SELLING STOCKHOLDER), severally and not
jointly, represents and warrants to each Underwriter that, at the time of the
effectiveness of the Registration Statement or the effectiveness of any Rule
462(b) Registration Statement and any post-effective amendment thereto, when the
Prospectus is first filed with the Commission pursuant to Rule 424(b) or Rule
434 of the 1933 Act Regulations, when any supplement to or amendment of the
Prospectus is filed with the Commission and at the Closing Date and the
Additional Closing Date, if applicable, the Registration Statement and the
Prospectus and any amendments thereof and supplements thereto did not and will
not omit to state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading. When any related
preliminary prospectus was first filed with the Commission (whether filed as
part of the Registration Statement for the registration of the Shares or any
amendment thereto or pursuant to Rule 424(a) of the 1933 Act Regulations) and
when any amendment thereof or supplement thereto was first filed with the
Commission, such preliminary prospectus and any amendments thereof and
supplements thereto did not contain an untrue statement of a material fact and
did not omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading. No
representation and warranty is made in this Section 2(b), however, with respect
to the Underwriting Information.
(c) Each Selling Stockholder listed as a Group B Selling Stockholder
on Schedule I hereto (each, a GROUP B SELLING STOCKHOLDER), severally, and not
jointly, represents and warrants to each Underwriter that, at the time of the
effectiveness of the Registration Statement or the effectiveness of any Rule
462(b) Registration Statement and any post-effective amendment thereto, when the
Prospectus is first filed with the Commission pursuant to Rule 424(b) or Rule
434 of the 1933 Act Regulations, when any supplement to or amendment of the
Prospectus is filed with the Commission and at the Closing Date and the
Additional Closing Date, if applicable, the Registration Statement and the
Prospectus and any amendments thereof
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and supplements thereto did not and will not omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading. When any related preliminary prospectus was first filed
with the Commission (whether filed as part of the Registration Statement for the
registration of the Shares or any amendment thereto or pursuant to Rule 424(a)
of the 1933 Act Regulations) and when any amendment thereof or supplement
thereto was first filed with the Commission, such preliminary prospectus and any
amendments thereof and supplements thereto did not contain an untrue statement
of a material fact and did not omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading. No representation and warranty is made in this Section 2(c),
however, with respect to any statements or omissions in the Registration
Statement, the Prospectus, any preliminary prospectus or in any amendments
thereof or supplements thereto, other than statements or omissions made therein
in reliance upon and in conformity with information relating to such Group B
Selling Stockholder furnished to the Company by or on behalf of such Group B
Selling Stockholder.
3. Purchase, Sale and Delivery of the Shares.
(a) The Company agrees to issue and sell 1,500,000 Company Firm
Shares, and each Firm Selling Stockholder agrees to sell the number of Selling
Stockholder Firm Shares set forth opposite the name of such Firm Selling
Stockholder on Schedule I hereto, in each case to the several Underwriters upon
the terms herein set forth. On the basis of the representations, warranties,
covenants and agreements herein contained, but subject to the terms and
conditions herein set forth, the Underwriters, severally and not jointly, agree
to purchase from the Company and the Firm Selling Stockholders, at a purchase
price per share of $[___], the number of Firm Shares set forth opposite the
respective names of the Underwriters in Schedule II hereto plus an additional
number of Firm Shares that such Underwriter may become obligated to purchase
pursuant to the provisions of Section 10 hereof.
(b) Payment of the purchase price for, and delivery of, the Firm
Shares and the Option Shares (if the option provided for in Section 3(c) hereof
has been exercised on or before the third full business day prior to the Closing
Date) shall be made at the offices of Winthrop, Stimson, Xxxxxx & Xxxxxxx, One
Battery Park Plaza, New York, New York, or at such other place as shall be
agreed upon by ING Barings and the Company, at 10:00 A.M. on the third full
business day (as permitted under Rule 15c6-1 of the 1934 Act Regulations)
(unless postponed in accordance with the provisions of Section 10 hereof)
following the date of the effectiveness of the Registration Statement (unless
the Company has elected to rely upon Rule 430A of the 1933 Act Regulations, in
which case the third or fourth full business day (as permitted under Rule 15c6-1
of the 1934 Regulations) after the determination of the public offering price of
the Firm Shares), or such other time not later than five business days after
such date as shall be agreed upon by the Underwriters and the Company (such time
and date of payment and delivery being herein called the CLOSING DATE);
provided, however, that if the Company has not made available to the
Underwriters copies of the Prospectus in such quantities and at such places
requested by the Underwriters, no later than noon on the business day following
the execution of this Agreement, ING Barings may, in its sole discretion,
postpone the Closing Date until no later than two full business days following
the delivery of such copies of the Prospectus. Payment for the Firm Shares shall
be made, in the case of the Company Firm Shares, to the Company by wire transfer
in immediately available funds to the order of the
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Company, against delivery to the Underwriters of the Firm Shares to be purchased
by them and, in the case of the Selling Stockholder Firm Shares, to each Firm
Selling Stockholder by wire transfer in immediately available funds to the order
of such Firm Selling Stockholder, against delivery to the Underwriters of the
Selling Stockholder Firm Shares to be purchased by the Firm Selling
Stockholders. Certificates for the Firm Shares shall be registered in such name
or names and in such authorized denominations as the Underwriters may request on
or before noon on the business day prior to the Closing Date. The Company will
permit the Underwriters to examine and package such certificates at or before
noon on the business day prior to the Closing Date. The term BUSINESS DAY as
used herein means any day other than a Saturday, Sunday or a legal holiday or a
day on which banking institutions or trust companies are authorized or obligated
by law to close in New York City.
(c) In addition, for the sole purpose of covering over-allotments in
the sale of Firm Shares by the Underwriters, (i) the Company hereby grants to
the Underwriters the option to purchase, severally and not jointly, up to
221,700 Company Option Shares, at the same purchase price per share to be paid
by the Underwriters for the Firm Shares as set forth in this Section 3 and (ii)
each Option Selling Stockholder hereby agrees to grant to the Underwriters the
option to purchase, severally and not jointly, up to the number of Selling
Stockholder Option Shares set forth opposite the name of such Option Selling
Stockholder on Schedule I hereto. Such options may be exercised from time to
time and at any time, in whole or in part, on or before the 30th day following
the date of the Prospectus, by notice from ING Barings to the Company and such
Selling Stockholders. Any such notice shall set forth the aggregate number of
Company Option Shares and Selling Stockholder Option Shares as to which such
option is being exercised and the date and time, as reasonably determined by ING
Barings, when such Option Shares are to be delivered (such date and time being
herein sometimes referred to as the ADDITIONAL CLOSING DATE); provided, however,
that the Additional Closing Date shall not be earlier than the Closing Date or
earlier than the second full business day after the date on which such option
has been exercised nor later than the fifth full business day after the date on
which such option has been exercised (unless such time and date are postponed in
accordance with the provisions of Section 10 hereof). Payment for the Option
Shares shall be made to an account designated by the Company and the Option
Selling Stockholders by wire transfer in immediately available funds, against
delivery to the Underwriters of the Option Shares to be purchased by them.
Certificates for the Option Shares shall be registered in such name or names and
in such authorized denominations as the Underwriters may request on or before
noon on the business day prior to the Additional Closing Date. The Company will
permit the Underwriters to examine and package such certificates at or before
noon on the business day prior to the Additional Closing Date.
The number of Option Shares to be sold to each Underwriter shall be
the number that bears the same ratio to the aggregate number of Option Shares
being purchased as the number of Firm Shares set forth opposite the name of such
Underwriter on Schedule II hereto (or such number increased as set forth in
Section 10 hereof) bears to the aggregate number of Firm Shares being purchased,
subject, however, to such adjustments to eliminate any fractional shares as ING
Barings in its sole discretion makes. The number of Company Option Shares to be
sold by the Company shall be the number that bears the same ratio to the
aggregate number of Option Shares being sold as the number of Company Option
Shares bears to the aggregate number of Option Shares under this Agreement,
subject, however, to such adjustments to eliminate any
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fractional shares as ING Barings in its sole discretion makes. The number of
Selling Stockholder Option Shares to be sold by each Option Selling Stockholder
shall be the number that bears the same ratio to the aggregate number of Option
Shares being sold as the number of Selling Stockholder Option Shares set forth
opposite the name of such Option Selling Stockholder on Schedule I hereto bears
to the aggregate number of Option Shares under this Agreement, subject, however,
to such adjustments to eliminate any fractional shares as ING Barings in its
sole discretion makes.
(d) Time shall be of the essence and delivery at the time and place
specified in this Agreement is a further condition to the obligations of the
Underwriters.
4. Offering. It is understood that the several Underwriters propose to
offer the Shares for sale to the public upon the terms set forth in the
Prospectus.
5. Covenants of the Company. The Company covenants and agrees with each
Underwriter that:
(a) If the Registration Statement has not been declared effective at
the time of the execution of this Agreement, the Company will use its best
efforts to cause the Registration Statement and any amendments thereto to become
effective as promptly as possible. If Rule 430A of the 1933 Act Regulations is
used or the filing of the Prospectus is otherwise required under Rule 424(b) or
Rule 434 of the 1933 Act Regulations, the Company will file the Prospectus
(properly completed if Rule 430A of the 1933 Act Regulations has been used)
pursuant to Rule 424(b) or Rule 434 of the 1933 Act Regulations within the
prescribed time period and will provide evidence satisfactory to the
Underwriters of such timely filing. If the Company elects to rely on Rule 434 or
the 1933 Act Regulations, the Company will prepare and file a term sheet that
complies with the requirements of Rule 434 of the 1933 Act Regulations. If the
Company elects to rely on Rule 462(b) of the 1933 Act Regulations, the Company
will file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) of the 1933 Act Regulations prior to the time confirmations are
sent or given, as specified by Rule 462(b)(2) of the 1933 Act Regulations, and
will pay the applicable fees in accordance with Rule 111 of the 1933 Act
Regulations.
The Company will notify the Underwriters immediately (and, if
requested by the Underwriters, will confirm such notice in writing) (i) when the
Registration Statement and any amendments thereto become effective, (ii) of any
request by the Commission for any amendment of or supplement to the Registration
Statement, any preliminary prospectus or the Prospectus or for additional
information, (iii) of the mailing or the delivery to the Commission for filing
of any amendment of or supplement to the Registration Statement or the
Prospectus, (iv) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or any post-effective amendment
thereto or of the initiation, or the threatening, of any proceedings therefor,
(v) of the receipt of any comments from the Commission and (vi) of the receipt
by the Company of any notification with respect to the suspension of the
qualification of the Shares for sale in any jurisdiction or the initiation or
threatening of any proceeding for that purpose. If a stop order or suspension of
qualification is proposed at any time, the Company will use its best efforts to
prevent the issuance of any such stop order and, if issued, to obtain the
lifting thereof as soon as possible. The Company will not file any amendment to
the Registration
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Statement or any amendment of or supplement to any preliminary prospectus or the
Prospectus (including the prospectus required to be filed pursuant to Rule
424(b) or Rule 434 of the 1933 Act Regulations) that differs from the prospectus
on file at the time of the effectiveness of the Registration Statement before or
after the effective date of the Registration Statement to which the Underwriters
reasonably object in writing after being timely furnished in advance a copy
thereof.
(b) If, at any time when a prospectus relating to the Shares is
required to be delivered under the 1933 Act by an Underwriter or dealer, any
event has occurred as a result of which the Prospectus as then amended or
supplemented would, in the reasonable judgment of ING Barings, counsel for the
Underwriters or the Company, include an 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, or if it is necessary at any time
to amend or supplement the Registration Statement, any preliminary prospectus or
the Prospectus to comply with any law, the Company will promptly notify ING
Barings and prepare and file with the Commission and furnish at its own expense
to the Underwriters and dealers, an appropriate amendment or supplement (in form
and substance reasonably satisfactory to ING Barings) that will correct such
untrue statement or omission so that the Registration Statement, any preliminary
prospectus and the Prospectus will comply with law and will use its best efforts
to have any amendment to the Registration Statement declared effective as soon
as possible.
(c) As soon as practicable, but not later than 45 days after the end
of its fiscal quarter in which the first anniversary date of the date of
effectiveness of the Registration Statement occurs, the Company will make
generally available (within the meaning of Section 11(a) of the 0000 Xxx) to its
securityholders and to the Underwriters an earning statement or statements of
the Company that will satisfy the provisions of Section 11(a) of the 1933 Act
and Rule 158 of the 1933 Act Regulations, covering a period of at least twelve
consecutive months beginning after the effective date of the Registration
Statement; and will, during the period of five years from the date of the
Prospectus, make generally available (within the meaning of Section 11(a) of the
0000 Xxx) to its securityholders as soon as practicable after the end of each
fiscal year, an annual report (including a balance sheet and statements of
financial condition, operations, cash flows and changes in stockholders' equity
of the Company, certified by the Company's independent public accountants) and,
as soon as practicable after the end of each of the first three quarters of each
fiscal year (beginning with the fiscal quarter ending after the effective date
of the Registration Statement), consolidated summary financial information of
the Company for such quarter in reasonable detail.
(d) The Company will furnish without charge to the Underwriters and
counsel for the Underwriters three complete signed copies of the Registration
Statement (including exhibits thereto), and to each other Underwriter a copy of
the Registration Statement (without exhibits thereto) and, so long as, in the
reasonable opinion of counsel for the Underwriters, delivery of a prospectus by
an Underwriter or dealer may be required by the 1933 Act, as many copies of each
preliminary prospectus and the Prospectus and any amendment or supplement
thereto as the Underwriters may request.
(e) The Company will arrange for the qualification of the Shares for
sale under the laws of such jurisdictions (both national and foreign) as ING
Barings may designate
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and will make such applications, file such documents and furnish such
information as may be required for that purpose and will maintain such
qualifications in effect for so long as required for the distribution of the
Shares; provided, however, that in no event shall the Company be required to
qualify to do business in any such jurisdiction in which it is not already
qualified or to file a general consent to service of process in any jurisdiction
in which it is not now so required, other than in respect of suits arising out
of the offering or sale of the Shares. The Company will, from time to time,
prepare and file such statements, reports and other documents as are or may be
required to continue such qualifications in effect for so long a period as ING
Barings may request for the distribution of the Shares. The Company will
cooperate with ING Barings and counsel for the Underwriters in connection with
the filings required to be made by ING Barings with the NASD and will pay the
fee of the NASD in connection with its review of the offering of the Shares and
will use its best efforts to maintain quotation of its shares on the Nasdaq
National Market System.
(f) During the period of five years from the date of effectiveness
of the Registration Statement, the Company will furnish to the several
Underwriters, without charge, copies of, in such quantities as the Underwriters
may request from time to time, (i) as soon as available, all reports or other
communications (financial or other) furnished generally by the Company to its
securityholders, (ii) as soon as practicable after the end of each fiscal year,
copies of the Annual Report of the Company containing the balance sheet of the
Company as of the close of such fiscal year and statements of income,
stockholders' equity and cash flows for the year then ended and the opinion
thereon of the Company's independent public or certified public accountants and
(iii) as soon as practicable after the filing thereof, copies of each proxy
statement, Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current
Report on Form 8-K or other report filed by the Company with the Commission, the
NASD or any other supervisory, regulatory, administrative or governmental
agency, body or authority whether pursuant to the 1934 Act or otherwise or any
national securities exchange or system on which any class of securities of the
Company is listed or quoted.
(g) For a period of 90 days from the date of the Prospectus (the
LOCK-UP PERIOD), without the prior written consent of ING Barings, neither the
Company nor any Locked-Up Party shall, directly or indirectly: (i) issue, offer
for sale, contract to sell, sell, pledge or otherwise dispose of (or enter into
any transaction or device that is designed to, or could be expected to, result
in the disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by any person at any time in
the future of) any shares of Common Stock or securities convertible into,
exercisable or exchangeable for, or represent the right to receive, Common Stock
or sell or grant options, rights or warrants with respect to any shares of
Common Stock or any of the foregoing or announce the offering of or register for
sale any of the foregoing or any outstanding shares of Common Stock; provided,
however, that the Company may grant options and issue and sell Common Stock
pursuant to any directors' and employees' stock plan (including any employees'
stock purchase plan) or stock ownership plan of the Company in effect at the
date of effectiveness of the Registration Statement and that are described in
the Prospectus so long as none of those shares that may be issued to any
Locked-Up Party may be transferred during the Lock-Up Period and the Company
shall enter stop transfer instructions with its transfer agent and registrar
against any such transfer; or (ii) enter into any swap, repurchase agreement,
pledge, transfer or other transaction that transfers to another, in whole or in
part, any of the economic benefits or risks of ownership of
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such shares of Common Stock or other securities, whether any such transaction
described in clause (i) or (ii) above is to be settled by delivery of Common
Stock or other securities, in cash or otherwise. In addition, during such
period, the Company and the Subsidiaries also agree not to file any registration
statement with respect to, and each of the executive officers, directors and
certain securityholders of the Company has agreed not to make any demand for, or
exercise any right with respect to, the registration of any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock without the prior written consent of ING Barings.
(h) During the period when, in the opinion of counsel for the
Underwriters, the delivery of a Prospectus by an Underwriter or dealer may be
required by the 1933 Act, the Company will comply, at its own expense, with all
requirements imposed upon it by the Commission, the 1933 Act and the 1933 Act
Regulations and the 1934 Act and the 1934 Act Regulations, so far as necessary
to permit the continuance of sales of or dealing in the Shares during such
period in accordance with the provisions hereof and the Prospectus. In addition,
during such period the Company shall file, on a timely basis, with the
Commission and the Nasdaq National Market all reports and documents required to
be filed under the 1934 Act and the 1934 Act Regulations.
(i) Each of the Company and the Subsidiaries will conduct its
business in compliance with all applicable laws, rules, regulations, decisions,
directives and orders. The Company will do and perform all things required or
necessary to be done and performed under this Agreement by the Company on or
prior to the Closing Date and to comply or cause to be satisfied, to the extent
such are within its control, the conditions precedent to the several obligations
of the Underwriters specified in Section 9 hereof.
(j) Neither the Company nor any of its affiliates (as defined in
Rule 501(b) of the 1933 Act Regulations), will take, directly or indirectly, any
action designed to cause or result in, or that constitutes or that might
reasonably be expected to cause, result in, or constitute, under the 1934 Act,
or otherwise, stabilization or manipulation of the price of the shares of Common
Stock of the Company to facilitate the offering and distribution of the Shares
or any other action prohibited by Regulation M of the 1934 Act Regulations.
(k) The Company will apply the net proceeds to the Company from the
offering and sale of the Shares to be sold by the Company in the manner set
forth under "Use of Proceeds" in the Prospectus.
(l) The Company will engage and maintain, at its expense, a
registrar and transfer agent for the Shares.
(m) The Company will use its best efforts to maintain listing of its
shares of Common Stock on the Nasdaq National Market.
(n) The Company is familiar with the Investment Company Act and the
rules and regulations of the Commission thereunder, and has in the past
conducted its affairs, and will in the future conduct its affairs, in such a
manner so as to ensure that the Company was not and
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will not be an "investment company" within the meaning of the Investment Company
Act and the rules and regulations of the Commission thereunder.
(o) The Company shall cause to be prepared and delivered, at its
expense, within one business day from the date hereof, to the Underwriters an
"electronic Prospectus" to be used by the Underwriters in connection with the
offering and sale of the Shares. The term ELECTRONIC PROSPECTUS as used herein
means a form of Prospectus, and any amendment or supplement thereto, that meets
each of the following conditions: (i) it shall be encoded in an electronic
format, satisfactory to the Underwriters, that may be transmitted electronically
by the Underwriters to offerees and purchasers of the Shares for at least the
period during which, in the opinion of counsel for the Underwriters, the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act; (ii)
it shall disclose the same information as the paper version of the Prospectus
and the Prospectus filed pursuant to XXXXX, except to the extent that graphic
and image material cannot be disseminated electronically, in which case such
graphic and image material shall be replaced in the electronic Prospectus with a
fair and accurate narrative description or tabular representation of such
material, as appropriate; and (iii) it shall be in or convertible into a paper
format or an electronic format, satisfactory to the Underwriters, that will
allow investors to store and have continuously ready access to the Prospectus at
any future time, without charge to investors (other than any fee charged for
subscription to the system as a whole and for on-line time).
6. Payment of Expenses.
(a) Whether or not the transactions contemplated by this Agreement
are consummated or this Agreement is terminated, the Company will pay, or
reimburse ING Barings if paid by the Underwriters, all costs, fees and expenses
incident to the performance of the obligations of the Company and the Selling
Stockholders under this Agreement, including, without limitation, costs, fees
and expenses of or relating to (i) the preparation by the Company of, and the
printing and filing of, the Registration Statement and exhibits to it, each
preliminary prospectus, the Prospectus and any amendment or supplement to the
Registration Statement or the Prospectus (including, without limitation, the
fees and expenses of the Company's counsel, accountants and other advisors),
(ii) the preparation and delivery of certificates representing the Shares, (iii)
the printing of this Agreement and Underwriters' Questionnaires, Underwriters'
Powers of Attorney, Blue Sky Memoranda or Surveys, Master Agreements Among
Underwriters and Master Selling Agreements, and all other documents relating to
the public offering of the Shares (including those documents supplied to the
Underwriters in quantities as hereinabove stated), and the furnishing (including
costs of shipping and mailing) of such number of copies of the Registration
Statement, the Prospectus and any preliminary prospectus, and all exhibits,
schedules, consents, certificates of experts, amendments and supplements
thereto, as may be requested for use in connection with the offering and sale of
the Shares by the Underwriters or by dealers to whom Shares may be sold, (iv)
the quotation of the Shares on the Nasdaq National Market, (v) any filings
required to be made with, and the review by, the NASD and the fees,
disbursements and other charges of counsel for the Underwriters in connection
therewith, (vi) the registration or qualification (or obtaining exemptions from
such registration or qualification) of the Shares for offer and sale under the
state securities or "blue sky" laws of such jurisdictions designated pursuant to
Section 5(e) hereof, including the fees, disbursements and other charges of
counsel for the Underwriters in connection therewith, and the preparation and
printing of
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preliminary, supplemental and final Blue Sky Memoranda or Surveys, (vii) the
issuance, transfer and delivery of the Shares to the Underwriters and the
Selling Stockholders, including any issue, transfer, stamp or other taxes
payable thereon, (viii) the transfer agent or registrar for the Shares, (ix) the
costs and expenses of the Underwriters incident to the preparation and
undertaking of "road show" preparations to be made to prospective investors and
(x) all other fees, costs and expenses referred to in Part II of the
Registration Statement. Except as otherwise provided herein, the Underwriters
shall pay their own expenses, including the fees and disbursement of their
counsel.
(b) If this Agreement is terminated by the Company otherwise than as
explicitly permitted by this Agreement, or if any condition to the obligations
of the Underwriters set forth in Section 9 hereof is not satisfied, or if this
Agreement is terminated by ING Barings as permitted hereunder pursuant to
Section 9, 10 or 12 hereof, or if the sale to the Underwriters of the Shares on
the Closing Date is not consummated because of any refusal, inability or failure
on the part of the Company to perform any agreement herein or to comply with any
provision hereof, the Company agrees to reimburse ING Barings and the other
Underwriters (or such Underwriters as have terminated this Agreement with
respect to themselves), severally, upon demand for all out-of-pocket expenses
that shall have been incurred by ING Barings and the other Underwriters in
connection with the proposed purchase and the offering and sale of the Shares,
including, without limitation, fees and disbursements of counsel, printing
expenses, travel expenses, postage, facsimile and telephone charges.
7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, its directors, officers, employees, and agents and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the 1933
Act or Section 20(a) of the 1934 Act (each, a PURCHASER INDEMNIFIED PARTY),
against any and all losses, liabilities, claims, damages, actions and expenses
whatsoever, as incurred (including, without limitation, attorneys' fees and any
and all expenses whatsoever incurred in investigating, preparing, compromising
or defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the 1933 Act, the 1934 Act or other federal or state statutory law or
regulation, or at common law or otherwise, insofar as such losses, liabilities,
claims, damages or expenses (or actions in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement for the registration of the Shares,
as originally filed or any amendment thereof, or 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; or (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission to state therein a material fact
necessary in order to make statements therein, not misleading; or (iii) in whole
or in part any inaccuracy in the representations and warranties of the Company
contained herein; or (iv) in whole or in part any failure of the Company to
perform its obligations hereunder or under law; or (v) any act or failure to act
or any alleged act or failure to act by an Underwriter in connection with, or
relating in any manner to, the Shares or the offering contemplated hereby, and
that is included as part of or referred to in any loss, claim, damage, liability
or action arising
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out of or based upon any matter covered by clause (i), (ii), (iii) or (iv)
above, provided that the Company will not be liable under this clause (v) to the
extent that a court of competent jurisdiction has determined by a final judgment
that such loss, claim, damage, liability or action resulted directly from any
such acts or failures to act undertaken or omitted to be taken by such
Underwriter through its bad faith or willful misconduct; provided, however, that
the Company will not be liable in any such case covered by clause (i), (ii),
(iii), (iv) or (v) above to the extent, but only to the extent, that any such
loss, liability, claim, damage, action or expense arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information relating to an Underwriter furnished to the Company by any
Underwriter expressly for use therein; and provided, further, that with respect
to any preliminary prospectus, the foregoing indemnity in this Section 7(a)
shall not inure to the benefit of any Underwriter from whom the person asserting
any loss, claim, damage, liability or expense purchased Shares, or any of its
directors, officers or employees or any person controlling such Underwriter, if
copies of the Prospectus were timely delivered to such Underwriter and a copy of
the Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by or on
behalf of such Underwriter to such person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of such Shares to
such person, and if the Prospectus (as so amended or supplemented) would have
cured the defect giving rise to such loss, claim, damage, liability, action or
expense. The Company acknowledges that the Underwriting Information constitutes
the only information furnished in writing relating to an Underwriter by or on
behalf of any Underwriter expressly for use in the Registration Statement
relating to the Shares as originally filed or in any amendment thereof, any
related preliminary prospectus or the Prospectus or in any amendment thereof or
supplement thereto, as the case may be. This indemnity agreement will be in
addition to any liability that the Company may otherwise have, including under
this Agreement.
(b) Each Group A Selling Stockholder, severally and not jointly,
agrees to indemnify and hold harmless each Underwriter, its directors, officers,
employees, and agents and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934
Act, against any and all losses, liabilities, claims, damages, actions and
expenses whatsoever, as incurred (including, without limitation, attorneys' fees
and any and all expenses whatsoever incurred in investigating, preparing,
compromising or defending against any litigation, commenced or threatened, or
any claim whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the 1933 Act, the 1934 Act or other federal or state statutory law or
regulation, or at common law or otherwise, insofar as such losses, liabilities,
claims, damages or expenses (or actions in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement for the registration of the Shares,
as originally filed or any amendment thereof, or 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; or (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission to state therein a material fact
necessary in order to make statements therein, not misleading; or (iii) in whole
or in part any inaccuracy in the representations and warranties of the Company
or such Group A Selling Stockholder contained herein; or (iv) in whole or in
part any failure of the Company or
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such Group A Selling Stockholder to perform its obligations hereunder or under
law; or (v) any act or failure to act or any alleged act or failure to act by an
Underwriter in connection with, or relating in any manner to, the Shares or the
offering contemplated hereby, and that is included as part of or referred to in
any loss, claim, damage, liability or action arising out of or based upon any
matter covered by clause (i), (ii), (iii) or (iv) above, provided that no Group
A Selling Stockholder will be liable under this clause (v) to the extent that a
court of competent jurisdiction has determined by a final judgment that such
loss, claim, damage, liability or action resulted directly from any such acts or
failures to act undertaken or omitted to be taken by such Underwriter through
its bad faith or willful misconduct; provided, however, that no Group A Selling
Stockholder will be liable in any such case covered by clause (i), (ii), (iii),
(iv) or (v) above to the extent, but only to the extent, that any such loss,
liability, claim, damage, action or expense arises out of or is based upon any
such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information relating to an Underwriter furnished to the Company by any
Underwriter expressly for use therein; and provided, further, that with respect
to any preliminary prospectus, the foregoing indemnity in this Section 7(b)
shall not inure to the benefit of any Underwriter from whom the person asserting
any loss, claim, damage, liability or expense purchased Shares, or any of its
directors, officers or employees or any person controlling such Underwriter, if
copies of the Prospectus were timely delivered to such Underwriter and a copy of
the Prospectus (as then amended or supplemented if the Company shall have
furnished any amendments or supplements thereto) was not sent or given by or on
behalf of such Underwriter to such person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of such Shares to
such person, and if the Prospectus (as so amended or supplemented) would have
cured the defect giving rise to such loss, claim, damage, liability, action or
expense. Each Group A Selling Stockholder acknowledges that the Underwriting
Information constitutes the only information furnished in writing relating to an
Underwriter by or on behalf of any Underwriter expressly for use in the
Registration Statement relating to the Shares as originally filed or in any
amendment thereof, any related preliminary prospectus or the Prospectus or in
any amendment thereof or supplement thereto, as the case may be. Notwithstanding
the foregoing, (A) the aggregate liability of any Group A Selling Stockholder
pursuant to this Section 7(b) and for any breach of any representation or
warranty contained in this Agreement by such Group A Selling Stockholder shall
be limited to an amount equal to the proceeds (after deducting underwriting
discounts and commissions) received by such Group A Selling Stockholder from the
Underwriters for the sale of the Shares sold by such Group A Selling Stockholder
hereunder and (B) to the extent the Company is also liable for indemnification
under Section 7(a) hereof, no Group A Selling Stockholder shall be liable for
indemnification under this Section 7(b) until, and then only to the extent that,
the indemnified party has made demand for indemnification pursuant to Sections
7(a) and 7(e) hereof from the Company and the Company has rejected such demand
or has not made payment to satisfy in full such indemnification claim within 30
days of the date of such original demand. This indemnity agreement will be in
addition to any liability that the Company and the Selling Stockholders may
otherwise have, including under this Agreement.
(c) Each Group B Selling Stockholder, severally and not jointly,
agrees to indemnify and hold harmless each Underwriter, its directors, officers,
employees, and agents and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934
Act, against any and all losses, liabilities, claims, damages, actions and
expenses whatsoever, as incurred (including, without limitation, attorneys' fees
and
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any and all expenses whatsoever incurred in investigating, preparing,
compromising or defending against any litigation, commenced or threatened, or
any claim whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the 1933 Act, the 1934 Act or other federal or state statutory law or
regulation, or at common law or otherwise, insofar as such losses, liabilities,
claims, damages or expenses (or actions in respect thereof) arise out of or are
based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement for the registration of the Shares,
as originally filed or any amendment thereof, or 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; or (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto), or the omission or alleged omission to state therein a material fact
necessary in order to make statements therein, not misleading, in the case of
clause (i) above and this clause (ii) 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 or any Underwriter by such Group B Selling Stockholder,
directly or through such Group B Selling Stockholder's representatives,
specifically for use in the preparation thereof; or (iii) in whole or in part
any inaccuracy in the representations and warranties of such Group B Selling
Stockholder contained herein; or (iv) in whole or in part any failure of such
Group B Selling Stockholder to perform its obligations hereunder or under law;
provided, however, that no Group B Selling Stockholder will be liable in any
such case covered by clause (i), (ii), (iii) or (iv) above to the extent but
only to the extent that any such loss, liability, claim, damage, action or
expense arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information relating to an Underwriter furnished
to the Company by any Underwriter expressly for use therein; and provided,
further, that with respect to any preliminary prospectus, the foregoing
indemnity in this Section 7(c) shall not inure to the benefit of any Underwriter
from whom the person asserting any loss, claim, damage, liability or expense
purchased Shares, or any of its directors, officers or employees or any person
controlling such Underwriter, if copies of the Prospectus were timely delivered
to such Underwriter and a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) was not sent or given by or on behalf of such Underwriter to such
person, if required by law so to have been delivered, at or prior to the written
confirmation of the sale of such Shares to such person, and if the Prospectus
(as so amended or supplemented) would have cured the defect giving rise to such
loss, claim, damage, liability, action or expense. Each Group B Selling
Stockholder acknowledges that the Underwriting Information constitutes the only
information furnished in writing relating to an Underwriter by or on behalf of
any Underwriter expressly for use in the Registration Statement relating to the
Shares as originally filed or in any amendment thereof, any related preliminary
prospectus or the Prospectus or in any amendment thereof or supplement thereto,
as the case may be. Notwithstanding the foregoing, (A) the aggregate liability
of any Group B Selling Stockholder pursuant to this Section 7(c) and for any
breach of any representation or warranty contained in this Agreement by such
Group B Selling Stockholder shall be limited to an amount equal to the proceeds
(after deducting underwriting discounts and commissions) received by such Group
B Selling Stockholder from the Underwriters for the sale of the Shares sold by
such Group B Selling Stockholder hereunder and (C) to the extent the
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Company is also liable for indemnification under Section 7(a) hereof, no Group B
Selling Stockholder shall be liable for indemnification under this Section 7(c)
until, and then only to the extent that, the indemnified party has made demand
for indemnification pursuant to Sections 7(a) and 7(e) hereof from the Company
and the Company has rejected such demand or has not made payment to satisfy in
full such indemnification claim within thirty days of the date of such original
demand. This indemnity agreement will be in addition to any liability that the
Company and the Selling Stockholders may otherwise have, including under this
Agreement.
(d) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless the Company, each Selling Stockholder, each of the directors
of the Company, each of the officers of the Company who has signed the
Registration Statement and each other person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934
Act (each, a COMPANY INDEMNIFIED PARTY), against any losses, liabilities,
claims, damages and expenses whatsoever as incurred (including, without
limitation, attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation), joint or several, to which they or any of them may
become subject under the 1933 Act, the 1934 Act or otherwise, insofar as such
losses, liabilities, claims, damages or expenses (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement for the registration
of the Shares, as originally filed or any amendment thereof, or any related
preliminary prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that any such loss, liability, claim, damage or
expense arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with the Underwriting Information; provided, however, that in
no case shall any Underwriter be liable or responsible for any amount in excess
of the underwriting discounts and commissions applicable to the Shares purchased
by such Underwriter hereunder. This indemnity will be in addition to any
liability that any Underwriter may otherwise have, including under this
Agreement.
(e) Promptly after receipt by an indemnified party under Section
7(a) or 7(b) hereof of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made against an
indemnifying party thereunder, notify each party against whom indemnification is
to be sought in writing of the commencement thereof (but the failure so to
notify an indemnifying party (A) will not relieve it from any liability or
obligation that it may have under this Section 7 or otherwise unless the failure
to notify results in the forfeiture by the indemnifying party of substantial
rights and defenses and (B) will not in any event relieve the indemnifying party
from any obligations other than the indemnification obligation provided in
Section 7(a) or 7(b) hereof). 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 it may elect by written notice delivered to the indemnified parties
promptly after receiving the aforesaid notice from an indemnified party, to
assume the defense thereof with counsel reasonably satisfactory to such
indemnified parties. Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its
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or their own separate counsel in any such action and to participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such indemnified party or parties unless (1) the employment of such
counsel has been authorized in writing by one of the indemnifying parties in
connection with the defense of such action, (2) the indemnifying parties have
not employed counsel to have charge of the defense of such action within a
reasonable time after notice of commencement of such action or (3) such
indemnified party or parties have reasonably concluded that a conflict may arise
between the positions of the indemnifying party or parties in conducting the
defense of any such action or that there may be one or more legal defenses
available to it or them that are different from or additional to those available
to one or all of the indemnifying parties (in which case the indemnifying party
or parties shall not have the right to direct the defense of such action on
behalf of the indemnified party or parties), in any of which events such fees
and expenses shall be borne by the indemnifying parties, it being understood,
however, that the indemnifying party or parties shall not, in connection with
any one such action or separate but substantially similar or related actions in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one separate
firm of attorneys (plus separate local counsel, if retained by the indemnified
party or parties) at any time for all such indemnified parties. An indemnifying
party shall not be liable for any settlement of any claim or action effected
without its written consent, provided that such consent was not unreasonably
withheld. Notwithstanding the foregoing, if at any time an indemnified party has
requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated in this Section 7, the indemnifying party
agrees that it shall be liable for any settlement of any proceeding effected
without its written consent if (x) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request and (y)
such indemnifying party has not reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement, compromise or consent to the entry of judgment in any pending or
threatened action, suit or proceeding in respect of which any indemnified party
is or could have been a party and indemnity was or could have been sought
hereunder by such indemnified party, unless such settlement, compromise or
consent is for money damages only and includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such action, suit or proceeding and does not include a statement as to or an
admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
Any losses, claims, damages, liabilities, expenses or actions for
which an indemnified party is entitled to indemnification or contribution under
this Section 7 or under Section 8 hereof shall be paid by the indemnifying party
to the indemnified party as such losses, claims, damages, liabilities or
expenses are incurred, but in all cases, no later than 30 days after an invoice
is provided to the indemnifying party.
The indemnity and contribution agreements contained in this Section
7 and in Section 8 hereof and the representation and warranties of the Company
and the Selling Stockholders set forth in this Agreement shall remain operative
and in full force and effect, regardless of (i) any investigation made by or on
behalf of any Underwriter or any director, officer or employee of or person
controlling any Underwriter, the Company, its directors or officers or any
persons controlling the Company or any Selling Stockholder, (ii) acceptance of
any Shares and payment therefor hereunder and (iii) any termination of this
Agreement. A
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successor to any Underwriter, or to the Company, shall be entitled to the
benefits of the indemnity, contribution and reimbursement agreements contained
in this Section 7 and Section 8 hereof.
The parties to this Agreement hereby acknowledge that they are
sophisticated business persons who were represented by counsel during the
negotiations regarding the provisions hereof, including, without limitation, the
provisions of this Section 7 and Section 8 hereof and are fully informed
regarding said provisions. They further acknowledge that the provisions of this
Section 7 and Section 8 hereof fairly allocate the risks in light of the ability
of the parties to investigate the Company and its business in order to assure
that adequate disclosure is made in the Registration Statement, each preliminary
prospectus and Prospectus as required by the 1933 Act and the 1934 Act.
8. Contribution. In order to provide for contribution in circumstances
in which the indemnification provided for in Section 7 hereof is for any reason
held to be unavailable from any indemnifying party or is insufficient to hold
harmless a party indemnified thereunder, each indemnifying party shall severally
contribute to the aggregate losses, claims, damages, liabilities and expenses of
the nature contemplated by such indemnification provision (including any
investigative, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claims
asserted, but after deducting in the case of losses, claims, damages,
liabilities and expenses suffered by the Company any contribution received by
the Company from persons, other than the Underwriters, who may also be liable
for contribution, including persons who control the Company within the meaning
of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act, officers of the
Company who signed the Registration Statement and directors of the Company) as
incurred to which the Company, one or more of the Selling Stockholders and one
or more of the Underwriters may be subject, in such proportions as is
appropriate to reflect the relative benefits received by the Company and the
Selling Stockholders (relative as to each other), on the one hand, and the
Underwriters, severally, on the other hand, from the offering of the Shares or,
if such allocation is not permitted by applicable law or indemnification is not
available as a result of the indemnifying party not having received notice as
provided in Section 7 hereof, in such proportion as is appropriate to reflect
not only the relative benefits referred to above but also the relative fault of
the Company and the Selling Stockholders (relative as to each other), on the one
hand, and the Underwriters, severally, on the other hand, in connection with the
statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, 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, severally, on the other hand, shall be
deemed to be in the same proportion as the total proceeds from the offering of
the Shares (after expenses and underwriting discounts and commissions) received
by the Company and the Selling Stockholders bears to the underwriting discounts
and commissions received by the Underwriters, respectively. The relative fault
of the Company and the Selling Shareholders, on the one hand, and of the
Underwriters, severally, on the other hand, 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 statement or omission. The Company,
the Underwriters and the Selling Stockholders agree that it would not
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be just and equitable if contribution pursuant to this Section 8 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to above. Notwithstanding the provisions
of this Section 8, (i) in no case shall any Underwriter be liable or responsible
for any amount in excess of the underwriting discounts and commissions
applicable to the Shares purchased by such Underwriter hereunder and (ii) no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. Further notwithstanding the
provisions of this Section 8 and the preceding sentence, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages that such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. For purposes of this Section 8, each
director, officer, employee and agent of an Underwriter and each person, if any,
who controls an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20(a) of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each person, if any, who controls the Company or a Selling
Stockholder within the meaning of Section 15 of the 1933 Act or Section 20(a) of
the 1934 Act, each officer of the Company who has signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to clauses (i) and (ii) of
this Section 8. Any party entitled to contribution will, promptly after receipt
of notice of commencement of any action, suit or proceeding against such party
in respect of which a claim for contribution may be made against another party
or parties, notify each party or parties from whom contribution may be sought,
but the omission to so notify such party or parties shall not relieve the party
or parties from whom contribution may be sought from any obligation it or they
may have under this Section 8 or otherwise. No party shall be liable for
contribution with respect to any action or claim settled without its consent,
provided that such consent was not unreasonably withheld.
The Underwriters' obligations in this Section 8 to contribute are
several in proportion to their respective underwriting obligations and not
joint. The remedies provided for in this Section 8 are not exclusive and shall
not limit any rights or remedies that may otherwise be available to any
indemnified party at law or in equity.
9. Conditions to the Obligations of the Underwriters. The several
obligations of the Underwriters to purchase and pay for the Firm Shares and the
Option Shares, as provided herein, shall be subject to the accuracy of the
representations and warranties on the part of the Company and the Selling
Stockholders contained herein as of the date hereof, the Closing Date and the
Additional Closing Date, if applicable, to the absence from any certificates,
opinions, written statements or letters furnished to the Underwriters or to
counsel for the Underwriters pursuant to this Section 9 of any misstatement or
omission, to the timely performance by the Company and the Selling Stockholders
of its covenants and other obligations hereunder and to each of the following
additional conditions:
(a) The Registration Statement shall have become effective not later
than, if Rule 430A of the 1933 Act Regulations is used, 5:30 P.M., New York
time, on the date of this Agreement, and if Rule 430A of the 1933 Act
Regulations is not being used, 12:00 Noon, New York time, on the date an
amendment to the Registration Statement containing the public
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offering price has been filed with the Commission, or at such later time and
date as has been consented to in writing by ING Barings; if the Company has
elected to use Rule 430A or Rule 434 of the 1933 Act Regulations, the Prospectus
shall have been filed with the Commission in a timely fashion in accordance with
Section 5(a) hereof; and, at or prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement or any post-effective
amendment thereof shall have been issued and no proceedings for such purpose
shall have been initiated or threatened by the Commission; no order suspending
the qualification or registration of the Shares under the state securities or
"blue sky" laws of any jurisdiction shall be in effect and no proceeding for
such purpose shall be pending before or threatened or contemplated by the
authorities of any such jurisdiction; any request for additional information on
the part of the staff of the Commission or any such authorities shall have been
complied with to the satisfaction of the staff of the Commission or such
authorities and to the satisfaction of counsel for the Underwriters; after the
date hereof no amendment or supplement to the Registration Statement or the
Prospectus shall have been filed unless a copy thereof was first submitted to
the Underwriters and the Underwriters did not object thereto; and the NASD, upon
review of the terms of the public offering of the Shares, shall not have raised
any objection to the fairness or reasonableness of the underwriting terms and
arrangements.
(b) The Company shall have furnished to the Underwriters the opinion
of Xxxxxx Godward LLP, counsel for the Company, dated the Closing Date and the
Additional Closing Date, if applicable, addressed to the Underwriters and in
form and substance reasonably satisfactory to Winthrop, Stimson, Xxxxxx &
Xxxxxxx, counsel for the Underwriters, to the effect that:
(i) Each of the Company and the Subsidiaries has been duly
incorporated and is validly existing and in good standing under the laws
of its jurisdiction of organization, with the corporate power and
authority to own, lease and operate its properties and engage in the
business in which it is engaged or proposes to engage as described in
the Registration Statement and the Prospectus. Each of the Company and
the Subsidiaries is duly registered and qualified to do business as a
foreign corporation in good standing in each jurisdiction where the
character or location of its properties (owned, leased or licensed) or
the nature or conduct of its business requires such registration or
qualification, except where the failure to so register or qualify,
individually or in the aggregate, would not have a Material Adverse
Effect. To such counsel's knowledge, except as set forth in the
Registration Statement and the Prospectus, or the Underwriting
Agreement, the Company does not own or control, directly or indirectly,
any shares of stock or any other equity or long-term debt securities of
any corporation or have an equity interest in any firm, partnership,
association, joint venture or other entity, other than the Subsidiaries
and JCR Pharmaceuticals Co., Ltd.
(ii) All the outstanding share capital of the Subsidiaries has
been duly authorized and validly issued, are fully paid and
nonassessable, are owned by the Company, free and clear of any Liens,
shareholders' agreements, voting trusts or defects of title, and were
not issued in violation of statutory or, to such counsel's knowledge,
other preemptive rights, co-sale rights, resale rights, rights of first
refusal, or similar rights.
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(iii) The Company's authorized equity capitalization is as set
forth in the Registration Statement and the Prospectus. The Common
Stock, the Firm Shares, the Option Shares and all others shares of
capital stock of the Company conform to the description thereof
contained in the Registration Statement. The outstanding shares of
capital stock of the Company have been duly authorized and validly
issued and are fully paid and nonassessable. The Shares to be issued and
sold to the Underwriters pursuant to this Agreement have been duly
authorized and, when issued and delivered to and paid for by the
Underwriters pursuant to this Agreement, will be validly issued and
fully paid and nonassessable and, to such counsel's knowledge, will be
transferred to the Underwriters free and clear of any Liens and will not
have been issued in violation of or subject to any statutory or, to such
counsel's knowledge, other preemptive rights, resale rights, co-sale
rights, rights of first refusal, or similar rights. The certificates for
the Shares are in valid and sufficient form. The holders of outstanding
shares of capital stock of the Company are not entitled to statutory or,
to such counsel's knowledge, other preemptive rights, co-sale rights,
rights of first refusal, resale rights or similar rights in respect of
the Shares. Except as described in the Registration Statement and the
Prospectus, to such counsel's knowledge, there are no authorized or
outstanding rights, warrants or options to acquire, or instruments
convertible into or exercisable or exchangeable for, any share of
capital stock or other equity interest or ownership interest in the
Company or any Subsidiary or any contract, commitment, agreement,
understanding or arrangement of any kind relating to the issuance of any
capital stock or other equity interest or ownership interest in the
Company or any Subsidiary or any such convertible or exercisable or
exchangeable securities or instruments or any such rights, warrants or
options. To such counsel's knowledge, there are no holders of securities
of the Company that have any rights to the registration of securities of
the Company because of the filing of the Registration Statement or
otherwise in connection with the sale of the Shares contemplated by the
Underwriting Agreement, except for any such rights that have been
effectively waived in writing so as not to be exercisable in connection
with the registration, offer or sale of the Shares.
(iv) To the knowledge of such counsel, there are no legal or
governmental actions, suits, proceedings or investigations pending or
threatened against the Company or any Subsidiary, or as to which the
business, assets or property of the Company or any Subsidiary would be
subject or bound, that are of a character required to be disclosed in
the Registration Statement or the Prospectus that have not been
disclosed therein. The statements under "Part II--Legal Proceedings" in
the Company's Annual Report on Form 10-K incorporated by reference in
the Registration Statement, each preliminary prospectus and the
Prospectus, insofar as such statements constitute a summary of matters
of law relating to pending litigation, fairly summarize, in all material
respects, the matters referred to therein.
(v) The Registration Statement has become effective under the
1933 Act; and all filings required by Rule 424(b) of the 1933 Act
Regulations have been made in the manner and within the time period
required by Rule 424(b). To the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or
threatened. The Registration Statement and the Prospectus and each
amendment or supplement
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thereto (other than the financial statements and supporting schedules
and financial data, as to which such counsel need not express any
opinion) comply as to form in all material respects with the applicable
requirements of the 1933 Act and the 1933 Act Regulations. Each
Incorporated Document (other than the financial statements and
supporting schedules and financial data, as to which such counsel need
not express any opinion) as originally filed complied as to form when so
filed in all material respects with the applicable requirements of the
1934 Act and the 1934 Act Regulations.
(vi) This Agreement has been duly authorized, executed and
delivered by, and is the valid and binding agreement of, the Company.
The Company has the corporate power and authority to enter into this
Agreement and to issue, sell and deliver to the Underwriters the Shares
to be issued and sold by it thereunder.
(vii) To the knowledge of such counsel, the Company and the
Subsidiaries are not in violation of their respective certificate of
incorporation or by-laws or other organizational or constitutive
documents.
(viii) Neither the issuance, offer, sale or delivery of the
Shares, the execution, delivery and performance by the Company of this
Agreement nor the compliance by the Company with all the provisions
thereof nor the consummation of the transactions contemplated thereby
(other than performance of the Company's indemnification and
contribution obligations thereunder, concerning which no opinion is
expressed), (A) constitutes or will constitute a breach or violation of
or a default (or an event that with notice or the lapse of time or both
would constitute such a breach, violation or default) under, any of the
terms or provisions of the respective certificate of incorporation or
by-laws or other organizational or constitutive documents of the Company
or the Subsidiaries, (B) constitutes or will constitute a breach or
violation of, or a default (or an event that with notice or the lapse of
time or both would constitute such a breach, violation or default), or
the termination of any Contract filed as an exhibit to any of the
Company's filings with the Commission pursuant to the 1934 Act or (C)
violates or will violate any law, statute, rule or regulation applicable
to the Company or any Subsidiary (other than the state securities or
"blue sky" laws, concerning which no opinion need be expressed) or any
judgment, decree or order known to such counsel and applicable to the
Company or any Subsidiary of any court or governmental agency, body or
authority, having jurisdiction over the Company or any Subsidiary or any
of their respective property or assets, the default under or the breach
or violation of which, in the case of clauses (B) and (C) above,
individually or in the aggregate, could have a Material Adverse Effect.
(ix) The Company is not now, and as a result of the offer and
sale of the Shares in the manner contemplated in this Agreement, the
Registration Statement, each preliminary prospectus and the Prospectus
and the application of the net proceeds of such sale as described in the
Registration Statement, each preliminary prospectus and the Prospectus
will not be, an "investment company" or an "affiliated person" of, or
"promoter" or "principal underwriter" for, an "investment company"
within the meaning of the Investment Company Act and the rules and
regulations of the Commission
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thereunder, without taking account of any exemption arising out of the
number or type of holders of the Company's securities.
(x) No consent, approval, authorization, filing, qualification,
Permit or order of any court or governmental agency, body or authority,
or, to the knowledge of such counsel, from the Company's securityholders
is required for the Company's execution, delivery and performance of
this Agreement, the issuance, sale or delivery of the Shares hereunder
or the consummation of any other of the transactions contemplated herein
or the fulfillment of the terms thereof, except such as have been
obtained under the 1933 Act and the 1934 Act and such as may be required
under the state securities or "blue sky" laws of any jurisdiction in
connection with the purchase and distribution of the Shares by the
Underwriters and such other approvals (specified in such opinion) as
have been obtained and that are in full force and effect.
(xi) The Common Stock is registered pursuant to Section 12(g) of
the 1934 Act and is quoted on the Nasdaq National Market, and to the
knowledge of such counsel, the Company has not received any notification
that the Commission or the Nasdaq National Market is contemplating the
termination of such registration or quotation.
(xii) To such counsel's knowledge, each Selling Stockholder is
the lawful owner of the Shares to be sold by such Selling Stockholder
pursuant to this Agreement and has, and on the Closing Date and the
Additional Closing Date, if applicable, will have, good and clear title
to such Shares, free of all restrictions on transfer, liens,
encumbrances, security interests, equities and claims whatsoever. [Such
Shares are certificated securities in registered form and not held by or
through any securities intermediary within the meaning of the NYUCC.
Upon delivery to an Underwriter or its agent of such Shares endorsed in
blank or registered in the name of such Underwriter, such Underwriter
will be a "protected purchaser" (as defined in Section 8-303 of the
NYUCC) of such Shares and will acquire its interest in such Shares free
of any adverse claim (assuming that such Underwriter does not have
notice of any adverse claim to such Shares) Upon payment for such Shares
pursuant to this Agreement on the Closing Date and the Additional
Closing Date, if applicable, and the crediting by DTC of such Shares to
the Underwriters' securities accounts, the Underwriters will acquire a
security entitlement (within the meaning of Section 8-501 of the NYUCC)
in respect of such Shares to be purchased by them and no action (whether
framed in conversion, replevin, constructive trust, equitable lien or
other theory) based on an adverse claim to such Shares may be asserted
against the Underwriters (assuming that the Underwriters acquire such
security entitlement without notice of an adverse claim).] [Upon
delivery of and payment for the Shares to be sold by such Selling
Stockholder pursuant to this Agreement on the Closing Date and the
Additional Closing Date, if applicable, good and clear title to such
Shares will pass to the Underwriters, free of all restrictions on
transfer, liens, encumbrances, security interests and claims
whatsoever.]
(xiii) Each Selling Stockholder had, at the time of entering into
this Agreement and on the Closing Date and the Additional Closing Date,
as applicable, has full legal right, power and authority to enter into
this Agreement and the Custody
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Agreement and the Power of Attorney of such Selling Stockholder and to
sell, assign, transfer and deliver the Shares in the manner provided
herein and therein. This Agreement has been duly executed and delivered
by, and is a valid and binding agreement of, each Selling Stockholder,
enforceable against such Selling Stockholder in accordance with its
terms, except as rights to indemnification thereunder may be limited by
applicable law and except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by general
equitable principles.
(xiv) The Custody Agreement of each Selling Stockholder has been
duly authorized, executed and delivered by such Selling Stockholder and
is a valid and binding agreement of such Selling Stockholder,
enforceable in accordance with its terms;
(xv) The Power of Attorney of each Selling Stockholder has been
duly authorized, executed and delivered by such Selling Stockholder and
is a valid and binding instrument of such Selling Stockholder,
enforceable in accordance with its terms, and, pursuant to such Power of
Attorney, such Selling Stockholder has, among other things, authorized
the Attorneys, or any one of them, to execute and deliver on such
Selling Stockholder's behalf this Agreement and any other document they,
or any one of them, may deem necessary or desirable in connection with
the transactions contemplated hereby and thereby and to deliver the
Shares to be sold by such Selling Stockholder pursuant to this
Agreement;
(xvi) To such counsel's knowledge, the execution, delivery and
performance of this Agreement and the Custody Agreement and the Power of
Attorney of each Selling Stockholder by such Selling Stockholder, the
compliance by each Selling Stockholder with all the provisions hereof
and the consummation of the transactions contemplated hereby do not (A)
require any consent, approval, authorization or other order of, or
qualification with, any court or governmental body or agency (except
such as may be required under the state securities or "blue sky" laws),
(B) conflict with or constitute a breach of any of the terms or
provisions of, or a default under, any indenture, loan agreement,
mortgage, lease or other material agreement or instrument to which any
Selling Stockholder is a party or by which any Selling Stockholder or
any property of any Selling Stockholder is bound or (C) violate or
conflict with any applicable law or any rule, regulation, judgment,
order or decree of any court or any governmental body or agency having
jurisdiction over any Selling Stockholder or any property of any Selling
Stockholder.
In addition, such opinion shall also contain a statement that such
counsel has participated in conferences with officers and representatives of the
Company, representatives of the independent public accountants for the Company
and representatives of and counsel for the Underwriters at which the contents of
the Registration Statement and the Prospectus and related matters were discussed
and no facts have come to the attention of such counsel that cause such counsel
to believe that the Registration Statement (other than financial statements and
supporting schedules and other financial data, as to which such counsel need not
express any opinion) at the time it became effective (including all information
deemed to be part of the Registration Statement (other than financial statements
and supporting schedules and other financial data, as
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to which such counsel need not express any opinion) at the time of effectiveness
pursuant to Rule 430A, Rule 462 or Rule 434, if applicable) contained an 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 (other than financial statements and supporting schedules
and other financial data, as to which such counsel need not express any opinion)
as of its date and as of the Closing Date or the Additional Closing Date, as
applicable, contained or contains an untrue statement of a material fact or
omitted or omits to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
Notwithstanding the foregoing, to the extent any of the matters set
forth in this Section 9(b) involve the laws of any jurisdiction other than the
laws of the States of California, the Delaware General Corporation Law and the
federal laws of the United States or as to whether or not the laws of any
particular jurisdiction apply, the Company may furnish, in lieu of the opinion
of Xxxxxx Godward LLP, an opinion or opinions of other counsel that are members
of the bar of any such jurisdiction and acceptable to the Underwriters and
counsel for the Underwriters. In rendering any such opinion, any such counsel
may rely, as to matters of fact, to the extent they deem proper, on certificates
of responsible officers of the Company or any Subsidiary and certificates or
other written statements of officers of departments of various jurisdictions
having custody of documents respecting the corporate existence or good standing
of the Company and any Subsidiary and on certificates from the Selling
Stockholders, provided that copies of any such statements or certificates will
be delivered to counsel for the Underwriters upon request. Moreover, except to
the extent set forth in the immediately preceding paragraph, such counsel need
not render any opinion as to compliance with any antifraud provisions of any
law, rule or regulation relating to the Shares or the sale or issuance thereof.
(c) The Company shall have furnished to the Underwriters the opinion
of XxXxxxxxx Xxxxxxx Xxxxxxx & Xxxxxxxx, [_________], [__________] and
[________], intellectual property counsel for the Company, dated the Closing
Date and the Additional Closing Date, if applicable, each in a form reasonably
acceptable to the Underwriters and their counsel.
(d) All corporate proceedings and other legal matters in connection
with this Agreement, the form of the Registration Statement, each preliminary
prospectus or the Prospectus, and the registration, authorization, issue, sale
and delivery of the Shares as herein contemplated shall be satisfactory in form
and substance to the Underwriters and to counsel for the Underwriters in the
Underwriters' and such counsel's reasonable discretion. The Underwriters shall
have received from Winthrop, Stimson, Xxxxxx & Xxxxxxx, counsel for the
Underwriters, a favorable opinion, dated the Closing Date (and the Additional
Closing Date, if applicable), with respect to the issuance and sale of the
Shares, the Registration Statement, the Prospectus and other related matters as
the Underwriters may reasonably require, and the Company, each Subsidiary and
the Selling Stockholders shall have furnished to counsel for the Underwriters
such documents as they reasonably request for the purpose of enabling them to
pass upon the matters referred to in this Section 9(d).
(e) At the Closing Date (and the Additional Closing Date, if
applicable), the Underwriters shall have received a certificate of the Chief
Executive Officer and Chief Financial
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Officer of the Company, dated the Closing Date (and the Additional Closing Date,
if applicable), to the effect that (i) the condition set forth in Section 9(a)
hereof has been satisfied, (ii) as of the date hereof and as of the Closing Date
(and the Additional Closing Date, if applicable), all the representations and
warranties of the Company set forth in this Agreement are accurate with the same
force and effect as if made on each of such dates, (iii) as of the Closing Date
(and the Additional Closing Date, if applicable), the agreements and obligations
of the Company to be performed hereunder on or prior thereto have been duly
performed, (iv) when the Registration Statement became effective and at all
times subsequent thereto up to the delivery of such certificate, the
Registration Statement and the Prospectus, and any amendments or supplements
thereto, contained the information required to be included therein by the 1933
Act and the 1933 Act Regulations and conformed to the requirements of the 1933
Act and the 1933 Act Regulations; the Registration Statement and the Prospectus,
and any amendments or supplements thereto, did not and do not include any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading; and
since the effective date of the Registration Statement, there has occurred no
event required to be set forth in an amended or supplemented Prospectus that has
not been so set forth and (v) subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, neither
the Company nor any Subsidiary has sustained any material loss or interference
with their respective business or properties from fire, flood, hurricane,
accident or other calamity, whether or not covered by insurance, or from any
labor dispute or any legal or governmental proceeding, and there has not been
any material adverse change, or any development involving a prospective material
adverse change, in the business, management, properties, operations, prospects,
condition (financial or otherwise), or results of operations of the Company or
any Subsidiary or any transaction that is material to the Company or any of its
subsidiaries, or any obligation, direct or contingent, that is material to the
Company or any Subsidiary incurred by the Company or any Subsidiary, or any
change in the capital stock or outstanding indebtedness of the Company or any
Subsidiary, or any dividend or distribution of any kind declared, paid or made
on the capital stock of the Company or any Subsidiary.
(f) All the representations and warranties of each Selling
Stockholder contained in this Agreement shall be true and correct on the Closing
Date and the Additional Closing Date, if applicable, with the same force and
effect as if made on the Closing Date and the Additional Closing Date and the
Underwriters shall have received on the Closing Date and the Additional Closing
Date, if applicable, a certificate dated the Closing Date and the Additional
Closing Date, if applicable, from each Selling Stockholder to such effect and to
the effect that such Selling Stockholder has complied with all of the agreements
and satisfied all of the conditions herein contained and required to be complied
with or satisfied by such Selling Stockholder on or prior to the Closing Date.
(g) At the time this Agreement is executed and at the Closing Date
and the Additional Closing Date, if applicable, Ernst & Young LLP shall have
furnished to the Underwriters a letter or letters, dated respectively as of the
time this Agreement is executed and as of the Closing Date (and the Additional
Closing Date, if applicable), addressed to the Underwriters and based upon the
procedures described in such letter, but carried out to a date not more than
five days prior to the Closing Date or the Additional Closing Date, as
applicable, and otherwise in form and substance satisfactory to the
Underwriters, confirming that they are
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independent public accountants with respect to the Company within the meaning of
the 1933 Act and Regulation S-X, stating that the answer to Item 10 of the
Registration Statement is correct as it relates to them and that:
(i) in their opinion the audited consolidated financial
statements, the related consolidated financial statement schedules and
the audited financial statements of the Company included in the
Registration Statement and the Prospectus and reported on by them comply
in form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations and the 1934
Act and the 1934 Act Regulations;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and the Subsidiaries, carrying
out certain specified procedures (but not an examination in accordance
with generally accepted auditing standards) that would not necessarily
reveal matters of significance with respect to the comments set forth in
such letter; a reading of the minutes of the meetings of the
stockholders and the board of directors of the Company and the
Subsidiaries and inquiries of certain officials of the Company and the
Subsidiaries who have responsibility for financial and accounting
matters of the Company and the Subsidiaries as to transactions and
events subsequent to December 31, 1999, nothing came to their attention
that caused them to believe that:
(A) any unaudited financial statements included in the
Registration Statement and the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations with
respect to registration statements on Form S-3 and the 1934 Act
and the 1934 Act Regulations; or such unaudited financial
statements are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent
with that of the audited financial statements included in the
Registration Statement and the Prospectus;
(B) at March 31, 2000, there was any change in the capital
stock, stockholders' equity, long-term debt or working capital of
the Company or any decreases in current assets or net assets as
compared with the amounts therefor at December 31, 1999 as shown
in the audited financial statements included in the Registration
Statement and the Prospectus, or for the period from December 31,
1999 to March 31, 2000 there were any decreases, compared with
the corresponding period in the preceding year, in net sales or
in total or per share amounts of net income, except in all
instances for changes or decreases set forth in such letter, in
which case the letter shall be accompanied by an explanation by
the Company as to the significance thereof unless such
explanation is not deemed necessary by ING Barings;
(C) the information included in the Registration Statement
and the Prospectus in response to Item 301 (Selected Financial
Data), Item 302 (Supplementary Financial Information) and Item
402 (Executive Compensation)
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of Regulation S-X is not in conformity with the applicable
disclosure requirements of Regulation S-K under the 1933 Act; or
(D) there was any change at a date within five days of the
date of such letter in the capital stock, stockholders' equity,
long-term debt and working capital of the Company or any
decreases in current assets, net assets or working capital as
compared with the amounts therefor at the December 31, 1999 as
shown in the audited financial statements included in the
Registration Statement and the Prospectus or, for the period from
January 1, 2000 to a date within five days of the date of such
letter, there were any decreases as compared with the
corresponding period in the preceding year in net sales or total
or per share amounts of net income, except in all instances for
changes or decreases that the registration statement discloses
have occurred or as set forth in such letter, in which case the
letter shall be accompanied by an explanation by the Company as
to the significance thereof unless such explanation is not deemed
necessary by ING Barings;
(iii) 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
financial statements included in the Registration Statement and the
Prospectus; and
(iv) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and the Subsidiaries) set
forth in the Registration Statement and the Prospectus, which have been
specified by the Underwriters prior to the date of such letter, agrees
with the accounting records of the Company and its subsidiaries,
excluding any questions of legal interpretation.
In addition, ING Barings shall have received from Ernst & Young LLP
a letter addressed to the Company and made available to the Underwriters stating
that their review of the Company's system of internal accounting controls, to
the extent they deemed necessary in establishing the scope of their examination
of the Company's consolidated financial statements as of December 31, 1999, did
not disclose any weaknesses in internal controls that they considered to be
substantial or material weaknesses.
In the event that the letters to be delivered referred to above set
forth note any changes, decreases or increases in the financial information
included in the Registration Statement and the Prospectus, it shall be a further
condition to the obligations of the Underwriters hereunder that ING Barings
shall have determined in its sole judgment, that such changes, decreases or
increases as are set forth in such letters do not reflect a material adverse
change in the stockholders' equity or long-term debt of the Company as compared
with the amounts shown in the latest balance sheet of the Company included in
the Prospectus, or a material adverse change in total net revenues or net income
of the Company, in each case as compared with the corresponding period of the
prior year.
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(h) Subsequent to the date this Agreement is executed or, if
earlier, the dates as of which information is given in the Registration
Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of
any supplement thereto), there shall not have been (i) any change or decrease
specified in the letter or letters referred to in Section 9(f) hereof or (ii)
any change, or any development involving a prospective change, in or affecting
the condition (financial or other), earnings, business or properties of the
Company and the Subsidiaries, whether or not arising in the ordinary course of
business, the effect of which, in any case referred to in clause (i) or (ii)
above, is, in the sole judgment of ING Barings, material and adverse and that
makes it impracticable or inadvisable to proceed with the offering or delivery
of the Shares as contemplated by the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement thereto).
(i) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, (i) there shall not have been a
material adverse change, or any development involving a prospective material
adverse change, in the general affairs, business, prospects, properties,
management, key personnel, condition (financial or other) or results of
operations of the Company and the Subsidiaries, whether or not arising from
transactions in the ordinary course of business, in each case other than as set
forth in the Registration Statement and the Prospectus (or, in the case of a
prospective change, other than as contemplated by the Registration Statement and
the Prospectus), and (ii) the Company shall not have sustained any material loss
or interference with its business or properties from fire, explosion, flood,
hurricane or other casualty or calamity, whether or not covered by insurance, or
from any labor dispute or any court or legislative or other governmental action,
order or decree, that is not set forth in the Registration Statement and the
Prospectus, if in the reasonable judgment of ING Barings any such development
makes it impracticable or inadvisable to consummate the sale and delivery of the
Shares at the public offering price.
(j) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there shall have been no
litigation or other proceeding instituted against the Company or any of its
officers or directors in their capacities as such, before or by any federal,
state or local court, commission, regulatory body, administrative agency or
other governmental body, domestic or foreign, in which litigation or proceeding
an unfavorable ruling, decision or finding could reasonably be expected to have
a Material Adverse Effect.
(k) At the time of execution of this Agreement, except as may have
otherwise been consented to in writing by ING Barings, the Company shall have
furnished to the Underwriters a letter addressed to the Underwriters from each
Locked-Up Party, in which each such person agrees not to (i) offer for sale,
contract to sell, sell, pledge or otherwise dispose of (or enter into any
transaction or device that is designed to, or could be expected to, result in
the disposition by any person at any time in the future of) any shares of Common
Stock or securities convertible into, exercisable or exchangeable for, or
represent the right to receive, Common Stock or sell or grant options, rights or
warrants with respect to any shares of Common Stock or register for sale any
outstanding shares of Common Stock or (ii) enter into any swap or other
derivatives transaction that transfers to another, in whole or in part, any of
the economic benefits or risks of ownership of such shares of Common Stock or
securities, whether any such transaction described in clause (i) or (ii) above
is to be settled by delivery of Common Stock or
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other securities, in cash or otherwise for a period of 90 days following the
time of execution of this Agreement without the prior written consent of ING
Barings, other than shares of Common Stock disposed of as gifts or transfers to
immediate family members or trusts or partnerships, the beneficiaries and sole
partners of which are immediate family members, provided that the donee or
transferee agrees in writing to be bound in the same manner.
(l) The Shares shall be qualified for sale in such jurisdictions as
the Underwriters have requested subject to the terms hereof, each such
qualification shall be in effect and not subject to any stop order or other
proceeding on the Closing Date and the Additional Closing Date, if applicable.
(m) The Company shall have timely filed with the Nasdaq National
Market a notification form for the listing of additional shares on the Nasdaq
National Market with respect to the Firm Shares and the Option Shares, if any.
Such Firm Shares and such Option Shares, if any, shall have been approved for
designation upon notice of issuance on the Nasdaq National Market prior to the
Effective Date.
(n) Each of the Company and the Selling Stockholders shall have
furnished to the Underwriters such certificates, in addition to those
specifically mentioned herein, as the Underwriters may have reasonably requested
(i) as to the accuracy and completeness (to the extent required under applicable
law) at the Closing Date and the Additional Closing Date, if applicable, of any
statement in the Registration Statement, any preliminary prospectus or the
Prospectus, (ii) as to the accuracy at the Closing Date and the Additional
Closing Date, if applicable, of the representations, warranties and covenants of
the Company and the Selling Stockholders herein, (iii) as to the performance by
the Company and the Selling Stockholders of their obligations hereunder or (iv)
as to the fulfillment of the conditions concurrent and precedent to the
obligations of the Underwriters hereunder.
(o) Prior to the Closing Date and the Additional Closing Date, if
applicable, the Company and the Selling Stockholders shall have furnished to the
Underwriters such further information and documents as the Underwriters may
reasonably request.
If any of the conditions specified in this Section 9 have not been
fulfilled in all respects when and as required to be satisfied, or if any of the
opinions and certificates mentioned above or elsewhere in this Agreement are not
reasonably satisfactory in form and substance to the Underwriters and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be terminated at, or at any time on or prior to, the Closing Date
(and Additional Closing Date, if applicable) by ING Barings. Notice of such
termination shall be given to the Company promptly in writing or by telephone
confirmed in writing.
10. Default by an Underwriter.
(a) If any Underwriter defaults in its, or any Underwriters default
in their, obligations to purchase Firm Shares or Option Shares hereunder, and if
the Firm Shares or the Option Shares with respect to which such default relates
do not (after giving effect to arrangements, if any, made by ING Barings
pursuant to Section 10(b) hereof) exceed in the aggregate 10% of the aggregate
number of the Firm Shares or the Option Shares, the Shares to
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which the default relates shall be purchased by the non-defaulting Underwriters
in proportion to the respective proportions that the numbers of Firm Shares set
forth opposite their respective names in Schedule II hereto bear to the
aggregate number of Firm Shares set forth opposite the names of the
non-defaulting Underwriters.
(b) In the event that such default relates to more than 10% of the
aggregate number of the Firm Shares or the Option Shares, as the case may be,
ING Barings may in its discretion arrange for itself or for another party or
parties (including any non-defaulting Underwriter or Underwriters who so agree)
to purchase such Firm Shares or Option Shares, as the case may be, to which such
default relates on the terms contained herein. In the event that within five
calendar days after such a default ING Barings does not arrange for the purchase
of such Firm Shares or Option Shares, as the case may be, to which such default
relates as provided in this Section 10, this Agreement or, in the case of a
default with respect to the Option Shares, the obligations of the Underwriters
to purchase and of the Company to sell the Option Shares shall thereupon
terminate, without liability on the part of the Company with respect thereto
(except in each case as provided in Sections 6, 7(a) and 8 hereof) or the
Underwriters, but nothing in this Agreement shall relieve a defaulting
Underwriter or Underwriters of its or their liability, if any, to the other
non-defaulting Underwriters and the Company for damages occasioned by its or
their default hereunder. Notwithstanding the foregoing, if any default occurs
with respect to the Additional Closing Date, this Agreement will not terminate
with respect to the Firm Shares purchased prior to such time.
(c) In the event that the Firm Shares or the Option Shares to which
the default relates are to be purchased by the non-defaulting Underwriters, or
are to be purchased by another party or parties as aforesaid, ING Barings or the
Company shall have the right to postpone the Closing Date or the Additional
Closing Date, if applicable, for a period not exceeding five business days, in
order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus or in any other documents and
arrangements, and the Company agrees to file promptly any amendment or
supplement to the Registration Statement or the Prospectus that, in the opinion
of counsel for the Underwriters, may thereby be made necessary or advisable. The
term UNDERWRITER as used in this Agreement shall include any party substituted
under this Section 10 with like effect as if it had originally been a party to
this Agreement with respect to such Firm Shares and Option Shares.
11. Survival of Representations and Agreements. All representations and
warranties, covenants and agreements of the Underwriters, the Company and the
Selling Stockholders contained in this Agreement, including the agreements
contained in Sections 5 and 6 hereof, the indemnity agreements contained in
Section 7 hereof and the contribution agreements contained in Section 8 hereof,
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Underwriter or any controlling person
thereof or by or on behalf of the Company, any of its officers and directors or
any controlling person thereof or by or on behalf of any Selling Stockholder or
any controlling person of any Selling Stockholder, and shall survive delivery of
and payment for the Shares to and by the Underwriters. The representations
contained in Sections 1 and 2 hereof and the agreements contained in Sections 6,
7, 8 and 12(d) hereof also shall survive the termination of this Agreement,
including termination pursuant to Section 10 or 12 hereof.
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12. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective upon the later of (i) when
the Underwriters and the Company shall have received notification of the
effectiveness of the Registration Statement and (ii) the execution of this
Agreement. If either the public offering price or the purchase price per Share
has not been agreed upon prior to 5:00 P.M., New York time, on the fifth full
business day after this Agreement has become effective, this Agreement shall
thereupon terminate without liability to the Company or the Underwriters except
as herein expressly provided. Until this Agreement becomes effective as
aforesaid, it may be terminated by the Company and the Selling Stockholders by
notifying the Underwriters or by the Underwriters notifying the Company.
Notwithstanding the foregoing, the provisions of this Section 12 and of Sections
1, 2, 6, 7 and 8 hereof shall at all times be in full force and effect.
(b) ING Barings shall have the right to terminate this Agreement at
any time on or prior to the Closing Date, or the obligations of the Underwriters
to purchase the Option Shares at any time on or prior to the Additional Closing
Date, if applicable (but in any event prior to delivery of and payment for the
Shares), if (i) any domestic or international event or act or occurrence has
disrupted, or in the opinion of ING Barings will in the immediate future
disrupt, the market for the Company's securities or securities in general; or
(ii) if trading on the New York or American Stock Exchanges or Nasdaq National
Market has been suspended, or limited, minimum or maximum prices for trading
have been fixed, or maximum ranges for prices for securities have been required,
on the New York Stock Exchange or the Nasdaq National Market by the New York
Stock Exchange or the Nasdaq National Market or by order of the Commission or
any other governmental authority having jurisdiction; or (iii) if a banking
moratorium has been declared by a state or federal authority or if any new
restriction materially adversely affecting the distribution of the Firm Shares
or the Option Shares, as the case may be, has become effective; or (iv) if there
has (A) occurred any outbreak or escalation of hostilities or there is an
outbreak or escalation of national or international hostilities or there is a
declaration by the United States of a national emergency or war or (B) has been
any crisis or calamity or any change or development in domestic or international
political, financial or economic conditions, and the effect of any such event in
clause (A) or (B) above in the sole judgment of ING Barings makes it
impracticable or inadvisable to proceed with the offering, sale and delivery of
the Firm Shares or the Option Shares, as the case may be, on the terms
contemplated by the Prospectus (exclusive of any supplement thereto) or to
enforce contracts for the sale of securities; or (v) in the sole judgment of ING
Barings there has occurred any Material Adverse Effect; or (vi) the Company has
sustained a loss by strike, fire, flood, earthquake, accident or other calamity
of such character as in the sole judgment of ING Barings may interfere
materially with the conduct of the business and operations of the Company
regardless of whether or not such loss shall have been insured. Any termination
pursuant to this Section 12 shall be without liability on the part of (A) the
Company to any Underwriter, except that the Company shall be obligated to
reimburse the expenses of ING Barings and the other Underwriters to the extent
required pursuant to Sections 6, 7 and 8 hereof, (B) any Underwriter to the
Company or (C) of any party hereto to any other party except that the provisions
of Sections 6, 7 and 8 hereof shall at all times be effective and shall survive
such termination.
(c) Any notice of termination pursuant to this Section 12 shall be
by telephone or facsimile and confirmed in writing by letter.
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13. Agreements of the Selling Stockholders. Each Selling Stockholder
agrees with the Underwriters and the Company: (i) to pay or to cause to be paid
all transfer taxes payable in connection with the transfer of the Shares to be
sold by such Selling Stockholder to the Underwriters; and (ii) to do and perform
all things to be done and performed by such Selling Stockholder under this
Agreement prior to the Closing Date and to satisfy all conditions precedent to
the delivery of the Shares to be sold by such Selling Stockholder pursuant to
this Agreement.
14. Notices. Any notice or notification in any form to be given
hereunder shall be in writing and shall be delivered in person or sent by
telephone or facsimile transmission (but in the case of a notification by
telephone, with subsequent confirmation by letter or facsimile transmission).
Any notice or notification to the Underwriters shall be addressed
to:
ING Barings LLC
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: H. Xxxx Xxxxxxx
With a copy to:
Winthrop, Xxxxxxx Xxxxxx & Xxxxxxx
Financial Centre
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxx, Esq.
Any notice or notification to the Company shall be addressed to
the Company at:
Molecular Devices Corporation
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Executive Officer
With a copy to:
Xxxxxx Godward LLP
3000 El Camino Real
Xxxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxx, Esq.
Any notice or notification shall (subject to confirmation when required)
take effect at the time of receipt.
15. Parties. This Agreement shall inure solely to the benefit of, and
shall be binding upon, the Underwriters, the Company, the Selling Stockholders
and the controlling persons, directors,
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officers, employees and agents referred to in Sections 7 and 8 hereof, and their
respective successors and assigns, and no other person shall have or be
construed to have any legal or equitable right, remedy or claim under or in
respect of or by virtue of this Agreement or any provision herein contained. The
term SUCCESSORS AND ASSIGNS shall not include a purchaser, in its capacity as
such, of Shares from any of the Underwriters. Notwithstanding the foregoing,
this Agreement and the terms and provisions hereof are, unless otherwise
specified herein, for the sole benefit of only those persons, except that (i)
the representations, warranties, indemnities and agreements of the Company
contained in this Agreement shall also be deemed to be for the benefit of each
Purchaser Indemnified Party and (ii) the indemnity agreement of the Underwriters
contained in Section 7 hereof shall be deemed to be for the benefit of each
Company Indemnified Party.
16. Consent to Jurisdiction. Any legal suit, action or proceeding
arising out of or based upon this Agreement or the transactions contemplated
hereby (RELATED PROCEEDINGS) may be instituted in the federal courts of the
United States of America located in the City and County of New York or the
courts of the State of New York in each case located in the City and County of
New York (collectively, the SPECIFIED COURTS), and each party irrevocably
submits to the exclusive jurisdiction (except for proceedings instituted in
regard to the enforcement of a judgment of any such court (a RELATED JUDGMENT),
as to which such jurisdiction is non-exclusive) of such courts in any such suit,
action or proceeding. Service of any process, summons, notice or document by
mail to such party's address set forth above shall be effective service of
process for any suit, action or other proceeding brought in any such court. The
parties irrevocably and unconditionally waive any objection to the laying of
venue of any suit, action or other proceeding in the Specified Courts and
irrevocably and unconditionally waive and agree not to plead or claim in any
such court that any such suit, action or other proceeding brought in any such
court has been brought in an inconvenient forum. Each party not located in the
United States irrevocably appoints CT Corporation System, which currently
maintains an office at New York, New York, United States of America, as its
agent to receive service of process or other legal summons for purposes of any
such suit, action or proceeding that may be instituted in any state or federal
court in the City and County of New York.
With respect to any Related Proceeding, each party irrevocably waives,
to the fullest extent permitted by applicable law, all immunity (whether on the
basis of sovereignty or otherwise) from jurisdiction, service of process,
attachment (both before and after judgment) and execution to which it might
otherwise be entitled in the Specified Courts or any other court of competent
jurisdiction, and will not raise or claim or cause to be pleaded any such
immunity at or in respect of any such Related Proceeding or Related Judgment,
including, without limitation, any immunity pursuant to the United States
Foreign Sovereign Immunities Act of 1976, as amended.
17. Miscellaneous. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York applicable to
contracts made and to be performed within the State of New York. This Agreement
may be executed in one or more counterparts, and if executed in more than one
counterpart, the executed counterparts shall together constitute a single
instrument. The descriptive headings in this Agreement are for convenience of
reference only and shall not define or limit the provisions hereof.
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Time shall be of the essence of this Agreement.
This Agreement constitutes the entire agreement of the parties to this
Agreement and supersedes all prior written or oral and all contemporaneous oral
agreements, understandings and negotiations with respect to the subject matter
hereof.
If any provision or portion of any provision of the Agreement, or the
application of any such provision or any portion thereof to any party or
circumstances, is held invalid or unenforceable, the remaining portion of such
provision and the remaining portion of such provision and the remaining
provisions of this Agreement, and the application of such provision or portion
of such provision as is held invalid or unenforceable to any parties or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby and such remaining portion of such provision and
the remaining provisions of this Agreement shall continue to be valid and in
full force and effect.
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If the foregoing is in accordance with the Underwriters' understanding
of our agreement, kindly sign and return to us one of the counterparts hereof,
whereupon it will become a binding agreement between the Company and the
Underwriters in accordance with its terms.
Very truly yours,
Molecular Devices Corporation
By:
-------------------------------------------
Name:
Title:
Dionex Corporation
-----------------------------------------------
By:
Attorney-in-fact
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Gillian X.X. Xxxxxxxxx
-----------------------------------------------
By:
Attorney-in-fact
Xxxx X. Xxxx
-----------------------------------------------
By:
Attorney-in-fact
Xxxxxx X. Xxxxxx
-----------------------------------------------
By:
Attorney-in-fact
Xxxx X. Xxxxxxx
-----------------------------------------------
By:
Attorney-in-fact
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The foregoing Underwriting Agreement is hereby confirmed and accepted as
of the date first above written.
ING Barings LLC
By:
-------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Head of Healthcare Investment
Banking
For itself and the other several Underwriters
named in Schedule II to the foregoing
Underwriting Agreement.
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SCHEDULES
I - Selling Stockholders
II - Underwriters
1(n) - Intellectual Property
Exhibits
A - Form of Lock-Up Agreement
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SCHEDULE I
Maximum
Number of Selling Number of Selling
Type of Selling Stockholder Firm Stockholder Option
Selling Stockholder Stockholder Shares to be Sold Shares to be Sold
------------------- --------------- ----------------- ------------------
Dionex Corporation Firm/Group B 100,000 --
Gillian X.X. Xxxxxxxxx Option/Group A -- 5,000
Xxxx X. Xxxx Option/Group A -- 4,300
Xxxxxx X. Xxxxxx Option/Group A -- 5,000
Xxxx X. Xxxxxxx Option/Group A -- 4,000
------- ------
Total.................................. 100,000 18,300
======= ======
53
SCHEDULE II
Number of
Firm Shares to be
Underwriter Purchased
----------- -----------------
ING Barings LLC.................................
Bear, Xxxxxxx & Co. Inc.........................
Xxxxxx Xxxxxx Partners LLC......................
Warburg Dillon Read LLC......................... _________
Total............................ 1,600,000
=========
54
Exhibit A
Form of Lock-Up Agreement
ING Barings LLC
Bear, Xxxxxxx & Co. Inc.
Xxxxxx Xxxxxx Partners LLC
Warburg Dillon Read LLC
c/o ING Barings LLC
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Molecular Devices Corporation
Ladies and Gentlemen:
The undersigned is the record owner of shares of common stock, par value
$.001 per share (COMMON STOCK), or options to purchase shares of the Common
Stock (such shares and options herein referred to as SECURITIES) of Molecular
Devices Corporation, a Delaware corporation (the COMPANY). The undersigned
understands that the Company currently intends to file with the Securities and
Exchange Commission a Registration Statement on Form S-3 for the registration of
certain shares of Common Stock, which will be purchased by you pursuant to an
underwriting agreement between the Company and you (the UNDERWRITING AGREEMENT).
The undersigned agrees that the undersigned will not, without the prior
consent of ING Barings LLC, directly or indirectly, for a period of 90 days from
the date of the Underwriting Agreement: (1) offer for sale, contract to sell,
sell, pledge or otherwise dispose of (or enter into any transaction or device
that is designed to, or could be expected to, result in the disposition by any
person at any time in the future of) any Securities or securities convertible
into, exercisable or exchangeable for, or representing the right to receive,
Securities or sell or grant options, rights or warrants with respect to any
Securities or register for sale any outstanding Securities; or (2) enter into
any swap or other derivatives transaction that transfers to another, in whole or
in part, any of the economic benefits or risks of ownership of any Securities or
such securities, whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of Securities or other securities, in cash or
otherwise.
Notwithstanding the foregoing, (i) gifts or (ii) transfers to (A) the
undersigned's immediate family or (B) a trust or partnership the beneficiaries
and sole partners of which are members of the undersigned's immediate family or
the undersigned, shall not be prohibited by this agreement if the donee or
transferee agrees in writing to be bound by the foregoing in the same manner as
it applies to the undersigned. For this purpose, IMMEDIATE FAMILY shall mean the
spouse, lineal descendants, the father, the mother or any brother or sister of
the undersigned.
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This agreement shall not prohibit the exercise of any stock options to
purchase Common Stock, except that Securities obtained upon any such exercise
shall be subject to the limitations on disposition herein.
Very truly yours,
_______________________________________ By: _______________________________
Legal name of Stockholder as it appears Name:
on the Corporate Records Title:
2
