1
EXHIBIT 1.1
DRAFT 4/19/00
5,000,000 Shares
Common Stock
($0.001 Par Value)
UNDERWRITING AGREEMENT
April __, 2000
1
2
UNDERWRITING AGREEMENT
April __, 2000
WARBURG DILLON READ LLC
XXXXXX BROTHERS INC.
XXXX XXXXXXXX INCORPORATED
as Managing Underwriters
c/o Warburg Dillon Read LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Genomic Solutions Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to the underwriters named in Schedule A annexed
hereto (the "Underwriters") an aggregate of 5,000,000 shares (the "Firm Shares")
of Callable Common Stock, $0.001 par value (the "Common Stock"), of the Company.
In addition, solely for the purpose of covering over-allotments, the Company
proposes to grant to the Underwriters the option to purchase from the Company up
to an additional 750,000 shares of Common Stock (the "Additional Shares"). The
Firm Shares and the Additional Shares are hereinafter collectively sometimes
referred to as the "Shares." The Shares are described in the Prospectus which is
referred to below.
The Company has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively called the "Act"), with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-1 (File No. 333-30246)
including a prospectus, relating to the Shares. The Company has furnished to
you, for use by the Underwriters and by dealers, copies of one or more
preliminary prospectuses (each thereof being herein called a "Preliminary
Prospectus") relating to the Shares. Except where the context otherwise
requires, the registration statement, as amended when it becomes effective,
including all documents filed as a part thereof, and including any information
contained in a prospectus subsequently filed with the Commission pursuant to
Rule 424(b) under the Act and deemed to be part of the registration statement at
the time of effectiveness pursuant to Rule 430A under the Act and also including
any registration statement filed pursuant to Rule 462(b) under the Act, is
herein called the Registration Statement, and the prospectus, in the form filed
by the Company with the Commission pursuant to Rule 424(b) under the Act on or
before the second business day after the date hereof (or such earlier time as
may be required under the Act) or, if no such filing is required, the form of
final prospectus included in the Registration Statement at the time it became
effective, is herein called the
2
3
Prospectus.
Warburg Dillon Read LLC ("WDR") has agreed to reserve an aggregate of
250,000 of the Firm Shares to be purchased by it under this Agreement for sale
to the Company's directors, officers, employees and business partners, and other
parties related to the Company (collectively, "Participants"), as set forth in
the Prospectus under the heading "Underwriting" (such program being the
"Directed Share Program"). The Shares to be sold by WDR and its affiliates
pursuant to the Directed Share Program are referred to hereinafter as the
"Directed Shares". Any Directed Shares not orally confirmed for purchase by any
Participant by the end of the business day on which this Agreement is executed
will be offered to the public by the Underwriters as set forth in the
Prospectus.
The Company and the Underwriters agree as follows:
1. Sale and Purchase. Upon the basis of the warranties and
representations and subject to the terms and conditions herein set forth, the
Company agrees to sell to the respective Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase from the Company the
respective number of Firm Shares set forth opposite the name of such Underwriter
in Schedule A annexed hereto in each case at a purchase price of $____ per
Share. The Company is advised by you that the Underwriters intend (i) to make a
public offering of their respective portions of the Firm Shares as soon after
the effective date of the Registration Statement as in your judgment is
advisable and (ii) initially to offer the Firm Shares upon the terms set forth
in the Prospectus. You may from time to time increase or decrease the public
offering price after the initial public offering to such extent as you may
determine.
In addition, the Company hereby grants to the several Underwriters the
option to purchase, and upon the basis of the warranties and representations and
subject to the terms and conditions herein set forth, the Underwriters shall
have the right to purchase, severally and not jointly, from the Company, ratably
in accordance with the number of Firm Shares to be purchased by each of them,
all or a portion of the Additional Shares as may be necessary to cover
over-allotments made in connection with the offering of the Firm Shares, at the
same purchase price per share to be paid by the Underwriters to the Company for
the Firm Shares. This option may be exercised by you on behalf of the several
Underwriters at any time (but not more than once) on or before the thirtieth day
following the date hereof, by written notice to the Company. Such notice shall
set forth the aggregate number of Additional Shares as to which the option is
being exercised, and the date and time when the Additional Shares are to be
delivered (such date and time being herein referred to as the additional time of
purchase); provided, however, that the additional time of purchase shall not be
earlier than the time of
----------------
1 As used herein "business day" shall mean a day on which the New York Stock
3
4
purchase (as defined below) nor earlier than the second business day 1 after
the date on which the option shall have been exercised nor later than the tenth
business day after the date on which the option shall have been exercised. The
number of Additional Shares to be sold to each Underwriter shall be the number
which bears the same proportion to the aggregate number of Additional Shares
being purchased as the number of Firm Shares set forth opposite the name of such
Underwriter on Schedule A hereto bears to the total number of Firm Shares
(subject, in each case, to such adjustment as you may determine to eliminate
fractional shares).
2. Payment and Delivery. Payment of the purchase price for the Firm
Shares shall be made to the Company by Federal Funds wire transfer, against
delivery of the certificates for the Firm Shares to you through the facilities
of the Depository Trust Company (the "DTC") for the respective accounts of the
Underwriters. Such payment and delivery shall be made at 10:00 A.M., New York
City time, on April __, 2000 (unless another time shall be agreed to by you and
the Company or unless postponed in accordance with the provisions of Section 8
hereof). The time at which such payment and delivery are actually made is
hereinafter sometimes called the time of purchase. Certificates for the Firm
Shares shall be delivered to you in definitive form in such names and in such
denominations as you shall specify no later than the second business day
preceding the time of purchase. For the purpose of expediting the checking of
the certificates for the Firm Shares by you, the Company agrees to make such
certificates available to you for such purpose at least one full business day
preceding the time of purchase.
Payment of the purchase price for the Additional Shares shall be made
at the additional time of purchase in the same manner and at the same office as
the payment for the Firm Shares. Certificates for the Additional Shares shall be
delivered to you in definitive form in such names and in such denominations as
you shall specify no later than the second business day preceding the additional
time of purchase. For the purpose of expediting the checking of the certificates
for the Additional Shares by you, the Company agrees to make such certificates
available to you for such purpose at least one full business day preceding the
additional time of purchase.
3. Representations and Warranties of the Company. The Company
represents and warrants to each of the Underwriters that:
(a) the Company has not received, and has no notice of, any order of
the Commission preventing or suspending the use of any Preliminary Prospectus,
or instituting proceedings for that purpose, and each Preliminary Prospectus, at
the time of filing thereof, conformed in all material respects to the
requirements of the Act; and when the Registration Statement becomes effective,
the Registration Statement and the Prospectus will comply in all material
respects with the provisions of the Act, and the Registration
--------------
Exchange is open for trading.
4
5
Statement will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Prospectus will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; any statutes,
regulations, contracts or other documents that are required to be described in
the Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement have been so described or filed; provided, however, that
the Company makes no warranty or representation with respect to any statement
contained in the Registration Statement or the Prospectus in reliance upon and
in conformity with information concerning the Underwriters and furnished in
writing by or on behalf of any Underwriter through you to the Company expressly
for use in the Registration Statement or the Prospectus and the Company has not
distributed any offering material in connection with the offering or sale of the
Shares other than the Registration Statement, the Preliminary Prospectus, the
Prospectus or any other materials, if any, permitted by the Act;
(b) as of the date of this Agreement, the Company has an authorized
capitalization as set forth under the heading entitled "Actual" in the section
of the Registration Statement and the Prospectus entitled "Capitalization" and,
as of the time of purchase and the additional time of purchase, as the case may
be, the Company shall have an authorized capitalization as set forth under the
heading entitled "As Adjusted" in the section of the Registration Statement and
the Prospectus entitled "Capitalization"; all of the issued and outstanding
shares of capital stock including the Common Stock, Series B Convertible
Preferred Stock, Series C Convertible Preferred Stock, Series D Convertible
Preferred Stock, Series M Convertible Preferred Stock and Series P Convertible
Preferred Stock of the Company have been duly and validly authorized and issued
and are fully paid and non-assessable, 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;
(c) the Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware, with
full power and authority to own, lease and operate its properties and conduct
its business as described in the Registration Statement;
(d) the Company is duly qualified to do business as a foreign
corporation in good standing in each jurisdiction where the ownership or leasing
of its properties or the conduct of its business requires such qualification,
except where the failure to so qualify would not have a material adverse effect
on the business, properties, financial condition or results of operation of the
Company and its Subsidiaries (as hereinafter defined) taken as a whole (a
5
6
"Material Adverse Effect"). The Company has no subsidiaries (as defined in the
Rules and Regulations) other than Genomic Solutions Ltd., a United Kingdom
corporation (the "UK Subsidiary"), and Genomic Solutions K.K., a Japanese
corporation (the "Japan Subsidiary") (the UK Subsidiary and Japanese Subsidiary
are each referred to individually herein as a "Subsidiary" and collectively as
the "Subsidiaries"); the Company owns 100% of the outstanding capital stock of
each Subsidiary; other than the Subsidiaries, the Company does not own, directly
or indirectly, any shares of stock or any other equity or long-term debt
securities of any corporation or have any equity interest in any firm,
partnership, joint venture, association or other entity; complete and correct
copies of the certificates of incorporation and of the bylaws (or other
equivalent charter and corporate governance documents) of the Company and each
of the Subsidiaries and all amendments thereto have been delivered to you, and
except as set forth in the exhibits to the Registration Statement no changes
therein will be made subsequent to the date hereof and prior to the time of
purchase or, if later, the additional time of purchase; each Subsidiary has been
duly incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, with full corporate
power and authority to own, lease and operate its properties and to conduct its
business as currently conducted; each Subsidiary is duly qualified to do
business as a foreign entity in good standing in each jurisdiction where the
ownership or leasing of the properties or the conduct of its business requires
such qualification, except where the failure to so qualify would not have a
Material Adverse Effect; all of the outstanding shares of capital stock of each
Subsidiary have been duly authorized and validly issued, are fully paid and
non-assessable and (except as otherwise described in this Section 3(d) or in the
Registration Statement) are owned by the Company subject to no security
interest, other encumbrance or adverse claim; no options, warrants or other
rights to purchase, agreements or other obligations to issue or other rights to
convert any obligation into shares of capital stock or ownership interests in
any of the Subsidiaries are outstanding;
(e) the Company and each of the Subsidiaries are in compliance in
all material respects with the laws, orders, rules, regulations and directives
issued or administered by any governmental agency or body or any court, domestic
or foreign, having jurisdiction over the Company or the Subsidiaries or over the
property of the Company or the Subsidiaries;
(f) neither the Company nor any of the Subsidiaries is in breach of,
or in default under (nor has any event occurred which with notice, lapse of
time, or both would result in any breach of, or constitute a default under), its
respective charter or by-laws or equivalent charter and corporate governance
documents, as the case may be, or in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, bank loan or credit agreement or other
evidence of indebtedness, or any lease, contract or other agreement or
instrument to which the Company or any of the Subsidiaries is a party or by
which any of them or any of their
6
7
properties is bound, and the execution, delivery and performance of this
Agreement, the issuance and sale of the Shares and the consummation of the
transactions contemplated hereby will not conflict with, or result in any breach
of or constitute a default under (nor constitute any event which with notice,
lapse of time, or both would result in any breach of, or constitute a default
under), any provisions of the charter or by-laws or equivalent charter and
corporate governance documents, as the case may be, of the Company or any of the
Subsidiaries or under any material provision of any license, indenture,
mortgage, deed of trust, bank loan or credit agreement or other evidence of
indebtedness, or any lease, contract or other agreement or instrument to which
the Company or any of the Subsidiaries is a party or by which any of them or
their respective properties may be bound or affected, or under any federal,
state, local or foreign law, regulation or rule or any decree, judgment or order
applicable to the Company or any of the Subsidiaries;
(g) this Agreement has been duly authorized, executed and delivered
by the Company and is a legal, valid and binding agreement of the Company
enforceable in accordance with its terms;
(h) the capital stock of the Company, including the Shares, conforms
in all material respects to the description thereof contained in the
Registration Statement and Prospectus;
(i) the Shares have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will be duly
and validly issued and fully paid and non-assessable;
(j) no approval, authorization, consent or order of or filing with
any national, state or local governmental or regulatory commission, board, body,
authority or agency is required in connection with the issuance and sale of the
Shares or the consummation by the Company of the transaction as contemplated
hereby other than registration of the Shares under the Act and any necessary
qualification under the securities or blue sky laws of the various jurisdictions
in which the Shares are being offered by the Underwriters or under the rules and
regulations of the National Association of Securities Dealers, Inc. ("NASD");
(k) no person has the right, contractual or otherwise, to cause the
Company to issue to it, or register pursuant to the Act, any shares of capital
stock of the Company upon the issue and sale of the Shares to the Underwriters
hereunder, nor does any person have preemptive rights, co-sale rights, rights of
first refusal or other rights to purchase any of the Shares other than those
that have been expressly waived prior to the dates hereof;
(l) Xxxxxx Xxxxxxxx LLP, whose report on the consolidated financial
statements of the Company and the Subsidiaries is filed with the Commission as
part of the Registration Statement and Prospectus, are independent certified
public accountants as required by the
7
8
Act;
(m) each of the Company and each of its Subsidiaries possesses such
valid and current licenses, authorizations, consents and approvals issued by or
with the appropriate state, federal or foreign regulatory agencies necessary,
and has made all necessary filings required under any federal, state, local or
foreign law, regulation or rule, and has obtained all necessary authorizations,
consents and approvals from other persons, in order to conduct its respective
business; neither the Company nor any of its Subsidiaries is in violation of, or
in default under, any such license, authorization, consent or approval or any
federal, state, local or foreign law, regulation or rule or any decree, order or
judgment applicable to the Company or any of its Subsidiaries the effect of
which could have a Material Adverse Effect;
(n) all legal or governmental proceedings, contracts, leases or
documents of a character required to be described in the Registration Statement
or the Prospectus or to be filed as an exhibit to the Registration Statement
have been so described or filed as required;
(o) except as disclosed in the Registration Statement, there are no
actions, suits, claims, investigations or proceedings pending or threatened to
which the Company or any of the Subsidiaries or any of their respective officers
is a party or of which any of their respective properties is subject at law or
in equity, or before or by any federal, state, local or foreign governmental or
regulatory commission, board, body, authority or agency which could result in a
judgment, decree or order having a Material Adverse Effect or prevent
consummation of the transactions contemplated hereby;
(p) the audited and unaudited financial statements included in the
Registration Statement and the Prospectus present fairly the consolidated
financial position of the Company and the Subsidiaries as of the dates indicated
and the consolidated results of operations and cash flows of the Company and the
Subsidiaries for the periods specified; the supporting schedules included in the
Registration Statement present fairly the information required to be stated
therein; except as disclosed in the Registration Statement, such financial
statements and supporting schedules have been prepared in conformity with
generally accepted accounting principles as applied in the United States applied
on a consistent basis during the periods involved; no other financial statements
or supporting schedules are required to be included in the Registration
Statement; the financial data set forth in the Prospectus under the captions
"Prospectus Summary -- Summary consolidated financial and operating data",
"Capitalization", "Selected consolidated financial data" and "Management's
discussion and analysis of financial condition and results of operations" fairly
present the information set forth therein on a basis consistent with that of the
audited and unaudited financial statements contained in the Registration
Statement;
(q) subsequent to the respective dates as of which information is
given in the
8
9
Registration Statement and the Prospectus, there has not been (i) any material
adverse change, or any development which, in the Company's reasonable judgment,
is likely to cause a material adverse change, in the business, properties or
assets described or referred to in the Registration Statement, or the results of
operations, condition (financial or otherwise), business or operations of the
Company and its Subsidiaries taken as a whole, (ii) any transaction which is
material to the Company or any of its Subsidiaries, except transactions in the
ordinary course of business, (iii) any obligation, direct or contingent, which
is material to the Company and its Subsidiaries taken as a whole, incurred by
the Company or any of its Subsidiaries, except obligations incurred in the
ordinary course of business, (iv) any change in the capital stock or outstanding
indebtedness of the Company or any of its Subsidiaries or (v) any dividend or
distribution of any kind declared, paid or made on the capital stock of the
Company. Neither the Company nor any of its Subsidiaries has any material
contingent obligation which is not disclosed in the Registration Statement;
(r) the Company has obtained the agreement of each of its directors
and officers, and certain of its other stockholders not to sell, offer to sell,
contract to sell, hypothecate, grant any option to sell or otherwise dispose of,
directly or indirectly, any shares of Common Stock or securities convertible
into or exercisable or exchangeable for Common Stock or warrants or other rights
to purchase Common Stock for a period of 180 days after the date of the
Prospectus;
(s) the Company is not and, after giving effect to the offering and
sale of the Shares, will not be an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(t) the Company and each of the Subsidiaries own or possess
sufficient trademarks, trade names, service marks, patents, patent rights,
copyrights, licenses, approvals, inventions, know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures) and other similar rights and intellectual
property including specifically, but without limitation, the patents and
trademarks described in the Registration Statement (collectively, "Intellectual
Property Rights") necessary to conduct their businesses as now conducted; and
the expected expiration of any of such Intellectual Property Rights would not
have a Material Adverse Effect. Except as otherwise disclosed in the Prospectus,
neither the Company nor any of the Subsidiaries has received any notice of
infringement or conflict with asserted rights of others with respect to any
Intellectual Property Rights or of any facts or circumstances which would render
any Intellectual Property Rights invalid or inadequate to protect the interests
of the Company or its Subsidiaries therein, and, which infringement or conflict,
if the subject of an unfavorable decision, would have a Material Adverse Effect.
The
9
10
Company has good and marketable title to the patents and patent applications
referenced as owned or licensed by it in the Prospectus. The Company and its
Subsidiaries have entered into valid and binding confidentiality, non-disclosure
and assignment of inventions agreements with all current and former employees,
consultants, vendors and other third parties with access to the Company's or its
Subsidiaries' Intellectual Property Rights. There is no material unauthorized
use, disclosure, infringement or misappropriation of any Intellectual Property
Rights of the Company or the Subsidiaries, any trade secret material to the
Company or any of the Subsidiaries, or any Intellectual Property Rights of any
third party to the extent licensed by or through the Company or any of the
Subsidiaries, by any third party, including any employee, former employee,
consultant or vendor of the Company or any of the Subsidiaries or, to the
Company's knowledge, any basis for any of the foregoing;
(u) each of the Company and each of the Subsidiaries has good and
marketable title to all the properties and assets reflected as owned in the
financial statements referred to in Section 3(p) above (or elsewhere in the
Prospectus), in each case free and clear of any security interests, mortgages,
liens, encumbrances, equities, claims and other defects, except such as do not
materially and adversely affect the value of such property and do not materially
interfere with the use made or proposed to be made of such property by the
Company or such Subsidiary. The real property, improvements, equipment and
personal property held under lease by the Company or the Subsidiaries are held
under valid and enforceable leases, with such exceptions as are not material to
the Company or the Subsidiaries, and neither the Company nor any of the
Subsidiaries has received any notice of any claim that has been asserted by
anyone adverse to the rights of the Company or any of the Subsidiaries under any
of the leases or subleases referred to above, or affecting or questioning the
rights of the Company or such Subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease, except for such
notices or claims as would not reasonably be expected to have a Material Adverse
Effect;
(v) the Company and each of the Subsidiaries have filed all
necessary federal, state and foreign income and franchise tax returns and have
paid all taxes required to be paid by any of them and, if due and payable, any
related or similar assessment, fine or penalty levied against any of them. The
Company has made adequate charges, accruals and reserves in the applicable
financial statements referred to in Section 4(p) above in respect of all
federal, state and foreign income and franchise taxes for all periods as to
which the tax liability of the Company or any of the Subsidiaries has not been
finally determined;
(w) each of 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 businesses including, but not limited
to, policies covering real and personal property owned
10
11
or leased by the Company and the Subsidiaries against theft, damage,
destruction, acts of vandalism and earthquakes. The Company has no reason to
believe that it or any Subsidiary will not be able (i) to renew its existing
insurance coverage as and when such policies expire or (ii) to 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 have a Material
Adverse Effect. Neither of the Company nor any Subsidiary has been denied any
insurance coverage which it has sought or for which it has applied;
(x) the Company has not taken and will not take, directly or
indirectly, any action designed to or that might be reasonably expected to cause
or result in stabilization or manipulation of the price of the Common Stock to
facilitate the sale or resale of the Shares;
(y) there are no business relationships or related-party
transactions involving the Company, any of the Subsidiaries, or any other person
required to be described in the Prospectus which have not been described as
required;
(a) neither the Company nor any of the Subsidiaries nor, to the
Company's knowledge, any employee or agent of the Company or any Subsidiary, has
made any contribution or other payment to any official of, or candidate for, any
federal, state or foreign office in violation of any law or of the character
required to be disclosed in the Prospectus;
(aa) the Company maintains a system of accounting controls
sufficient to provide reasonable assurances that (i) transactions are executed
in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles as
applied in the United States and to maintain accountability for assets; (iii)
access to assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate action is
taken with respect to any differences;
(ab) except as would not, individually or in the aggregate, have a
Material Adverse Effect: (i) neither the Company nor any of the Subsidiaries is
in violation of any federal, state, local or foreign law or regulation relating
to pollution or protection of human health or the environment (including,
without limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including without limitation, laws and
regulations relating to emissions, discharges, releases or threatened releases
of chemicals, pollutants, contaminants, wastes, toxic substances, hazardous
substances, petroleum and petroleum products (collectively, "Hazardous
Materials"), or otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of Hazardous Materials
(collectively, "Environmental Laws"), which violation
11
12
includes, but is not limited to, noncompliance with any permits or other
governmental authorizations required for the operation of the business of the
Company or any of the Subsidiaries under applicable Environmental Laws, or
noncompliance with the terms and conditions thereof, nor has the Company or any
of the Subsidiaries received any written communication, whether from a
governmental authority, citizens group, employee or otherwise, that alleges that
the Company or any of the Subsidiaries is in violation of any Environmental Law;
(ii) there is no claim, action or cause of action filed with a court or
governmental authority, no investigation with respect to which the Company has
received written notice, and no written notice by any person or entity alleging
potential liability for investigatory costs, cleanup costs, governmental
responses costs, natural resources damages, property damages, personal injuries,
attorneys' fees or penalties arising out of, based on or resulting from the
presence, or release into the environment, of any Hazardous Materials at any
location owned, leased or operated by the Company or any of the Subsidiaries,
now or in the past (collectively, "Environmental Claims"), pending or, to the
Company's knowledge, threatened against the Company or any of the Subsidiaries
or any person or entity whose liability for any Environmental Claim the Company
or any of the Subsidiaries has retained or assumed either contractually or by
operation of law; (iii) the Company and the Subsidiaries have all permits,
authorizations and approvals required under any applicable Environmental Laws
and are each in compliance with their requirements; and (iv) to the Company's
knowledge, there are no past or present actions, activities, circumstances,
conditions, events or incidents, including, without limitation, the release,
emission, discharge, presence or disposal of any Hazardous Materials, that
reasonably could result in a violation of any Environmental Law or form the
basis of a potential Environmental Claim against the Company or any of the
Subsidiaries or against any person or entity whose liability for any
Environmental Claim the Company or its Subsidiary has retained or assumed either
contractually or by operation of law; and
(ac) the Company and the Subsidiaries and any "employee benefit
plan" (as defined under the Employee Retirement Income Security Act of 1974, as
amended, and the regulations and published interpretations thereunder
(collectively, "ERISA")) established or maintained by the Company, the
Subsidiaries or their "ERISA Affiliates" (as defined below) are in compliance in
all material respects with ERISA. "ERISA Affiliate" means, with respect to the
Company or a Subsidiary, any member of any group of organizations described in
Sections 414(b),(c),(m) or (o) of the Internal Revenue Code of 1986, as amended,
and the regulations and published interpretations thereunder (the "Code") of
which the Company or such Subsidiary is a member. No "reportable event" (as
defined under ERISA) has occurred or is reasonably expected to occur with
respect to any "employee benefit plan" established or maintained by the Company,
its Subsidiaries or any of their ERISA Affiliates. No "employee benefit plan"
established or maintained by the Company, the Subsidiaries or any of their ERISA
Affiliates, if such "employee benefit plan"
12
13
were terminated, would have any "amount of unfunded benefit liabilities" (as
defined under ERISA). Neither the Company, the Subsidiaries nor any of their
ERISA Affiliates has incurred or reasonably expects to incur any liability under
(i) Title IV of ERISA with respect to termination of, or withdrawal from, any
"employee benefit plan" or (ii) Sections 412, 4971, 4975 or 4980B of the Code.
Each "employee benefit plan" established or maintained by the Company, its
Subsidiaries or any of their ERISA Affiliates that is intended to be qualified
under Section 401(a) of the Code is so qualified and nothing has occurred,
whether by action or failure to act, which would cause the loss of such
qualification;
(ad) all disclosure regarding year 2000 compliance that is required
to be described under the Act (including disclosures required by Staff Legal
Bulletin No. 5) has been included in the Prospectus; and the Company will not
incur significant operating expenses or costs to ensure that its information
systems will be year 2000 compliant, other than as disclosed in the Prospectus;
(ae) the Shares have been approved for listing on the National
Association of Securities Dealers Automated Quotation National Market System
("NASDAQ"), subject only to official notice of issuance;
(af) no material labor dispute with the employees of the
Company or any of the Subsidiaries exists, or, to the knowledge of the Company,
is imminent; and the Company is not aware of any existing, threatened or
imminent labor disturbance by the employees of any of its principal suppliers,
manufacturers or contractors that could reasonably be expected to result in any
Material Adverse Effect;
(ag) the Company represents and warrants to WDR and its
affiliates that (i) the Registration Statement, the Prospectus and any
preliminary prospectus comply in all material respects, and any further
amendments or supplements thereto will comply in all material respects, with any
applicable laws or regulations of foreign jurisdictions in which the Prospectus
or any preliminary prospectus, as amended or supplemented if applicable, are
distributed in connection with the Directed Share Program, and that (ii) no
authorization, approval, consent, license, order, registration or qualification
of or with any government, governmental instrumentality or court, other than
such as have been obtained, is necessary under the securities laws and
regulations of foreign jurisdictions in which the Directed Shares are offered
outside the United States; and
(ah) the Company has not offered, or caused WDR and its
affiliates to offer, Shares to any person pursuant to the Directed Share Program
with the specific intent to unlawfully influence (i) a customer or supplier of
the Company to alter the customer's or supplier's level or type of business with
the Company, or (ii) a trade journalist or publication to write or publish
favorable information about the Company or its products.
13
14
4. Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to
cooperate in qualifying the Shares for offering and sale under the securities or
blue sky laws of such states as you may designate and to maintain such
qualifications in effect so long as required for the distribution of the Shares;
provided that the Company shall not be required to qualify as a foreign
corporation or to consent to the service of process under the laws of any such
state (except service of process with respect to the offering and sale of the
Shares); and to promptly advise you 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 such purpose;
(b) to make available to the Underwriters in New York City, as soon
as practicable after the Registration Statement becomes effective, and
thereafter from time to time to furnish to the Underwriters, as many copies of
the Prospectus (or of the Prospectus as amended or supplemented if the Company
shall have made any amendments or supplements thereto after the effective date
of the Registration Statement) as the Underwriters may request for the purposes
contemplated by the Act; in case any Underwriter is required to deliver a
prospectus within the nine-month period referred to in Section 10(a)(3) of the
Act in connection with the sale of the Shares, the Company will prepare promptly
upon request, but at the expense of such Underwriter, such amendment or
amendments to the Registration Statement and such prospectuses as may be
necessary to permit compliance with the requirements of Section 10(a)(3) of the
Act;
(c) to advise you promptly and (if requested by you) to confirm such
advice in writing, (i) when the Registration Statement has become effective and
when any post-effective amendment thereto becomes effective and (ii) if Rule
430A under the Act is used, when the Prospectus is filed with the Commission
pursuant to Rule 424(b) under the Act (which the Company agrees to file in a
timely manner under such Rules);
(d) to advise you promptly and (if requested by you) to confirm such
advice in writing, of any request by the Commission for amendments or
supplements to the Registration Statement or Prospectus or for additional
information with respect thereto, or of notice of institution of proceedings
for, or the entry of a stop order suspending the effectiveness of the
Registration Statement and, if the Commission should enter a stop order
suspending the effectiveness of the Registration Statement, to make every
reasonable effort to obtain the lifting or removal of such order as soon as
possible; to advise you promptly of any proposal to amend or supplement the
Registration Statement or Prospectus and to file no such amendment or supplement
to which you shall object in writing;
(e) to file promptly all reports and any definitive proxy or
information statement required to be filed by the Company with the Commission in
order to comply with the
14
15
provisions of the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (collectively called the "Exchange Act") subsequent to
the date of the Prospectus and for so long as the delivery of a prospectus is
required in connection with the offering or sale of the shares, and to promptly
notify you of such filing;
(f) if necessary or appropriate, to file a registration statement
pursuant to Rule 462(b) under the Act;
(g) to furnish to you and, upon request, to each of the other
Underwriters for a period of five years from the date of this Agreement (i)
copies of any reports or other communications which the Company shall send to
its stockholders or shall from time to time publish or publicly disseminate,
(ii) copies of all annual, quarterly and current reports filed with the
Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be
designated by the Commission, (iii) copies of documents or reports filed with
any national securities exchange or over-the-counter market on which any class
of securities of the Company is listed, and (iv) such other information as you
may reasonably request regarding the Company or its Subsidiaries, in each case
as soon as such communications, documents or information becomes available;
(h) to advise the Underwriters promptly of the happening of any
event known to the Company within the time during which a Prospectus relating to
the Shares is required to be delivered under the Act which, in the judgment of
the Company, would require the making of any change in the Prospectus then being
used, so that the Prospectus would not include an untrue statement of material
fact or omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they are made, not misleading,
and, during such time, to prepare and furnish, at the Company's expense, to the
Underwriters promptly such amendments or supplements to such Prospectus as may
be necessary to reflect any such change and to furnish you a copy of such
proposed amendment or supplement before filing any such amendment or supplement
with the Commission;
(i) to make generally available to its security holders, and to
deliver to you, an earnings statement of the Company (which will satisfy the
provisions of Section 11(a) of the Act) covering a period of at least twelve
months beginning after the effective date of the Registration Statement (as
defined in Rule 158(c) of the Act) as soon as is reasonably practicable after
the termination of such twelve-month period but not later than the forty-fifth
(45th) day following the end of the fiscal quarter occurring after the first
anniversary of the effective date of the Registration Statement;
(j) to furnish to its shareholders as soon as practicable after the
end of each fiscal year an annual report including a balance sheet and
statements of income, shareholders' equity and of cash flow of the Company for
such fiscal year, accompanied by a copy of the
15
16
certificate or report thereon of nationally recognized independent certified
public accountants;
(k) to furnish to you four (4) signed copies of the Registration
Statement, as initially filed with the Commission, and of all amendments thereto
(including all exhibits thereto) and sufficient conformed copies of the
foregoing (other than exhibits) for distribution of a copy to each of the other
Underwriters;
(l) to furnish to you as early as practicable prior to the time of
purchase and the additional time of purchase, as the case may be, but not later
than two business days prior thereto, a copy of the latest available unaudited
interim consolidated financial statements, if any, of the Company and its
Subsidiaries which have been read by the Company's independent certified public
accountants, as stated in their letter to be furnished pursuant to Section 8(c)
hereof;
(m) to apply the net proceeds from the sale of the Shares in the
manner set forth under the caption "Use of Proceeds" in the Prospectus;
(n) to furnish to you, before filing with the Commission subsequent
to the effective date of the Registration Statement and during the period
referred to in paragraph (g) above, a copy of any document proposed to be filed
pursuant to Section 13, 14 or 15(d) of the Exchange Act;
(o) not to sell, offer or agree to sell, contract to sell, grant any
option to sell or otherwise dispose of, directly or indirectly, any shares of
Common Stock or securities convertible into or exchangeable or exercisable for
Common Stock or warrants or other rights to purchase Common Stock or any other
securities of the Company that are substantially similar to Common Stock or
permit the registration under the Act of any shares of Common Stock, except for
the registration of the Shares and the sales to the Underwriters pursuant to
this Agreement and except for issuances of Common Stock upon the exercise of
outstanding options, warrants and debentures, for a period of 180 days after the
date hereof, without the prior written consent of WDR;
(p) to cause the Common Stock to be listed for quotation on the
NASDAQ National Market;
(q) that the Company will ensure that the Directed Shares will be
restricted to the extent required by the NASD or the NASD rules from sale,
transfer, assignment, pledge or hypothecation for a period of three months
following the date of the effectiveness of the Registration Statement; the
Company will direct the transfer agent to place stop transfer restrictions upon
such securities for such period of time;
16
17
(r) that the Company will comply with all applicable securities and
other applicable laws, rules and regulation in each foreign jurisdiction in
which the Directed Shares are offered in connection with the Directed Share
Program; and
(s) to pay all expenses, fees and taxes (other than any transfer
taxes and fees and disbursements of counsel for the Underwriters except as set
forth under Section 5 hereof or (iii), (iv) or (vi) below) in connection with
(i) the preparation and filing of the Registration Statement, each Preliminary
Prospectus, the Prospectus, and any amendments or supplements thereto, and the
printing and furnishing of copies of each thereof to the Underwriters and to
dealers (including costs of mailing and shipment), (ii) the registration,
issuance, sale and delivery of the Shares by the Company, (iii) the printing of
this Agreement, any Agreement Among Underwriters, any dealer agreements, any
Powers of Attorney and any closing documents (including compilations thereof)
and the reproduction and/or printing and furnishing of copies of each thereof to
the Underwriters and (except closing documents) to dealers (including costs of
mailing and shipment), (iv) the qualification of the Shares for offering and
sale under state laws and the determination of their eligibility for investment
under state law as aforesaid (including the legal fees and filing fees and other
disbursements of counsel to the Underwriters) and the printing and furnishing of
copies of any blue sky surveys or legal investment surveys to the Underwriters
and to dealers, (v) any listing of the Shares on any securities exchange or
qualification of the Shares for quotation on the NASDAQ National Market and any
registration thereof under the Exchange Act, (vi) any filing for review of the
public offering of the Shares by the NASD, (vii) all fees and disbursements of
counsel incurred by the Underwriters in connection with the Directed Share
Program and stamp duties, similar taxes or duties or other taxes, if any,
incurred by the Underwriters in connection with the Directed Share Program, and
(viii) the performance of the Company's other obligations hereunder.
5. Reimbursement of Underwriters' Expenses. If the Shares are not
delivered for any reason other than the termination of this Agreement pursuant
to the second paragraph of Section 7 hereof or the default by one or more of the
Underwriters in its or their respective obligations hereunder, the Company
shall, in addition to paying the amounts described in Section 4(s) hereof,
reimburse the Underwriters for all of their accountable out-of-pocket expenses,
including the fees and disbursements of their counsel.
6. Conditions of Underwriters' Obligations. The several obligations of
the Underwriters hereunder are subject to the accuracy of the representations
and warranties on the part of the Company on the date hereof and at the time of
purchase (and the several obligations of the Underwriters at the additional time
of purchase are subject to the accuracy of the representations and warranties on
the part of the Company on the date hereof and at the time of purchase (unless
previously waived) and at the additional time of purchase, as the case may be),
the performance by the Company of its obligations hereunder, and to the
following additional
17
18
conditions precedent:
(a) The Company shall furnish to you at the time of purchase
and at the additional time of purchase, as the case may be, an opinion of Xxxxx
Xxxxx Heuer & Xxxxx, counsel for the Company, addressed to the Underwriters, and
dated the time of purchase or the additional time of purchase, as the case may
be, with reproduced copies for each of the other Underwriters and in form
reasonably satisfactory to Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
("Mintz Xxxxx"), counsel for the Underwriters, stating that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware; the Company has the corporate power and authority to own,
lease and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus (and any
amendment or supplement thereto);
(ii) the Company is duly qualified to do business as a
foreign corporation in good standing in the State of Michigan;
(iii) the Company has the corporate power and authority to
enter into this Agreement and to issue, sell and deliver the Shares to
the Underwriters as provided in this Agreement; this Agreement has been
duly authorized, executed and delivered by the Company;
(iv) the Shares have been duly authorized and, when issued
and delivered to and paid for by the Underwriters, will be duly and
validly issued and will be fully paid and non-assessable;
(v) the Company has an authorized capitalization as set
forth in the Registration Statement and the Prospectus; the outstanding
shares of capital stock of the Company have been duly and validly
authorized and issued, and are fully paid, nonassessable and will not
have been issued in violation of, or subject to, statutory, and, to our
knowledge, contractual preemptive rights, co-sale rights, rights of
first refusal and other similar rights; the Shares when issued will be
free of statutory and contractual preemptive rights, resale rights,
rights of first refusal and similar rights, and, to such counsel's
knowledge, have been issued in compliance with the registration and
qualification requirements of federal and state securities laws (or
applicable exemptions therefrom);
(vi) other than the Subsidiaries, the Company does not own or
control, directly or indirectly, any corporation, association or other
entity; to such counsel's knowledge, no options, warrants or other
rights to purchase, agreements or other obligations to issue or other
rights to convert any obligation into shares of capital stock
18
19
or ownership interests in the Subsidiaries are outstanding;
(vii) the capital stock of the Company, including the Shares,
conforms to the description thereof contained in the Registration
Statement and Prospectus;
(viii) the Registration Statement and the Prospectus (except
as to the financial statements and schedules and other financial and
statistical data contained therein, as to which such counsel need
express no opinion) comply as to form in all material respects with the
requirements of the Act;
(ix) the Registration Statement and all post-effective
amendments, if any, have become effective under the Act, and, to such
counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose are pending, contemplated or threatened by the Commission; and
any required filing of the Prospectus and any supplement thereto
pursuant to Rule 424 under the Act has been made in the manner and
within the time period required by such Rule 424;
(x) no approval, authorization, consent or order of or
filing with any national, state or local governmental or regulatory
commission, board, body, official, authority or agency is required in
connection with the valid issuance and sale of the Shares and
consummation by the Company of the transactions as contemplated hereby
except as have been obtained under the Act, the state securities or
blue sky laws of the various jurisdictions in which the Shares are
being offered by the Underwriters and from the NASD;
(xi) the execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby do not and will not conflict with, or
result in any breach of, or constitute a default under (nor constitute
any event which with notice, lapse of time, or both, would result in
any breach of or constitute a default under), any provisions of the
charter or by-laws of the Company or under any provision of any
license, indenture, mortgage, deed of trust, bank loan, credit
agreement or other evidence of indebtedness, or any lease, contract or
other agreement or instrument to which the Company is a party or by
which any of it or its properties may be bound or affected, or under
any federal, state, local or foreign law, regulation or rule or any
decree, judgment or order applicable to the Company;
(xii) to such counsel's knowledge, the Company is not in
violation of its charter or by-laws, or in breach of, or in default
under (nor has any event occurred which with notice, lapse of time, or
both would result in any breach of, or constitute a default under), any
license, indenture, mortgage, deed of trust, bank loan or any other
19
20
agreement or instrument to which the Company is a party or by it or its
properties may be bound or affected or under any federal, state, local
or foreign law, regulation or rule or any decree, judgment or order
applicable to the Company;
(xiii) to such counsel's knowledge, there are no contracts,
licenses, agreements, leases or documents of a character which are
required to be filed as exhibits to the Registration Statement or to be
summarized or described in the Prospectus (or any amendment or
supplement thereto) which have not been so filed, summarized or
described, and the summaries thereof and references thereto are correct
in all material respects;
(xiv) to such counsel's knowledge, there are no actions,
suits, claims, investigations or proceedings pending, threatened or
contemplated to which the Company or any of its properties is subject
at law or in equity or before or by any federal, state, local or
foreign governmental or regulatory commission, board, body, authority
or agency which are required to be described in the Registration
Statement or the Prospectus (or any amendment or supplement thereto)
but are not so described;
(xv) the Company is not and will not be, upon consummation
of the transactions contemplated by this Agreement, an "investment
company," or a "promoter" or "principal underwriter" for, a "registered
investment company," as such terms are defined in the Investment
Company Act;
(xvi) the statements (i) in the Prospectus under the
captions "Risk factors -- Anti-takeover provisions in our charter
documents...", "Description of securities", "Business -- Government
regulation", "Business -- Legal proceedings", "Certain transactions",
"Shares eligible for future sale" and "Underwriting" and (ii) in Item
14 of the Registration Statement, insofar as such statements constitute
matters of law, summaries of legal matters, the Company's charter or
by-law provisions, documents or legal proceedings, or legal
conclusions, has been reviewed by such counsel and fairly present and
summarize, in all material respects, the matters referred to therein;
(xvii) except as disclosed in the Prospectus under the
captions "Registration rights" and "Shares eligible for future sale,"
to such counsel's knowledge, there are no persons with registration or
other similar rights to have any equity or debt securities registered
for sale under the Registration Statement or included in the offering
contemplated by the Underwriting Agreement, except for such rights as
have been duly waived;
(xviii) the Shares have been approved for listing on the
NASDAQ National Market, subject only to official notice of issuance;
and
20
21
(xix) such counsel have participated in conferences with
officers and other representatives of the Company, representatives of
the independent public accountants of the Company and representatives
of the Underwriters at which the contents of the Registration Statement
and Prospectus were discussed and, although such counsel is not passing
upon and does not assume responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement
or Prospectus (except as and to the extent stated in subparagraphs (v),
(vii) and (xvi) above), on the basis of the foregoing nothing has come
to the attention of such counsel that causes them to believe that the
Registration Statement or any amendment thereto at the time such
Registration Statement or amendment became effective contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus or any supplement
thereto at the date of such Prospectus or such supplement, and at all
times up to and including the time of purchase or additional time of
purchase, as the case may be, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being
understood that such counsel need express no opinion with respect to
the financial statements and schedules and other financial and
statistical data included in the Registration Statement or Prospectus).
(b) The Company shall furnish to you at the time of purchase
and at the additional time of purchase, as the case may be, an opinion of
_______, United Kingdom counsel to the Company, addressed to the
Underwriters, and dated the time of purchase or the additional time of
purchase, as the case may be, with reproduced copies for each of the other
Underwriters and in form satisfactory to Xxxxx Xxxxx, counsel for the
Underwriters, stating that:
(i) the UK Subsidiary has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
its jurisdiction of incorporation with full corporate power and
authority to own, lease and operate its properties and to conduct its
business as currently conducted;
(ii) the UK Subsidiary is duly qualified or licensed to do
business as a foreign corporation in good standing in each jurisdiction
where it conducts its business or owns or leases property, except where
the failure to so qualify would not have a Material Adverse Effect;
(iii) all of the outstanding shares of capital stock of the UK
Subsidiary have been duly authorized and validly issued, are fully paid
and non-assessable and, except as otherwise stated in the Registration
Statement, are owned by the Company, and are
21
22
not subject to any security interest, other encumbrance or adverse
claim; to such counsel's knowledge, no options, warrants or other
rights to purchase, agreements or other obligations to issue or other
rights to convert any obligation into shares of capital stock or
ownership interests in the UK Subsidiary are outstanding;
(iv) the UK Subsidiary does not have any subsidiaries;
(v) no approval, authorization, consent or order of or
filing with any governmental or regulatory commission, board, body,
authority or agency of the United Kingdom or any political subdivision
thereof is required in connection with the issuance and sale of the
Shares and the consummation by the Company of the transactions as
contemplated in this Agreement;
(vi) to such counsel's knowledge, the UK Subsidiary is not in
violation of its charter or bylaws (or similar constituent documents)
or is in breach of, or in default under (nor has any event occurred
which with notice, lapse of time, or both would result in any breach
of, or constitute a default under), any license, indenture, mortgage,
deed of trust, bank loan or credit agreement or other evidence of
indebtedness, or any lease, contract or other agreement or instrument
to which the UK Subsidiary is a party or by which its properties may be
bound or affected or under any law, regulation or rule or any decree,
judgment or order applicable to the UK Subsidiary; and
(vii) to such counsel's knowledge, there are no actions,
suits, claims, investigations or proceedings pending, threatened or
contemplated to which the UK Subsidiary is subject or of which any of
its properties is subject at law or in equity or before any federal,
state, local or foreign governmental or regulatory commission, board,
body, authority or agency that could, either singly or in the
aggregate, result in a Material Adverse Effect.
(c) The Company shall furnish to you at the time of purchase
and at the additional time of purchase, as the case may be, an opinion of
_______, Japanese counsel to the Company, addressed to the Underwriters,
and dated the time of purchase or the additional time of purchase, as the
case may be, with reproduced copies for each of the other Underwriters and
in form satisfactory to Xxxxx Xxxxx, counsel for the Underwriters, stating
that:
(i) the Japan Subsidiary has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
its jurisdiction of incorporation with full corporate power and
authority to own, lease and operate its properties and to conduct its
business as currently conducted;
22
23
(ii) under the Japanese laws, the Japan Subsidiary is duly
qualified or licensed to do business as a foreign corporation in good
standing in each jurisdiction where it conducts its business or owns or
leases property, except where the failure to so qualify would not have
a Material Adverse Effect;
(iii) all of the outstanding shares of capital stock of the
Japan Subsidiary have been duly authorized and validly issued, are
fully paid and non-assessable and, except as otherwise stated in the
Registration Statement, to the best of such counsel's knowledge, all of
the outstanding shares of capital stock of the Japan Subsidiary are
owned by the Company, and are not subject to any security interest,
other encumbrance or adverse claim; to such counsel's knowledge, no
options, warrants or other rights to purchase, agreements or other
obligations to issue or other rights to convert any obligation into
shares of capital stock or ownership interests in the Japan Subsidiary
are outstanding;
(iv) to the best of such counsel's knowledge, the Japan
Subsidiary does not have any subsidiaries;
(v) no approval, authorization, consent or order of or
filing with any governmental or regulatory commission, board, body,
authority or agency of Japan or any political subdivision thereof is
required in connection with the issuance and sale of the Shares and the
consummation by the Company of the transactions as contemplated in this
Agreement;
(vi) to such counsel's knowledge, the Japan Subsidiary is not
in violation of its charter or bylaws (or similar constituent
documents) or is in breach of, or in default under (nor has any event
occurred which with notice, lapse of time, or both would result in any
breach of, or constitute a default under), any license, indenture,
mortgage, deed of trust, bank loan or credit agreement or other
evidence of indebtedness, or any lease, contract or other agreement or
instrument to which the Japan Subsidiary is a party or by which its
properties may be bound or affected or under any law, regulation or
rule or any decree, judgment or order applicable to the Japan
Subsidiary; and
(vii) to such counsel's knowledge, there are no actions,
suits, claims, investigations or proceedings pending, threatened or
contemplated to which the Japan Subsidiary is subject or of which any
of its properties is subject at law or in equity or before any federal,
state, local or foreign governmental or regulatory commission, board,
body, authority or agency that could, either singly or in the
aggregate, result in a Material Adverse Effect.
(d) The Company shall furnish to you at the time of purchase
and at the additional time of purchase, as the case may be, an opinion
of Xxxxx, Xxxxxxx & Xxxxxx
23
24
PLLC, intellectual property counsel for the Company, addressed to the
Underwriters, and dated the time of purchase or the additional time of
purchase, as the case may be, with reproduced copies for each of the
other Underwriters and in form satisfactory to Xxxxx Xxxxx, counsel for
the Underwriters, in substantially the form of Exhibit A attached
hereto.
(e) You shall have received from Xxxxxx Xxxxxxxx LLP, letters
dated, respectively, the date of this Agreement and the time of
purchase and additional time of purchase, as the case may be, and
addressed to the Underwriters (with reproduced copies for each of the
Underwriters) in the forms heretofore approved by WDR.
(f) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the favorable opinion
of Xxxxx Xxxxx, counsel for the Underwriters, dated the time of
purchase or the additional time of purchase, as the case may be, as to
the matters referred to in subparagraphs (iii), (iv), (vii) (with
respect to the Shares only), (viii) and (ix) of paragraph (a) of this
Section 6; and the Company shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them
to pass upon such matters.
In addition, such counsel shall state that such counsel have
participated in conferences with officers and other representatives of
the Company, counsel for the Company, representatives of the
independent public accountants of the Company and representatives of
the Underwriters at which the contents of the Registration Statement
and Prospectus and related matters were discussed and, although such
counsel is not passing upon and does not assume any responsibility for
the accuracy, completeness or fairness of the statements contained in
the Registration Statement and Prospectus (except as to matters
referred to with respect to the Shares under subparagraph (viii) of
paragraph (a) of this Section 6), on the basis of the foregoing
(relying as to materiality to a large extent upon the opinions of
officers and other representatives of the Company), no facts have come
to the attention of such counsel which lead them to believe that the
Registration Statement or any amendment thereto at the time such
Registration Statement or amendment became effective contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus as of its date or any
supplement thereto as of its date contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being
understood that such counsel need express no comment with respect to
the financial statements and schedules and other financial and
statistical data included in the Registration Statement or Prospectus).
(g) No amendment or supplement to the Registration Statement
or Prospectus, including documents deemed to be incorporated by
reference therein, shall be filed prior to
24
25
the time the Registration Statement becomes effective to which you
object in writing.
(h) The Registration Statement shall become effective, or if
Rule 430A under the Act is used, the Prospectus shall have been filed
with the Commission pursuant to Rule 424(b) under the Act, at or before
5:00 P.M., New York City time, on the date of this Agreement, unless a
later time (but not later than 5:00 P.M., New York City time, on the
second full business day after the date of this Agreement) shall be
agreed to by the Company and you in writing or by telephone, confirmed
in writing; provided, however, that the Company and you and any group
of Underwriters, including you, who have agreed hereunder to purchase
in the aggregate at least 50% of the Firm Shares may from time to time
agree on a later date.
(i) Prior to the time of purchase or the additional time of
purchase, as the case may be, (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued
under the Act or proceedings initiated under Section 8(d) or 8(e) of
the Act; (ii) the Registration Statement and all amendments thereto, or
modifications thereof, if any, shall not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and
(iii) the Prospectus and all amendments or supplements thereto, or
modifications thereof, if any, shall not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they are made, not misleading.
(j) Between the time of execution of this Agreement and the
time of purchase or the additional time of purchase, as the case may
be, (i) no material and unfavorable change, financial or otherwise
(other than as referred to in the Registration Statement and
Prospectus), in the business, condition or prospects of the Company and
its Subsidiaries taken as a whole shall occur or become known and (ii)
no transaction which is material and unfavorable to the Company shall
have been entered into by the Company or any of its Subsidiaries.
(k) The Company will, at the time of purchase or additional
time of purchase, as the case may be, deliver to you a certificate of
two of its executive officers to the effect that the representations
and warranties of the Company as set forth in this Agreement are true
and correct as of each such date, that the Company shall perform such
of its obligations under this Agreement as are to be performed at or
before the time of purchase and at or before the additional time of
purchase, as the case may be, and the conditions set forth in
paragraphs (h) and (i) of this Section 6 have been met.
(l) You shall have received signed letters, dated the date of
this Agreement, from each of the directors and officers of the Company
and certain of its other stockholders
25
26
designated by you to the effect that such persons shall not sell, offer
or agree to sell, contract to sell, grant any option to sell or
otherwise dispose of, directly or indirectly, any shares of Common
Stock of the Company or securities convertible into or exchangeable or
exercisable for Common Stock or warrants or other rights to purchase
Common Stock or any other securities of the Company that are
substantially similar to the Common Stock for a period of 180 days
after the date of the Prospectus without WDR's prior written consent.
(m) The Company shall have furnished to you such other
documents and certificates as to the accuracy and completeness of any
statement in the Registration Statement and the Prospectus as of the
time of purchase and the additional time of purchase, as the case may
be, as you may reasonably request.
(n) The Shares shall have been approved for listing for
quotation on the NASDAQ National Market, subject only to notice of
issuance at or prior to the time of purchase.
7. Effective Date of Agreement; Termination. This Agreement
shall become effective (i) if Rule 430A under the Act is not used, when
you shall have received notification of the effectiveness of the
Registration Statement, or (ii) if Rule 430A under the Act is used,
when the parties hereto have executed and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be
subject to termination in the absolute discretion of you or any group
of Underwriters (which may include you) which has agreed to purchase in
the aggregate at least 50% of the Firm Shares, if, since the time of
execution of this Agreement or the respective dates as of which
information is given in the Registration Statement and Prospectus, (x)
there has been any material adverse and unfavorable change, financial
or otherwise (other than as referred to in the Registration Statement
and Prospectus), in the operations, business, condition or prospects of
the Company and its Subsidiaries taken as a whole, which would, in your
judgment or in the judgment of such group of Underwriters, make it
impracticable to market the Shares, or (y) there shall have occurred
any downgrading, or any notice shall have been given of (i) any
intended or potential downgrading or (ii) any review or possible change
that does not indicate an improvement, in the rating accorded any
securities of or guaranteed by the Company or any Subsidiary by any
"nationally recognized statistical rating organization", as that term
is defined in Rule 436(g)(2) under the Act, or (z) if, at any time
prior to the time of purchase or, with respect to the purchase of any
Additional Shares, the additional time of purchase, as the case may be,
trading in securities on the New York Stock Exchange, the American
Stock Exchange or the NASDAQ National Market shall have been suspended
or limitations or minimum prices shall have been established on the New
York Stock Exchange, the American Stock Exchange or the NASDAQ National
Market or if a banking moratorium shall have been declared either by
the United States or New York State authorities, or if the United
States shall have declared war in accordance
26
27
with its constitutional processes or there shall have occurred any
material outbreak or escalation of hostilities or other national or
international calamity or crisis of such magnitude in its effect on the
financial markets of the United States as, in your judgment or in the
judgment of such group of Underwriters, to make it impracticable to
market the Shares.
If you or any group of Underwriters elects to terminate this
Agreement as provided in this Section 7, the Company and each other
Underwriter shall be notified promptly by letter or telegram.
If the sale to the Underwriters of the Shares, as contemplated
by this Agreement, is not carried out by the Underwriters for any
reason permitted under this Agreement or if such sale is not carried
out because the Company shall be unable to comply with any of the terms
of this Agreement, the Company shall not be under any obligation or
liability under this Agreement (except to the extent provided in
Sections 4(s), 5, 9 and 10 hereof), and the Underwriters shall be under
no obligation or liability to the Company under this Agreement (except
to the extent provided in Section 9 hereof) or to one another
hereunder.
8. Increase in Underwriters' Commitments. Subject to Sections
6 and 7, if any Underwriter shall default in its obligation to take up
and pay for the Firm Shares to be purchased by it hereunder (otherwise
than for reasons sufficient to justify the termination of this
Agreement under the provisions of Section 7 hereof) and if the number
of Firm Shares which all Underwriters so defaulting shall have agreed
but failed to take up and pay for does not exceed 10% of the total
number of Firm Shares, the non-defaulting Underwriters shall take up
and pay for (in addition to the number of Firm Shares they are
obligated to purchase pursuant to Section 1 hereof) the number of Firm
Shares agreed to be purchased by all such defaulting Underwriters, as
hereinafter provided. Such Shares shall be taken up and paid for by
such non-defaulting Underwriter or Underwriters in such amount or
amounts as you may designate with the consent of each Underwriter so
designated or, in the event no such designation is made, such Shares
shall be taken up and paid for by all non-defaulting Underwriters pro
rata in proportion to the aggregate number of Firm Shares set opposite
the names of such non-defaulting Underwriters in Schedule A.
Without relieving any defaulting Underwriter from its
obligations hereunder, the Company agrees with the non-defaulting
Underwriters that they will not sell any Firm Shares hereunder unless
all of the Firm Shares are purchased by the Underwriters (or by
substituted Underwriters selected by you with the approval of the
Company or selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or
Underwriters in accordance with the foregoing provision, the Company or
you shall have the right to postpone the time of purchase for a period
not exceeding five business days in order that any necessary changes in
the Registration
27
28
Statement and Prospectus and other documents may be effected.
The term Underwriter as used in this agreement shall refer to
and include any Underwriter substituted under this Section 8 with like
effect as if such substituted Underwriter had originally been named in
Schedule A.
If the aggregate number of Shares which the defaulting
Underwriter or Underwriters agreed to purchase exceeds 10% of the total
number of Shares which all Underwriters agreed to purchase hereunder,
and if neither the non-defaulting Underwriters nor the Company shall
make arrangements within the five business day period stated above for
the purchase of all the Shares which the defaulting Underwriter or
Underwriters agreed to purchase hereunder, this Agreement shall be
terminated without further act or deed and without any liability on the
part of the Company to any non-defaulting Underwriter and without any
liability on the part of any non-defaulting Underwriter to the Company.
Nothing in this paragraph, and no action taken hereunder, shall relieve
any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
9. Indemnity and Contribution.
(a) The Company agrees to indemnify, defend and hold harmless
each Underwriter, its partners, directors and officers, and any person
who controls any Underwriter within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, and the successors and assigns
of all of the foregoing persons from and against any loss, damage,
expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, any such Underwriter or any
such person may incur under the Act, the Exchange Act, the common law
or otherwise, insofar as such loss, damage, expense, liability or claim
arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement
(or in the Registration Statement as amended by any post-effective
amendment thereof by the Company) or in a Prospectus (the term
Prospectus for the purpose of this Section 9 being deemed to include
any Preliminary Prospectus, the Prospectus and the Prospectus as
amended or supplemented by the Company), or arises out of or is based
upon any omission or alleged omission to state a material fact required
to be stated in either such Registration Statement or Prospectus or
necessary to make the statements made therein not misleading, except
insofar as any such loss, damage, expense, liability or claim arises
out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in and in conformity with
information furnished in writing by or on behalf of any Underwriter
through you to the Company expressly for use with reference to such
Underwriter in such Registration Statement or such Prospectus or arises
out of or is based upon any omission or alleged omission to state a
material fact in connection with such information required to be stated
in either such Registration Statement or Prospectus or
28
29
necessary to make such information not misleading.
If any action, suit or proceeding (together, a "Proceeding")
is brought against an Underwriter or any such person in respect of
which indemnity may be sought against the Company pursuant to the
foregoing paragraph, such Underwriter or such person shall promptly
notify the Company in writing of the institution of such Proceeding and
the Company shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such indemnified party
and payment of all fees and expenses; provided, however, that the
omission to so notify the Company shall not relieve the Company from
any liability which the Company may have to any Underwriter or any such
person or otherwise unless such failure to provide notice has
irreparably prejudiced the Company's ability to defend such Proceeding.
Such Underwriter or such controlling person shall have the right to
employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such Underwriter or
of such person unless the employment of such counsel shall have been
authorized in writing by the Company in connection with the defense of
such Proceeding or the Company shall not have, within a reasonable
period of time in light of the circumstances, employed counsel to have
charge of the defense of such Proceeding or such indemnified party or
parties shall have reasonably concluded that there may be defenses
available to it or them which are different from, additional to or in
conflict with those available to the Company (in which case the Company
shall not have the right to direct the defense of such Proceeding on
behalf of the indemnified party or parties), in any of which events
such fees and expenses shall be borne by the Company, as the case may
be, and paid as incurred (it being understood, however, that the
Company shall not be liable for the expenses of more than one separate
counsel (in addition to any local counsel) in any one Proceeding or
series of related Proceedings in the same jurisdiction representing the
indemnified parties who are parties to such Proceeding). The Company
shall not be liable for any settlement of any such Proceeding effected
without its written consent but if settled with the written consent of
the Company, the Company agrees to indemnify and hold harmless any
Underwriter and any such person from and against any loss or liability
by reason of such settlement. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by the second sentence of this
paragraph, then the indemnifying party agrees that it shall be liable
for any settlement of any Proceeding effected without its written
consent if (i) such settlement is entered into more than 60 business
days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of such
settlement and (iii) such indemnified party shall have given the
indemnifying party at least 30 days' prior notice of its intention to
settle. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or
threatened Proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder
by such indemnified party, unless such settlement includes an
unconditional release of
29
30
such indemnified party from all liability on claims that are the
subject matter of such Proceeding and does not include an admission of
fault, culpability or a failure to act, by or on behalf of such
indemnified party.
(b) Each Underwriter severally agrees to indemnify, defend and
hold harmless the Company, its directors and officers and any person
who controls the Company within the meaning of Section 15 of the Act,
or Section 20 of the Exchange Act from and against any loss, damage,
expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, the Company or any such
person may incur under the Act, the Exchange Act, or common law or
otherwise, insofar as such loss, damage, expense, liability or claim
arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in and in conformity with
information furnished in writing by or on behalf of such Underwriter
through you to the Company expressly for use with reference to such
Underwriter in the Registration Statement (or in the Registration
Statement as amended by or on behalf of any post-effective amendment
thereof by the Company) or in a Prospectus, or arises out of or is
based upon any omission or alleged omission to state a material fact in
connection with such information required to be stated in such
Registration Statement or Prospectus or necessary to make such
information not misleading.
If any Proceeding is brought against the Company or any such
person in respect of which indemnity may be sought against any
Underwriter pursuant to the foregoing paragraph, the Company or such
person shall promptly notify such Underwriter in writing of the
institution of such Proceeding and such Underwriter shall assume the
defense of such Proceeding, including the employment of counsel
reasonably satisfactory to such indemnified party and payment of all
fees and expenses, provided, however, that the omission to so notify
such Underwriter shall not relieve such Underwriter, from any liability
which such Underwriter may have to the Company or any such person or
otherwise. The Company or such person shall have the right to employ
its own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of the Company or such person unless
the employment of such counsel shall have been authorized in writing by
such Underwriter in connection with the defense of such Proceeding or
such Underwriter shall not have employed counsel to have charge of the
defense of such Proceeding or such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or
them which are different from or additional to or in conflict with
those available to such Underwriter (in which case such Underwriter
shall not have the right to direct the defense of such Proceeding on
behalf of the indemnified party or parties, but such Underwriter may
employ counsel and participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of such Underwriter),
in any of which events such fees and expenses shall be borne by such
Underwriter and paid as incurred (it being understood, however, that
such Underwriter shall not be liable for the expenses of more than one
separate counsel (in addition to any local counsel) in any one
Proceeding or series of
30
31
related Proceedings in the same jurisdiction representing the
indemnified parties who are parties to such Proceeding). No Underwriter
shall be liable for any settlement of any such Proceeding effected
without the written consent of such Underwriter but if settled with the
written consent of such Underwriter, such Underwriter agrees to
indemnify and hold harmless the Company and any such person from and
against any loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by
the second sentence of this paragraph, then the indemnifying party
agrees that it shall be liable for any settlement of any Proceeding
effected without its written consent if (i) such settlement is entered
into more than 60 business days after receipt by such indemnifying
party of the aforesaid request, (ii) such indemnifying party shall not
have reimbursed the indemnified party in accordance with such request
prior to the date of such settlement and (iii) such indemnified party
shall have given the indemnifying party at least 30 days' prior notice
of its intention to settle. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement
of any pending or threatened Proceeding in respect of which any
indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such
Proceeding.
(c) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a) and (b) of
this Section 9 in respect of any losses, damage, expenses, liabilities
or claims referred to therein, then each applicable indemnifying party,
in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, damages, expenses, liabilities or claims (i) in such proportion
as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the
offering of the Shares or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, damages,
expenses, liabilities or claims, as well as any other relevant
equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other shall be deemed to be
in the same respective proportion as the total proceeds from the
offering (net of underwriting discounts and commissions but before
deducting expenses) received by the Company and the total underwriting
discounts and commissions received by the Underwriters, bear to the
aggregate public offering price of the Shares. The relative fault of
the Company on the one hand and of the Underwriters on the other shall
be determined by reference to, among other things, whether the untrue
statement or alleged untrue statement of a material fact or omission or
alleged omission relates to information supplied by the Company or by
the Underwriters and the parties'
31
32
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or
payable by a party as a result of the losses, damages, expenses,
liabilities and claims referred to in this subsection shall be deemed
to include any legal or other fees or expenses reasonably incurred by
such party in connection with investigating, preparing to defend or
defending any claim or Proceeding.
(d) The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 9 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 in subsection (c) above. Notwithstanding the provisions of
this Section 9, 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 such Underwriter and distributed to the public
were offered to the public exceeds the amount of any damage which such
Underwriter has otherwise been required to pay by reason of such untrue
statement or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 9 are
several in proportion to their respective underwriting commitments and
not joint.
(e) The indemnity and contribution agreements contained in
this Section 9 and the covenants, warranties and representations of the
Company contained in this Agreement shall remain in full force and
effect regardless of any investigation made by or on behalf of any
Underwriter, its partners, directors and officers or any person
(including each partner, officer or director of such person) who
controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, or by or on behalf of the Company, its
directors or officers or any person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and
shall survive any termination of this Agreement or the issuance and
delivery of the Shares. The Company and each Underwriter agree promptly
to notify each other of any commencement of any Proceeding against it
and, in the case of the Company, against any of the Company's officers
or directors in connection with the issuance and sale of the Shares, or
in connection with the Registration Statement or Prospectus.
10. Directed Share Program Indemnification.
(a) The Company agrees to indemnify and hold harmless WDR and
its affiliates and each person, if any, who controls WDR or its
affiliates within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act ("WDR Entities"), from and
against
32
33
any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim)
(i) caused by any untrue statement or alleged untrue statement of a
material fact contained in any material prepared by or with the consent
of the Company for distribution to Participants in connection with the
Directed Share Program or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar
as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission
based upon information relating to any Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use
therein; (ii) caused by failure of any Participant to pay for and
accept delivery of Directed Shares that the Participant agreed to
purchase; or (iii) related to, arising out of, or in connection with
the Directed Share Program, other than losses, claims, damages or
liabilities (or expenses relating thereto) that are determined to have
resulted from the bad faith or gross negligence of WDR Entities.
(a) In case any proceeding (including governmental
investigation) shall be instituted involving any WDR Entity in respect
of which indemnity may be sought pursuant to Section 10(a), the WDR
Entity seeking indemnity, shall promptly notify the Company in writing
and the Company, upon request of the WDR Entity, shall retain counsel
reasonably satisfactory to the WDR Entity to represent the WDR Entity
and any others the Company may designate in such proceeding and shall
pay the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any WDR Entity shall have the right
to retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such WDR Entity unless (i) the Company shall
have agreed to the retention of such counsel or (ii) the named parties
to any such proceeding (including any impleaded parties) include both
the Company and the WDR Entity and representation of both parties by
the same counsel would be inappropriate due to actual or potential
differing interests between them. The Company shall not, in respect of
legal expenses of the WDR Entities in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees
and expenses of more than on separate firm (in addition to any local
counsel) for all WDR Entities. Any such separate firm for the WDR
Entities shall be designated in writing by WDR. The Company shall not
be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a
final judgment for the plaintiff, the Company agrees to indemnify the
WDR Entities from and against any loss or liability by reason of such
settlement or judgement. Notwithstanding the foregoing sentence, if at
any time a WDR Entity shall have requested the Company to reimburse it
for fees and expenses of counsel as contemplated by the second and
third sentences of this paragraph, the Company agrees that it shall be
liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30
days after receipt by the
33
34
Company of the aforesaid request and (ii) the Company shall not have
reimbursed the WDR Entity in accordance with such request prior to the
date of such settlement. The Company shall not, without the prior
written consent of WDR, effect any settlement of any pending or
threatened proceeding in respect of which any WDR Entity is or could
have been a party and indemnity could have been sought hereunder by
such WDR Entity, unless such settlement includes an unconditional
release of the WDR Entities from all liability on claims that are the
subject matter of such proceeding.
(c) To the extent the indemnification provided for in Section
10(a) in unavailable to a WDR Entity or insufficient in respect of any
losses, claims, damages or liabilities referred to therein, then the
Company in lieu of indemnifying the WDR Entity thereunder, shall
contribute tot he amount paid or payable by the WDR Entity as a result
of such losses, claims, damages or liabilities (i) in such proportion
as is appropriate to reflect the relative benefits received by the
Company on the one hand and the WDR Entities on the other hand from the
offering of the Directed Shares or (ii) if the allocation provided by
clause 10 (c)(i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause 10 (c)(i) above but also the relative fault of
the Company on the one hand and of the WDR Entities on the other hand
in connection with any statements or omissions that resulted in such
losses, claims, damages or liabilities, as well as by the Company on
the one hand and the WDR Entities on the other hand in connection with
any statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable
considerations. The relevant benefits received by the Company on the
one hand and the WDR Entities on the other hand in connection with the
offering of the Directed Shares shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the
Directed Shares (before deducting expenses) and the total underwriting
discounts and commissions received by the WDR Entities for the Directed
Shares, bear to the aggregate public offering price of the Directed
Shares. If the loss, claim, damage or liability is caused by an untrue
or alleged untrue statement of a material fact, or alleged omission to
state a material fact, the relative fault of the Company on the one
hand and the WDR Entities on the other hand shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement or the omission or alleged omission relates to information
supplied by the Company or by the WDR Entities and the parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
(d) The Company and the WDR Entities agree that it would not
be just or equitable if contribution pursuant to this Section 10 were
determined by pro rata allocation (even if the WDR Entities 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 in Section 10(c). The amount paid or payable by the WDR
Entities as a result
34
35
of the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by the WDR Entities
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of the Section 10, no WDR Entity shall be
required to contribute any amount in excess of the amount by which the total
price at which the Directed Shares distributed to the public were offered to the
public exceeds the amount of any damages that such WDR Entity has otherwise been
required to pay. The remedies provided for in this Section 10 are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any indemnified party at law or in equity.
(e) The indemnity and contribution provisions contained in
this Section 10 shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any WDR Entity or the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the
Directed Shares.
11. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or sent to
Warburg Dillon Read LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000-0000, Attention:
Syndicate Department, and if to the Company, shall be sufficient in all respects
if delivered or sent to the Company at the offices of the Company at 0000
Xxxxxxx Xxxxx, Xxxxx X, Xxx Xxxxx, Xxxxxxxx 00000, Attention: President and
Chief Executive Officer.
12. Governing Law; Construction. This Agreement and any claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement ("Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of New
York. The Section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
13. Submission to Jurisdiction. Except as set forth below, no
Claim may be commenced, prosecuted or continued in any court other than the
courts of the State of New York located in the City and County of New York or in
the United States District Court for the Southern District of New York, which
courts shall have jurisdiction over the adjudication of such matters, and the
Company consents to the jurisdiction of such courts and personal service with
respect thereto. The Company hereby consents to personal jurisdiction, service
and venue in any court in which any Claim arising out of or in any way relating
to this Agreement is brought by any third party against Warburg Dillon Read LLC
or any indemnified party. Each of Warburg Dillon Read LLC and the Company (on
its behalf and, to the extent permitted by applicable law, on behalf of its
stockholders and affiliates) waives all right to trial by jury in any action,
proceeding or counterclaim (whether based upon contract, tort or otherwise) in
any way
35
36
arising out of or relating to this Agreement. The Company agrees that a final
judgment in any such action, proceeding or counterclaim brought in any such
court shall be conclusive and binding upon the Company and may be enforced in
any other courts in the jurisdiction of which the Company is or may be subject,
by suit upon such judgment.
14. Parties at Interest. The Agreement herein set forth has been
and is made solely for the benefit of the Underwriters and the Company, and, to
the extent provided in Section 9 hereof, the controlling persons, directors and
officers referred to in such Section, and their respective successors, assigns,
heirs, pursuant representatives and executors and administrators. No other
person, partnership, association or corporation (including a purchaser, as such
purchaser, from any of the Underwriters) shall acquire or have any right under
or by virtue of this Agreement.
15. Counterparts. This Agreement may be signed by the parties in
one or more counterparts which together shall constitute one and the same
agreement among the parties.
16. Successors and Assigns. This Agreement shall be binding upon
the Underwriters and the Company and their successors and assigns and any
successor or assign of any substantial portion of the Company's and any of the
Underwriters' respective businesses and/or assets.
17. Miscellaneous. Warburg Dillon Read LLC is not a bank and is
separate from any affiliate bank, including any U.S. branch or agency of UBS
separate from any affiliated bank, including any U.S. branch or agency of UBS
AG. Because Warburg Dillon Read LLC is a separately incorporated entity, it is
solely responsible for its own contractual obligations and commitments,
including obligations with respect to sales and purchases of securities.
Securities sold, offered or recommended by Warburg Dillon Read LLC are not
deposits, are not insured by the Federal Deposit Insurance Corporation, are not
guaranteed by a branch or agency, and are not otherwise an obligations or
responsibility of a branch or agency.
36
37
If the foregoing correctly sets forth the understanding among the
Company and the Underwriers, please so indicate in the space provided below for
the purpose, whereupon this letter and your acceptance shall constitute a
binding agreement among the Company and the Underwriters, severally.
Very truly yours,
GENOMIC SOLUTIONS INC.
By:
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President and Chief Executive
Officer
Accepted and agreed to as of the date first
above written, on behalf of themselves and
the other several Underwriters named in
Schedule A
WARBURG DILLON READ LLC
XXXXXX BROTHERS INC.
XXXX XXXXXXXX INCORPORATED
By: WARBURG DILLON READ LLC
By:
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
37
38
SCHEDULE A
Number of
Underwriter Firm Shares
----------- -----------
WARBURG DILLON READ LLC
XXXXXX BROTHERS INC.
XXXX XXXXXXXX INCORPORATED
Total 5,000,000
38
39
EXHIBIT A
FORM OF OPINION OF INTELLECTUAL PROPERTY COUNSEL FOR THE COMPANY
The final opinion in draft form should be attached as Exhibit A at the time this
Agreement is executed.
Opinion of intellectual property counsel for the Company pursuant to
Section 6(d) of the Underwriting Agreement.
1. We are aware of no facts that indicate other than that, during the
prosecution of patent and trademark matters in which this firm has acted as the
Company's counsel, the Company has complied fully with its duty of candor and
disclosure to the United States Patent and Trademark Office ("USPTO"), where
applicable. We are also aware of no facts that indicate that the Company will
not comply with such duty, where applicable, in the continued prosecution of
matters in which this firm acts as the Company's counsel;
2. Based on facts disclosed to us by the Company: (1) the Company is
the sole assignee of each of the United States patent applications of the
Company being prosecuted by this firm listed on Schedule A for which a serial
number has been issued and which have a searchable record in the USPTO's
assignment database, and (2) all inventors on such patent applications are under
an obligation to assign all of their rights in such applications to the Company;
3. To our knowledge based on our consultations with the Company in the
course of our involvement as its patent and trademark counsel, the Company has
not received any notice of infringement with respect to any patent, trademark,
or copyright or any notice of misappropriation of trade secrets nor are we aware
of any fact indicating that the Company is infringing any United States patent
which the Company has brought to our attention or which we have reviewed during
prosecution of the patent applications listed on Schedule A;
4. We are not aware of any pending or threatened legal or governmental
proceedings relating to patents or patent applications of the Company (other
than the patent application proceedings themselves);
5. To our knowledge, the statements under the captions "Risk Factors --
"We may be involved in lawsuits to protect or enforce our patents, which would
be expensive and, if we lose, may cause us to lose some of our intellectual
property rights, which would reduce our ability to compete in the market, "Risk
Factors -- The rights we rely upon to protect the intellectual property
underlying our products may not be adequate, which could enable third parties to
use our technology, reducing our ability to compete in the market", "Risk
Factors --
39
40
Our success depends on our ability to operate without infringing on or
misappropriating the proprietary rights of others", and "Business --
Intellectual Property", insofar as such matters constitute matters of law or
legal conclusions, are accurate and correct in all material respects and fairly
present such matters; and
6. With respect to United States patent, trademark, copyright and trade
secret matters, we are not aware of any fact which has led us to believe that
the sections of the Prospectus entitled "Risk Factors -- "We may be involved in
lawsuits to protect or enforce our patents, which would be expensive and, if we
lose, may cause us to lose some of our intellectual property rights, which would
reduce our ability to compete in the market, "Risk Factors -- The rights we rely
upon to protect the intellectual property underlying our products may not be
adequate, which could enable third parties to use our technology, reducing our
ability to compete in the market", "Risk Factors -- Our success depends on our
ability to operate without infringing on or misappropriating the proprietary
rights of others", and "Business -- Intellectual Property", contain any untrue
statement of material fact or omit any material fact required to be stated
therein or necessary to make the statements therein not misleading.
40
