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EXHIBIT 1.1
3,600,000 SHARES
CALIPER TECHNOLOGIES CORP.
COMMON STOCK
UNDERWRITING AGREEMENT
December ___, 1999
CREDIT SUISSE FIRST BOSTON CORPORATION
CIBC WORLD MARKETS CORP.
XXXXXXXXX & XXXXX LLC,
As Representatives of the Several Underwriters
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Caliper Technologies Corp., a Delaware corporation
("COMPANY"), proposes to issue and sell 3,600,000 shares ("FIRM SECURITIES") of
its common stock, $.001 par value per share ("SECURITIES"), and also proposes to
issue and sell to the Underwriters, at the option of the Underwriters, an
aggregate of not more than 540,000 additional shares ("OPTIONAL SECURITIES") of
its Securities as set forth below. The Firm Securities and the Optional
Securities are herein collectively called the "OFFERED SECURITIES". As part of
the offering contemplated by this Agreement, Credit Suisse First Boston
Corporation (the "DESIGNATED UNDERWRITER") has agreed to reserve out of the Firm
Securities purchased by it under this Agreement, up to 180,000 shares, for sale
to the Company's directors, officers, employees and other parties associated
with the Company (collectively, "PARTICIPANTS"), as set forth in the Prospectus
(as defined herein) under the heading "Underwriting" (the "DIRECTED SHARE
PROGRAM"). The Firm Securities to be sold by the Designated Underwriter pursuant
to the Directed Share Program (the "DIRECTED SHARES") will be sold by the
Designated Underwriter pursuant to this Agreement at the public offering price.
Any Directed Shares not orally confirmed for purchase by a 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
hereby agrees with the several Underwriters named in Schedule A hereto
("UNDERWRITERS") as follows:
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2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement (No. 333-88827) relating to the
Offered Securities, including a form of prospectus, has been filed with
the Securities and Exchange Commission ("COMMISSION") and either (i) has
been declared effective under the Securities Act of 1933 ("ACT") and is
not proposed to be amended or (ii) is proposed to be amended by
amendment or post-effective amendment. If such registration statement
("INITIAL REGISTRATION STATEMENT") has been declared effective, either
(i) an additional registration statement ("ADDITIONAL REGISTRATION
STATEMENT") relating to the Offered Securities may have been filed with
the Commission pursuant to Rule 462(b) ("RULE 462(b)") under the Act
and, if so filed, has become effective upon filing pursuant to such Rule
and the Offered Securities all have been duly registered under the Act
pursuant to the initial registration statement and, if applicable, the
additional registration statement or (ii) such an additional
registration statement is proposed to be filed with the Commission
pursuant to Rule 462(b) and will become effective upon filing pursuant
to such Rule and upon such filing the Offered Securities will all have
been duly registered under the Act pursuant to the initial registration
statement and such additional registration statement. If the Company
does not propose to amend the initial registration statement or if an
additional registration statement has been filed and the Company does
not propose to amend it, and if any post-effective amendment to either
such registration statement has been filed with the Commission prior to
the execution and delivery of this Agreement, the most recent amendment
(if any) to each such registration statement has been declared effective
by the Commission or has become effective upon filing pursuant to Rule
462(c) ("RULE 462(c)") under the Act or, in the case of the additional
registration statement, Rule 462(b). For purposes of this Agreement,
"EFFECTIVE TIME" with respect to the initial registration statement or,
if filed prior to the execution and delivery of this Agreement, the
additional registration statement means (i) if the Company has advised
the Representatives that it does not propose to amend such registration
statement, the date and time as of which such registration statement, or
the most recent post-effective amendment thereto (if any) filed prior to
the execution and delivery of this Agreement, was declared effective by
the Commission or has become effective upon filing pursuant to Rule
462(c), or (ii) if the Company has advised the Representatives that it
proposes to file an amendment or post-effective amendment to such
registration statement, the date and time as of which such registration
statement, as amended by such amendment or post-effective amendment, as
the case may be, is declared effective by the Commission. If an
additional registration statement has not been filed prior to the
execution and delivery of this Agreement but the Company has advised the
Representatives that it proposes to file one, "EFFECTIVE TIME" with
respect to such additional registration statement means the date and
time as of which such registration statement is filed and becomes
effective pursuant to Rule 462(b). "EFFECTIVE DATE" with respect to the
initial registration statement or the additional registration statement
(if any) means the date of the Effective Time thereof. The initial
registration statement, as amended at its Effective Time, including all
information contained in the additional registration statement (if any)
and deemed to be a part of the initial registration statement as of the
Effective Time of the
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additional registration statement pursuant to the General Instructions
of the Form on which it is filed and including all information (if any)
deemed to be a part of the initial registration statement as of its
Effective Time pursuant to Rule 430A(b) ("RULE 430A(b)") under the Act,
is hereinafter referred to as the "INITIAL REGISTRATION STATEMENT". The
additional registration statement, as amended at its Effective Time,
including the contents of the initial registration statement
incorporated by reference therein and including all information (if any)
deemed to be a part of the additional registration statement as of its
Effective Time pursuant to Rule 430A(b), is hereinafter referred to as
the "ADDITIONAL REGISTRATION STATEMENT". The Initial Registration
Statement and the Additional Registration Statement are herein referred
to collectively as the "REGISTRATION STATEMENTS" and individually as a
"REGISTRATION STATEMENT". The form of prospectus relating to the Offered
Securities, as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("RULE 424(b)") under the Act or (if no such
filing is required) as included in a Registration Statement, is
hereinafter referred to as the "PROSPECTUS". No document has been or
will be prepared or distributed in reliance on Rule 434 under the Act.
(b) If the Effective Time of the Initial Registration Statement
is prior to the execution and delivery of this Agreement: (i) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all respects to the requirements of
the Act and the rules and regulations of the Commission ("RULES AND
REGULATIONS") and did not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) on the
Effective Date of the Additional Registration Statement (if any), each
Registration Statement conformed, or will conform, in all respects to
the requirements of the Act and the Rules and Regulations and did not
include, or will not include, any untrue statement of a material fact
and did not omit, or will not omit, to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading and (iii) on the date of this Agreement, the Initial
Registration Statement and, if the Effective Time of the Additional
Registration Statement is prior to the execution and delivery of this
Agreement, the Additional Registration Statement each conforms, and at
the time of filing of the Prospectus pursuant to Rule 424(b) or (if no
such filing is required) at the Effective Date of the Additional
Registration Statement in which the Prospectus is included, each
Registration Statement and the Prospectus will conform, in all respects
to the requirements of the Act and the Rules and Regulations, and
neither of such documents includes, or will include, any untrue
statement of a material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. If the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of
this Agreement: on the Effective Date of the Initial Registration
Statement, the Initial Registration Statement and the Prospectus will
conform in all respects to the requirements of the Act and the Rules and
Regulations, neither of such documents will include any untrue statement
of a material fact or will omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading, and no Additional Registration Statement has been or will be
filed. The two preceding
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sentences do not apply to statements in or omissions from a Registration
Statement or the Prospectus based upon written information furnished to
the Company by any Underwriter through the Representatives specifically
for use therein, it being understood and agreed that the only such
information is that described as such in Section 7(b) hereof.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus; and the Company is
duly qualified to do business as a foreign corporation in good standing
in all other jurisdictions in which its ownership or lease of property
or the conduct of its business requires such qualification except where
the failure to be so qualified would not have a material adverse effect
on the condition (financial or other), business, properties or results
of operation of the Company ("MATERIAL ADVERSE EFFECT").
(d) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized; all outstanding
shares of capital stock of the Company are, and, when the Offered
Securities have been issued, delivered and paid for in accordance with
this Agreement on each Closing Date (as defined below), such Offered
Securities will have been, validly issued, fully paid and nonassessable
and will conform to the description thereof contained in the Prospectus
under the caption "Description of Capital Stock"; and the stockholders
of the Company have no preemptive rights with respect to the Securities.
(e) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like
payment in connection with this offering.
(f) Except as set forth in that certain Investor Rights Agreement
dated May 7, 1998 by and between the Company and certain of its
securityholders, there are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the
securities registered pursuant to a Registration Statement or in any
securities being registered pursuant to any other registration statement
filed by the Company under the Act. Any such rights to require the
Company to include such securities in the securities registered pursuant
to a Registration Statement have been satisfied or effectively waived.
(g) The Offered Securities have been approved for listing on The
Nasdaq Stock Market's National Market, subject to notice of issuance.
(h) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement in
connection with the issuance and sale of
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the Offered Securities by the Company, except (i) such as have been
obtained and made under the Act, (ii) such consents, approvals or
filings with the National Association of Securities Dealers, Inc. (the
"NASD") and (iii) such as may be required under state securities laws.
(i) The execution, delivery and performance of this Agreement,
and the issuance and sale of the Offered Securities will not result in a
breach or violation of any of the terms and provisions of, or constitute
a default under, any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any of its properties resulting in a
Material Adverse Effect, or any agreement or instrument to which the
Company is a party or by which the Company is bound or to which any of
the properties of the Company is subject which individually or in the
aggregate would result in a Material Adverse Effect, or the charter or
by-laws of the Company, and the Company has full power and authority to
authorize, issue and sell the Offered Securities as contemplated by this
Agreement.
(j) This Agreement has been duly authorized, executed and
delivered by the Company.
(k) Except as disclosed in the Prospectus, the Company has good
and marketable title to all real properties and all other properties and
assets owned by it, in each case free from liens, encumbrances and
defects that would materially affect the value thereof or materially
interfere with the use made or to be made thereof by it; and except as
disclosed in the Prospectus, the Company holds any leased real or
personal property under valid and enforceable leases with no exceptions
that would materially interfere with the use made or to be made thereof
by it.
(l) The Company possesses adequate certificates, authorities or
permits issued by appropriate governmental agencies or bodies necessary
to conduct the business now operated by it, as described in the
Prospectus, and has not received any notice of proceedings relating to
the revocation or modification of any such certificate, authority or
permit that, if determined adversely to the Company, would individually
or in the aggregate have a Material Adverse Effect.
(m) No labor dispute with the employees of the Company exists or,
to the knowledge of the Company, is imminent that might have a Material
Adverse Effect.
(n) Except as described in the Prospectus, the Company owns,
possesses or can acquire on reasonable terms, adequate trademarks, trade
names and other rights to inventions, know-how, patents, copyrights,
confidential information and other intellectual property (collectively,
"INTELLECTUAL PROPERTY RIGHTS") necessary to conduct its business as
described in the Prospectus, or presently employed by it, except where
failure to so own or possess such intellectual property rights would not
individually or in the aggregate have a Material Adverse Effect, and,
except as described in the Prospectus, has not received any notice of
infringement of or conflict with asserted rights of others with
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respect to any intellectual property rights and does not know of any
basis for the assertion of any such claim of infringement or conflict
that, in either such case, if determined adversely to the Company, would
individually or in the aggregate have a Material Adverse Effect.
(o) Except as disclosed in the Prospectus, Company is not in
violation of any statute, any rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign, relating
to the use, disposal or release of hazardous or toxic substances or
relating to the protection or restoration of the environment or human
exposure to hazardous or toxic substances (collectively, "ENVIRONMENTAL
LAWS"), does not own or operate any real property contaminated with any
substance that is subject to any environmental laws, is not liable for
any off-site disposal or contamination pursuant to any environmental
laws, and is not subject to any claim relating to any environmental
laws, which violation, contamination, liability or claim would
individually or in the aggregate have a Material Adverse Effect; and the
Company is not aware of any pending investigation which might lead to
such a claim.
(p) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or, to the Company's knowledge,
affecting the Company or any of its properties that, if determined
adversely to the Company, would individually or in the aggregate have a
Material Adverse Effect, or would materially and adversely affect the
ability of the Company to perform its obligations under this Agreement,
or which are otherwise material in the context of the sale of the
Offered Securities; and no such actions, suits or proceedings are
threatened or, to the Company's knowledge, contemplated.
(q) The financial statements included in each Registration
Statement and the Prospectus present fairly the financial position of
the Company as of the dates shown and its results of operations and cash
flows for the periods shown, and such financial statements have been
prepared in conformity with the generally accepted accounting principles
in the United States ("GAAP") applied on a consistent basis except that
interim financial statements do not contain the notes required by GAAP
and are subject to normal year-end audit adjustments, which are not
expected to be material.
(r) Except as disclosed in the Prospectus, since the respective
dates of which such information is given in the Prospectus there has
been no material adverse change, nor any development or event involving
a prospective material adverse change, in the condition (financial or
other), business, properties or results of operations of the Company,
and, except as disclosed in or contemplated by the Prospectus, there has
been no dividend or distribution of any kind declared, paid or made by
the Company on any class of its capital stock.
(s) The Company is not and, after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds
thereof as described in the
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Prospectus, will not be an "investment company" as defined in the
Investment Company Act of 1940.
(t) The Company has not offered, or caused the Underwriters to
offer, any Offered Securities pursuant to the Directed Share Program to
any person in any jurisdiction outside the United States.
(u) The Company has not offered, or caused the Underwriters to
offer, any Offered Securities to any person pursuant to the Directed
Share Program with the specific intent to unlawfully influence (i) a
customer or supplier of the Company to alter the customer's or
supplier's level or type of business with the Company or (ii) a trade
journalist or publication to write or publish favorable information
about the Company or its products.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Company agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Company, at a purchase price of [$_____] per share, the respective
numbers of shares of Firm Securities set forth opposite the names of the
Underwriters in Schedule A hereto.
The Company will deliver the Firm Securities to the
Representatives for the accounts of the Underwriters through the facilities of
the Depository Trust Company against payment of the purchase price in Federal
(same day) funds by official bank check or checks or wire transfer to an account
at a bank acceptable to Credit Suisse First Boston Corporation ("CSFBC"). The
closing for the sale of the Firm Securities will take place at the offices of
Xxxxxx Godward LLP, Five Palo Alto Square, 0000 Xx Xxxxxx Xxxx, Xxxx Xxxx,
Xxxxxxxxxx, at 10:00 A.M., New York time, on December ___, 1999, or at such
other time not later than seven full business days thereafter as CSFBC and the
Company determine, such time being herein referred to as the "FIRST CLOSING
DATE". For purposes of Rule 15c6-1 under the Securities Exchange Act of 1934,
the First Closing Date (if later than the otherwise applicable settlement date)
shall be the settlement date for payment of funds and delivery of securities for
all the Offered Securities sold pursuant to the offering. The certificates for
the Firm Securities so to be delivered will be in definitive form, in such
denominations and registered in such names as CSFBC requests and will be made
available for inspection by the Representatives at least 24 hours prior to the
First Closing Date.
In addition, upon written notice from CSFBC given to the Company
from time to time not more than 30 days subsequent to the date of the
Prospectus, the Underwriters may purchase all or less than all of the Optional
Securities at the purchase price per Security to be paid for the Firm
Securities. The Company agrees to sell to the Underwriters the number of shares
of Optional Securities specified in such notice and the Underwriters agree,
severally and not jointly, to purchase such Optional Securities. Such Optional
Securities shall be purchased for the account of each Underwriter in the same
proportion as the number of shares of Firm
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Securities set forth opposite such Underwriter's name bears to the total number
of shares of Firm Securities (subject to adjustment by CSFBC to eliminate
fractions) and may be purchased by the Underwriters only for the purpose of
covering over-allotments made in connection with the sale of the Firm
Securities. No Optional Securities shall be sold or delivered unless the Firm
Securities previously have been, or simultaneously are, sold and delivered. The
right to purchase the Optional Securities or any portion thereof may be
exercised on not more than two occasions and, to the extent not previously
exercised, may be surrendered and terminated at any time upon notice by CSFBC to
the Company.
Each time for the delivery of and payment for the Optional
Securities, being herein referred to as an "OPTIONAL CLOSING DATE", which may be
the First Closing Date (the First Closing Date and each Optional Closing Date,
if any, being sometimes referred to as a "CLOSING DATE"), shall be determined by
CSFBC but shall be not later than five full business days after written notice
of election to purchase Optional Securities is given. The Company will deliver
the Optional Securities being purchased on each Optional Closing Date to the
Representatives for the accounts of the several Underwriters through the
facilities of the Depository Trust Company against payment of the purchase price
therefor in Federal (same day) funds by official bank check or checks or wire
transfer to an account at a bank acceptable to CSFBC. Each closing for the sale
of Optional Securities will take place at the offices of Xxxxxx Godward LLP. The
certificates for the Optional Securities being purchased on each Optional
Closing Date will be in definitive form, in such denominations and registered in
such names as CSFBC requests upon reasonable notice prior to such Optional
Closing Date and will be made available for inspection by the Representatives at
a reasonable time in advance of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company. The Company agrees with the
several Underwriters that:
(a) If the Effective Time of the Initial Registration Statement
is prior to the execution and delivery of this Agreement, the Company
will file the Prospectus with the Commission pursuant to and in
accordance with subparagraph (1) (or, if applicable and if consented to
by CSFBC, subparagraph (4)) of Rule 424(b) not later than the earlier of
(A) the second business day following the execution and delivery of this
Agreement or (B) the fifteenth business day after the Effective Date of
the Initial Registration Statement.
The Company will advise CSFBC promptly of any such filing
pursuant to Rule 424(b). If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement and an additional registration statement is necessary to
register a portion of the Offered Securities under the Act but the
Effective Time thereof has not occurred as of such execution and
delivery, the Company will file the additional registration statement
or, if filed, will file a post-effective amendment thereto with the
Commission pursuant to and in accordance with Rule 462(b) on or prior
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to 10:00 P.M., New York time, on the date of this Agreement or, if
earlier, on or prior to the time the Prospectus is printed and
distributed to any Underwriter, or will make such filing at such later
date as shall have been consented to by CSFBC.
(b) The Company will advise CSFBC promptly of any proposal to
amend or supplement the initial or any additional registration statement
as filed or the related prospectus or the Initial Registration
Statement, the Additional Registration Statement (if any) or the
Prospectus and will not effect such amendment or supplementation without
CSFBC's consent; and the Company will also advise CSFBC promptly of the
effectiveness of each Registration Statement (if its Effective Time is
subsequent to the execution and delivery of this Agreement) and of any
amendment or supplementation of a Registration Statement or the
Prospectus and of the institution by the Commission of any stop order
proceedings in respect of a Registration Statement and will use its best
efforts to prevent the issuance of any such stop order and to obtain as
soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Company will promptly notify CSFBC of such event and will promptly
prepare and file with the Commission, at its own expense, an amendment
or supplement which will correct such statement or omission or an
amendment which will effect such compliance. Neither CSFBC's consent to,
nor the Underwriters' delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section
6.
(d) As soon as practicable, but not later than the Availability
Date (as defined below), the Company will make generally available to
its securityholders an earnings statement covering a period of at least
12 months beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional
Registration Statement) which will satisfy the provisions of Section
11(a) of the Act. For the purpose of the preceding sentence,
"AVAILABILITY DATE" means the 45th day after the end of the fourth
fiscal quarter following the fiscal quarter that includes such Effective
Date, except that, if such fourth fiscal quarter is the last quarter of
the Company's fiscal year, "AVAILABILITY DATE" means the 90th day after
the end of such fourth fiscal quarter.
(e) The Company will furnish to the Representatives copies of
each Registration Statement (four of which will be signed and will
include all exhibits), each related preliminary prospectus, and, so long
as a prospectus relating to the Offered Securities is required to be
delivered under the Act in connection with sales by any Underwriter or
dealer, the Prospectus and all amendments and supplements to such
documents, in each case in such quantities as CSFBC requests. The
Company will use its
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reasonable best efforts to cause the Prospectus to be so furnished on or
prior to 3:00 P.M., New York time, on the business day following the
later of the execution and delivery of this Agreement or the Effective
Time of the Initial Registration Statement. All other documents shall be
so furnished as soon as available. The Company will pay the expenses of
printing and distributing to the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as CSFBC
designates and will continue such qualifications in effect so long as
required for the distribution.
(g) During the period of three (3) years hereafter, the Company
will furnish to the Representatives and, upon request, to each of the
other Underwriters, as soon as practicable after the end of each fiscal
year, a copy of its annual report to stockholders for such year; and the
Company will furnish to the Representatives (i) as soon as available, a
copy of each report and any definitive proxy statement of the Company
filed with the Commission under the Securities Exchange Act of 1934 or
mailed to stockholders, and (ii) from time to time, such other
information concerning the Company as CSFBC may reasonably request.
(h) The Company will pay all expenses incident to the performance
of its obligations under this Agreement, including for any filing fees
and other expenses (including fees and disbursements of counsel)
incurred in connection with qualification of the Offered Securities for
sale under the laws of such jurisdictions as CSFBC designates and the
printing of memoranda relating thereto, for the filing fee incident to,
and the reasonable fees and disbursements of counsel to the Underwriters
in connection with, the review by the National Association of Securities
Dealers, Inc. of the Offered Securities, for any travel expenses of the
Company's officers and employees and any other expenses of the Company
in connection with attending or hosting meetings with prospective
purchasers of the Offered Securities and for expenses incurred in
distributing preliminary prospectuses and the Prospectus (including any
amendments and supplements thereto) to the Underwriters.
(i) For a period of 180 days after the date of the initial public
offering of the Offered Securities, the Company will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or
indirectly, or file with the Commission a registration statement under
the Act relating to, any additional shares of its Securities or
securities convertible into or exchangeable or exercisable for any
shares of its Securities, or publicly disclose the intention to make any
such offer, sale, pledge, disposition or filing, without the prior
written consent of CSFBC, except issuances of Securities pursuant to the
conversion or exchange of convertible or exchangeable securities or the
exercise of warrants or options, in each case outstanding on the date
hereof, grants of employee stock options pursuant to the terms of a plan
in effect on the date hereof, or issuances of Securities pursuant to the
exercise of such options.
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(j) In connection with the Directed Share Program, the Company
will ensure that the Directed Shares will be restricted to the extent
required by the free-riding and withholding rules of the NASD or the
NASD rules from sale, transfer, assignment, pledge or hypothecation for
a period of three months following the date of the effectiveness of the
Registration Statement. The Designated Underwriter will notify the
Company as to which Participants will need to be so restricted. The
Company will direct the transfer agent to place stop transfer
restrictions upon such securities for such period of time.
(k) The Company will pay all fees and disbursements of counsel
incurred by the Underwriters in connection with the Directed Shares
Program and stamp duties, similar taxes or duties or other taxes, if
any, incurred by the underwriters in connection with the Directed Share
Program.
Furthermore, the company covenants with the Underwriters
that it will not offer or sell, or cause the Underwriters to offer or
sell, any Securities pursuant to the Directed Share Program to any
person in any jurisdiction outside the United States.
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company herein, to the accuracy of the statements
of Company officers made pursuant to the provisions hereof, to the performance
by the Company of its obligations hereunder and to the following additional
conditions precedent:
(a) The Representatives shall have received a letter, dated the
date of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Initial Registration Statement is subsequent to
the execution and delivery of this Agreement, shall be prior to the
filing of the amendment or post-effective amendment to the registration
statement to be filed shortly prior to such Effective Time), of Ernst &
Young LLP confirming that they are independent public accountants within
the meaning of the Act and the applicable published Rules and
Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements and
schedules examined by them and included in the Registration
Statements comply as to form in all material respects with the
applicable accounting requirements of the Act and the related
published Rules and Regulations;
(ii) they have performed the procedures specified
by the American Institute of Certified Public Accountants for a
review of interim financial information as described in Statement
of Auditing Standards Xx. 00,
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Xxxxxxx Financial Information, on the unaudited financial
statements included in the Registration Statements;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
financial statements of the Company, inquiries of officials of
the Company who have responsibility for financial and accounting
matters and other specified procedures, nothing came to their
attention that caused them to believe that: (A) the unaudited
financial statements included in the Registration Statements do
not comply as to form in all material respects with the
applicable accounting requirements of the Act and the related
published Rules and Regulations or any material modifications
should be made to such unaudited financial statements for them to
be in conformity with generally accepted accounting principles;
(B) at the date of the latest available balance sheet read by
such accountants, or at a subsequent specified date not more than
three business days prior to the date of such letter, there was
any change in the capital stock or any increase in short-term
indebtedness or long-term debt of the Company or, at the date of
the latest available balance sheet read by such accountants,
there was any decrease in net assets, as compared with amounts
shown on the latest balance sheet included in the Prospectus; or
(C) for the period from the closing date of the latest income
statement included in the Prospectus to the closing date of the
latest available income statement read by such accountants there
were any decreases, as compared with the corresponding period of
the previous year and with the period of corresponding length
ended the date of the latest income statement included in the
Prospectus, in net sales, or net operating income, or in the
total or per share amounts of net income, except in all cases set
forth in clauses (B) and (C) above for changes, increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(iv) they have compared specified dollar amounts
(or percentages derived from such dollar amounts) and other
financial information contained in the Registration Statements
(in each case to the extent that such dollar amounts, percentages
and other financial information are derived from the general
accounting records of the Company subject to the internal
controls of the Company's accounting system or are derived
directly from such records by analysis or computation) with the
results obtained from inquiries, a reading of such general
accounting records and other procedures specified in such letter
and have found such dollar amounts, percentages and other
financial information to be in agreement with such results,
except as otherwise specified in such letter.
For purposes of this subsection, (i) if the Effective Time of the
Initial Registration Statement is subsequent to the execution and
delivery of this Agreement, "REGISTRATION STATEMENTS" shall mean the
initial registration statement as proposed to be amended by the
amendment or post-effective amendment to be filed shortly prior to its
Effective Time, (ii) if the Effective Time of the Initial Registration
Statement is prior to the
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execution and delivery of this Agreement but the Effective Time of the
Additional Registration is subsequent to such execution and delivery,
"REGISTRATION STATEMENTS" shall mean the Initial Registration Statement
and the additional registration statement as proposed to be filed or as
proposed to be amended by the post-effective amendment to be filed
shortly prior to its Effective Time, and (iii) "PROSPECTUS" shall mean
the prospectus included in the Registration Statements.
(b) If the Effective Time of the Initial Registration Statement
is not prior to the execution and delivery of this Agreement, such
Effective Time shall have occurred not later than 10:00 P.M., New York
time, on the date of this Agreement or such later date as shall have
been consented to by CSFBC. If the Effective Time of the Additional
Registration Statement (if any) is not prior to the execution and
delivery of this Agreement, such Effective Time shall have occurred not
later than 10:00 P.M., New York time, on the date of this Agreement or,
if earlier, the time the Prospectus is printed and distributed to any
Underwriter, or shall have occurred at such later date as shall have
been consented to by CSFBC. If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, the Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a) of this
Agreement. Prior to such Closing Date, no stop order suspending the
effectiveness of a Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Company or the Representatives, shall be contemplated
by the Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or
event involving a prospective change, in the condition (financial or
other), business, properties or results of operations of the Company
which, in the judgment of a majority in interest of the Underwriters
including the Representatives, is material and adverse and makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities; (ii) any
downgrading in the rating of any debt securities of the Company by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act), or any public announcement that
any such organization has under surveillance or review its rating of any
debt securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating); (iii) any material suspension or material
limitation of trading in securities generally on the New York Stock
Exchange; (iv) any banking moratorium declared by U.S. Federal or New
York authorities; or (v) any outbreak or escalation of major hostilities
in which the United States is involved, any declaration of war by
Congress or any other substantial national or international calamity or
emergency if, in the judgment of a majority in interest of the
Underwriters including the Representatives, the effect of any such
outbreak, escalation, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the public
offering or the sale of and payment for the Offered Securities.
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(d) The Representatives shall have received an opinion, dated
such Closing Date, of Xxxxxx & Godward LLP, counsel for the Company, to
the effect that:
(i) The Company has been duly incorporated and is
an existing corporation in good standing under the laws of the
State of Delaware, with corporate power and authority to own its
properties and conduct its business as described in the
Prospectus; and to such counsel's knowledge, the Company is duly
qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified would
not have a Material Adverse Effect;
(ii) The Offered Securities delivered on such
Closing Date and all other outstanding shares of Securities of
the Company have been duly authorized and validly issued, are
fully paid and nonassessable, and the description of the
Company's common stock contained in the Prospectus under the
heading "Description of Capital Stock" fairly summarizes the
information called for with respect thereto to the extent
required under the Act and the Rules and Regulations thereunder;
and the stockholders of the Company have no statutory preemptive
rights with respect to the Securities;
(iii) Except as set forth in that certain Investor
Rights Agreement dated May 7, 1998 by and between the Company and
certain of its securityholders, to such counsel's knowledge there
are no contracts, agreements or understandings between the
Company and any person granting such person the right to require
the Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned by
such person or to require the Company to include such securities
in the securities registered pursuant to the Registration
Statement or in any securities being registered pursuant to any
other registration statement filed by the Company under the Act;
any such rights to require the Company to include such securities
in the securities registered pursuant to a Registration Statement
have been satisfied or effectively waived.
(iv) To such counsel's knowledge, the Company is
not and, after giving effect to the offering and sale of the
Offered Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company"
as defined in the Investment Company Act of 1940.
(v) No consent, approval, authorization or order
of, or filing with, any governmental agency or body or any court
is required for the consummation of the transactions contemplated
by this Agreement in connection with the issuance or sale of the
Offered Securities by the Company, except (i) such as have been
obtained and made under the Act, (ii) such consents, approvals
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or filings as may be required by or with the NASD and (iii) such
as may be required under state securities laws;
(vi) The execution, delivery and performance of
this Agreement and the issuance and sale of the Offered
Securities will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, the
charter or bylaws of the Company, any statute, any rule,
regulation or, to such counsel's knowledge, any order of any
governmental agency or body or any court having jurisdiction over
the Company or any of its properties, or any agreement filed as
an exhibit to the Registration Statement, which breach, violation
or default thereof would have a Material Adverse Effect, and the
Company has full corporate power and authority to authorize,
issue and sell the Offered Securities as contemplated by this
Agreement;
(vii) The Initial Registration Statement was
declared effective under the Act as of the date and time
specified in such opinion, the Additional Registration Statement
(if any) was filed and became effective under the Act as of the
date and time (if determinable) specified in such opinion; the
Prospectus either was filed with the Commission pursuant to the
subparagraph of Rule 424(b) specified in such opinion on the date
specified therein or was included in the Initial Registration
Statement or the Additional Registration Statement (as the case
may be), and, to the best of the knowledge of such counsel, no
stop order suspending the effectiveness of a Registration
Statement or any part thereof has been issued and no proceedings
for that purpose have been instituted or are pending or
threatened by the Commission;
(viii) Each Registration Statement and the
Prospectus (except as to the financial statements and schedules
and other financial data and statistical data derived therefrom
as to which such counsel need express no opinion), and each
amendment or supplement thereto, as of their respective effective
or issue dates, complied as to form in all material respects with
the requirement of the Act and the Rules and Regulations
thereunder.
(ix) To the knowledge of such counsel, there are no
legal or governmental proceedings pending or threatened which are
of a character required to be disclosed in the Registration
Statement which are not disclosed as required, nor to such
counsel's knowledge are there contracts or documents to which the
Company is a party which are of a character required to be filed
as exhibits to the Registration Statement which are not filed as
required;
(x) The statements set forth under the headings
"Management - Employee Benefit Plans," "Management - Limitation
of Directors' and Officers' Liability," "Certain Transactions,"
Description of Capital Stock," and "Shares Eligible for Future
Sale" in the Prospectus, insofar as such statements purport to
summarize legal matters, documents or proceedings referred to
therein, provide a
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fair summary of such legal matters, documents or proceedings to
the extent required under the Act and the Rules and Regulations
thereunder;
(xi) This Agreement has been duly authorized,
executed and delivered by the Company.
(xii) In addition to the matters set forth above,
counsel rendering the foregoing opinion shall also include a
statement to the effect that while such counsel have not
independently verified and accordingly are not passing upon and
do not assume responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration
Statement, nothing has come to such counsel's attention which has
caused such counsel to believe that any part of the Registration
Statement or any amendment thereto (except as to the financial
statements and schedules and other financial data and statistical
data derived therefrom as to which such counsel need express no
opinion) on the date it became effective under the Act, 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 statement therein not misleading or that the Prospectus or
any amendment or supplement thereto (except as to the financial
statements and schedules and other financial data and statistical
data derived therefrom as to which such counsel need express no
opinion), as of its date or as of the date hereof contained an
untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading.
(e) The Representatives shall have received an opinion, dated
such Closing Date, of Xxxxxxxx and Xxxxxxxx and Crew LLP, patent counsel
for the Company, and in a form satisfactory to Mintz, Levin, Cohn,
Ferris, Glovsky and Popeo, P.C., counsel for the Underwriters, stating
that:
(i) all patents and pending patent applications ("Patents") that
are owned by or licensed to the Company and known to such counsel
and for which such counsel is responsible are listed on Schedule
A to the opinion ("Schedule A") and are identified on Schedule A
by the designation "TTC." All trademarks and pending trademark
applications ("Trademarks") that are owned by or licensed to the
Company and known to such counsel and for which such counsel is
responsible are listed on Schedule B to the opinion ("Schedule
B") and are identified on Schedule B by the designation "TTC;"
(ii) based upon such counsel's (a) inquiry of the Company's
representatives responsible for Patent and Trademark matters, (b)
such counsel's review of the chain of title records obtained from
the United States Patent and Trademark Office ("USPTO") for the
United States Patents listed in Schedule A and designated TTC and
for the Trademarks listed in Schedule B and designated TTC, and
(c) instructions to foreign associates to file any Notices of
Entitlement or any
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assignment to the Company in a foreign jurisdiction as required
by that jurisdiction, with regard to the foreign Patents listed
in Schedule A and designated TTC and the foreign Trademarks
listed in Schedule B and designated TTC, (i) the Patents
designated TTC and the Trademarks designated TTC have been
validly assigned to the Company, and (ii) except as provided in
Schedules A and B, the Company is listed as the sole holder of
record of each of the Patents designated TTC and each of the
Trademarks designated TTC. Such counsel knows of no claim of a
third party to any ownership interest in, or to any lien with
respect to, any of the Patents designated TTC or of the
Trademarks designated TTC, and knows of no nonjoined inventorship
interest in any of the Patents designated TTC. Except as provided
in Schedules A and B, such counsel has no knowledge of any facts
that would preclude the Company from having clear title and
unencumbered right to the Patents designated TTC and to the
Trademarks designated TTC. None of the Patents or Trademarks,
listed in Schedules A and B and designated TTC, has been
abandoned;
(iii) to the best of such counsel's knowledge, the requirements
of 37 CFR Section 1.56 (1999) have been met for each of the
United States Patents designated TTC and each of the Trademarks
designated TTC. No fact that has not been disclosed to the USPTO
has come to such counsel's attention that causes such counsel to
question the enforceability of any of the Patents designated TTC
or the Trademarks designated TTC, or to question the validity of
any claim of an issued patent listed on Schedule A designated
TTC. Except as provided in Schedule D to the opinion ("Schedule
D"), such counsel knows of no pending action, suit, proceeding or
claim by others challenging the validity or enforceability of any
claim of on issued patent listed on Schedule A and designated TTC
or of a Trademark listed on Schedule B and designated TTC;
(iv) to the best of such counsel's knowledge, all legal or
governmental proceedings relating to the Company's patent and
trademark rights, other than an ex parte examination proceeding,
are listed on Schedule D, including but not limited to any
pending or threatened interference, opposition, public use,
reexamination, reissue, or protest proceeding with respect to any
Patent listed on Schedule A designated TTC, or to any pending or
threatened opposition with respect to any Trademark listed on
Schedule B designated TTC, in the United States or in a foreign
jurisdiction;
(v) to the best of such counsel's knowledge, the statements in
the Prospectus relating to patent and trademark matters under the
captions "Risk Factors", "Business-Intellectual Property", and
"Business-Legal Proceedings", insofar as such statements
constitute a summary of legal matters, documents, or proceedings,
are accurate and present fairly the matters set forth therein,
and except as described under such captions of the Prospectus, to
the best of such counsel's knowledge there is no pending or
threatened action, suit, proceeding or claim by others that the
Company is infringing any patent which could result in
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any material adverse effect on the Company;
(vi) except as described in the Prospectus relating to patent and
trademark matters under the captions "Risk Factors,"
"Business-Intellectual Property," and "Business-Legal
Proceedings," such counsel is not aware of any facts that would
form a basis for the belief that the Company lacks any rights or
licenses to use all patents, trademarks, copyrights, know-how and
other intellectual property necessary to conduct the business now
conducted or proposed to be conducted by the Company as described
in the Prospectus; and
(vii) no facts have come to such counsel's attention which cause
such counsel to believe that the statements in the Prospectus
relating to patent and trademark matters under the captions "Risk
Factors," "Business-Intellectual Property," and "Business-Legal
Proceedings" contain an untrue or misleading statement of
material fact, or omit a material fact necessary to make the
statements therein not misleading.
(f) The Representatives shall have received an opinion, dated
such Closing Date, of Xxxxxx, Xxx Xxxx and Yi, LLP, out-side patent
counsel for the Company, and in a form satisfactory to Mintz, Levin,
Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Underwriters,
stating that:
(i) all patents and pending patent applications ("Patents") that
are owned by or licensed to the Company and known to such counsel
and for which such counsel is responsible, and all contracts
known to such counsel pursuant to which the Company has, or has
granted, rights to any Patents for which such counsel is
responsible, are listed on Schedule A to the opinion ("Schedule
A")and are identified on Schedule A by the designation "RVY";
(ii) based upon such counsel's (a) inquiry of the Company's
representatives responsible for Patent, Trademark, and Copyright
matters, (b) such counsel's review of the chain of title records
obtained from the United States Patent and Trademark Office
("USPTO") of the Patents listed in Schedule A and designated
"RVY", and (c) instructions to foreign associates to file any
Notices of Entitlement or any assignment to the Company in any
foreign jurisdiction that is required to be filed by that
jurisdiction, with regard to the foreign Patents listed in
Schedule A and designated RVY, (i) the Patents designated RVY
have been validly assigned to the Company and (ii) except as
provided in Schedule A, the Company is listed as the sole holder
of record of each of the Company's Patents designated RVY. Such
counsel knows of no claims of third parties to any ownership
interest in, or to any lien with respect to, any of the Patents
designated RVY and knows of no nonjoined inventorship interest in
any of the Patents designated RVY. Except as provided in Schedule
A, such counsel has no knowledge of any facts that would preclude
the Company from having clear title
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and unencumbered right to the Patents designated RVY. None of the
Patents listed in Schedule A and designated RVY has been
abandoned;
(iii) to the best of such counsel's knowledge, the requirements
of 37 CFR Section 1.56 (1999) have been met for each of the
United States Patents designated RVY. No fact that has not been
disclosed to the USPTO has come to such counsel's attention that
causes such counsel to question the enforceability of any of the
Patents designated RVY, or to question the validity of any claim
of an issued patent listed on Schedule A and designated RVY.
Except as provided in Schedule D to the opinion ("Schedule D"),
such counsel knows of no pending action, suit, proceeding or
claim by others challenging the validity or enforceability of any
claim of the issued patents listed on Schedule A and designated
RVY;
(iv) to the best of such counsel's knowledge, all legal or
governmental proceedings relating to the Company's patents, other
than an ex parte examination proceeding, are listed on Schedule
D, including but not limited to any pending or threatened
interference, opposition, public use, reexamination, reissue, or
protest proceeding with respect to any Patent listed under the
designation RVY on Schedule A, in the United States or in a
foreign jurisdiction;
(v) to the best of such counsel's knowledge, the statements in
the Prospectus relating to patent matters under the captions
"Risk Factors", "Business-Intellectual Property", and
"Business-Legal Proceedings" insofar as such statements
constitute a summary of legal matters, documents, or proceedings,
are accurate and present fairly the matters set forth therein,
and, except as described in the Prospectus, to the best of such
counsel's knowledge there is no pending or threatened action,
suit, proceeding or claim by others that the Company is
infringing any patent which could result in any material adverse
effect on the Company;
(vi) except as described in the Prospectus, such counsel is not
aware of any fact that causes such counsel to believe that the
Company lacks any rights or licenses to use all patents,
trademarks, copyrights, know-how and other intellectual property
necessary to conduct the business now conducted or proposed to be
conducted by the Company as described in the Prospectus; and
(vii) no fact has come to such counsel's attention which causes
such counsel to believe that the statements in the Prospectus
relating to patent matters under the captions "Risk Factors",
"Business-Intellectual Property", "Business-Legal Proceedings,"
contain an untrue or misleading statement of material fact, or
omit a material fact necessary to make the statements therein not
misleading.
(g) The Representatives shall have received an opinion, dated
such Closing Date, of Xxxxxxxxx and Xxxxxxx, patent litigation counsel
for the Company, addressed to the Underwriters and in a form
satisfactory to Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.,
counsel for the Underwriters, stating that:
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(i) such counsel represents the Company in the action Aclara
Biosciences, Inc. ("Aclara") v. Caliper Technologies, Corporation
(the "Company") (N.D. Calif., Case No. C-99-1968 CRB) ("the
Federal Litigation"), in which Aclara asserts that the Company
infringes U.S. Patent No. 5,750,015 ("the `015 patent'), and in
which the Company has asserted various affirmative defenses and
counterclaims of, inter alia, patent invalidity and
enforceability, which affirmative defenses and counterclaims are
believed by such counsel to have been asserted with, and to have,
a good faith basis;
(ii) such counsel represents the Company as co-counsel in the
action Caliper Technologies, Corporation (the "Company") x.
Xxxxxxx, and Flehr, Hohbach, Test, Xxxxxxxxx & Xxxxxxx, and
Aclara Biosciences, Inc. ("Aclara") and Does One Through One
Hundred (Supr. Ct. Calif. Case No. CV780743) ("the State
Litigation"), for which the law firm of Ruby & Xxxxxxxxx
represents the Company as lead counsel, and in which the Company
seeks damages and equitable relief for breach of duty by certain
of its former attorneys, misappropriation of trade secrets, and
conversion;
(iii) to such counsel's knowledge, based, in part on discussions
with Ruby & Xxxxxxxxx concerning such matters, the statements in
the Prospectus under the captions "Risk Factors - Risks Related
to Our Business - We are Involved in Intellectual Property
Litigation Which May Hurt our Competitive Position, May be Costly
to Us and May Prevent Us from Selling Our Products" and
"Business - Legal Proceedings", insofar as such statements
constitute a summary of legal matters, documents or proceedings,
are accurate and present fairly the matters set forth therein,
and except as described in the Prospectus, to such counsel's
knowledge there is no pending or threatened action, suit,
proceeding or claim by others that the Company is infringing any
patent which could result in any material adverse effect on the
Company;
(iv) no facts have come to such counsel's attention which cause
such counsel to believe that the statements in the Prospectus
relating to patent matters under the captions "Risk Factors -
Risks Related to Our Business - We are Involved in Intellectual
Property Litigation Which May Hurt our Competitive Position, May
be Costly to Us and May Prevent Us from Selling Our Products" and
"Business - Legal Proceedings" contain an untrue or misleading
statement of material fact, or omit a material fact necessary to
make the statements therein not misleading.
(h) The Representatives shall have received an opinion, dated
such Closing Date, of Ruby & Xxxxxxxxx, litigation counsel for the
Company, addressed to the Underwriters and in a form satisfactory to
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the
Underwriters, stating that:
(i) such counsel represents the Company in the action
Caliper Technologies, Corporation (the "Company") x. Xxxxxxx, and
Flehr, Hohbach, Test, Xxxxxxxxx & Xxxxxxx, and Aclara
Biosciences, Inc. ("Aclara") and Does One Through One Hundred
(Supr. Ct. Calif. Case No. CV780743) ("the State Litigation"), in
which the Company seeks damages and equitable relief for breach
of duty by certain of its former attorneys, misappropriation of
trade secrets and conversion.; and
(ii) to such counsel's knowledge, arising from such
counsel's review of information made available to such counsel,
such counsel believes that a good faith basis existed and exists
for the assertion of the Company's claims in the State
Litigation.
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(j) The Representatives shall have received an opinion, dated
such Closing Date, of Xxxxxxxx Xxxx Xxxxx, out-side patent counsel for
the Company, and in a form satisfactory to Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, P.C., counsel for the Underwriters, stating that:
(i) all patents and pending patent applications ("Patents") that
are owned by or licensed to the Company and known to such counsel
and for which such counsel is responsible, and all contracts
known to such counsel pursuant to which the Company has, or has
granted, rights to any Patents for which such counsel is
responsible, are listed on Schedule A to the opinion ("Schedule
A")and are identified on Schedule A by the designation "JAQ";
(ii) based upon such counsel's (a) inquiry of the Company's
representatives responsible for Patent, Trademark, and Copyright
matters, (b) such counsel's review of the chain of title records
obtained from the United States Patent and Trademark Office
("USPTO") of the Patents listed in Schedule A and designated
"JAQ", and (c) instructions to foreign associates to file any
Notices of Entitlement or any assignment to the Company in a
foreign jurisdiction as required by that jurisdiction, with
regard to the foreign Patents listed in Schedule A and designated
JAQ, (i) the Patents designated JAQ have been validly assigned to
the Company and (ii) except as provided in Schedule A, the
Company is listed as the sole holder of record of each of the
Company's Patents designated JAQ. Such counsel knows of no claims
of third parties to any ownership interest in, or to any lien
with respect to, any of the Patents designated JAQ and knows of
no nonjoined inventorship interest in any of the Patents
designated JAQ. Except as provided in Schedule A, such counsel
has no knowledge of any facts that would preclude the Company
from having clear title and unencumbered right to the Patents
designated JAQ. None of the Patents listed in Schedule A
designated JAQ has
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been abandoned;
(iii) to the best of such counsel's knowledge, the requirements
of 37 CFR Section 1.56 (1999) have been met for each of the
United States Patents designated JAQ. No fact that has not been
disclosed to the USPTO has come to such counsel's attention that
causes such counsel to question the enforceability of any of the
Patents designated JAQ, or to question the validity of any claim
of an issued patent listed on Schedule A and designated JAQ.
Except as provided in Schedule D to the opinion ("Schedule D"),
such counsel knows of no pending action, suit, proceeding or
claim by others challenging the validity or enforceability of any
claim of the issued patents listed on Schedule A and designated
JAQ;
(iv) to the best of such counsel's knowledge, all legal or
governmental proceedings relating to the Company's patents, other
than an ex parte examination proceeding, are listed on Schedule
D, including but not limited to any pending or threatened
interference, opposition, public use, reexamination, reissue, or
protest proceeding with respect to any Patent listed under the
designation JAQ on Schedule A, in the United States or in a
foreign jurisdiction;
(v) to the best of such counsel's knowledge, the statements in
the Prospectus relating to patent matters under the captions
"Risk Factors", "Business-Intellectual Property", and
"Business-Legal Proceedings" insofar as such statements
constitute a summary of legal matters, documents, or proceedings,
are accurate and present fairly the matters set forth therein,
and, except as described in the Prospectus, to the best of such
counsel's knowledge there is no pending or threatened action,
suit, proceeding or claim by others that the Company is
infringing any patent which could result in any material adverse
effect on the Company;
(vi) except as described in the Prospectus, such counsel is not
aware of any fact that causes such counsel to believe that the
Company lacks any rights or licenses to use all patents,
trademarks, copyrights, know-how and other intellectual property
necessary to conduct the business now conducted or proposed to be
conducted by the Company as described in the Prospectus; and
(vii) no fact has come to such counsel's attention which causes
such counsel to believe that the statements in the Prospectus
relating to patent matters under the captions "Risk Factors",
"Business-Intellectual Property", "Business-Legal Proceedings,"
contain an untrue or misleading statement of material fact, or
omit a material fact necessary to make the statements therein not
misleading.
(k) The Representatives shall have received from Mintz, Levin,
Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Underwriters,
such opinion or opinions, dated such Closing Date, with respect to the
incorporation of the Company, the validity of the Offered Securities
delivered on such Closing Date, the Registration Statements, the
Prospectus and other related matters as the Representatives may require,
and the
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Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(l) The Representatives shall have received a certificate, dated
such Closing Date, of the President or any Vice President and a
principal financial or accounting officer of the Company in which such
officers shall state that: the representations and warranties of the
Company in this Agreement are true and correct; the Company has complied
with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to such Closing Date; no
stop order suspending the effectiveness of any Registration Statement
has been issued and no proceedings for that purpose have been instituted
or are contemplated by the Commission; the Additional Registration
Statement (if any) satisfying the requirements of subparagraphs (1) and
(3) of Rule 462(b) was filed pursuant to Rule 462(b), including payment
of the applicable filing fee in accordance with Rule 111(a) or (b) under
the Act, prior to the time the Prospectus was printed and distributed to
any Underwriter; and, subsequent to the date of the most recent
financial statements in the Prospectus, there has been no material
adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company except as
set forth in or contemplated by the Prospectus or as described in such
certificate.
(m) The Representatives shall have received a letter, dated such
Closing Date, of Ernst & Young LLP which meets the requirements of
subsection (a) of this Section, except that the specified date referred
to in such subsection will be a date not more than three days prior to
such Closing Date for the purposes of this subsection.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. CSFBC may in its sole discretion waive on behalf of the Underwriters
compliance with any conditions to the obligations of the Underwriters hereunder,
whether in respect of an Optional Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person, if any, who controls such Underwriter within the meaning of Section 15
of the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company will not be liable in any such case to the extent
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that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement in or omission or alleged omission
from any of such documents in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (b) below; and provided further that
the foregoing indemnity with respect to any preliminary prospectus shall not
inure to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages or liabilities purchased Offered Securities, or any
person controlling such Underwriter, if a copy of the Prospectus (as then
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such Underwriter
to such person, if required by law to have been so delivered at or prior to the
written confirmation of the sale of the Offered Securities to such person, and
if the Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such losses, claims, damages or liabilities, if the Company had
previously furnished copies thereof to such Underwriter.
The Company agrees to indemnify and hold harmless the Designated
Underwriter and each person, if any, who controls the Designated Underwriter
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act (the "DESIGNATED ENTITIES"), from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) (i) caused by any untrue statement or
alleged untrue statement of a material fact contained in any material prepared
by or with the consent of the Company for distribution to Participants in
connection with the Directed Share Program or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; (ii) caused by the
failure of any Participant to pay for and accept delivery of Directed Shares
that the Participant agreed to purchase; or (iii) related to, arising out of, or
in connection with the Directed Share Program, other than losses, claims,
damages or liabilities (or expenses relating thereto) that are finally
judicially determined to have resulted from the bad faith or gross negligence of
the Designated Entities.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any who
controls the Company within the meaning of Section 15 of the Act, against any
losses, claims, damages or liabilities to which the Company may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives specifically for use
therein, and will reimburse any legal or other expenses
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reasonably incurred by the Company in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are incurred,
it being understood and agreed that the only such information furnished by any
Underwriter consists of the following information in the Prospectus furnished on
behalf of each Underwriter: (i) the concession and reallowance figures appearing
in the fourth paragraph under the caption "Underwriting," (ii) the information
concerning discretionary sales contained in the sixth paragraph under the
caption "Underwriting" and (iii) information concerning Regulation M in the
thirteenth paragraph under the caption "Underwriting."
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought against
any indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. Notwithstanding anything contained herein to
the contrary, if indemnity may be sought pursuant to the last paragraph in
Section 7(a) hereof in respect of such action or proceeding, then in addition to
such separate firm for the indemnified parties, the indemnifying party shall be
liable for the reasonable fees and expenses of not more than one separate firm
(in addition to any local counsel) for the Designated Underwriter for the
defense of any losses, claims, damages and liabilities arising out of the
Directed Share Program, and all persons, if any, who control the Designated
Underwriter within the meaning of either Section 15 of the Act of Section 20 of
the Exchange Act. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or threatened
action in respect of which any indemnified party is or could have been a party
and indemnity could have been sought hereunder by such indemnified party unless
such settlement (i) includes an unconditional release of such indemnified party
from all liability on any claims that are the subject matter of such action and
(ii) does not include a statement as to, or an admission of, fault, culpability
or a failure to act by or on behalf of an indemnified party.
(d) If the indemnification provided for in this Section is unavailable
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Securities
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as
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is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or the Underwriters
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The amount
paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company, to each officer of the Company
who has signed a Registration Statement and to each person, if any, who controls
the Company within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, CSFBC may
make arrangements satisfactory to the Company for the purchase of such Offered
Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by such Closing Date, the non-defaulting Underwriters
shall be obligated severally, in proportion to their respective commitments
hereunder, to purchase the Offered Securities that such defaulting Underwriters
agreed but failed to purchase on such Closing Date. If any Underwriter or
Underwriters so default and the aggregate number of shares of Offered Securities
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with respect to which such default or defaults occur exceeds 10% of the total
number of shares of Offered Securities that the Underwriters are obligated to
purchase on such Closing Date and arrangements satisfactory to CSFBC and the
Company for the purchase of such Offered Securities by other persons are not
made within 36 hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter or the Company, except
as provided in Section 9 (provided that if such default occurs with respect to
Optional Securities after the First Closing Date, this Agreement will not
terminate as to the Firm Securities or any Optional Securities purchased prior
to such termination). As used in this Agreement, the term "Underwriter" includes
any person substituted for an Underwriter under this Section. Nothing herein
will relieve a defaulting Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation, or statement as to the results thereof, made by or on behalf
of any Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If this Agreement is terminated pursuant
to Section 8 or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company shall remain responsible for the
expenses to be paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Company and the Underwriters pursuant to Section 7 shall
remain in effect, and if any Offered Securities have been purchased hereunder
the representations and warranties in Section 2 and all obligations under
Section 5 shall also remain in effect. If the purchase of the Offered Securities
by the Underwriters is not consummated for any reason other than solely because
of the termination of this Agreement pursuant to Section 8 or the occurrence of
any event specified in clause (iii), (iv) or (v) of Section 6(c), the Company
will reimburse the Underwriters for all out-of-pocket expenses (including fees
and disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representatives, c/o Credit Suisse First Boston Corporation, Eleven
Madison Avenue, New York, N.Y. 10010-3629, Attention: Investment Banking
Department--Transactions Advisory Group, or, if sent to the Company, will be
mailed, delivered or telegraphed and confirmed to it at Caliper Technologies
Corp., 000 Xxxxxxxxx Xxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx, 00000-0000, Attention:
President; provided, however, that any notice to an Underwriter pursuant to
Section 7 will be mailed, delivered or telegraphed and confirmed to such
Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
12. Representation of Underwriters. The Representatives will act for the
several Underwriters in connection with this financing, and any action under
this Agreement taken by the Representatives jointly or by CSFBC will be binding
upon all the Underwriters.
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13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, without regard to
principles of conflicts of laws.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
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If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement between the
Company and the several Underwriters in accordance with its terms.
Very truly yours,
CALIPER TECHNOLOGIES CORP.
By:
--------------------------------------
President and Chief Executive Officer
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date first
above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
CIBC WORLD MARKETS CORP.
XXXXXXXXX & XXXXX LLC
Acting on behalf of themselves and as
the Representatives of the several
Underwriters
By CREDIT SUISSE FIRST BOSTON CORPORATION
By:
----------------------------------------
Title:
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SCHEDULE A
NUMBER OF
UNDERWRITER FIRM SECURITIES
----------- ---------------
Credit Suisse First Boston Corporation
CIBC World Markets Corp.
Xxxxxxxxx & Xxxxx LLC
---------
Total 3,600,000
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