Draft of March 12, 1996
3,050,000 Shares
CONMED CORPORATION
Common Stock
UNDERWRITING AGREEMENT
March 14, 1996
XXXXX XXXXXX INC.
XXXXXXX & COMPANY, INC.
UBS SECURITIES LLC
As Representatives of the Several Underwriters
c/o XXXXX XXXXXX INC.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
CONMED Corporation, a New York corporation (the "Company"),
proposes to issue and sell an aggregate of [2,200,000] shares of its common
stock, par value $.01 per share, to the several Underwriters named in Schedule
II hereto (the "Underwriters"), and the persons named in Schedule I hereto as
selling stockholders (the "Selling Stockholders") propose to sell to the several
Underwriters an aggregate of [850,000] shares of the Company's common stock, par
value $.01 per share. The Company's common stock, par value $.01 per share, is
hereinafter referred to as the "Common Stock," and the [2,200,000] shares of
Common Stock to be issued and sold to the Underwriters by the Company and the
[850,000] shares of Common Stock to be sold to the Underwriters by the Selling
Stockholders are hereinafter referred to as the "Firm Shares." In addition,
solely for the purpose of covering over-allotments, the Company proposes to sell
to the several Underwriters, upon the terms and conditions set forth in Section
2 hereof, up to an aggregate of 457,500 additional shares of Common Stock (the
"Additional Shares"). The Firm Shares and the Additional Common Shares are
hereinafter collectively referred to as the "Shares." The Company and the
Selling Stockholders are hereinafter sometimes referred to as the "Sellers."
The Company and the Selling Stockholders wish to confirm as
follows their respective agreements with you (the "Representatives") and the
other several Underwriters on whose behalf you are acting, in connection with
the several purchases of the Shares by the Underwriters.
1. Registration Statement and Prospectus. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") in accordance with the provisions of the Securities Act of 1933,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Act"), a registration statement on Form S-3 (File No.
33-65287) under the Act (the "registration statement"), including a prospectus
subject to completion relating to the Shares. The term "Registration Statement"
as used in this Agreement means the registration statement (including all
financial schedules and exhibits), as amended at the time it becomes effective,
or, if the registration statement became effective prior to the execution of
this Agreement, as supplemented or amended prior to the execution of this
Agreement, and includes the information (if any) deemed to be a part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Act. If it is contemplated, at the time this Agreement is executed, that a
post-effective amendment to the
registration statement will be filed and must be declared effective before the
offering of the Shares may commence, the term "Registration Statement" as used
in this Agreement means the registration statement as amended by said
post-effective amendment. If an additional registration statement is prepared
and filed with the Commission in accordance with Rule 462(b) under the Act (an
"Additional Registration Statement"), the term Registration Statement as used in
this Agreement includes the Additional Registration Statement. The term
"Prospectus" as used in this Agreement means the prospectus in the form included
in the Registration Statement, or, if the prospectus included in the
Registration Statement omits information in reliance on Rule 430A under the Act
and such information is included in a prospectus filed with the Commission
pursuant to Rule 424(b) under the Act, the term "Prospectus" as used in this
Agreement means the prospectus in the form included in the Registration
Statement as supplemented by the addition of the Rule 430A information contained
in the prospectus filed with the Commission pursuant to Rule 424(b). The term
"Prepricing Prospectus" as used in this Agreement means the prospectus subject
to completion in the form included in the registration statement at the time of
the initial filing of the registration statement with the Commission, and as
such prospectus shall have been amended from time to time prior to the date of
the Prospectus. Any reference herein to the registration statement, the
Registration Statement, any Prepricing Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 under the Act, as of the date of the
registration statement, the Registration Statement, such Prepricing Prospectus
or the Prospectus, as the case may be, and any reference to any amendment or
supplement to the registration statement, the Registration Statement, any
Prepricing Prospectus or the Prospectus shall be deemed to refer to and include
any documents filed after such date under the Securities Exchange Act of 1934,
as amended, and the rules and regulations of the Commission thereunder
(collectively, the "Exchange Act") and deemed incorporated by reference pursuant
to Item 12 of Form S-3 under the Act. As used herein, the term "Incorporated
Documents" means the documents which at the time are incorporated by reference
in the registration statement, the Registration Statement, any Prepricing
Prospectus, the Prospectus or any amendment or supplement thereto.
2. Agreements to Sell and Purchase. Subject to such
adjustments as you may determine to avoid fractional shares, the Company hereby
agrees, subject to all the terms and conditions set forth herein, to issue and
sell to each Underwriter and, upon the basis of the representations, warranties
and agreements of the Company and the Selling Stockholders herein contained and
subject to all the terms and conditions set forth herein, each Underwriter
agrees, severally and not jointly, to purchase from the Company, at a purchase
price of $_____ per share (the "purchase price per share"), that number of Firm
Shares which bears the same proportion to the aggregate number of Firm Shares to
be issued and sold by the Company as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule II hereto (or such number of
Firm Shares increased as set forth in Section 12 hereof) bears to the aggregate
number of Firm Shares to be sold by the Sellers.
Subject to such adjustments as you may determine to avoid
fractional shares, each Selling Stockholder agrees, subject to all the terms and
conditions set forth herein, to sell to each Underwriter and, upon the basis of
the representations, warranties and agreements of the Company and the Selling
Stockholders herein contained and subject to all the terms and conditions set
forth herein, each Underwriter agrees to purchase from each Selling Stockholder
at the purchase price per share that number of Firm Shares which bears the same
proportion to the number of Firm Shares set forth opposite the name of such
Selling Stockholder in Schedule I hereto as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule II hereto (or such number of
Firm Shares increased as set forth in Section 12 hereof) bears to the aggregate
number of Firm Shares to be sold by the Sellers.
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The Company also agrees, subject to the applicable terms and
conditions set forth herein, to issue and sell to the Underwriters, and, upon
the basis of the representations, warranties and agreements of the Company
herein contained and subject to the applicable terms and conditions set forth
herein, the Underwriters shall have the right to purchase from the Company, at
the purchase price per share, pursuant to an option (the "over-allotment
option") which may be exercised at any time and from time to time prior to 9:00
P.M., New York City time, on the 30th day after the date of the Prospectus (or,
if such 30th day shall be a Saturday or Sunday or a holiday, on the next
business day thereafter when the New York Stock Exchange is open for trading),
up to an aggregate of 457,500 Additional Shares solely to cover over-allotments.
Upon any exercise of the over-allotment option, each Underwriter, severally and
not jointly, agrees to purchase from the Company the number of Additional Shares
(subject to such adjustments as you may determine in order to avoid fractional
shares) which bears the same proportion to the aggregate number of Additional
Shares to be issued and sold by the Company as the number of Firm Shares set
forth opposite the name of such Underwriter in Schedule II hereto (or such
number of Firm Shares increased as set forth in Section 12 hereof) bears to the
aggregate number of Firm Shares to be sold by the Sellers.
The options (the "Options") exercisable for the Shares that
Xxxxxx X. Xxxxxxxxx agrees to sell pursuant to this Agreement have been placed
in custody with Registrar and Transfer Company (the "Custodian") for delivery
under this Agreement pursuant to a Custody Agreement and Power of Attorney (the
"Custody Agreement") executed by Xxxxxx X. Xxxxxxxxx appointing Xxxxxx X.
Xxxxxxxxx, as agent and attorney-in-fact (the "Attorney-in-Fact"). Xxxxxx X.
Xxxxxxxxx agrees that (i) the Shares represented by the Options exercisable for
such Shares, held in custody pursuant to the Custody Agreement are subject to
the interests of the Underwriters, the Company and Xxxxxx, Inc. ("Xxxxxx"), (ii)
the arrangements made by Xxxxxx X. Xxxxxxxxx for such custody are, except as
specifically provided in the Custody Agreement, irrevocable and (iii) subject to
the applicable terms of the agreements governing the Options, the obligations of
Xxxxxx X. Xxxxxxxxx hereunder and under the Custody Agreement shall not be
terminated by any act of Xxxxxx X. Xxxxxxxxx or by operation of law, whether by
the death or incapacity of Xxxxxx X. Xxxxxxxxx or the occurrence of any other
event. If Xxxxxx X. Xxxxxxxxx shall die or be incapacitated or if any other
event shall occur before the delivery of the Shares hereunder, subject to the
applicable terms of the agreements governing the Options, certificates for the
Shares to be held hereunder for Xxxxxx X. Xxxxxxxxx shall be delivered to the
Underwriters by the Attorney-in-Fact in accordance with the terms and conditions
of this Agreement and the Custody Agreement as if such death or incapacity or
other event had not occurred, regardless of whether or not the Attorney-in-Fact
or any Underwriter shall have received notice of such death, incapacity or other
event. The Attorney-in-Fact represents that he or she is authorized, on behalf
of Xxxxxx X. Xxxxxxxxx, to execute this Agreement and any other documents
necessary or desirable in connection with the exercise of the Options deposited
under the Custody Agreement and the sale of the Shares to be sold hereunder by
Xxxxxx X. Xxxxxxxxx, to provide for the payment to the Company of the exercise
price in respect of any Shares issued upon the exercise of the Options deposited
under the Custody Agreement, to make delivery of the certificates for such
Shares, to receive the proceeds of the sale of such Shares, to give receipts for
such proceeds, to pay therefrom any expenses or withholding taxes to be borne by
Xxxxxx X. Xxxxxxxxx in connection with the sale and public offering of such
Shares, to distribute the balance thereof to Xxxxxx X. Xxxxxxxxx, and to take
such other action as may be necessary or desirable in connection with the
transactions contemplated by this Agreement. The Attorney-in-Fact agrees to
perform his duties under the Custody Agreement.
Xxxxxx hereby agrees (i) to duly exercise the Xxxxxx Warrant
(as defined in the Prospectus) and to deliver, or cause to be delivered, to the
Underwriters on the Closing Date (as hereinafter defined), against payment
therefor as herein contemplated, certificates for the Shares to be sold by
Xxxxxx hereunder and (ii) to pay, or cause to be paid, the exercise price under
the Xxxxxx Warrant to the Company out of the proceeds of the sale of such Shares
to the Underwriters hereunder.
3. Terms of Public Offering. The Sellers have been advised by
you that the Underwriters propose to make a public offering of their respective
portions of the Shares as soon after
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the Registration Statement and this Agreement have become effective as in your
judgment is advisable and initially to offer the Shares upon the terms set forth
in the Prospectus.
4. Delivery of the Shares and Payment Therefor. Delivery to
the Underwriters of and payment for the Firm Shares shall be made at the office
of Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00
A.M., New York City time, on ________, 1996 (the "Closing Date"). The place of
closing for the Firm Shares and the Closing Date may be varied by agreement
among you, the Company, Xxxxxx and the Attorney-in-Fact.
Delivery to the Underwriters of and payment for any Additional
Shares to be purchased by the Underwriters shall be made at the aforementioned
office of Xxxxx Xxxxxx Inc. at such time on such date (the "Option Closing
Date"), which may be the same as the Closing Date but shall in no event be
earlier than the Closing Date nor earlier than three nor later than ten business
days after the giving of a written notice from you on behalf of the Underwriters
to the Company of the Underwriters' determination to purchase a number,
specified in such notice, of Additional Shares. The place of closing for any
Additional Shares and the Option Closing Date for such Additional Shares may be
varied by agreement among you and the Company.
Certificates for the Firm Shares and for any Additional Shares
to be purchased hereunder shall be registered in such names and in such
denominations as you shall request by written notice, it being understood that a
facsimile transmission shall be deemed written notice, prior to 9:30 A.M., New
York City time, on the second business day preceding the Closing Date or any
Option Closing Date, as the case may be. Such certificates shall be made
available to you in New York City for inspection and packaging not later than
9:30 A.M., New York City time, on the business day next preceding the Closing
Date or the Option Closing Date, as the case may be. The certificates evidencing
the Firm Shares and any Additional Shares to be purchased hereunder shall be
delivered to you on the Closing Date or the Option Closing Date, as the case may
be, against payment of the purchase price therefor by wire transfers payable to
the order of the Company and the Selling Stockholders (after giving effect to
the reduction for payment of the exercise price of the Options and the Xxxxxx
Warrant, which shall be deducted from the purchase price and remitted by wire
transfer to the Company), as the case may be.
5. Agreements of the Company. The Company agrees with the
several Underwriters as follows:
(a) If, at the time this Agreement is executed and delivered,
it is necessary for the Registration Statement or a post-effective amendment
thereto to be declared effective before the offering of the Shares may commence,
the Company will endeavor to cause the Registration Statement or such
post-effective amendment to become effective as soon as practicable and will
advise you promptly and, if requested by you, will confirm such advice in
writing, when the Registration Statement or such post-effective amendment has
become effective.
(b) The Company will advise you promptly and, if requested by
you, will confirm such advice in writing: (i) of any request by the Commission
for an amendment of or a supplement to the Registration Statement, any
Prepricing Prospectus or the Prospectus or for additional information; (ii) of
the issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or of the suspension of qualification of the Shares
for offering or sale in any jurisdiction or the initiation of any proceeding for
such purpose; and (iii) within the period of time referred to in paragraph (f)
below, of any change in the Company's condition (financial or other), business,
properties, net worth or results of operations, or of the happening of any event
which makes any statement of a material fact made in the Registration Statement
or the Prospectus (as then amended or supplemented) untrue or which requires the
making of any additions to or changes in the Registration Statement or the
Prospectus (as then amended or supplemented) in order to state a material fact
required by the Act or the regulations thereunder to be stated therein or
necessary in order to make the statements therein not misleading, or of the
necessity to amend or supplement the
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Prospectus (as then amended or supplemented) to comply with the Act or any other
applicable law. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, the Company will
make every reasonable effort to obtain the withdrawal of such order at the
earliest possible time.
(c) The Company will furnish to you, without charge such
number of copies of the registration statement as originally filed with the
Commission and of each amendment thereto, including financial statements and all
exhibits and Incorporated Documents thereto as you may reasonably request.
(d) The Company will not (i) file any amendment to the
Registration Statement or make any amendment or supplement to the Prospectus of
which you shall not previously have been advised or to which you shall
reasonably object after being so advised or (ii) so long as, in the opinion of
counsel for the Underwriters, a prospectus is required to be delivered in
connection with sales by any Underwriter or dealer, file any information,
document or report which upon filing becomes an Incorporated Document, without
delivering a copy of such information, document or report to you, as
Representatives of the Underwriters, prior to or concurrently with such filing.
(e) Prior to the execution and delivery of this Agreement, the
Company has delivered or will deliver to you, without charge, in such quantities
as you have requested or may hereafter reasonably request, copies of each form
of the Prepricing Prospectus. The Company consents to the use, in accordance
with the provisions of the Act and with the securities or Blue Sky laws of the
jurisdictions in which the Shares are offered by the several Underwriters and by
dealers, prior to the date of the Prospectus, of each Prepricing Prospectus so
furnished by the Company.
(f) As soon after the execution and delivery of this Agreement
as practicable and thereafter from time to time for such period as in the
opinion of counsel for the Underwriters a prospectus is required by the Act to
be delivered in connection with sales by any Underwriter or dealer, the Company
will expeditiously deliver to each Underwriter and each dealer, without charge,
as many copies of the Prospectus (and of any amendment or supplement thereto) as
you may reasonably request. The Company consents to the use of the Prospectus
(and of any amendment or supplement thereto) in accordance with the provisions
of the Act and with the securities or Blue Sky laws of the jurisdictions in
which the Shares are offered by the several Underwriters and by all dealers to
whom Shares may be sold, both in connection with the offering and sale of the
Shares and for such period of time thereafter as the Prospectus is required by
the Act to be delivered in connection with sales by any Underwriter or dealer.
If during such period of time any event shall occur that in the judgment of the
Company or in the opinion of counsel for the Underwriters is required to be set
forth in the Prospectus (as then amended or supplemented) or should be set forth
therein in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is necessary
to supplement or amend the Prospectus, or to file under the Exchange Act any
document which upon filing becomes an Incorporated Document, to comply with the
Act, the Exchange Act or any other applicable law, the Company will forthwith
prepare and, subject to the provisions of paragraph (d) above, file with the
Commission an appropriate supplement or amendment thereto, and will
expeditiously furnish to the Underwriters and dealers upon their request a
reasonable number of copies thereof. In the event that the Company and you, as
Representatives of the several Underwriters, agree that the Prospectus should be
amended or supplemented, or that a document should be filed under the Exchange
Act which upon filing becomes an Incorporated Document, the Company, if
reasonably requested by you, will promptly issue a press release announcing or
disclosing the matters to be covered by the proposed amendment or supplement or
such document.
(g) The Company will cooperate with you and with counsel for
the Underwriters in connection with the registration or qualification of the
Shares for offering and sale by the several Underwriters and by dealers under
the securities or Blue Sky laws of such jurisdictions as you may designate and
will file such consents to service of process or other documents necessary or
appropriate in order to effect such registration or qualification; provided that
in no event shall the
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Company be obligated to qualify to do business in any jurisdiction where it is
not now so qualified or to take any action which would subject it to service of
process in suits, other than those arising out of the offering or sale of the
Shares, in any jurisdiction where it is not now so subject.
(h) The Company will make generally available to its security
holders a consolidated earning statement, which need not be audited, covering a
twelve-month period commencing after the effective date of the Registration
Statement and ending not later than 15 months thereafter, as soon as reasonably
practicable after the end of such period, which consolidated earning statement
shall satisfy the provisions of Section 11(a) of the Act.
(i) During the period of five years hereafter, the Company
will furnish to you (i) as soon as available, a copy of each report of the
Company mailed to stockholders or filed with the Commission, and (ii) from time
to time such other information concerning the Company as you may reasonably
request.
(j) If this Agreement shall terminate or shall be terminated
after execution pursuant to any provisions hereof (otherwise than pursuant to
the second paragraph of Section 12 hereof or by notice given by you terminating
this Agreement pursuant to Section 12 or Section 13 hereof) or if this Agreement
shall be terminated by the Underwriters because of any failure or refusal on the
part of the Company or the Selling Stockholders to comply with the terms or
fulfill any of the conditions of this Agreement, the Company agrees to reimburse
the Representatives for all out-of-pocket expenses (including reasonable fees
and expenses of counsel for the Underwriters) incurred by you in connection
herewith.
(k) The Company will apply the net proceeds from the sale of
the Shares substantially in accordance with the description set forth under the
caption "Use of Proceeds" in the Prospectus.
(l) If Rule 430A of the Act is employed, the Company will
timely file the Prospectus pursuant to Rule 424(b) under the Act and will advise
you as to such filing.
(m) Except as provided in this Agreement, the Company will not
sell, offer for sale, contract to sell or otherwise dispose of any Common Stock
(or any securities convertible into or exercisable or exchangeable for Common
Stock), or grant any options or warrants to purchase Common Stock, for a period
of 120 days after the date of the Prospectus, without the prior written consent
of Xxxxx Xxxxxx Inc., except that the Company may issue (i) stock options
pursuant to its existing stock option plans or the stock option plan as it is
proposed to be amended at the Company's 1996 Annual Meeting of Shareholders,
shares pursuant to Xxxxxx X. Xxxxxxxxx'x Options and the Xxxxxx Warrant and
shares under registration statements on Form S-4 or S-8 and (ii) shares in
private placement transactions exempt from the registration requirements of the
Act so long as the transferee thereof agrees to be subject to the same
restrictions.
(n) The Company has furnished or will furnish to you "lock-up"
letters, in form and substance reasonably satisfactory to you, signed by each of
its current directors and officers designated by you.
(o) Except as stated in this Agreement or in the Prepricing
Prospectus or Prospectus, the Company has not taken, nor will it take, directly
or indirectly, any action designed to or that might reasonably be 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.
6. Agreements of the Selling Stockholders. Each of the Selling
Stockholders agrees with the several Underwriters as follows:
(a) Such Selling Stockholder will cooperate to the extent
reasonably necessary to cause the registration statement or any post-effective
amendment thereto to become effective at the
6
earliest practicable time and will do or perform all things reasonably required
to be done or performed by such Selling Stockholder prior to the Closing Date to
satisfy all applicable conditions precedent to the delivery of the Shares being
sold by such Selling Stockholder pursuant to this Agreement.
(b) Such Selling Stockholder will pay all Federal and other
taxes, if any, on the transfer or sale of the Shares being sold by the Selling
Stockholder to the Underwriters.
(c) Except as provided in this Agreement, such Selling
Stockholder will not sell, offer for sale, contract to sell or otherwise dispose
of any Common Stock (or any securities convertible into or exercisable or
exchangeable for Common Stock), or grant any options or warrants to purchase
Common Stock, for a period of 120 days after the date of the Prospectus, except
that Xxxxxx may exercise the Xxxxxx Warrant and Xxxxxx X. Xxxxxxxxx may transfer
shares pursuant to bona fide gifts to persons who agree with Xxxxx Xxxxxx Inc.
in writing to be subject to the same restrictions and exercise stock options
granted under the Company's stock option plans for the Shares to be sold by such
Selling Stockholder hereunder, without the prior written consent of Xxxxx Xxxxxx
Inc.
(d) Except as stated in this Agreement or in the Prepricing
Prospectus or Prospectus, such Selling Stockholder will not take, directly or
indirectly, any action designed to or that might reasonably be 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.
(e) Such Selling Stockholder will advise you promptly, and if
requested by you, will confirm such advice in writing, within the period of time
referred to in Section 5(f) hereof, of any change in information relating to
such Selling Stockholder which comes to the attention of such Selling
Stockholder that makes any statement of a material fact made in the Registration
Statement or the Prospectus (as then amended or supplemented, if amended or
supplemented) in light of the circumstances in which it was made, untrue in any
material respect or that the Registration Statement or Prospectus (as then
amended or supplemented, if amended or supplemented) omits or may omit to state
a material fact or a fact necessary to be stated therein in order to make the
statements therein, in light of the circumstances in which they were made, not
misleading in any material respect, or of the necessity to amend or supplement
the Prospectus (as then amended or supplemented, if amended or supplemented) in
order to comply with the Act or any other applicable law.
7. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(a) Each Prepricing Prospectus included as part of the
registration statement as originally filed or as part of any amendment or
supplement thereto, or filed pursuant to Rule 424 under the Act, complied when
so filed in all material respects with the provisions of the Act. The Commission
has not issued any order preventing or suspending the use of any Prepricing
Prospectus.
(b) The Company meets the requirements for use of Form S-3
under the Act. The registration statement in the form in which it became or
becomes effective and also in such form as it may be when any post-effective
amendment thereto shall become effective and the Prospectus and any supplement
or amendment thereto when filed with the Commission under Rule 424(b) under the
Act, complied or will comply in all material respects with the provisions of the
Act and did not or will not at any such times 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, except that this
representation and warranty does not apply to statements in or omissions from
the registration statement or the prospectus made in reliance upon and in
conformity with information relating to any Underwriter furnished to the Company
in writing by or on behalf of any Underwriter through you expressly for use
therein or information furnished to the Company in writing by or on behalf of
any Selling Stockholder for use therein.
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(c) The Incorporated Documents heretofore filed were filed in
a timely manner and, when they were filed (or, if any amendment with respect to
any such document was filed, when such amendment was filed), conformed in all
material respects with the requirements of the Exchange Act and did 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 any further Incorporated Documents will, when so filed, be filed in a timely
manner and conform in all material respects with the requirements of the
Exchange Act and will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading; except that this representation and warranty
does not apply to statements in or omissions made in reliance upon and
conformity with information furnished to the Company in writing by or on behalf
of any Underwriter through you expressly for use therein or information
furnished to the Company in writing by or on behalf of any Selling Stockholder
for use therein.
(d) All the outstanding shares of capital stock of the Company
have been duly authorized and validly issued, are fully paid and nonassessable
and are free of any preemptive or similar rights and were issued and sold in
compliance with all applicable federal and state securities laws; the Shares to
be issued and sold by the Company have been duly authorized and, when issued and
delivered to the Underwriters against payment therefor in accordance with the
terms hereof, will be validly issued, fully paid and nonassessable and free of
any preemptive or similar rights; and the capital stock of the Company conforms
in all material respects to the description thereof in the Registration
Statement and the Prospectus.
(e) Upon delivery of the Shares pursuant to this Agreement and
payment therefor as contemplated herein, the Underwriters (assuming that they
are purchasing the shares for value in good faith and without notice of adverse
claim within the meaning of the New York Uniform Commercial Code) will acquire
good title to the shares to be issued and sold by the Company free and clear of
any lien, claim, security interest, other encumbrance or restriction on transfer
or other defect in title (other than any claim on or to the Shares that the
Underwriters may have under this Agreement or that may attach to the Shares at
the time of delivery and payment as a result of any contract, agreement, note,
bond, judgment or other restriction, instrument or obligation to which the
several Underwriters may be a party or by which any of them or any of their
properties or assets may be bound).
(f) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of New York with all
requisite corporate power and authority to own or hold its properties and to
conduct its business as described in the Registration Statement and the
Prospectus, and is duly qualified to conduct its business and is in good
standing in each jurisdiction where the nature of its properties or the conduct
of its business requires such qualification, except where the failure so to
qualify does not have a material adverse effect on the condition (financial or
other), business, properties, net worth or results of operations of the Company
and the Subsidiaries (as hereinafter defined), taken as a whole (a "Material
Adverse Effect").
(g) The Company's significant subsidiaries (as defined in the
Act), are Aspen Laboratories, Inc. ("Aspen"), CONMED Andover Medical, Inc.
("CONMED Andover"), Xxxxxxxx Medical Systems, Inc. ("Xxxxxxxx") and N D M, Inc.
("NDM") and are referred to herein individually as a "Subsidiary" and
collectively as the "Subsidiaries". Each Subsidiary is a corporation duly
organized, validly existing and in good standing in the jurisdiction of its
incorporation, with all requisite corporate power and authority to own or hold
its properties and to conduct its business as described in the Registration
Statement and the Prospectus, and is duly qualified to conduct its business and
is in good standing in each jurisdiction where the nature of its properties or
the conduct of its business requires such qualification, except where the
failure so to qualify does not have a Material Adverse Effect. All the
outstanding shares of capital stock of each of the Subsidiaries have been duly
authorized and validly issued, are fully paid and nonassessable (by, in the case
of a subsidiary that is a New York corporation, such Subsidiary), and are
wholly-owned by the Company directly, or indirectly through one of the other
Subsidiaries, free and clear of any lien, adverse claim, security interest,
equity or
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other encumbrance, except (i) as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement thereto) and (ii) the lien in favor
of the banks named in the Company's Credit Agreement-Term Loan Facility, dated
as of December 29, 1995, among the Company, the Banks signatory thereto and The
Chase Manhattan Bank, N.A., as agent, and the Company's Credit
Agreement-Revolving Facility, dated as of December 29, 1995, among the Company,
the Banks signatory thereto and The Chase Manhattan Bank, N.A., as agent
(collectively the "Credit Agreement").
(h) There are no legal or governmental proceedings pending or,
to the knowledge of the Company, threatened, against the Company or any of the
Subsidiaries, or to which the Company or any of the Subsidiaries, or to which
any of their respective properties is subject, that are required to be described
in the Registration Statement or the Prospectus but are not described as
required, and there are no agreements, contracts, indentures, leases or other
instruments that are required to be described in the Registration Statement or
the Prospectus or to be filed as an exhibit to the Registration Statement or any
Incorporated Document that are not described or filed as required by the Act or
the Exchange Act, and all such instruments are in full force and effect and are
binding on the parties thereto, except where the failure of such instruments to
be binding would not have a Material Adverse Effect. The descriptions of the
terms of any such contracts or documents contained in the Registration Statement
or the Prospectus are complete and correct in all material respects. Neither the
Company nor any Subsidiary is involved in any strike or labor dispute with any
group of employees, and no such strike or dispute is, to the knowledge of the
Company, threatened.
(i) Neither the Company nor any Subsidiary is (i) in violation
of its certificate of incorporation or by-laws, or other organizational
documents, or of any law, ordinance, administrative or governmental rule or
regulation applicable to the Company or any of the Subsidiaries or of any decree
of any court or governmental agency or body having jurisdiction over the Company
or any of the Subsidiaries, except for such violations that would not have a
Material Adverse Effect, or (ii) in default in the performance of any
obligation, agreement or condition contained in any bond, debenture, note or any
other evidence of indebtedness or in any material agreement, indenture, lease or
other instrument to which the Company or any of the Subsidiaries is a party or
by which it or any of them or any of their respective properties may be bound,
except for such defaults that would not have a Material Adverse Effect, and no
event has occurred, and no condition or state of facts exists of which the
Company is aware, which, with the passage of time or the giving of notice or
both, would constitute such a material default.
(j) Neither the issuance, offer, sale or delivery of the
Shares, the execution, delivery or performance of this Agreement by the Company
nor the consummation by the Company of the transactions contemplated hereby (i)
requires any consent, approval, authorization or other order of, or registration
or filing with, any court, regulatory body, administrative agency or other
governmental body, agency or official (except such as may be required for the
registration of the Shares under the Act and the Exchange Act and compliance
with the state securities or Blue Sky laws and the clearance of such offering
with the National Association of Securities Dealers, Inc. (the "NASD"), all of
which have been or will be effected in accordance with this Agreement), or
conflicts or will conflict with or constitutes or will constitute a breach of,
or a default under, the certificate of incorporation or bylaws, or other
organizational documents, of the Company or any of the Subsidiaries or (ii)
conflicts or will conflict with or constitutes or will constitute a breach of,
or a default under, any agreement, indenture, lease or other instrument to which
the Company or any of the Subsidiaries is a party or by which any of them or any
of their respective properties may be bound, except for such breaches, conflicts
or defaults that would not have a Material Adverse Effect, or violates or will
violate any statute, law, regulation or filing or judgment, injunction, order or
decree applicable to the Company or any of the Subsidiaries or any of their
respective properties, except for such violations that would not have a Material
Adverse Effect and except as enforcement of rights to indemnity and contribution
under this Agreement may be limited by Federal or state securities laws or
principles of public policy, or will result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or any of
the Subsidiaries pursuant to the terms of any agreement or instrument to which
any of them is a party or by which any of them may be bound or to which any of
the property
9
or assets of any of them is subject, except for such liens, charges or
encumbrances that would not have a Material Adverse Effect.
(k) Price Waterhouse LLP, Xxxxxx Xxxxxxxx LLP, Xxxxx & Xxxxx
LLP and Xxxxxxxxxx Xxxxxxxxx & XxXxxxxx, CPA's, the accountants who have
certified or shall certify the financial statements filed or to be filed as a
part of or incorporated by reference in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), are independent accountants
as defined in the Act.
(l) The historical financial statements, together with related
schedules and notes forming part of the Registration Statement and the
Prospectus (and any amendment or supplement thereto), comply as to form in all
material respects with the requirements of the Act and the Exchange Act and
present fairly the consolidated financial position, results of operations and
cash flows of the Company and the Subsidiaries on the basis stated in the
Registration Statement at the respective dates or for the respective periods to
which they apply; such statements and related schedules and notes have been
prepared in all material respects in accordance with generally accepted
accounting principles consistently applied throughout the periods involved,
except as disclosed therein; the pro forma financial information included in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto) has been prepared in accordance with the applicable published rules and
regulations of the Commission with respect to pro forma financial information
and the assumptions used in preparing such information are reasonable; and the
other financial and statistical information and data relating to the Company
included in the Registration Statement and the Prospectus (and any amendment or
supplement thereto) are in all material respects fairly presented and prepared
on a basis consistent with such financial statements and the books and records
of the Company and the Subsidiaries.
(m) The Company has all requisite power and authority to
execute, deliver and perform its obligations under this Agreement; the execution
and delivery of, and the performance by the Company of its obligations under,
this Agreement have been duly and validly authorized by the Company, and this
Agreement has been duly executed and delivered by the Company and constitutes
the valid and legally binding agreement of the Company (assuming that this
Agreement is valid and legally binding on the other parties hereto), enforceable
against the Company in accordance with its terms, except as rights to indemnity
and contribution hereunder may be limited by Federal or state securities laws or
principles of public policy and subject to the qualification that the
enforceability of the Company's obligations hereunder may be limited by
bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and
other laws relating to or affecting creditors' rights generally and by general
equitable principles.
(n) Except as disclosed in the Registration Statement and the
Prospectus (or any amendment or supplement thereto), subsequent to the
respective dates as of which such information is given in the Registration
Statement and the Prospectus (or any amendment or supplement thereto), neither
the Company nor any of the Subsidiaries has incurred any liability or
obligation, direct or contingent, or entered into any transaction, not in the
ordinary course of business, that is material to the Company and the
Subsidiaries taken as a whole, and there has not been any material change in the
capital stock, or material increase in the short-term or long-term debt of the
Company or any of its Subsidiaries, or any material adverse change in the
condition (financial or other), business, properties, net worth or results of
operations of the Company and the Subsidiaries, taken as a whole.
(o) Each of the Company and the Subsidiaries has good and
marketable title to all property (real and personal) described in the Prospectus
as being owned by it except for (i) such property sold or otherwise disposed of
in the ordinary course of business after the date of the Company's financial
statements and (ii) such property the failure of which to own would not have a
Material Adverse Effect, free and clear of all liens, claims, security interests
or other encumbrances except such (I) as are described in the Registration
Statement and the Prospectus or in a document filed as an exhibit to the
Registration Statement or an Incorporated Document, (II) liens, claims,
10
security interests or other encumbrances the existence of which would not have a
Material Adverse Effect and (III) the lien in favor of the banks named in the
Credit Agreement, and all the material property described in the Prospectus as
being held under lease by each of the Company and the Subsidiaries is held by it
under valid, subsisting and enforceable leases, except where the failure of such
leases to be binding would not have a Material Adverse Effect.
(p) The Company has not distributed and, prior to the later to
occur of (i) the Closing Date and (ii) completion of the distribution of the
Shares, will not distribute any offering material in connection with the
offering and sale of the Shares other than the Registration Statement, the
Prepricing Prospectus, the Prospectus or other materials, if any, permitted by
the Act.
(q) Each of the Company and the Subsidiaries owns or possesses
and is operating in compliance in all material respects with the terms,
provisions and conditions of all necessary licenses, certificates and permits
from governmental or regulatory authorities that are material to the conduct of
its business as described in the Prospectus; except as described in the
Prospectus, there is no proceeding pending or, to the knowledge of the Company,
threatened and there is no event that has occurred that may cause or allow, or
after notice or lapsed time would cause or allow, any such license, certificate
or permit to be revoked, withdrawn, cancelled, suspended or not renewed or that
would result in any other material impairment of the rights of the holder of
such license, certificate or permit other than a revocation, withdrawal,
cancellation, suspension or nonrenewal that would not have a Material Adverse
Effect, and each of the Company and the Subsidiaries is conducting its business
in compliance in all material respects with all laws, rules and regulations
applicable thereto, the violation of which would have a Material Adverse Effect.
(r) The Company maintains a system of internal accounting
controls meeting in all material respects the requirements of Section 13(b)(2)
of the Exchange Act.
(s) Each of the Company and the Subsidiaries have filed all
Federal, state and foreign income tax returns required to be filed by it, and
neither the Company nor any Subsidiary is in default in the payment of any
material taxes which were payable pursuant to said returns or any material
assessments with respect thereto.
(t) Except as set forth in the Prospectus under the caption
"Description of Capital Stock" no person has any right to require registration
of Common Stock or any other security of the Company because of the filing of
the registration statement or the consummation of the transactions contemplated
by this Agreement or otherwise. Except as described in or contemplated by the
Prospectus, there are no outstanding options, warrants or other rights calling
for the issuance of, and there are no commitments, plans or arrangements to
issue, any shares of capital stock of the Company or any security convertible
into or exchangeable or exercisable for capital stock of the Company. Except as
contemplated hereby, no person has the right, contractual or otherwise, to cause
the Company to permit such person to underwrite the sale of any of the Shares.
(u) The Company owns or has obtained licenses for the patents,
trademarks, trademark registrations, service marks, service marks registrations,
trade names and copyrights described in the Prospectus as being owned or used by
or licensed to it and necessary for the conduct of business as presently
conducted (collectively, the "Intellectual Property"). Except as set forth in
the Prospectus, (i) there are no rights of third parties to any Intellectual
Property described in the Prospectus as being owned by or licensed to the
Company and that is necessary for the conduct of its business as presently
conducted the exercise of which would have a Material Adverse Effect; (ii) there
is no infringement by third parties of any such Intellectual Property that would
have a Material Adverse Effect; (iii) there is no pending or, to the Company's
best knowledge, threatened action, suit, proceeding or claim by others
challenging the Company's rights in or to such Intellectual Property the
resolution of which would have a Material Adverse Effect, and the Company is
unaware of any facts which would form a reasonable basis for any such claim;
(iv) there is no pending or, to the Company's best knowledge, threatened action,
suit, proceeding or claim by others challenging the validity or
11
scope of such Intellectual Property the resolution of which would have a
Material Adverse Effect, and the Company is unaware of any facts which would
form a reasonable basis for any such claim; (v) there is no pending or, to the
Company's best knowledge, threatened action, suit, proceeding or claim by others
that the Company infringes or otherwise violates any patent, trademark,
copyright, trade secret or other proprietary rights of others the resolution of
which would have a Material Adverse Effect, and the Company is unaware of any
facts which would form a reasonable basis for any such claim; (vi) to the
Company's best knowledge there is no patent or patent application which contains
claims that dominate or may dominate any Intellectual Property described in the
Prospectus as being owned or licensed by the Company and that is necessary for
the conduct of its business the resolution of which would have a Material
Adverse Effect, or that interferes with the issued or pending claims of any such
Intellectual Property, the resolution of which would have a Material Adverse
Effect; and (vii) there is no prior art of which the Company is aware that may
render any patent held by the Company invalid or any patent application held by
the Company unpatentable which has not been disclosed to the U.S. Patent and
Trademark Office, except for any invalidity or unpatentability that as would not
have a Material Adverse Effect.
(v) Neither the Company nor any of the Subsidiaries is, nor
will the Company or any of the Subsidiaries become, upon the sale of the Shares
to be issued and sold in accordance herewith and upon application of the net
proceeds to the Company from such sale as described in the Prospectus under the
caption "Use of Proceeds," an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(w) Except as described in the Prospectus, the property,
assets and operations of each of the Company and the Subsidiaries comply in all
material respects with all applicable United States federal, state or local
laws, rules, orders, or regulations relating to environmental matters (the
"Environmental Laws"), except to the extent that failure to comply with such
Environmental Laws would not have a Material Adverse Effect. Except as described
in the Prospectus, none of the Company's nor any of the Subsidiaries' property,
assets or operations is the subject of any federal, state or local investigation
evaluating whether any remedial action is needed to respond to a release of any
substance regulated by, or form the basis of liability under, any Environmental
Laws (a "Hazardous Material") into the environment the violation of which would
have a Material Adverse Effect or is in contravention of any federal, state,
local or foreign law, order or regulation the violation of which would have a
Material Adverse Effect. Except as described in the Prospectus, neither the
Company nor any of the Subsidiaries has received any notice or claim, nor are
there pending threatened or reasonably anticipated lawsuits against it with
respect to violations of an Environmental Law or in connection with the release
of any Hazardous Material into the environment the resolution of which would
have a Material Adverse Effect. Except as described in the Prospectus, neither
the Company nor any of the Subsidiaries has any material contingent liability in
connection with any release of Hazardous Material into the environment.
(x) The Company and the Subsidiaries maintain insurance of the
types and in amounts generally deemed adequate for its business as presently
conducted and as are customary in the business in which they are engaged, all of
which insurance is in full force and effect.
(y) The Company is in compliance with all provisions of
Florida Statutes ss.517.075 and the regulations thereunder, relating to issuers
doing business with Cuba.
8. Representations and Warranties of the Selling Stockholders.
Xxxxxx X. Xxxxxxxxx and Xxxxxx each represents and warrants, severally and not
jointly, to each Underwriter as to such Selling Stockholder that:
(a) Such Selling Stockholder now has or has the right to
acquire, and on the Closing Date and will have, valid and marketable title to
the Shares to be sold by such Selling Stockholder, free and clear of any lien,
claim, security interest other encumbrance or any restriction on transfer or
defect in title (subject to the provisions of the applicable stock option
agreement or the Xxxxxx
12
Warrant and other than any claim on or to the Shares that the Underwriters may
have under this Agreement or that may attach to the Shares at the time of
delivery and payment as a result of any contract, agreement, note, bond,
judgment or other restriction, instrument or obligation to which the several
Underwriters may be a party or by which any of them or any of their properties
or assets may be bound).
(b) Such Selling Stockholder now has, and on the Closing Date
will have, full legal right, power and authorization, and any approval required
by law (except such as may be required for the registration of the Shares under
the Act and the Exchange Act and compliance with the state securities or Blue
Sky laws or the clearance of the offering with the NASD), to sell, assign,
transfer and deliver the Shares to be sold by such Selling Stockholder in the
manner provided in this Agreement (subject to the provisions of the applicable
stock option agreement or the Xxxxxx Warrant), and upon delivery of and payment
for such Shares hereunder, the several Underwriters (assuming that they are
purchasing the Shares for value in good faith without notice of adverse claim
within the meaning of the New York Uniform Commercial Code) will acquire valid
and marketable title to such Shares free and clear of any lien, claim, security
interest or other encumbrance or restriction on transfer or defect in title
(other than any claim on or to the Shares that the Underwriters may have under
this Agreement or that may attach to the Shares at the time of delivery and
payment as a result of any contract, agreement, note, bond, judgment or other
restriction, instrument or obligation to which the several Underwriters may be a
party or by which any of them or any of their properties or assets may be
bound).
(c) Such Selling Stockholder has the requisite power and
authority to enter into this Agreement and, in the case of Xxxxxx X. Xxxxxxxxx,
the Custody Agreement. This Agreement and, in the case of Xxxxxx X. Xxxxxxxxx,
the Custody Agreement have each been duly and validly authorized, executed and
delivered by or on behalf of such Selling Stockholder and are valid and binding
agreements of such Selling Stockholder (assuming that this Agreement is valid
and legally binding on the other parties hereto), enforceable against such
Selling Stockholder in accordance with their respective terms, except as rights
to indemnity and contribution hereunder may be limited by Federal or state
securities laws or principles of public policy and subject to the qualification
that such Selling Stockholder's obligations hereunder may be limited by
bankruptcy, fraudulent conveyance, insolvency, reorganization, moratorium and
other laws relating to or affecting creditors' rights generally and by general
equitable principles.
(d) Neither the execution and delivery of this Agreement or,
in the case of Xxxxxx X. Xxxxxxxxx, the Custody Agreement by or on behalf of
such Selling Stockholder nor the consummation of the transactions herein or
therein contemplated by or on behalf of such Selling Stockholder requires any
consent, approval, authorization or order of, or filing or registration with,
any court, regulatory body, administrative agency or other governmental body,
agency or official (except such as may be required for the registration of the
Shares under the Act and the Exchange Act and compliance with the state
securities or Blue Sky laws or the clearance of the offering with the NASD) or
conflicts or will conflict with or constitutes or will constitute a breach of,
or default under, or violates or will violate, the certificate of incorporation
or by-laws or other organizational documents, if any, of such Selling
Stockholder or any material agreement, indenture or other instrument to which
such Selling Stockholder is a party or by which such Selling Stockholder is or
may be bound or to which any of such Selling Stockholder's material property or
assets is subject, or any material statute, law, rule, regulation, ruling,
judgment, injunction, order or decree applicable to such Selling Stockholder or
to any material property or assets of such Selling Stockholder.
(e) Such Selling Stockholder has reviewed the parts of the
Registration Statement and the Prospectus that relate to such Selling
Stockholder, and such parts do not and will not contain an untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading. Such Selling Stockholder does not have any
actual knowledge that the Registration Statement or the Prospectus (or any
amendment or supplement thereto), including the Incorporated
13
Documents, contains any untrue statement of material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading.
(f) The representations and warranties of such Selling
Stockholder in the Custody Agreement are, and on the Closing Date will be, true
and correct.
(g) Such Selling Stockholder has not taken, directly or
indirectly, any action designed to or that might reasonably be 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, except for the lock-up arrangements
described in the Prospectus.
9. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each of you, each other Underwriter and Xxxxxx and
each person, if any, who controls any Underwriter or Xxxxxx within the meaning
of Section 15 of the Act or Section 20(a) of the Exchange Act from and against
any and all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation) arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in any
Prepricing Prospectus or in the Registration Statement or the Prospectus or in
any amendment or supplement thereto, or arising out of or based upon 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, liabilities or expenses arise
out of or are based upon any untrue statement or omission or alleged untrue
statement or omission which has been made therein or omitted therefrom in
reliance upon and in conformity with, in the case of any Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the Act of Section 20(a) of the Exchange Act, the information relating to such
Underwriter furnished in writing to the Company by or on behalf of any
Underwriter through you expressly for use in connection therewith or, in the
case of Xxxxxx and each person, if any, who controls Xxxxxx within the meaning
of Section 15 of the Act or Section 20(a) of the Exchange Act, the information
furnished to the Company in writing by Xxxxxx expressly for use therewith;
provided, however, that the indemnification contained in this paragraph (a) with
respect to any Prepricing Prospectus shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such Underwriter) on
account of any such loss, claim, damage, liability or expense arising from the
sale of the Shares by such Underwriter to any person if a copy of the Prospectus
shall not have been delivered or sent to such person within the time required by
the Act and the regulations thereunder, and the untrue statement or alleged
untrue statement or omission or alleged omission of a material fact contained in
such Prepricing Prospectus was corrected in the Prospectus, provided that the
Company has delivered the Prospectus to the several Underwriters in requisite
quantity on a timely basis to permit such delivery or sending. The foregoing
indemnity agreement shall be in addition to any liability which the Company may
otherwise have.
(b) If any action, suit or proceeding shall be brought against
any Underwriter, Xxxxxx or any person controlling any Underwriter or Xxxxxx
(each, an "Indemnified Party") in respect of which indemnity may be sought
against the Company, such Indemnified Party shall promptly notify the Company,
and the Company shall assume the defense thereof, including the employment of
counsel and payment of all fees and expenses. Such Indemnified Party shall have
the right to employ separate counsel in any such action, suit or proceeding and
to participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Party unless (i) the Company has
agreed in writing to pay such fees and expenses, (ii) the Company has failed to
assume the defense and employ counsel, or (iii) the named parties to any such
action, suit or proceeding (including any impleaded parties) include both such
Indemnified Party and the Company and such Indemnified Party shall have been
advised by its counsel that representation of such Indemnified Party and the
Company by the same counsel would be inappropriate under applicable standards of
professional conduct (whether or not such representation by the same counsel has
been proposed) due to actual or potential differing interests between them (in
which case the Company shall not have the right to assume the defense of such
action, suit or proceeding on behalf
14
of such Indemnified Party). It is understood, however, that the Company shall,
in connection with any one such action, suit or proceeding or separate but
substantially similar or related actions, suits or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of only one separate firm of
attorneys (in addition to any local counsel) at any time for all such
Indemnified Party not having actual or potential differing interests with you or
among themselves, which firm shall be designated in writing by Xxxxx Xxxxxx Inc.
The Company shall not be liable for any settlement of any such action, suit or
proceeding effected without their written consent, but if settled with such
written consent, or if there be a final judgment for the plaintiff in any such
action, suit or proceeding, the Company agrees to indemnify and hold harmless
any Underwriter, to the extent provided in the preceding paragraph, and any such
controlling person from and against any loss, claim, damage, liability or
expense by reason of such settlement or judgment.
(c) Each Selling Stockholder agrees, severally and not
jointly, to indemnify and hold harmless the Company and each Underwriter and
each person, if any, who controls the Company or any Underwriter within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act to the
same extent as the indemnity from the Company to each Underwriter and Xxxxxx set
forth in Section 9(a) hereof, but only with respect to written information
relating to such Selling Stockholder furnished by such Selling Stockholder to
the Company expressly for use in the Registration Statement or the Prospectus.
In case any action or claim shall be brought or asserted against the Company or
any Underwriter or any such controlling person in respect of which indemnity may
be sought against such Selling Stockholder pursuant to this paragraph (c), such
Selling Stockholder shall have the rights and duties given to the Company, and
the Company and each Underwriter and any such controlling person shall have the
rights and duties given to the Indemnified Party under paragraph (b) above.
(d) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement, each Selling Stockholder and any person who controls
the Company or any Selling Stockholder within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only with respect to
information relating to such Underwriter furnished in writing by or on behalf of
such Underwriter through you expressly for use in the Registration Statement,
the Prospectus or any Prepricing Prospectus, or any amendment or supplement
thereto. If any action, suit or proceeding shall be brought against the Company,
any of its directors, any such officer, any Selling Stockholder or any such
controlling person based on the Registration Statement, the Prospectus or any
Prepricing Prospectus, or any amendment or supplement thereto, and in respect of
which indemnity may be sought against any Underwriter pursuant to this paragraph
(d), such Underwriter shall have the rights and duties given to the Company by
paragraph (b) above (except that if the Company shall have assumed the defense
thereof such Underwriter shall not be required to do so, but may employ separate
counsel therein and participate in the defense thereof, but the fees and
expenses of such counsel shall be at such Underwriter's expense), and the
Company, its directors, any such officer, any such Selling Stockholder and any
such controlling person shall have the rights and duties given to the
Indemnified Party by paragraph (b) above. The foregoing indemnity agreement
shall be in addition to any liability which the Underwriters may otherwise have.
(e) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under paragraphs (a), (c) or (d) hereof in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then an 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, claims, damages, liabilities or expenses (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, the Selling Stockholders and the Underwriters 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, the Selling Stockholders and the Underwriters in connection with
the statements or omissions that resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative
15
benefits received by the Company, the Selling Stockholders and the Underwriters
shall be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company and the Selling
Stockholders bear to the total underwriting discounts and commissions received
by the Underwriters, in each case as set forth in the table on the cover page of
the Prospectus; provided that, in the event that the Underwriters shall have
purchased any Additional Shares hereunder, any determination of the relative
benefits received by the Company, the Selling Stockholders and the Underwriters
from the offering of the Shares shall include the net proceeds (before deducting
expenses) received by the Company, and the underwriting discounts and
commissions received by the Underwriters, from the sale of such Additional
Shares, in each case computed on the basis of the respective amounts set forth
in the notes to the table on the cover page of the Prospectus. The relative
fault of the Company, the Selling Stockholders and the Underwriters shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, the Selling
Stockholders or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue or
alleged untrue statement or omission.
(f) The Company, the Selling Stockholders and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 9 were determined by a 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 paragraph (e) above. The amount paid or payable by an indemnified party as
a result of the losses, claims, damages, liabilities and expenses referred to in
paragraph (e) above shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating any claim or defending any such action,
suit or proceeding. 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 of the Shares underwritten by it and distributed 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 to contribute pursuant to this
Section 9 are several in proportion to the respective numbers of Firm Shares set
forth opposite their names in Schedule II hereto (or such numbers of Firm Shares
increased as set forth in Section 12 hereof) and not joint.
(g) The liability of any Selling Stockholder for
indemnification or contribution under this Section 9 or for breach of a
representation or warranty contained in Section 8 hereof shall not exceed an
amount equal to the number of Shares sold by such Selling Stockholder hereunder
multiplied by the purchase price per share set forth in Section 2 hereof.
(h) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action, suit or 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 action, suit or proceeding.
(i) Any losses, claims, damages, liabilities or expenses for
which an indemnified party is entitled to indemnification or contribution under
this Section 9 shall be paid by the indemnifying party to the indemnified party
as such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 9 and the
representations and warranties of the Company and the Selling Stockholders set
forth in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any Underwriter or
any person controlling any Underwriter, the Company, its directors or officers,
the
16
Selling Stockholders or any person controlling the Company or any Selling
Stockholder, (ii) acceptance of any Shares and payment therefor hereunder, and
(iii) any termination of this Agreement. A successor to any Underwriter or any
person controlling any Underwriter, or to the Company, its directors or
officers, the Selling Stockholders or any person controlling the Company or any
Selling Stockholder, shall be entitled to the benefits of the indemnity,
contribution and reimbursement agreements contained in this Section 9.
(j) The provisions of this Section 9 shall supersede the
indemnification and contribution provisions in Section 11(h) of the Xxxxxx
Warrant.
10. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters to purchase the Firm Shares hereunder are
subject to the following conditions:
(a) If, at the time this Agreement is executed and delivered,
it is necessary for the registration statement or a post-effective amendment
thereto to be declared effective before the offering of the Shares may commence,
the registration statement or such post-effective amendment shall have become
effective not later than 5:30 P.M., New York City time, on the date hereof, or
at such later date and time as shall be consented to in writing by you, and all
filings, if any, required by Rules 424 and 430A under the Act shall have been
timely made; no stop order suspending the effectiveness of the registration
statement shall have been issued and no proceeding for that purpose shall have
been instituted or, to the knowledge of the Company or any Underwriter,
threatened by the Commission, and any request of the Commission for additional
information (to be included in the registration statement or the prospectus or
otherwise) shall have been complied with to your satisfaction.
(b) Subsequent to the effective date of this Agreement, there
shall not have occurred (i) any change in or affecting the condition (financial
or other), business, properties, net worth or results of operations of the
Company or the Subsidiaries not contemplated by the Prospectus, which in your
opinion, as Representatives of the several Underwriters, would materially,
adversely affect the marketing of the Shares on the terms and in the manner
contemplated herein, or (ii) any event or development relating to or involving
the Company or any of the Subsidiaries, or any officer or director of the
Company or any of the Subsidiaries, or any Selling Stockholder which makes any
statement made in the Prospectus untrue or which, in the opinion of the Company
and its counsel or the Underwriters and their counsel given in writing, requires
the making of any addition to or change in the Prospectus in order to state a
material fact required by the Act or any other law to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
in which they were made, not misleading, if amending or supplementing the
Prospectus to reflect such event or development would, in your opinion, as
Representatives of the several Underwriters, materially, adversely affect
marketing of the Shares on the terms and in the manner contemplated herein.
(c) You shall have received on the Closing Date an opinion of
Steates Xxxxxxx Xxxxxxx & Xxxxxxx, counsel for the Company, dated the Closing
Date and addressed to you, as Representatives of the several Underwriters, to
the effect that:
(i) Each of the Company, Aspen, CONMED Andover,
Xxxxxxxx and NDM has been duly organized and is validly existing as a
corporation in good standing under the laws of the States of New York,
Colorado (with respect to Aspen) or California (with respect to
Xxxxxxxx) with corporate power and authority to own, lease or operate
its properties and conduct its business as described in the
Registration Statement and Prospectus; each of the Company, Aspen,
CONMED Andover, Xxxxxxxx and NDM is duly qualified to transact business
and is in good standing in all jurisdictions in which the conduct of
its business requires such qualification, except where the failure to
qualify would not have a material adverse effect upon the business of
the Company, Aspen, CONMED Andover, Xxxxxxxx and NDM, taken as a whole;
and all the outstanding shares of capital stock of each of Aspen,
CONMED Andover, Xxxxxxxx and NDM have been duly authorized and validly
issued, are fully paid and nonassessable (by, in the case of a
subsidiary that is a New York corporation,
17
such Subsidiary), and are wholly owned by the Company directly, free
and clear of any security interest, lien, adverse claim, equity or
other encumbrance, except as disclosed in the Registration Statement
and the Prospectus (or any amendment or supplement thereto);
(ii) (A) The Company has authorized capital stock of
the Company as of the date indicated in the Prospectus, as set forth in
the Registration Statement and the Prospectus under the caption
"Capitalization"; (B) the outstanding shares of the Common Stock,
including the Shares to be sold by the Selling Stockholders, have been
or will contemporaneously be validly issued and are fully paid and
non-assessable; (C) the capital stock of the Company, including the
Shares, conforms in all material respects to the description thereof
contained in the Prospectus under the caption "Description of Capital
Stock"; (D) the certificates for the Shares as delivered to the
Underwriters or as previously delivered to the Selling Stockholders, as
the case may be, are in due and proper form; (E) the Shares, including
the Option Shares, if any, to be sold by the Company pursuant to this
Agreement will be validly issued, fully paid and non-assessable when
issued and paid for as contemplated by this Agreement; and (F) no
preemptive rights of, or rights of first refusal in favor of,
shareholders exist with respect to any of the Shares or the issue and
sale thereof pursuant to the charter or by-laws of the Company and, to
such counsel's knowledge, there are no contractual preemptive rights or
rights of first refusal or other similar rights which exist with
respect to any of the Shares or the issue and sale thereof;
(iii) The statements under the captions,
"Description of Capital Stock" and "Shares Eligible for Future Sale" in
the Prospectus, insofar as such statements constitute a summary of
documents referred to therein or matters of law, are accurate summaries
in all material respects of the information set forth therein;
(iv) The statutes, governmental regulations,
agreements, contracts and documents as are summarized in the
Registration Statement or the Prospectus are fairly summarized in all
material respects;
(v) Such counsel knows of no pending or threatened
actions, suits, claims, proceedings or investigations before any court
or governmental agency or body that, if successful, would have a
material adverse effect on the Company and its subsidiaries considered
as a whole, or would limit, revoke, cancel, suspend, or cause not to be
renewed any existing license, certificate, registration, approval or
permit from any state, federal, or regulatory authority that is
material to the conduct of the business of the Company as presently
conducted, except as set forth in the Prospectus;
(vi) The Company has the corporate power and
authority to enter into this Agreement and to issue, sell and deliver
the Shares to be sold by it to the Underwriters as provided herein, and
this Agreement has been duly authorized, executed and delivered by the
Company;
(vii) Except as set forth in the Prospectus, none of
the Company, Aspen, CONMED Andover, Xxxxxxxx or NDM is in violation or
breach of, or in default with respect to, any term of its articles of
incorporation (or other charter document) or by-laws, or, to such
counsel's knowledge, in violation or breach of, or in default with
respect to, any provision of any contract, agreement, instrument, lease
or license which violation, breach or default would have a material
adverse effect upon the Company and its subsidiaries, considered as a
whole;
(viii) The execution and delivery of this Agreement
and the consummation of the transactions contemplated therein do not
and will not conflict with or result in a breach of any of the terms or
provisions of, or constitute a default under, the charter or by-laws of
the Company, Aspen, CONMED Andover, Xxxxxxxx or NDM, or, to such
counsel's knowledge,
18
any material franchise, license, authorization, approval, permit,
judgment, decree, order, statute, rule or regulation (other than with
respect to federal securities laws, the NASD or state securities or
blue sky laws, as to which such counsel shall express no opinion) to
which the Company may be subject, or any agreement, lease, contract,
indenture or other instrument or obligation known to such counsel to
which the Company, Aspen, CONMED Andover, Xxxxxxxx or NDM, is a party
or by which the Company, Aspen, CONMED Andover, Xxxxxxxx or NDM, may be
bound and will not result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
of the Subsidiaries;
(ix) No approval, consent, order, authorization,
designation, declaration or filing by or with any court, regulatory,
administrative or other governmental body is necessary in connection
with the execution and delivery of this Agreement by the Company and,
to knowledge of such counsel, by Xxxxxx X. Xxxxxxxxx and the
consummation of the transactions herein contemplated (other than as may
be required by the NASD or as required by state securities and Blue Sky
laws, as to which such counsel shall express no opinion) except such as
have been obtained or made, specifying the same;
(x) To the best knowledge of such counsel after
reasonable inquiry, neither the Company nor any of the Subsidiaries is
in violation of any law, ordinance, administrative or governmental rule
or regulation applicable to them, respectively, or of any decree of any
court or governmental agency or body having jurisdiction over the
Company, except where such violation would not have a material adverse
effect on the Company and the Subsidiaries taken as a whole;
(xi) The Company and each Subsidiary has full
corporate power and authority to own, lease and operate its properties
and to conduct its respective business as now being conducted, and as
described in the Prospectus, and has all permits, licenses, franchises,
authorizations and clearances of governmental or regulatory authorities
("Permits") as are necessary under applicable law to own, lease and
operate its properties and conduct its business as now being conducted,
except where the failure to so possess any such Permits would not have
a material adverse effect on the Company and the Subsidiaries taken as
a whole;
(xii) Except as described in the Prospectus, such
counsel does not know of any outstanding option, warrant or other right
calling for the issuance of, and such counsel does not know of any
commitment, plan or arrangement to issue, any share of capital stock of
the Company or any security convertible into or exchangeable or
exercisable for capital stock of the Company (other than the amendment
to the Company's stock option plan to be adopted at the 1996 Annual
Meeting of Stockholders); and except as described in the Prospectus,
such counsel does not know of any holder of any securities of the
Company or any other person who has the right, contractual or
otherwise, to cause the Company to sell or otherwise issue to them, or
permit them to underwrite the sale of, any of the Shares or the right
to have any Common Stock or other securities of the Company included in
the Registration Statement or the right, as a result of the filing of
the Registration Statement or otherwise, to require registration under
the Act of any Common Shares or other securities of the Company; and
(xiii) Upon delivery of the Shares pursuant to this
Agreement and payment therefor as contemplated herein the Underwriters
(assuming that the Underwriters are purchasing the Shares for value in
good faith and without notice of adverse claim within the meaning of
the New York Uniform Commercial Code) will acquire good title to the
Shares to be issued and sold by the Company free and clear of any lien,
claim, security interest, or other encumbrance, restriction on transfer
or other defect in title (other than any claim on or to the Shares that
the Underwriters may have under this Agreement or that may attach to
the Shares at the time of delivery and payment as a result of any
contract, agreement, note, bond,
19
judgment or other restriction, instrument or obligation to which the
several Underwriters may be a party or by which any of them or any of
their properties or assets may be bound).
In rendering such opinion, Steates Xxxxxxx Xxxxxxx & Xxxxxxx
may rely as to matters governed by laws other than the laws of the State of New
York on local counsel in such jurisdictions, provided that in each case Steates
Xxxxxxx Xxxxxxx & Xxxxxxx shall state that they believe that they and the
Underwriters are justified in relying on such other counsel, they provide to
counsel for the Underwriters copies of such opinions of counsel and that such
local counsel is reasonably acceptable to the Underwriters. In rendering the
foregoing opinions, such counsel may rely, as to certain questions of fact, upon
certificates of responsible officers of the Company, of the Custodian, by or on
behalf of the Selling Stockholders, and of governmental officials and upon
opinions of counsel reasonably acceptable to counsel for the Underwriters. They
may also state that they express no opinion with respect to the Commission, the
NASD or state securities or blue sky laws, as to which such counsel need express
no opinion.
(d) You shall have received on the Closing Date an opinion of
Xxxxxxxx & Xxxxxxxx, special counsel for the Company, dated the Closing Date and
addressed to you, as Representatives of the several Underwriters, 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
New York;
(ii) The Shares have been duly authorized and
validly issued and are fully paid and nonassessable;
(iii) This Agreement has been duly authorized,
executed and delivered by the Company;
(iv) The Registration Statement has become effective
under the Act; and, to the knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been initiated;
(v) To the knowledge of such counsel, no
authorization, approval or consent of any governmental agency or body
is required in connection with the execution and delivery of this
Agreement by the Company or the issuance of the Shares being sold by it
except as is required under the Act and the rules and regulations of
the Commission; and except as may be required by the NASD or as
required by the state securities or blue sky laws of any jurisdictions
(as to which they do not express an opinion); and
(vi) The Company is not an "investment company", as
such term is defined in the Investment Company Act of 1940, as amended.
In addition, such counsel shall state that as special counsel
to the Company they reviewed the Registration Statement and the Prospectus,
participated in discussions with representatives of the Underwriters and those
of the Company, the Selling Stockholders and the Company's accountants and
counsel, and advised the Company as to requirements of the Act and applicable
rules and regulations thereunder; on the basis of the information gained in the
performance of such services considered in the light of their understanding of
the applicable laws (including the requirements of Form S-3 and the character of
the prospectus contemplated thereby) and the experience they have gained through
their practice under the Act, they confirm to you that, in their opinion, the
Registration Statement, as of its effective date, and the Prospectus, as of the
date of the Prospectus, appeared on their face to be appropriately responsive in
all material respects to the requirements of the Act and the applicable rules
and regulations of the Commission thereunder; and that nothing that came to
their attention in the course of such review has caused them to believe that the
Registration Statement, as of its effective date, contained any untrue statement
of a material fact
20
or omitted to state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading or that the Prospectus,
as of the date of the Prospectus, contained any untrue statement of a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading; also, such counsel shall also state
that they do not know of any documents that are required to be filed as exhibits
to the Registration Statement and are not so filed or of any documents that are
required to be summarized in the Prospectus and are not so summarized.
In making such statements and opinions such counsel may state
that the limitations inherent in the independent verification of factual matters
and the character of determinations involved in the registration process are
such, however, that they do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and Prospectus except for those made in the Prospectus under the
caption "Description of Capital Stock" insofar as it relates to provisions of
documents therein described; and that they do not express any opinion or belief
as to the financial statements or other financial or statistical data contained
in the Registration Statement or the Prospectus; and that their letter is
furnished as special counsel for the Company to the Representatives and is
solely for the benefit of the several Underwriters.
In rendering the foregoing opinions, such counsel may rely, as
to questions of fact, upon certificates of responsible officers of the Company,
of the Custodian, by or on behalf of the Selling Stockholders, and of
governmental officials, and upon opinions of counsel reasonably acceptable to
counsel for the Underwriters.
(e) You shall have received on the Closing Date an
opinion of Xxxxxx X. Xxxxxxxxx, Vice President-Legal Affairs and
General Counsel of the Company, dated the Closing Date and addressed
to you, as Representatives of the several Underwriters, to the effect
that:
(i) To the best knowledge of such counsel after
reasonable inquiry, the Company owns or has obtained licenses for all
Intellectual Property described in the Prospectus as being owned or
licensed to the Company, except to the extent that the failure to own
any such Intellectual Property or obtain any such license would not
have a Material Adverse Effect;
(ii) To the best knowledge of such counsel after
reasonable inquiry, (A) such counsel is not aware of any infringement
by third parties of any Intellectual Property described in the
Prospectus as Intellectual Property owned or licensed by the Company;
(B) such counsel is not aware of any pending or threatened action,
suit, proceeding or claim by others challenging the Company's rights in
or to such Intellectual Property, and such counsel is not aware of any
facts which would form a reasonable basis for any such claim; (C) such
counsel is not aware of any pending or threatened action, suit,
proceeding or claim by others challenging the validity or scope of such
Intellectual Property, and such counsel is not aware of any facts which
would form a reasonable basis for any such claim; (D) such counsel is
not aware of any pending or threatened action, suit, proceeding or
claim by others that the Company infringes or otherwise violates any
patent, trademark, copyright, trade secret or other proprietary rights
of others, and such counsel is not aware of any facts which would form
a reasonable basis for any such claim; and (E) with respect to the
patents and patent applications of the Intellectual Property, the
Company has not received notice by the U.S. Patent and Trademark Office
of any interference proceeding, except in each case as would not have a
Material Adverse Effect.
(f) You shall have received on the Closing Date an opinion of
Steates Xxxxxxx Xxxxxxx & Xxxxxxx, counsel for Xxxxxx X. Xxxxxxxxx, dated the
Closing Date and addressed to you, as Representatives of the several
Underwriters, to the effect that:
21
(i) Such Selling Stockholder has full legal right,
power and authority, and has obtained any approval required by law
(other than as required by the NASD or state securities or Blue Sky
laws as to which such counsel shall express no opinion), to enter into
this Agreement and the Custody Agreement and to sell, assign, transfer
and deliver the portion of the Shares to be sold by such Selling
Stockholder (subject to the provisions of the applicable stock option
agreement);
(ii) This Agreement and the Custody Agreement have
each been duly executed and delivered by or on behalf of such Selling
Stockholder;
(iii) The Underwriters (assuming that they are bona
fide purchasers within the meaning of the Uniform Commercial Code) will
acquire good and marketable title to the Shares being sold by such
Selling Stockholder, free and clear, of all adverse claims, liens,
encumbrances, security interests, restrictions on transfer or other
defects in title (subject to the provisions of the applicable stock
option agreement and other than any claim on or to the Shares the
Underwriters may have under this Agreement or that may attach to the
Shares at the time of delivery and payment as a result of any contract,
agreement, note, bond, judgment or other restriction, instrument or
obligation to which the several Underwriters may be a party or by which
any of them or any of their properties or assets may be bound).
In rendering such opinion, such counsel may rely as to matters
governed by laws other than the laws of the State of New York on local counsel
in such jurisdictions, provided that in each case such counsel shall state that
they believe that they and the Underwriters are justified in relying on such
other counsel, they provide to counsel for the Underwriters copies of such
opinions of counsel and that such local counsel is reasonably acceptable to the
Underwriters. In rendering the foregoing opinions, such counsel may rely, as to
questions of fact, upon certificates of responsible officers of the Company, of
the Custodian, by or on behalf of the Selling Stockholders and of governmental
officials and upon opinions of counsel reasonably acceptable to counsel for the
Underwriters. They may also state that they express no opinion with respect to
the Commission, the NASD or state securities or blue sky laws, as to which such
counsel need express no opinion.
(g) You shall have received on the Closing Date, an opinion of
Xxxxx X. Xxxxxxx, Esq., counsel for Xxxxxx, dated the Closing Date and addressed
to you, as Representatives of the several Underwriters, to the effect that:
(i) Xxxxxx has full legal right, power and
authority, and has obtained any approval required by law (other than as
required by the NASD or state securities or Blue Sky laws as to which
such counsel shall express no opinion), to enter into this Agreement
and to sell, assign, transfer and deliver the portion of the Shares to
be sold by Xxxxxx (subject to the provisions of the Xxxxxx Warrant);
(ii) This Agreement has been duly executed and
delivered by or on behalf of Xxxxxx;
(iii) The execution and delivery of this Agreement
by Xxxxxx and the consummation of the transactions contemplated hereby
will not conflict with, violate, result in a breach of any of the terms
or provisions of, or constitute a default under, the charter and
by-laws of Xxxxxx; and
(iv) The Underwriters (assuming that they are bona
fide purchasers within the meaning of the Uniform Commercial Code) will
acquire good and marketable title to the Shares being sold by Xxxxxx,
free and clear, of all adverse claims, liens, encumbrances, security
interests, restrictions or transfer or other defects in title (subject
to the provisions of the Xxxxxx Warrant and other than any claim on or
to the Shares the Underwriters may have under this Agreement or that
may attach to the Shares at the time of delivery and payment
22
as a result of any contract, agreement, note, bond, judgment or other
restriction, instrument or obligation to which the several Underwriters
may be a party or by which any of them or any of their properties or
assets may be bound).
In rendering such opinion, such counsel may rely as to matters
governed by laws other than the laws of the State of New York on local counsel
in such jurisdictions, provided that in each case such counsel shall state that
they believe that they and the Underwriters are justified in relying on such
other counsel, they provide to counsel for the Underwriters copies of such
opinions of counsel and that such local counsel is reasonably acceptable to the
Underwriters. In rendering the foregoing opinions, such counsel may rely, as to
questions of fact, upon certificates of responsible officers of the Company and
the Selling Stockholders and of governmental officials and upon opinions of
counsel reasonably acceptable to counsel for the Underwriters. Such counsel may
also state that she expresses no opinion with respect to the Commission, the
NASD or state securities or blue sky laws, as to which such counsel need express
no opinion.
(h) You shall have received on the Closing Date an opinion of
Xxxxx Xxxxxxxxxx, counsel for the Underwriters, dated the Closing Date and
addressed to you with respect to the matters referred to in subclause (E) of
clause (ii) and clause (vi) of the foregoing paragraph (c) and clause (iv) and
the paragraph immediately following clause (vi) of the foregoing paragraph (d)
and such other related matters as you may request.
(i) You shall have received letters addressed to you, as
Representatives of the several Underwriters, and dated the date hereof and the
Closing Date from Price Waterhouse LLP, Xxxxxx Xxxxxxxx LLP, Xxxxx & Xxxxx LLP
and Xxxxxxxxxx, Xxxxxxxxx & XxXxxxxx, CPA's, independent certified public
accountants, substantially in the forms heretofore approved by you.
(j) (i) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding for
that purpose shall have been taken or, to the knowledge of the Company,
shall be contemplated by the Commission at or prior to the Closing
Date; (ii) there shall not have been any change in the capital stock of
the Company nor any material increase in the short-term or long-term
debt of the Company (other than in the ordinary course of business)
from that set forth or contemplated in the Registration Statement or
the Prospectus (or any amendment or supplement thereto); (iii) there
shall not have been, since the respective dates as of which information
is given in the Registration Statement and the Prospectus (or any
amendment or supplement thereto), except as may otherwise be set forth
or contemplated in the Registration Statement and Prospectus (or any
amendment or supplement thereto), any material adverse change in the
condition (financial or other), business, properties, net worth or
results of operations of the Company and the Subsidiaries, taken as a
whole; (iv) the Company shall not have any liabilities or obligations,
direct or contingent (whether or not in the ordinary course of
business), that are material to the Company and the Subsidiaries, taken
as a whole, other than those reflected in or contemplated by the
Registration Statement or the Prospectus (or any amendment or
supplement thereto); and (v) all the representations and warranties of
the Company contained in this Agreement shall be true and correct in
all material respects on and as of the date hereof and on and as of the
Closing Date as if made on and as of the Closing Date, and you shall
have received a certificate, dated the Closing Date and signed by the
chief executive officer and the chief financial officer of the Company
(or such other officers as are acceptable to you), to the effect set
forth in this Section 10(j) and in Section 10(k) hereof.
(k) The Company shall not have failed at or prior to the
Closing Date to have performed or complied with any of its agreements herein
contained and required to be performed or complied with by it hereunder at or
prior to the Closing Date.
(l) All the representations and warranties of the Selling
Stockholders contained in this Agreement shall be true and correct in all
material respects on and as of the date hereof and on and
23
as of the Closing Date as if made on and as of the Closing Date, and you shall
have received a certificate or certificates, dated the Closing Date and signed
by or on behalf of the Selling Stockholders to the effect set forth in this
Section 10(l) and in Section 10(m) hereof.
(m) The Selling Stockholders shall not have failed at or prior
to the Closing Date to have performed or complied with any of their agreements
herein contained and required to be performed or complied with by them hereunder
at or prior to the Closing Date.
(n) The Shares shall have been approved for listing, subject
to notice of issuance, on the Nasdaq National Market.
(o) The Sellers shall have furnished or caused to be furnished
to you such further certificates and documents as you shall have reasonably
requested.
All such opinions, certificates, letters and other documents
will be in compliance with the provisions hereof only if they are reasonably
satisfactory in form and substance to you and your counsel.
Any certificate or document signed by any officer of the
Company or any Attorney-in-Fact or any Selling Stockholder and delivered to you
in connection with the offering closings referred to in Section 4 of this
Agreement or to counsel for the Underwriters, shall be deemed a representation
or warranty by the Company, the Selling Stockholders or the particular Selling
Stockholder, as the case may be, to each Underwriter as to the statements made
therein.
The several obligations of the Underwriters to purchase
Additional Shares hereunder are subject to the satisfaction on and as of any
Option Closing Date of the conditions set forth in this Section 10, except that,
if any Option Closing Date is other than the Closing Date, the certificates,
opinions and letters referred to in paragraphs (c) through (e) and (h) through
(j) shall be dated the Option Closing Date in question and the opinions called
for by paragraphs (c) through (e) and (h) shall be revised to reflect the sale
of Additional Shares.
11. Expenses. The Company agrees to pay the following costs
and expenses and all other costs and expenses incident to the performance by the
Company and the Selling Stockholders of their obligations hereunder: (i) the
preparation, printing or reproduction, and filing with the Commission of the
registration statement (including financial statements and exhibits thereto),
each Prepricing Prospectus, the Prospectus, and each amendment or supplement to
any of them; (ii) the printing (or reproduction) and delivery (including
postage, air freight charges and charges for counting and packaging) of such
copies of the registration statement, each Prepricing Prospectus, the
Prospectus, the Incorporated Documents and all amendments or supplements to any
of them as may be reasonably requested for use in connection with the offering
and sale of the Shares; (iii) the preparation, printing, authentication,
issuance and delivery of certificates for the Shares, including any stamp taxes
in connection with the original issuance and sale of the Shares; (iv) the
printing (or reproduction) and delivery of this Agreement, the preliminary and
supplemental Blue Sky Memoranda and all other agreements or documents printed
(or reproduced) and delivered in connection with the offering of the Shares; (v)
the registration or qualification of the Shares for offer and sale under the
securities or Blue Sky laws of the several states as provided in Section 5(g)
hereof (including the reasonable fees, expenses and disbursements of counsel for
the Underwriters relating to the preparation, printing or reproduction, and
delivery of the preliminary and supplemental Blue Sky Memoranda and such
registration and qualification); (vi) the fees and expenses of the Company's
accountants and the fees and expenses of counsel (including local and special
counsel) for the Company; and [(vii) the transportation and other expenses
incurred by or on behalf of the Company's representatives in connection with
presentations to prospective purchasers of the Shares; and (viii)] the
performance by the Company of its other obligations under this Agreement.
24
12. Effective Date of Agreement. This Agreement shall become
effective: (i) upon the execution and delivery hereof by the parties hereto; or
(ii) if, at the time this Agreement is executed and delivered, it is necessary
for the registration statement or a post-effective amendment thereto to be
declared effective before the offering of the Shares may commence, when
notification of the effectiveness of the registration statement or such
post-effective amendment has been released by the Commission. Until such time as
this Agreement shall have become effective, it may be terminated by the Company,
by notifying you and the Selling Stockholders, or by you, as Representatives of
the several Underwriters, by notifying the Company and the Selling Stockholders.
If any one or more of the Underwriters shall fail or refuse to
purchase Firm Shares which it or they have agreed to purchase hereunder, and the
aggregate number of Firm Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate number of the Firm Shares, each non-defaulting Underwriter
shall be obligated, severally, in the proportion which the number of Firm Shares
sets forth opposite its name in Schedule II hereto bears to the aggregate number
of Firm Shares set forth opposite the names of all non-defaulting Underwriters
or in such other proportion as you may specify in accordance with Section 20 of
the Master Agreement Among Underwriters of Xxxxx Xxxxxx Xxxxxx Xxxxx & Co.
Incorporated (predecessor of Xxxxx Xxxxxx Inc.), to purchase the Firm Shares
which such defaulting Underwriter or Underwriters agreed, but failed or refused,
to purchase. If any Underwriter or Underwriters shall fail or refuse to purchase
Firm Shares and the aggregate number of Firm Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of Firm Shares and
arrangements satisfactory to you and the Company for the purchase of such Firm
Shares by one or more non-defaulting Underwriters or other party or parties
approved by you and the Company 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. In any such case which does not
result in termination of this Agreement, either you or the Company shall have
the right to postpone the Closing Date, but in no event for longer than seven
days, in order that the required changes, if any, in the Registration Statement
and the Prospectus or any other documents or arrangements may be effected. Any
action taken under this paragraph shall not relieve any defaulting Underwriter
from liability in respect of any such default of any such Underwriter under this
Agreement. The term "Underwriter" as used in this Agreement includes, for all
purposes of this Agreement, any party not listed on Schedule II hereto who, with
your approval and the approval of the Company, purchases Firm Shares which a
defaulting Underwriter, agreed, but failed or refused, to purchase.
Any notice under this Section 12 may be made by telegram,
telecopy or telephone but shall be subsequently confirmed by letter.
13. Termination of Agreement. This Agreement shall be subject
to termination in your absolute discretion, without liability on the part of any
Underwriter to the Company or any Selling Stockholder, by notice to the Company,
if prior to the Closing Date or any Option Closing Date (if different from the
Closing Date and then only as to the Additional Shares), as the case may be, (i)
trading in securities generally on the New York Stock Exchange, American Stock
Exchange or the Nasdaq National Market shall have been suspended or materially
limited, (ii) a general moratorium on commercial banking activities in New York
shall have been declared by either federal or state authorities, or (iii) there
shall have occurred any outbreak or escalation of hostilities or other
international or domestic calamity, crisis or change in political, financial or
economic conditions, the effect of which on the financial markets of the United
States is such as to make it, in your judgment, impracticable or inadvisable to
commence or continue the offering of the Shares at the offering price to the
public set forth on the cover page of the Prospectus or to enforce contracts for
the resale of the Shares by the Underwriters. Notice of such termination shall
be promptly given to the Company by telegram, telecopy or telephone and shall be
subsequently confirmed by letter.
14. Information Furnished by the Underwriters. The statements
set forth in the last paragraph on the cover page, the stabilization legend on
page two and the statements in the first and third paragraphs under the caption
"Underwriting" in any Prepricing Prospectus and in the Prospectus
25
constitute the only information furnished by or on behalf of the Underwriters
through you as such information is referred to in Sections 7(b) and 9 hereof.
15. Miscellaneous. Except as otherwise provided in Sections 5,
12 and 13 hereof, notice given pursuant to any provision of this Agreement shall
be in writing and shall be delivered (i) if to the Company or Xxxxxx X.
Xxxxxxxxx, at the office of the Company at 000 Xxxxx Xxxxxx, Xxxxx, Xxx Xxxx
00000, Attention: Xxxxxx X. Xxxxxxxxx, Chairman of the Board and President, with
a copy to each of Steates Xxxxxxx Xxxxxxx & Xxxxxxx, 0 Xxxxxx Xxxxxxxx, Xxxxx
000, Xxx Xxxxxxxx, XX 00000, Attention: Xxxxxx X. Xxxxxxx, Esq. and Xxxxxxxx &
Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, Attention Xxxxxx X. Xxxxx, Esq.;
or (ii) if to Xxxxxx, c/o Xxxxxxx-Xxxxx Squibb Company, 000 Xxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxx X. Xxxxxxx, Esq., with a copy to
Winthrop, Stimson, Xxxxxx & Xxxxxxx, Xxx Xxxxxxx Xxxx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxxx X. Xxxxxx, Esq.; or (iii) if to you, care of Xxxxx
Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Manager,
Corporate Finance Division, with a copy to Xxxxx Xxxxxxxxxx, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, XX 00000, Attention: Xxxxxxxxx X. Xxxxxx, Esq.
This Agreement has been and is made solely for the benefit of
the several Underwriters, the Company, its directors and officers, the Selling
Stockholders and the other controlling persons referred to in Section 9 hereof
and their respective successors and assigns, to the extent provided herein, and
no other person shall acquire or have any right under or by virtue of this
Agreement. Neither the term "successor" nor the term "successors and assigns" as
used in this Agreement shall include a purchaser from any Underwriter of any of
the Shares in his status as such purchaser.
16. Applicable Law; Counterparts. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
applicable to contracts made and to be performed within the State of New York.
This Agreement may be signed in various counterparts which
together constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
26
Please confirm that the foregoing correctly sets forth the
agreement among the Company, the Selling Stockholders and the several
Underwriters.
Very truly yours,
CONMED CORPORATION
By:
Xxxxxx X. Xxxxxxxxx
Chairman of the Board and President
XXXXXX, INC.
By:
XXXXXX X. XXXXXXXXX
By:
Confirmed as of the date first above mentioned.
XXXXX XXXXXX INC.
XXXXXXX & COMPANY, INC.
UBS SECURITIES LLC
As Representatives of the
Several Underwriters
By XXXXX XXXXXX INC.
By:
Managing Director
27
SCHEDULE I
CONMED CORPORATION
Number of
Selling Stockholders Firm Shares
Xxxxxx X. Xxxxxxxxx....................................150,000
Xxxxxx, Inc............................................
--------
Total..............................................
========
SCHEDULE II
CONMED CORPORATION
Number of
Underwriter Firm Shares
Xxxxx Xxxxxx Inc..............................................
Xxxxxxx & Company, Inc........................................
UBS Securities LLC............................................
---------
Total.....................................................
=========
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