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Exhibit 1.1
CONFIDENTIAL
PURCHASE AGREEMENT
BY AND AMONG
INTEGRATED SURGICAL SYSTEMS, INC.
INVESTMENTBANK AUSTRIA AKTIENGESELLSCHAFT
, 1997
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PURCHASE AGREEMENT, dated *, 1997, (the "Agreement") among Integrated
Surgical System, Inc. (the "Company") and Investmentbank Austria
Aktiengesellschaft ("Investmentbank Austria") and * ("*") (Investmentbank
Austria and * referred to herein, collectively, as the "Managers").
P R E A M B L E
The Company is a corporation incorporated and organized under the
laws of the State of Delaware, United States of America. The Company's shares of
common stock with a par value of U.S $0.01 per share are referred to herein as
the "Shares of Common Stock".
On *, 1997, the Board of Directors of the Company approved the
issuance of * new Shares of Common Stock with a par value of U.S$0.01 each (the
"New Shares") and with an aggregate par value of U.S$*.
Investmentbank Austria and *, acting severally but not jointly,
shall, pursuant to the terms and conditions of this Agreement, purchase
themselves such * New Shares.
Pursuant to this Agreement, the Company is granting to Investmentbank
Austria an option (the "Over-allotment Option") to acquire, upon the terms end
conditions set forth in Section 2 hereof, up to * additional issued and
outstanding Shares of Common Stock (the "Option Shares") solely to cover
over-allotments in the offering, if any. Any offering of the Option Shares
will be deemed to be part of the offering. The New Shares and the Option
Shares are referred to herein, collectively, as the "Offer Shares".
The offering of the Offer Shares (the "Offering"), comprises private
placements and offerings utilizing other exemptions from public offering
registration requirements in Europe. The Offer Shares will be offered outside
the United States in reliance on Regulation S ("Regulation S") under the
United States Securities Act of 1933, as amended (the "1933 Act").
Value Management & Research GmbH ("VMR"), a German limited
liability company which entered, together with Investmentbank Austria, into an
agreement with the Company (the "Restated Placement Agreement"). Such Restated
Placement Agreement provides, inter alia, that VMR will act as Placement
Coordinator in connection with the Offering and the listing of Shares of
Common Stock of the Company on the European Association of Securities Dealers
Automated Quotation System ("EASDAQ"). The Restated Placement Agreement
provides that the Company has an obligation to pay to VMR (i) a fee (the
"Aggregate VMR Fee") in an amount equal to 3.5% of the Aggregate Offer
Price (as defined in Section 2(c)) and (ii) a non-accountable expense allowance
(the "Aggregate VMR Non-accountable Expense Allowance") for costs and expenses
incurred by VMR in connection with the Offering in an amount equalt to 0.75%
of the Aggregate Offer Price.
The terms and conditions of the Shares of Common Stock are set forth
in the Preliminary Prospectus dated *, 1997 and the Final Prospectus dated *,
1997. The Preliminary Prospectus together with the Final Prospectus, as any of
such documents may be amended or supplemented from time to time, are referred to
herein as the "Offering Documents".
NOW; THEREFORE, the parties hereto agree as follows:
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Section 1. Representations and Warranties.
The Company represents and warrants to and agrees with each
Manager that:
(i) A registration statement on Form SB-2 (File No.
333-31481) with respect to the Offer Shares and such Shares of Common
Stock issued upon exercise of such warrants are being sold to
Investmentbank Austria and VMR pursuant to the Restated Placement
Agreement has been filed by the Company with the U.S. Securities and
Exchange Commission (the "Commission") under the 1933 Act, and *
amendments to that registration statement have been so filed and such
registration statement has been declared effective on or before the date
hereof. No stop order suspending the effectiveness of the registration
statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part
of the Commission for additional information has been complied with.
Copies of such registration statement and of each amendment hereto filed
by the Company with the Commission have been delivered to Investmentbank
Austria and EASDAQ. Such copies of the Registration Statement are
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to its Electronic Gathering, Analysis and Retrieval
system ("XXXXX"). As used in this Agreement, the term "Registration
Statement" means the registration statement referred to above, as amended
at the time it was declared effective, and any amendment thereto that was
or is thereafter declared effective, including all financial schedules
and exhibits thereto. For purposes of this Agreement, all references to
the Registration Statement shall be deemed to include the copy filed with
the Commission pursuant to XXXXX.
(ii) When the Registration Statement was declared
effective, it (A) contained all statements required to be stated therein
in accordance with, and complied in all materal respects with the
requirements of the 1933 Act and the rules and regulations of the
Commission thereunder and (B) did not and does not contain any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
(iii) The Offering Documents as of their date and as of
the date hereof did not and do not contain any untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading.
(iv) The auditors who audited, certified and reviewed
the financial statements and supporting schedules included in the
Registration Statement and the Offering Documents are independent
certified public accountants as required by the 1933 Act and the rules
and regulations of the Commission thereunder with respect to the Company,
its consolidated subsidiaries (each a "Consolidated Subsidiary" and
together the "Consolidated Subsidiaries") and Innovative Medical Machines
International, S.A. ("IMMI"). IMMI and the Consolidated Subsidiaries are
referred to herein as the "Subsidiaries". The Company and the Subsidiaries
are herein referred to as the "Group".
(v) The audited consolidated balance sheets of the
Company and its Consolidated Subsidiaries for the years ended December 31,
1996, 1995 and 1994 and the related consolidated statements of operations,
stockholders' equity and cash flow for the years ended December 31, 1996,
1995 and 1994 (together the "Consolidated Financial Statements"), the
unaudited consolidated balance sheets of the Company and its Consolidated
Subsidiaries for the six months periods ended at June 30, 1997 and 1996
and the related consolidated statements of operations, stockholders'
equity and cash flow for the six months periods ended at June 30,
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1997 and 1996 (together the "Consolidated Interim Financial Statements"), and
the audited financial statements of IMMI for the years ended December 31, 1996
and 1995 (together the "IMMI Financial Statements") and the unaudited financial
statements of IMMI for the six months period ended at June 30, 1997 and 1996
(together the "IMMI Interim Financial Statements") included in the Registration
Statement and the Offering Documents, together with the related schedules and
notes, present fairly the financial position of the Company and its Consolidated
Subsidiaries and IMMI as at the dates indicated and the results of its
operations, stockholders' equity and its cash flows for the periods specified.
The Consolidated Financial Statements, the Consolidated Interim Financial
Statements, the IMMI Financial Statements and the IMMI Interim Financial
Statements are referred to herein as the "Financial Statements". The audited
Consolidated Financial Statements for the years ended December 31, 1996, 1995
and 1994 and the unaudited Consolidated Interim Financial Statements for the six
months periods ended at June 30, 1997 and 1996 have been prepared in accordance
and conformity with generally accepted accounting principles in the United
States ("US GAAP") applied on a consistent basis throughout the periods
involved. The audited IMMI Financial Statements for the years ended December 31,
1990 and 1995 and the unaudited IMMI Interim Financial Statements for the six
months periods ended at June 30, 1997 and 1996 have been prepared in accordance
with generally accepted accounting principles in France ("French GAAP") and have
been reconciled from French GAAP to US GAAP. All financial data included in the
Registration Statement and the Offering Documents present fairly the information
shown therein and are accurate in all material respects, and have been compiled
on a basis consistent with that of the audited or unaudited Financial
Statements, as the case may be, included in the Registration Statement and the
Offering Documents.
(vi) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State of
Delaware, United States of America. The Company has full corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Offering Documents and to enter into and perform its
obligations under this Agreement. The Company is duly qualified as a foreign
corporation to transact business and is in good standing in all jurisdictions in
which such qualification is required, whether by reason of its ownership or
lease of property or the conduct of its business, except where the failure to do
so would not have a Material Adverse Effect (as hereinafter defined).
(vii) The authorized, issued and outstanding capital stock of
the Company, the authorized and non-issued capital stock of the Company and all
warrants issued and sold by the Company conform to all statements relating
thereto set forth in the Offering Documents and such description conforms to the
rights set forth in the instruments defining the same.
(viii) All of the issued and outstanding Shares of Common
Stock of the Company (including the * New Shares and the * Option Shares) have
been duly authorized for issuance and are fully paid and non-assessable. No
holder of the Offer Shares will be subject to personal liability by reason of
being such a holder. The issuance of the Offer Shares in not subject to
preemptive rights, subscription rights or similar rights of any securityholder
of the Company. The holders of the Offer Shares will receive good and marketable
title, free and clear of any pledges, liens, security interests, claims,
restrictions or encumbrances of any kind or right of a third party, including,
without limitation, preemptive rights, subscription rights or similar rights
of any securityholder of the Company (each a "Lien"). The Offer
Shares have been duly authorized, and when such * Offer Shares have been issued,
delivered and paid for in accordance with this Agreement, all the then issued
and outstanding * Shares of Common Stock of the Company will have been validly
issued, fully paid and non-assessable and the holders thereof will receive good
and marketable title free of any Lien. None of the issued and outstanding Shares
of Common Stock of the Company was, or will be prior to the completion of the
Offering, issued in violation of statutory subscription rights. Other than as
set forth in the Offering Documents, there are no valid or enforceable
outstanding options, warrants, contractual subscription rights or similar
arrangements or preemptive rights granted or issued by the
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Company with respect to any unissued shares of capital stock of the Company.
There are no restrictions on transfers of the Offer Shares except as set forth
in the Offering Documents under 2.2.3 - "Transferability" and 2.5.4 -
"Underwriting Selling Restrictions" and no person other than the Managers has
as of the date hereof any right, contingent or otherwise, to purchase or
acquire, or to be offered for purchase or acquisition, the Offer Shares.
Except as disclosed in the Offering Documents, there are no contracts,
agreements or understandings between the Company or any other person that
would give rise to a valid claim against the Company or any Manager for a
brokerage commission, finders fee or similar type payment. Since the
inception of the Company, no compensation was paid to or on behalf of any
member of the National Association of Securities Dealers, Inc. ("NASD"), or
any affiliate or employee thereof, in connection with any offering since
October 1, 1990, except as previously disclosed in writing to
Investmentbank Austria.
(ix) All of the Company's partly or wholly-owned Consolidated
Subsidiaries are set forth in Exhibit 21.1 to the Registration Statement. Each
of the Company's Subsidiaries is a corporation duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or
formation, as the case may be, with full power and authority (corporate or
otherwise) to own, lease, and operate its properties and to conduct the business
in which it is engaged as described in the Offering Documents. Each Subsidiary
is duly qualified to do business as a corporation in good standing in all
jurisdictions in which its ownership or lease of property or the conduct of its
business requires such qualification, except where the failure to so qualify
would not result in a material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Group (a "Material Adverse Effect"). All of the issued and outstanding capital
stock of each of the Subsidiaries has been duly authorized and validly issued,
is fully paid and non-assessable. The capital stock of the Subsidiaries is owned
by the Company, directly or indirectly, and is free and clear of any Lien. There
are no outstanding options, preemptive rights, warrants or similar arrangements
with respect to any unissued shares of any of the Subsidiaries.
(x) Since the respective dates as of which information is
given in the Offering Documents, except an otherwise stated therein, (A) there
has been no Material Adverse Effect, whether or not arising in the ordinary
course of business, (B) there have been no transactions entered into by the
Company or any of the Subsidiaries other than those in the ordinary course of
business, that are material with respect to the Company or the Group, (C)
there has been no material increase in the long-term debt of the Company, no
material reduction in total assets of the Company, no change in the percentage
ownership of a Subsidiary and no dividend or distribution of any kind paid or
made by the Company on its capital stock, and (D) there has been no change in
the authorized, issued and outstanding capital stock of the Company.
(xi)Except as disclosed in the Offering Documents, neither
the Company nor any of the Subsidiaries is in violation of its charter (or
similar constitutional documents) or any law, ordinance, rule, regulation,
decision or order of any court or governmental, administrative or regulatory
agency or body, domestic or foreign, to which it may be subject, or has failed
to obtain, or has received any notice of proceeding relating to the revocation
or modification of, or is in violation
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of, any license, permit, certificate, franchise or other governmental,
administrative or regulatory authorization (collectively, "Authorizations")
necessary to the lease or ownership of its property or the conduct of its
business as operated by them, except for those Authorizations the failure to
comply with will not have individually or in the aggregate a Material
Adverse Effect, or is in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract or other
understanding (whether written or oral) to which it is a party or by which it
may be bound, or to which any of its properties or assets may be subject except
for those violations, failures, notices or defaults that do not or will not,
individually or in the aggregate, result in a Material Adverse Effect. All
products sold by the Company have received all competent approvals and
permissions from all required regulatory authorities in all jurisdictions where
such products have been or are currently being marketed.
(xii) The execution, delivery and performance of this
Agreement, the issuance and sale of the Offer Shares and the consummation of the
transactions contemplated herein and compliance by the Company with its
obligations hereunder (A) have been duly authorized by the Company and all
necessary corporate and other action to authorize and approve the same has been
taken, (B) will not conflict with or constitute a breach of, or default under,
or result in the creation or imposition of a Lien upon, any property or assets
of the Company or any of the Subsidiaries pursuant to, or trigger any
change-in-control provision contained in, any material contract or other
material agreement to which the Company or any of the Subsidiaries is a party or
by which it or any of them may be bound, or to which any of the property or
assets of the Company or any of the Subsidiaries is subject, and (C) will not
result in any violation of any provision of the certificate of incorporation or
by-laws of the Company or any relevant applicable law, ordinance, rule,
regulation, decision or order of any court or governmental, administrative or
regulatory body. This Agreement, duly executed and delivered by the Company and,
assuming due authorization, execution and delivery by the other parties hereto,
is a legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms.
(xiii) No labor dispute with the employees of the Company or
any of the Subsidiaries, such as strikes or other labor unrest, exists or is
imminent. There is no existing or imminent labor disturbance by the employees of
any of its Subsidiaries' principal suppliers, manufacturers,
customers or contractors, which, in any case, may reasonably be expected to
result in a Material Adverse Effect.
(xiv) Except as disclosed in the Offering Documents, there are
no actions, suits, proceedings or investigations, including, without limitation,
personal injury and product liability actions, before or by any court or
governmental, administrative or regulatory agency or body, domestic or foreign,
now pending, or, to the best knowledge of the Company, threatened, against or
affecting any of the Company or any of the Subsidiaries that could, individually
or in the aggregate, (A) materially affect the performance by the Company of its
obligations under this Agreement or the transactions contemplated by the
Offering Documents, (B) reasonably be expected to result in any Material Adverse
Effect, or (C) reasonably be expected to materially and adversely affect the
material properties or assets of the Company or any of the Subsidiaries. Section
4.10 - "Government Regulation" of the Offering Documents as of their date and as
of the date hereof provides an accurate and complete description of the status
of the approvals under the U.S. Federal Food, Drug and Cosmetic Act for the
Company's or its Subsidiaries' products or the Company's or its Subsidiaries'
products under development. Such Section 4.10 does not include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein not misleading.
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(xv) The Company and its Subsidiaries have filed all
applicable tax returns (in all relevant jurisdictions) that are required to be
filed or have duly requested extensions thereof and have paid all taxes required
to be paid by any of them and any related assessments, fines or penalties,
except for any such tax, assessment, fine or penalty that is being contested in
good faith and by appropriate proceedings; and adequate charges, accruals and
reserves have been provided for in the Financial Statements referred to in
paragraph (v) above in respect of all taxes for all periods and to which the tax
liability of the Company or any of its Subsidiaries has not been finally
determined or remains open to examination by applicable taxing authorities,
except for those filings, requests of extensions, payments or charges, accruals
and reserves that could not reasonably be expected to result, individually or in
the aggregate, in a Material Adverse Effect.
(xvi) The Company and its Subsidiaries own, or have a license
to use on reasonable terms, the material patents, patent rights, licenses,
inventions, copyrights, know-how (including trade-secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures), trade-marks, service marks and trade names (collectively, "Patent
and Proprietary Rights") presently employed by them and that are necessary to
the businesses now operated by them, and neither the Company nor any of the
Subsidiaries has received any notice or is otherwise aware of any infringement
of or conflict with asserted rights of others with respect to any Patent and
Proprietary Rights, or of any facts that would render any Patent and Proprietary
Rights invalid or inadequate to protect the interests of the Company or any of
the Subsidiaries therein, and which infringement or conflict (if the subject of
any unfavorable decision, ruling or finding) or invalidity or inadequacy,
individually or in the aggregate, would result in any Material Adverse Effect.
(xvii) Except as disclosed in the Offering Documents, neither
the Company nor any of the Subsidiaries is in violation of any statute or any
law, ordinance, rule, regulation, decision or order of any court or
governmental, administrative or regulatory agency or body, domestic or foreign
(each, an "Environmental Law"), relating to the use, disposal or release of
hazardous or toxic substances or to the protection or restoration of the
environment, including, without limitation, the remediation or clean-up of any
past or present contamination, or to human exposure to hazardous or toxic
substances, operates any real property contaminated with any substance that is
expected to become subject to any clean-up or other remediation action pursuant
to any Environmental Law, is liable or expects to become liable for any clean-up
or other remediation action pursuant to any Environmental Law with respect to
any off-site disposal or contamination, or is subject to any (or has knowledge
of any threatened) claim, order or decree relating to any Environmental Law,
which violations, contaminations, liabilities, claims, orders or decrees, would,
individually or in the aggregate, result in a Material Adverse Effect. The
Company and its Subsidiaries have all permits, authorizations and approvals
required under any applicable Environmental Laws and are each in compliance with
their requirements. There are no pending or threatened administrative,
regulatory or judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigations or proceedings relating to
any Environmental Law against the Company or any of its Subsidiaries. There are
no events or circumstances that might reasonably be expected to form the basis
of an order for clean-up or remediation, or an action, suit or proceeding by any
private
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party or governmental body or agency against or affecting the Company or any of
its Subsidiaries relating to any Environmental Laws.
(xviii) Except as disclosed in the Offering Documents, the
Company and the Subsidiaries have good and marketable title to all real
properties and all other properties and assets owned by them that are material
to the businesses of the Group, in each case free from Liens that would
materially interfere with the use made or to be made thereof by them; and except
as disclosed in the Offering Documents, the Company and the Subsidiaries hold
any leased real or personal property under valid and enforceable leases with no
exceptions that could reasonably be expected to result in a Material Adverse
Effect.
(xix) The Company and its Subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary" in the businesses in which the Group is
engaged. The Company and its Subsidiaries have not been refused any insurance
coverage sought or applied for and the Company and its Subsidiaries have no
reason to believe that they will not be able to renew their existing insurance
coverage as and when such coverage expires or to obtain similar cost that would
not materially and adversely affect the condition (financial or otherwise),
business, prospects, net worth or results of operations of the Company and its
Subsidiaries, except as described in or contemplated by the Offering Documents.
(xx) All of the Shares of Common Stock of the Company
(including the Offer Shares) and the warrants sold by the Company in its initial
public offering in November 1996 are currently listed on the NASDAQ SmallCap
Market and the Pacific Stock Exchange Incorporated and the Company is in
compliance in all respects with the requirements of such exchanges.
(xxi) Except as set forth in the Offering Documents, the
Company has not entered into any contractual arrangement with respect to the
offer, purchase, sale and distribution of any of the Shares of Common Stock or
other securities of the Company, including, without limitation, other types of
stock, options or warrants.
(xxii) Neither the Company or their respective affiliates nor
any person acting on any of their behalfs has engaged or will, prior to
completion of the Offering, engage in any activity including, without
limitation, any offer, subscription, sale or delivery, directly or indirectly,
of any of the Shares of Common Stock or other securities of the Company,
including, without limitation, other types of stock, options or warrants or
distribution or publication of the Offering Documents or any other offering
material in or from any jurisdiction, except under circumstances that will
result in compliance with all applicable laws and regulations.
(xxiii) All previous offerings by the Company of securities in
the United States were valid and in accordance with the 1933 Act.
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Section 2. Purchase, Sale and Delivery to Managers; Closing;
Over-allotment Option.
(a) On the basis of the representations and warranties herein
contained and subject to the terms and conditions hereof, the Company agrees to
sell to each Manager, severally and not jointly, and each Manager, severally and
not jointly, agrees to purchase for itself from the Company at the Closing Date
(as defined in Section 2 (d) hereof) the number of New Shares set forth in
Schedule A opposite to the name of such Manager with the obligation to offer
such New Shares at the Offer Price (as defined in paragraph (c) below) (plus
customary bank charges and transfer or other taxes, if any) in the Offering.
(b) The Company shall deliver the share certificates
representing the aggregate number of New Shares to be said by the Company
pursuant to paragraph (a) to [*](1) no later then five (5) business days prior
to the Closing Date.
(c) The aggregate purchase price for the New Shares (the
"Aggregate Purchase Price") shall consist of an amount (payable in German marks)
equal to the product of (i) DM * Per New Share (the "Offer Price"), less (x)
commissions of DM * per New Share and (y) a Non-accountable Expense Allowance
(as defined in Section 4 hereof) of DM * per New Share for costs and expenses
incurred by Investmentbank Austria in connection with the Offering, and (ii) the
number of New Shares to be purchased by the Managers pursuant to this Agreement.
The product of (i) the Offer Price per New Share, and (ii) the number of New
Shares to be purchased by the Managers pursuant to this Agreement is herein
referred to as the "Aggregate New Shares Offer Price". The product of (i) the
Offer Price per Option Share, and (ii) the number of Option Shares purchased by
the Managers pursuant to this Agreement is herein referred to as the "Aggregate
Option Shares Offer Price". The total amount of the Aggregate New Shares Offer
Price and the Aggregate Option Shares Offer Price is herein referred to as the
Aggregate Offer Price.
(d) Payment of the Aggregate Purchase Price for the New Shares
sold by the Company less (x) the Aggregate VMR Placement Coordinator Fee for the
New Shares, and (y) the Aggregate VMR Non-accountable Expense Allowance for the
New Shares which will, pursuant to the terms and conditions of the Placement
Agreement, be paid directly from Investmentbank Austria to VMR, shall be made by
the Managers to the Company by direct bank transfer to the account of the
Company, account number; *, at * no later than ten business days after the
Closing Date, as defined herein. November *, 1997 shall be referred to herein as
the "Closing Date". The Closing Date may be varied by agreement between the
Managers and the Company. lnvestmentbank Austria shall have the right to deduct
costs and expenses to be paid by the Company pursuant to Section 4 (B) hereof
from the Aggregate Purchase Price; provided that such costs and expenses have
been paid by Investmentbank Austria on behalf of the Company.
(e) The Company hereby grants to Investmentbank Austria the
Over-allotment Option to require the Company to sell some or all of the Option
Shares to Investmentbank Austria in accordance with the terms of this Section 2.
The Over-allotment Option may be exercised by Investmentbank Austria at any time
after the date hereof and will expire 30 days after the Closing Date, and may be
exercised, in whole or from time to time in part, only for the purpose of
covering over-allotments that may be made in connection with the Offering, only
upon written notice by Investmentbank Austria to the Company stating the number
of Option Shares as to which Investmentbank Austria is exercising the
Over-allotment Option, and the time and date of payment
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and delivery thereof (an "Option Closing Date"), a copy of such notice is to be
forwarded from IBA to VMR. The relevant Option Closing Date, which may be the
Closing Date, shall be determined by Investmentbank Austria but shall not be
later than seven business days after the exercise of the Over-allotment Option.
If the Over-allotment Option is exercised as to all or any part of the Option
Shares, the Option Shares as to which the Over-allotment Option is exercised
shall be purchased by Investmentbank Austria. The aggregate purchase price for
the Option Shares (the "Aggregate Option Shares Purchase Price") to be paid by
Investmentbank shall consist of an amount (payable in German marks) equal to the
product of (i) the Offer Price, less (x) commissions of DM * per Option Share
and (y) a nonaccountable expense allowance of DM * per Option Share for costs
and expenses incurred by Investmentbank Austria in connection with the Offering,
and (ii) the number of Option Shares with respect to which an Over-allotment
Option has been exercised. Such Aggregate Option Shares Purchase Price less (x)
the Aggregate VMR Fee for the Option Shares, and (y) the Aggregate VMR
Non-accountable Expense Allowance for the Option Shares shall be paid in the
same manner as set forth in paragraph (d) above. The share certificates
representing the Option Shares shall be delivered by the Company to [*] no later
than on the Closing Date and Investmentbank Austria on behalf of the Company
shall release the share certificates representing the number of Option Shares as
to which Investmentbank Austria exercised the Over-allotment Option on each
Option Closing Date. The obligations of Investmentbank Austria to purchase and
pay for Option Shares as to which an Over-allotment Option has been exercised
are subject to satisfaction of the conditions set forth in Section 5(a) (as if
the references therein to the Closing Date were references to the relevant
Option Closing Date).
(f) The Company will bear and pay and hold the Managers and
any initial purchaser harmless against any transfer tax, issuance tax or other
tax, duties or fees imposed by the United States, the State of Delaware or the
Republic of Austria, including any interest and penalties, on or in connection
with the sale, offering, transfer, purchase and delivery of the Offer Shares in
accordance with the terms of this Agreement and on the execution and delivery of
this Agreement, which are or may be required to be paid, and against any value
added or similar taxes ("VAT") payable in connection with commissions and other
amounts payable or allowable by the Company and otherwise in connection with the
transactions contemplated by this Agreement.
Section 3. Covenants of the Company.
The Company covenants with each Manager as follows:
(i) The Company will advise Investmentbank Austria,
promptly after receiving notice or obtaining knowledge thereof, and
confirm the notice in writing, of (A) the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement, (B) the suspension of the qualification of any Shares of
Common Stock for offering or sale in any jurisdiction or (C) the
institution, threat or contemplation of any proceeding for any such
purpose. The Company will make every reasonable effort to prevent the
issuance of any such stop order and, if any such stop order is issued,
to obtain the withdrawal thereof at the earliest possible moment.
(ii) The Company shall promptly notify Investmentbank
Austria, on behalf of the Managers, of any material change affecting any
of the representations and warranties set forth in Section 1 hereof at
any time before the Closing Date (for Option Closing Date, as
applicable), and the Company will take all actions
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that may be reasonably requested by Investmentbank Austria to remedy such
material change. In the event it is necessary, in the reasonable opinion of any
of the Company, or Investmentbank Austria, to amend or supplement any of the
Offering Documents in order that the Offering Documents do not include any
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein not misleading in the light of the
circumstances then existing, the Company will forthwith amend or supplement the
Offering Documents by preparing and furnishing without charge to each Manager an
amendment or amendments of, or a supplement or supplements to, the Offering
Documents (in form and substance satisfactory in the reasonable opinion of
Investmentbank Austria so that, as so amended or supplemented, the Offering
Documents will not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances existing at the time it is delivered, not
misleading). Neither Investmentbank Austria's consent to, nor the Managers'
delivery to offerees or investors of any amendment or supplement to the Offering
Documents shall constitute a waiver of any of the conditions set forth in
Section 5 hereof.
(iii) The Company shall use its best efforts to qualify the
Offer Shares for offering and sale in each jurisdiction that Investmentbank
Austria, on behalf of the Managers, shall designate and the Company shall
maintain such qualifications in effect for such period, not in excess of six
months from the date of this Agreement, as Investmentbank Austria, on behalf of
the Managers, may reasonably request in order to complete the placement of the
Offer Shares; provided, however, that the Company shall not be obligated to file
any general consent to service of process or to qualify as a foreign corporation
or as a securities dealer in any jurisdiction or to subject themselves to
taxation in respect of doing business in any jurisdiction in which they are not
otherwise so subject.
(iv) Subject to requirements of applicable law and
regulations, prior to the Closing Date, the Company shall not, without prior
consent (such consent not to be unreasonably withheld) of Investmentbank
Austria, make any information relating to the Offering publicly available and
will not take any action that will result in their being obliged under listing
requirements or other obligations to shareholders generally to make available to
the public any information that may be material to a purchaser of the Offer
Shares prior to the expiration of three (3) months following the Closing Date.
(v) For a period of six (6) months after the Closing Date,
the Company shall not (A) except as otherwise required by applicable law, issue
any announcement in the Republic of Austria, Belgium, the United States or
elsewhere that could be material in the context of the Offering of the Offer
Shares without informing Investmentbank Austria within a reasonable period of
time prior to such announcement, or (B) issue, sell, offer or contract to issue,
sell, grant any option for the issuance or sale of, or otherwise dispose of
directly or indirectly, any interest in securities of the same class as the
Offer Shares or any securities convertible into, exchangeable for, or
representing the right to receive, any such securities of the same class as the
Offer Shares or other instruments representing interests in securities of the
same class as the Offer Shares without, in any such case, the prior written
consent of Investmentbank Austria, such consent not to be unreasonably withheld.
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(vi) The Company shall deliver one copy of each Offering
Document to Investmentbank Austria, on behalf of the Managers, and of each
amendment or supplement thereto, signed by duly authorized members of the Board
of Directors of the Company.
(vii) The Company has made an application for all Shares
of Common Stock of the Company (including the Offer Shares) to be listed on
EASDAQ. In connection with the application, the Company will endeavor to obtain
the listing as promptly as practicable and will furnish any and all documents,
instruments, information and undertakings that may be necessary in order to
obtain such listing, and the Company shall use reasonable endeavors to cause
such listing to be continued so long as any of the Shares of Common Stock of the
Company remain outstanding; provided, however, that if such listing can no
longer be reasonably maintained, so long as any of the Shares of Common Stock of
the Company remain outstanding, the Company will use reasonable endeavors to
obtain and maintain a listing of the Shares of Common Stock on another stock
exchange as agreed by the Company and Investmentbank Austria on behalf of the
Managers.
(viii) For so long as Investmentbank Austria is acting as
a market maker or sponsor for the Company in connection with the listing of the
Company's Shares of Common Stock on EASDAQ, in any case, however, for a period
of 18 months following the Closing Date, the Company shall promptly provide
Investmentbank Austria with sufficient copies of its annual report, interim
financial statements, if any, press releases and other public announcements, any
other documents that the Company is, pursuant to the Continuing Obligations of
Companies Admitted to Trading on EASDAQ, required to file with and obliged to
disclose to EASDAQ in connection with the listing of the Company's Shares of
Common Stock on EASDAQ, and other documents or information as Investmentbank
Austria determines necessary to maintain such listing on EASDAQ. All fees and
expenses in connection with such listing shall be borne by the Company.
(ix) The Company will further, for a period of three (3)
years following the Closing Date, furnish to Investmentbank Austria, as soon as
practicable, copies of each document required to be filed by the Company with
any other stock exchange or stock exchanges, including without limitation,
NASDAQ, where the Offer Shares may have been listed, and copies of financial
statements and other periodic reports that the Company may furnish generally to
holders of its public debt securities or to its equity securities and, from time
to time, such other information concerning the Company as Investmentbank Austria
may reasonably request.
(x) The Company shall, for a period of three (3) years
after the Closing Date, furnish to Investmentbank Austria (and, upon request, to
each of the other Managers), as soon as practicable, copies of each document
required to be delivered by the Company pursuant to the reporting requirements
under the Securities and Exchange Act of 1934, as amended (the "1934 Act").
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(xi) During the period of three (3) years after the
Closing Date, the Company shall not be or become an open-end investment company,
unit investment trust or face-amount certificate company that is required to be
registered under Section 8 of the 1940 Act, and is not, and will not be or
become, a closed-end investment company required to be registered under the 1940
Act.
Section 4. Expenses.
(A) The Company agrees to pay to Investmentbank Austria a
non-accountable expense allowance for costs and expenses incurred by
Investmentbank Austria in connection with the Offering (the "Non-Accountable
Expense Allowance") which shall consist of an amount (payable in German marks)
equal to the product of (i) * per Offer Share, and (ii) the Number of Offer
Shares to be purchased by the Managers pursuant to this Agreement. The
Non-Accountable Expense Allowance includes the following:
(a) all costs, expenses, fees, stamp or other duties or taxes
(including transfer taxes and issuance taxes, if any) in connection with the
issuance, purchase and delivery of the Offer Shares in Europe; (b) all fees and
expenses of Investmentbank Austria's legal advisers; (c) all costs, expenses,
fees, duties or taxes in connection with the printing and delivery of (x) the
Offering Documents and (y) Investmentbank Austria's research report regarding
the Company; (d) all costs and expenses incurred by Investmentbank Austria in
connection with press conferences, roadshows and any other public relations
activities; and (a) all travelling, accommodation, telex, telephone, facsimile,
postage and other out-of-pocket costs and expenses incurred by Investmentbank
Austria in connection with the Offering.
(B) The Non-Accountable Expense Allowance does not include the
following costs and expenses, which the Company agrees to pay:
(a) all costs, expenses, fees, duties or taxes in connection with the
admission and listing of the Shares of Common Stock to trading on EASDAQ,
including any costs, expenses and fees charged by the Belgian Banking and
Finance Commission ("BFC"); (b) all fees and expenses of the Company's
accountants, legal advisers and any other advisers; (c) all costs and expenses
incurred by the Company in connection with press conferences, roadshows and any
other public relations activities; (d) all fees, costs, expenses, stamp or other
duties related to the preparation, printing and filing of the Registration
Statement and any amendments thereto in the United States, including, without
limitation, filing of the Registration Statement with the Commission.
(C) If this Agreement is terminated by Investmentbank Austria in
accordance with the provisions of Section 5(b) or Section 8(a) hereof, the
Company shall remain liable to pay to Investmentbank Austria all actual costs
and expenses incurred in connection with the contemplated Offering including,
without limitation, fees and expenses of Investmentbank Austria's legal
advisers, costs and expenses related to the printing and delivery of the
Offering Documents and research reports prepared by Investmentbank Austria
and costs and expenses in connection with roadshows.
Section 5. Conditions of the Obligations of the Managers.
(a) The obligations of each Manager to purchase for itself
and pay for the Offer Shares that it has agreed to purchase hereunder are
subject to the following further conditions:
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(A) At the Closing Date the Company shall have complied with
all agreements and satisfied all conditions on its part to be performed or
satisfied under this Agreement at or prior to the Closing Date.
(B) The representations and warranties of the Company set
forth in Section 1 hereof shall be accurate as though expressly made at and as
of the Closing Date. The Managers shall have received certificates of officers
of the Company to this respect, dated as of the Closing Date, in form and
substance satisfactory to Investmentbank Austria, on behalf of the Managers.
(C) No stop order suspending the effectiveness of the
Registration Statement shall have been issued, and no proceedings for that
purpose shall have been instituted or threatened or, to the knowledge of the
Company or Investmentbank Austria, shall be contemplated by the Commission and
the Company shall have complied with any request of the Commission for
additional information.
(D) The Offering Documents shall have been filed, approved and
published in accordance with applicable Belgian law and regulations.
(E) All Notices concerning the Offering required to be filed
under applicable law, regulations or listing requirements shall have been filed
with EASDAQ and the BFC and any publications and announcements required by
applicable laws and regulations shall have been made.
(F) All Shares of Common Stock (including the Offer Shares)
shall have been admitted to trading an EASDAQ.
(G) The Managers shall have received an opinion of Snow Xxxxxx
Xxxxxx P.C., Counsel to the Company, dated as of the Closing Date, in form and
substance satisfactory to Investmentbank Austria, on behalf of the Managers,
with respect to legal matters relating to the Offer Shares and the Registration
Statement.
(H) The Managers shall have received an opinion of Xxxxx &
Xxxxxxx LLP, U.S. regulatory counsel to the Company, dated as of the Closing
Date, in form and substance satisfactory to Investmentbank Austria, on behalf of
the Managers, with respect to U.S. Federal Food, Drug and Cosmetics Act
regulatory matters relating to the Company.
(I) The Managers shall have received an opinion of Xx Xxxxx,
Xxx Xxxxx & Lagae, Belgian Counsel to the Managers, dated as of the Closing
Date, in form and substance satisfactory to Investmentbank Austria, on behalf of
the Managers, with respect to Belgian legal matters relating to the Offering.
(J) The Company shall have furnished to Investmentbank
Austria, an behalf of the Managers, (x) on the date hereof, a letter of Ernst &
Young LLP as to the Company and its Subsidiaries, dated as of the date hereof
and in the form previously furnished to the Managers confirming that they are
Independent auditors with respect to the Company, consenting to the use of the
Financial Statements in the Offering Documents and commenting upon the Financial
Statements and their reports thereon and other information in the Offering
Documents, and (y) at the Closing Date, a letter of Ernst & Young LLP, dated as
of the date thereof, in form and substance satisfactory to Investmentbank
Austria, on behalf of the Managers, which shall confirm in all material
respects, as of the date of such letter (or, with respect to matters involving
changes or developments since the respective dates as of which specified
financial information is given in the Offering Documents, as of a date not more
than five days prior to the date of such letter), the conclusions and findings
of Ernst & Young LLP with respect to the financial information and other matters
covered in the letters previously delivered to the Managers.
(K) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement and the Offer Shares
and the form of the Offering Doc-
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uments, other then financial statements and other financial data, and all other
legal matters relating to this Agreement and the transactions contemplated
herein shall be reasonably satisfactory in all respects to Investmentbank
Austria, on behalf of the Managers.
(b) If any condition specified in this Section 5 shall not
have been fulfilled when and as required to be fulfilled, Investmentbank
Austria, on behalf of the Managers, has the right to terminate this. Agreement
by notice to the Company at any time at or prior to the Closing Date, and such
termination shall be without liability of any party to any other party except as
provided in Section 4(C) and except that Sections 7, 8, 10, 11 and 12 shall
remain in full force and effect.
Section 6. Obligations of the Managers.
(a) Each Manager represents that it has observed and undertakes
that it will observe the following restrictions on offers and sales of the Offer
Shares and the distribution of documents relating to the Offer Shares:
(i) Each Manager represents and agrees that (A) it has
not offered or sold and, prior to the expiry of six months from the Closing
Date, it will not offer or sell any Offer Shares to persons in the United
Kingdom, except to persons whose ordinary activities Involve them In
acquiring, holding, managing or disposing of investments (as principal or
agent) for the purposes of their businesses or otherwise in circumstances
which do not constitute an offer to the public in the United Kingdom within
the meaning of the Public Offers of Securities Regulations 1995 (the
"Regulations"), (B) it has complied and will comply with all applicable
provisions of the Financial Services Xxx 0000 and the Regulations with
respect to anything done by it in relation to the Offer Shares in, from or
otherwise involving the United Kingdom, and (C) it has only issued or passed
on and will only issue or pass on to any person in the United Kingdom any
document received by it in connection with the offer and sale of the Offer
Shares if that person is of a kind described in Article 11 (3) of the
Financial Services Xxx 0000 (Investment Advertisements) (Exemptions) Order
1995 or is a person to whom such document may otherwise lawfully be issued
or passed on.
(ii) Each Manager will comply with all applicable laws
and regulations in each jurisdiction in which it acquires, offers, sells or
delivers Offer Shares or has in its possession or distributes any Offering
Documents or any other offering material. Each Manager understands that no
action has been or will be taken in any jurisdiction that would permit a
public offering of the Offer Shares or distribution of any Offering
Documents or any other offering material, in any country or jurisdiction
where action for that purpose is required. Each Manager agrees that it will
not make any representation or use any information in connection with the
offering, sale, delivery or resale of the Offer Shares other than as
contained in the Offering Documents.
(b) Investmentbank Austria agrees to act as market maker and
sponsor for the Company in connection with the listing of the Company's Shares
of Common Stock on EASDAQ, provided that no material adverse change in the
condition, financial situation or otherwise, or in the earnings, business
affairs or business prospects of the Company occurs. Investmentbank Austria
agrees not to charge a fee for the first year of its market maker and sponsor
activities. For the following years Investmentbank Austria and the Company shall
endeavor
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to agree on a reasonable annual fee, provided that if the parties do not reach a
agreement on such annual fee Investmentbank Austria shall have no further
obligation to act as a market maker and/or sponsor for the Company.
Section 7. Indemnification.
(a) The Company will indemnify and hold harmless each Manager
and each person, if any, who controls any Manager within the meaning of the 1933
Act or the 1934 Act or other applicable laws against any losses, claims, damages
or liabilities, joint or several, to which such Manager may become subject,
under the 1933 Act or the 1934 Act or other applicable laws, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any breach of any of the representations, warranties or
obligations of the Company contained herein or any untrue statement or alleged
untrue statement of any material fact contained in the Offering Documents or the
Registration Statement, or arise out of or upon the omission or alleged omission
to state in the Offering Documents and Registration Statement a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. In addition, the Company shall reimburse each Manager for any legal
or other expenses reasonably incurred by such Manager in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred.
(b) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof may be made against the indemnifying party
under subsection (a) above, notify the indemnifying party of the commencement
thereof; but the omission to so notify the indemnifying party will not relieve
any indemnifying party from any liability which it may have to any indemnified
party otherwise then under subsections (a) above. In case any such action is
brought against any indemnified party, any indemnifying party will be entitled
to participate therein at its own cost and expense. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement includes an
unconditional release of such indemnified party from all liability on any claims
that are the subject matter of such actions.
(c) The obligations of the Company under this Section 7 shall
be in addition to any liability that the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Manager within the meaning of the 1933 Act or the 1934 Act or other
applicable laws.
Section 8. Termination.
(a) Investmentbank Austria, on behalf of the Managers, has the
right to terminate this Agreement, after prior consultation with the Company to
the extent practicable, by notice given to the Company at any time at or prior
to the Closing Date, if, in the opinion of Investmentbank Austria, on behalf of
the Managers:
(i) there has been, since the date hereof or since the
respective, dates as of which information is given in the Offering
Documents, any material adverse change in the condition, financial or
otherwise, or in the earnings, business
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affairs or business prospects of the Company and its Subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business; or
(ii) there has occurred any material adverse change in
the financial markets in the United States, the Republic of Austria or any
other European Union market, or any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving
a prospective change in national or international political, financial or
economic conditions, in each case the effect of which is such as to make
it, in the judgment of Investmentbank Austria, impracticable to market the
Offer Shares or to enforce contracts for the sale of the Offer Shares; or
(iii) trading in any securities of the Company has been
suspended or limited by NASDAQ or the Pacific Stock Exchange Incorporated
or if trading generally on EASDAQ, NASDAQ or the New York Stock Exchange
shall have been suspended, or maximum ranges for prices for securities
have been required, or minimum or maximum prices for trading have been
fixed, by said exchange or by order of any governmental authority; or
(iv) trading in the Shares of Common Stock or other
securities of the Company have been suspended by the Commission or the
NASD; or
(v) a banking moratorium shall have been declared or
exchange controls imposed by either U.S. federal or New York authorities
or by the relevant authorities in the Republic of Austria or in any other
country of the European Union.
(b) If this Agreement is terminated pursuant to this Section 8,
such termination shall be without liability of any party to any other party,
except as provided in Section 4(C) hereof and except that Sections 7, 8, 10, 11
and 12 shall remain in full force and effect.
Section 9. Stabilization.
Investmentbank Austria may, to the extent permitted by applicable laws,
effect transactions in any over-the-counter market or otherwise in connection
with the distribution of the Offer Shares with a view to stabilizing or
maintaining the market price of the Shares of Common Stock at levels other than
those that might otherwise prevail in the open market but in doing so
Investmentbank Austria shall act as principal and not as agent of the Company
and any loss resulting from such stabilization will be borne, and any profit
arising from it shall be retained, by Investmentbank Austria.
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Section 10. Notice and Authority.
(a) All notices and communications hereunder shall be furnished
to the parties at the addresses listed below. Notices and communications shall
be deemed to have been duly given if in writing and delivered personally against
receipt, or sent by registered or certified mail, return receipt requested,
postage prepaid, or if sent by facsimile transmission with confirmation of
receipt, addressed as follows:
(i) to the Managers:
Investmentbank Austria
Aktiengesellschaft
Xxxxxxxxxxxxxxx 00
X-0000 Xxxxxx
Xxxxxxx
Facsimile no: x00-0-00000-000
Telephone no: x00-0-00000-000
Attention: Corporate Finance
__________________
__________________
__________________
Facsimile no: _________________
Telephone no: _________________
Attention: _________________
(ii) to the Company:
Integrated Surgical System, Inc.
000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxx 00000
XXX
Facsimile no: x0-000 000-0000
Telephone no: x0-000-000-0000
Attention: _____________________
(iii) to Value Management & Research GmbH
__________________
__________________
__________________
Facsimile no: _________________
Telephone no: _________________
Attention: _________________
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or to such other address as shall be furnished in writing by any party to the
other party, and such notice or communication shall be deemed to have been given
as of the date, indicated on the written receipt in the case of personal or
registered or certified mail delivery, or as of the date, indicated on the
confirmation in the case of facsimile transmission.
(b) Investmentbank Austria is hereby authorized by each Manager
to act on behalf of it as specified herein and in relation to all matters
requiring the consent or agreement of such Manager under this Agreement.
Section 11. Governing Law and Jurisdiction; Competent Court.
This Agreement shall be governed by and construed and enforced in
accordance with English law.
The courts of England are to have jurisdiction to settle any disputes
which may arise out of or in connection with this Agreement and accordingly
any litigation or proceedings arising out of or in connection with this
Agreement (the "Proceedings") may be brought in such courts. Each of the
Company and each of the Managers hereby irrevocably submits itself for all
purposes for or in connection with this Agreement to the jurisdiction of the
courts of England and waives any objection to Proceedings in such courts
whether on the ground of venue or on the ground that the Proceedings have been
brought in an inconvenient forum.
The Company and each of the Managers hereby irrevocably
appoints (or such other person or persons with an address in England)
as its agent or agents to accept service of process on its behalf in any action
based on this Agreement which may be instituted in England. The Company and
each of the Managers will procure that there shall be in force an appointment
of such a person with an office in England with authority to accept service as
aforesaid on behalf of the Company or each of the Managers, as the case may be.
Notwithstanding the foregoing, any suit, action or proceeding arising
out of or in connection with this Agreement may be instituted by the Managers in
any competent court in the Republic of Austria or elsewhere.
Section 12. Severability; Counterparts; Headings.
If any provision of this Agreement is determined by a court of
competent jurisdiction to be invalid, illegal or unenforceable, the remainder of
the provisions of this Agreement shall remain in full force and effect. Upon
such determination, the parties shall negotiate in good faith to promptly
replace the invalid, illegal or unenforceable provisions with valid provisions
the economic and substantive effect of which shall be as close as possible to
that of the invalid, illegal or unenforceable provisions and the original
intention of the parties.
This Agreement may be executed in counterparts and, when a
counterpart has been executed by each party, all such counterparts taken
together shall constitute one and the same agreement. The section headings
herein are for convenience only and shall not affect the construction hereof.
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IN WITNESS WHEREOF, the parties mentioned below have caused this Agreement to be
executed in *, on the date first written above by their respective duly
authorized representatives.
Integrated Surgical Systems, Inc.
By:_____________________
Name:
Title:
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The foregoing Agreement is hereby accepted in London, England,
as of the date first written above.
Investmentbank Austria Aktiengesellschaft
By:_________________________
Name:
Title:
By:_________________________
Name:
Title:
*
By:_________________________
Name:
Title:
Acknowledged and consented to:
Value Management & Research GmbH
By:_________________________
Name:
Title:
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SCHEDULE A
Offering
Number of
Name of Manager New Shares
---------------- ----------
Investmentbank Austria Aktiengesellschaft ....................... *
* ...............................................................
Total Offering .................................................. *