EXHIBIT 1.1
[ ] Shares
Common Stock
($.001 Par Value)
UNDERWRITING AGREEMENT
January __, 2000
UNDERWRITING AGREEMENT
January ___, 2000
Warburg Dillon Read LLC
FleetBoston Xxxxxxxxx Xxxxxxxx Inc.
XX Xxxxx Securities Corporation
as Managing Underwriters
c/o Warburg Dillon Read LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Sequenom, Inc., a Delaware corporation (the "Company"), proposes to
issue and sell to the underwriters named in Schedule A annexed hereto (the
"Underwriters") an aggregate of 5,000,000 shares (the "Firm Shares") of Common
Stock, $.001 par value (the "Common Stock"), of the Company. In addition, solely
for the purpose of covering over-allotments, the Company proposes to grant to
the Underwriters the option to purchase from the Company up to an additional
750,000 shares of Common Stock (the "Additional Shares"). The Firm Shares and
the Additional Shares are hereinafter collectively sometimes referred to as the
Shares. The Shares are described in the Prospectus which is referred to below.
The Company has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively called the "Act"), with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-1 (File No. 333-91665)
including a prospectus, relating to the Shares. The Company has furnished to
you, for use by the Underwriters and by dealers, copies of one or more
preliminary prospectuses (each thereof being herein called a "Preliminary
Prospectus") relating to the Shares. Except where the context otherwise
requires, the registration statement, as amended when it becomes effective,
including all documents filed as a part thereof, and including any information
contained in a prospectus subsequently filed with the Commission pursuant to
Rule 424(b) under the Act and deemed to be part of the registration statement at
the time of effectiveness pursuant to Rule 430(A) under the Act and also
including any registration statement filed pursuant to Rule 462(b) under the
Act, is herein called the Registration Statement, and the prospectus, in the
form filed by the Company with the Commission pursuant to Rule 424(b) under the
Act on or before the second business day after the date hereof (or such earlier
time as may be required under the Act) or, if no such filing is required, the
form of final prospectus included in the Registration Statement at the time it
became effective, is herein called the Prospectus.
Warburg Dillon Read LLC ("WDR") has agreed to reserve an aggregate of
[ ] of the Firm Shares to be purchased by it under this Agreement for sale to
the Company's directors, officers, employees and business partners, and other
parties related to the Company (collectively, "Participants"), as set forth in
the Prospectus under the heading "Underwriting" (such program being the
"Directed Share Program"). The Shares to be sold by WDR and its affiliates
pursuant to the Directed Share Program are referred to hereinafter as the
"Directed Shares". Any Directed Shares not orally confirmed for purchase by any
Participant by the end of the business day on which this Agreement is executed
will be offered to the public by the Underwriters as set forth in the
Prospectus.
The Company and the Underwriters agree as follows:
1. Sale and Purchase. Upon the basis of the warranties and
-----------------
representations and subject to the terms and conditions herein set forth, the
Company agrees to sell to the respective Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase from the Company the
aggregate number of Firm Shares set forth opposite the name of such Underwriter
in Schedule A attached hereto in each case at a purchase price of $[ ] per
Share. The Company is advised by you that the Underwriters intend (i) to make a
public offering of their respective portions of the Firm Shares as soon after
the effective date of the Registration Statement as in your judgment is
advisable and (ii) initially to offer the Firm Shares upon the terms set forth
in the Prospectus. You may from time to time increase or decrease the public
offering price after the initial public offering to such extent as you may
determine.
In addition, the Company hereby grants to the several Underwriters the
option to purchase, and upon the basis of the warranties and representations and
subject to the terms and conditions herein set forth, the Underwriters shall
have the right to purchase, severally and not jointly, from the Company, ratably
in accordance with the number of Firm Shares to be purchased by each of them,
all or a portion of the Additional Shares as may be necessary to cover over-
allotments made in connection with the offering of the Firm Shares, at the same
purchase price per share to be paid by the Underwriters to the Company for the
Firm Shares. This option may be exercised by you on behalf of the several
Underwriters at any time (but not more than once) on or before the thirtieth day
following the date hereof, by written notice to the Company. Such notice shall
set forth the aggregate number of Additional Shares as to which the option is
being exercised, and the date and time when the Additional Shares are to be
delivered (such date and time being herein referred to as the additional time of
purchase); provided, however, that the additional time of purchase shall not be
earlier than the time of purchase (as defined below) nor earlier than the second
business day after the date on which the option shall have been exercised nor
later than the tenth business day after the date on which the option shall have
been exercised. The number of Additional Shares to be sold to each Underwriter
shall be the number which bears the same proportion to the aggregate number of
Additional Shares being purchased as the number of Firm Shares set forth
opposite the name of such Underwriter on Schedule A hereto bears to the total
number of Firm Shares (subject, in each case, to such adjustment as you may
determine to eliminate fractional shares).
2. Payment and Delivery. Payment of the purchase price for the Firm
--------------------
Shares shall be made to the Company by Federal Funds wire transfer, against
delivery of the certificates for the Firm Shares to you through the facilities
of the Depository Trust Company ("DTC") for the respective accounts of the
Underwriters. Such payment and delivery shall be made at 10:00 A.M., New York
City time, on February [ ], 2000 (unless another time shall be agreed to by you
and the Company or unless postponed in accordance with the provisions of Section
8 hereof). The time at which such payment and delivery are actually made is
hereinafter sometimes called the time of purchase. Certificates for the Firm
Shares shall be delivered to you in definitive form in such names and in such
denominations as you shall specify on the second business day preceding the time
of purchase. For the purpose of expediting the checking of the certificates for
the Firm Shares by you, the Company agrees to make such certificates available
to you for such purpose at least one full business day preceding the time of
purchase.
Payment of the purchase price for the Additional Shares shall be made
at the additional time of purchase in the same manner and at the same office as
the payment for the
2
Firm Shares. Certificates for the Additional Shares shall be delivered to you in
definitive form in such names and in such denominations as you shall specify no
later than the second business day preceding the additional time of purchase.
For the purpose of expediting the checking of the certificates for the
Additional Shares by you, the Company agrees to make such certificates available
to you for such purpose at least one full business day preceding the additional
time of purchase.
3. Representations and Warranties of the Company. The Company
---------------------------------------------
represents and warrants to each of the Underwriters that:
(a) the Company has not received, and has no notice of, any order of
the Commission preventing or suspending the use of any Preliminary
Prospectus, or instituting proceedings for that purpose, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act; and when the Registration
Statement became effective, the Registration Statement and the Prospectus
------
fully complied in all material respects with the provisions of the Act, and
the Registration Statement 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 the
Prospectus 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, in light of the circumstances under which they were
made, not misleading; any statutes, regulations, contracts or other
documents that are required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration Statement
have been so described or filed; provided, however, that the Company makes
-------- -------
no warranty or representation with respect to any statement contained in
the Registration Statement or the Prospectus in reliance upon and in
conformity with information concerning the Underwriters and furnished in
writing by or on behalf of any Underwriter through you to the Company
expressly for use in the Registration Statement or the Prospectus; and the
Company has not distributed any offering material in connection with the
offering or sale of the Shares other than the Registration Statement, the
Preliminary Prospectus, the Prospectus or any other materials, if any,
permitted by the Act;
(b) as of the date of this Agreement, the Company has an authorized
capitalization as set forth under the heading entitled "Actual" in the
section of the Registration Statement and the Prospectus entitled
"Capitalization" and, as of the time of purchase and the additional time of
purchase, as the case may be, the Company shall have an authorized
capitalization as set forth under the heading entitled "Pro Forma As
Adjusted" in the section of the Registration Statement and the Prospectus
entitled "Capitalization"; all of the issued and outstanding shares of
capital stock including Common Stock of the Company have been duly and
validly authorized and issued and are fully paid and non-assessable, have
been issued in compliance with all federal and state securities laws and
were not issued in violation of any preemptive right, resale right, right
of first refusal or similar right;
(c) the Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware,
with full corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Registration
Statement;
(d) the Company is duly qualified to do business as a foreign
corporation in good standing in each jurisdiction where the ownership or
leasing of its properties or the conduct of its business requires such
qualification, except where the failure to so qualify would not have a
material adverse effect on the business, properties, condition or
3
results of operation of the Company and the Subsidiary (as hereinafter
defined) taken as a whole (a "Material Adverse Effect"). The Company has no
Subsidiary (as defined in the Rules and Regulations) other than Sequenom
GmbH (the "Subsidiary"); the Company owns [_____] shares (100%) of the
outstanding common stock of Sequenom GmbH; other than the Subsidiary, the
Company does not own, directly or indirectly, any shares of stock or any
other equity or long-term debt securities of any corporation or have any
equity interest in any firm, partnership, joint venture, association or
other entity; complete and correct copies of the certificates of
incorporation and of the bylaws of the Company and similar constituent
documents of the Subsidiary and all amendments thereto have been delivered
to you, and except as set forth in the exhibits to the Registration
Statement no changes therein will be made subsequent to the date hereof and
prior to the Closing Date or, if later, the Option Closing Date; the
Subsidiary has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with full corporate power and authority to own, lease and
operate its properties and to conduct its business as currently conducted;
the Subsidiary is duly qualified to do business as a foreign corporation in
good standing in each jurisdiction where the ownership or leasing of the
properties or the conduct of its business requires such qualification,
except where the failure to so qualify would not have a Material Adverse
Effect; all of the outstanding shares of capital stock of the Subsidiary
have been duly authorized and validly issued, are fully paid and non-
assessable and (except as otherwise described in this Section 3(d) or in
the Registration Statement) are owned by the Company subject to no security
interest, other encumbrance or adverse claims; no options, warrants or
other rights to purchase, agreements or other obligations to issue or other
rights to convert any obligation into shares of capital stock or ownership
interests in the Subsidiary are outstanding.
(e) the Company and the Subsidiary are in compliance in all material
respects with the laws, orders, rules, regulations and directives issued or
administered by any governmental agency or body or any court, domestic or
foreign, having jurisdiction over the Company or the Subsidiary or over the
property of the Company or the Subsidiary;
(f) neither the Company nor the Subsidiary is in breach of, or in
default under (nor has any event occurred which with notice, lapse of time,
or both would result in any breach of, or constitute a default under), its
respective charter or by-laws or similar constituent documents or in the
performance or observance of any obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, bank loan or
credit agreement or other evidence of indebtedness, or any lease, contract
or other agreement or instrument to which the Company or the Subsidiary is
a party or by which either of them or any of their properties is bound, and
the execution, delivery and performance of this Agreement, the issuance and
sale of the Shares and the consummation of the transactions contemplated
hereby will not conflict with, or result in any breach of or constitute a
default under (nor constitute any event which with notice, lapse of time,
or both would result in any breach of, or constitute a default under), any
provisions of the charter or by-laws or similar constituent documents, of
the Company or the Subsidiary or, except where such breach, default or
failure of performance or observance would not have a Material Adverse
Effect, under any provision of any license, indenture, mortgage, deed of
trust, bank loan or credit agreement or other evidence of indebtedness, or
any lease, contract or other agreement or instrument to which the Company
or the Subsidiary is a party or by which either of them or their respective
properties may be bound or affected, or under any federal, state, local or
foreign law, regulation or rule or any decree, judgment or order applicable
to the Company or the Subsidiary;
4
(g) this Agreement has been duly authorized, executed and delivered
by the Company and is a legal, valid and binding agreement of the Company
enforceable in accordance with its terms;
(h) the capital stock of the Company, including the Shares, conforms
in all material respects to the description thereof contained in the
Registration Statement and Prospectus and the certificates for the Shares
are in due and proper form and the holders of the Shares will not be
subject to personal liability by reason of being such holders;
(i) the Shares have been duly and validly authorized and, when issued
and delivered against payment therefor as provided herein, will be duly and
validly issued and fully paid and non-assessable;
(j) no approval, authorization, consent or order of or filing with
any national, state or local governmental or regulatory commission, board,
body, authority or agency is required in connection with the issuance and
sale of the Shares or the consummation by the Company of the transactions
as contemplated hereby other than registration of the Shares under the Act
and any necessary qualification under the securities or blue sky laws of
the various jurisdictions in which the Shares are being offered by the
Underwriters or under the rules and regulations of the National Association
of Securities Dealers, Inc. (the "NASD");
(k) no person has the right, contractual or otherwise, to cause the
Company to issue to it, or register pursuant to the Act, any shares of
capital stock of the Company upon the issue and sale of the Shares to the
Underwriters hereunder, nor does any person have preemptive rights, co-sale
rights, rights of first refusal or other rights to purchase any of the
Shares other than those that have been expressly waived prior to the date
hereof;
(l) Ernst & Young LLP, whose report on the consolidated financial
statements of the Company and the Subsidiary is filed with the Commission
as part of the Registration Statement and Prospectus, are independent
public accountants as required by the Act;
(m) each of the Company and the Subsidiary has all necessary
licenses, authorizations, consents and approvals and has made all necessary
filings required under any federal, state, local or foreign law, regulation
or rule, and has obtained all necessary authorizations, consents and
approvals from other persons, in order to conduct its respective business
except for such licenses, authorizations, consents, approvals or filings of
which the failure to obtain or make, either singly or in the aggregate,
would not result in a Material Adverse Effect; neither the Company nor the
Subsidiary is in violation of, or in default under, any such license,
authorization, consent or approval or any federal, state, local or foreign
law, regulation or rule or any decree, order or judgment applicable to the
Company or the Subsidiary the effect of which would have a Material Adverse
Effect;
(n) all legal or governmental proceedings, contracts, leases or
documents of a character required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement have been so described or filed as required;
(o) there are no actions, suits, claims, investigations or
proceedings pending or, to the knowledge of the Company, threatened to
which the Company or the
5
Subsidiary or any of their respective officers is a party or of which any
of their respective properties is subject at law or in equity, or before or
by any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency which could result in a
judgment, decree or order having a Material Adverse Effect or prevent
consummation of the transactions contemplated hereby;
(p) the audited financial statements included in the Registration
Statement and the Prospectus present fairly the consolidated financial
position of the Company and the Subsidiary as of the dates indicated and
the consolidated results of operations and cash flows of the Company and
the Subsidiary for the periods specified; such financial statements have
been prepared in conformity with generally accepted accounting principles
applied on a consistent basis during the periods involved;
(q) subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus and except as may be
otherwise stated in the Registration Statement or Prospectus, there has not
been (i) any material adverse change, or any development which, in the
Company's reasonable judgment, is likely to cause a material adverse
change, in the business, properties or assets described or referred to in
the Registration Statement, or the results of operations, condition
(financial or otherwise), business or operations of the Company and the
Subsidiary taken as a whole, (ii) any transaction which is material to the
Company or the Subsidiary, except transactions in the ordinary course of
business, (iii) any obligation, direct or contingent, which is material to
the Company and the Subsidiary taken as a whole, incurred by the Company or
the Subsidiary, except obligations incurred in the ordinary course of
business, (iv) any change in the capital stock or outstanding indebtedness
of the Company or the Subsidiary or (v) any dividend or distribution of any
kind declared, paid or made on the capital stock of the Company; neither
the Company nor the Subsidiary has any material contingent obligation which
is not disclosed in the Registration Statement;
(r) the Company has obtained the agreement of (i) each of its
directors and officers, (ii) the holders of at least 98.0% of the
outstanding Common Stock and preferred stock, and (iii) the holders of
other securities convertible into or exercisable or exchangeable for Common
Stock or warrants or other rights to purchase Common Stock (such that the
aggregate of such securities which are not subject to such agreement does
not represent more than 1.8% of the outstanding Common Stock), not to sell,
offer to sell, contract to sell, hypothecate, grant any option to sell or
otherwise dispose of, directly or indirectly, any shares of Common Stock or
securities convertible into or exercisable or exchangeable for Common Stock
or warrants or other rights to purchase Common Stock for a period of 180
days after the date of the Prospectus;
(s) the Company is not and, after giving effect to the offering and
sale of the Shares, will not be an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(t) the Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management's general or specific
authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with the
6
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences;
(u) except as described in the Registration Statement and the
Prospectus, the Company and the Subsidiary own or possess, or can acquire
on reasonable terms, all licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names, patents and patent rights
necessary for the conduct of its business as described in the Prospectus,
and, except as described in the Registration Statement and the Prospectus,
the Company has no reason to believe that the conduct of its business will
conflict with, and has not received any notice of any claim of conflict
with, any such rights of others, except as would not have a Material
Adverse Effect; and, to the Company's knowledge, neither the Company nor
the Subsidiary has infringed or is infringing any trademarks, service
marks, trade xxxx registrations, service xxxx registrations, domain names
or copyrights, which infringement could reasonably be expected to result in
a material adverse change in or affecting the general affairs, financial
position, stockholder's equity or results of operations of the Company and
the Subsidiary;
(v) the Company and the Subsidiary have good and marketable title in
fee simple to all real property and good and marketable title to all
personal property owned by them, in each case free and clear of all liens,
encumbrances and defects except such as are described in the Prospectus or
such as do not materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the
Company and the Subsidiary; and any real property and buildings held under
lease by the Company and the Subsidiary are held by them under valid,
subsisting and enforceable leases with such exceptions as are not material
and do not interfere with the use made and proposed to be made of such
property and buildings by the Company and the Subsidiary;
(w) no material labor dispute with the employees of the Company or
any of the Subsidiary exists, or, to the knowledge of the Company, is
imminent; and the Company is not aware of any existing, threatened or
imminent labor disturbance by the employees of any of its principal
suppliers, manufacturers or contractors that could reasonably be expected
to result in any Material Adverse Effect;
(x) the Company and the Subsidiary are insured by insurers of
recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the business in which they are
engaged; neither the Company nor the Subsidiary has been refused any
insurance coverage sought or applied for; and the Company and the
Subsidiary 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 coverage from similar insurers as may be necessary to
continue their business at a cost that would not have a Material Adverse
Effect;
(y) all United States federal income tax returns of the Company and
the Subsidiary required by law to be filed have been filed and all taxes
shown by such returns or otherwise assessed, which are due and payable,
have been paid, except assessments against which appeals have been or will
be promptly taken and as to which adequate reserves have been provided; the
Company and the Subsidiary have filed all other tax returns that are
required to have been filed by them pursuant to applicable foreign, state,
local or other law and have paid all taxes due pursuant to such returns or
pursuant to any assessment received by the Company and the Subsidiary,
except for such taxes, if any, as are being contested in good faith and as
to which
7
adequate reserves have been provided; the charges, accruals and reserves on
the books of the Company and the Subsidiary in respect of any income and
corporation tax liability for any years not finally determined are adequate
to meet any assessments or re-assessments for additional income tax for any
years not finally determined; and
(z) each of the Company and the Subsidiary (i) is in compliance with
any and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants, including those pertaining to the acquisition, use, storage,
transportation or disposal of biological materials, ("Environmental Laws"),
(ii) has received all permits, licenses or other approvals required of them
under applicable Environmental Laws to conduct their respective businesses
and (iii) is in compliance with all terms and conditions of any such
permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such
permits, licenses or approvals would not, singly or in the aggregate, have
a Material Adverse Effect.
(aa) The Company represents and warrants to WDR and its affiliates
that (i) the Registration Statement, the Prospectus and any preliminary
prospectus comply in all material respects, and any further amendments or
supplements thereto will comply in all material respects, with any
applicable laws or regulations of foreign jurisdictions in which the
Prospectus or any preliminary prospectus, as amended or supplemented, if
applicable, are distributed in connection with the Directed Share Program,
and that (ii) no authorization, approval, consent, license, order,
registration or qualification of or with any government, governmental
instrumentality or court, other than such as have been obtained, is
necessary under the securities laws and regulations of foreign
jurisdictions in which the Directed Shares are offered outside the United
States.
(bb) The Company has not offered, or caused WDR and its affiliates to
offer, Shares to any person pursuant to the Directed Share Program with the
specific intent to unlawfully influence (i) a customer or supplier of the
Company to alter the customer's or supplier's level or type of business
with the Company, or (ii) a trade journalist or publication to write or
publish favorable information about the Company or its products.
4. Certain Covenants of the Company. The Company hereby agrees:
--------------------------------
(a) to furnish such information as may be required and otherwise to
cooperate in qualifying the Shares for offering and sale under the
securities or blue sky laws of such states as you may designate and to
maintain such qualifications in effect so long as required for the
distribution of the Shares; provided that the Company shall not be required
--------
to qualify as a foreign corporation or to consent to the service of process
under the laws of any such state (except service of process with respect to
the offering and sale of the Shares); and to promptly advise you of the
receipt by the Company of any notification with respect to the suspension
of the qualification of the Shares for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon
as practicable after the Registration Statement becomes effective, and
thereafter from time to time to furnish to the Underwriters, as many copies
of the Prospectus (or of the Prospectus as amended or supplemented if the
Company shall have made any amendments or supplements thereto after the
effective date of the Registration Statement) as the Underwriters may
request for the purposes contemplated by the Act; in case any Underwriter
is required to deliver a prospectus within the nine-month period
8
referred to in Section 10(a)(3) of the Act in connection with the sale of
the Shares, the Company will prepare promptly upon request, but at the
expense of such Underwriter, such amendment or amendments to the
Registration Statement and such prospectuses as may be necessary to permit
compliance with the requirements of Section 10(a)(3) of the Act;
(c) to advise you promptly and (if requested by you) to confirm such
advice in writing, (i) when the Registration Statement has become effective
and when any post-effective amendment thereto becomes effective and (ii) if
Rule 430A under the Act is used, when the Prospectus is filed with the
Commission pursuant to Rule 424(b) under the Act (which the Company agrees
to file in a timely manner under such Rules);
(d) to advise you promptly, confirming such advice in writing, of any
request by the Commission for amendments or supplements to the Registration
Statement or Prospectus or for additional information with respect thereto,
or of notice of institution of proceedings for, or the entry of a stop
order suspending the effectiveness of the Registration Statement and, if
the Commission should enter a stop order suspending the effectiveness of
the Registration Statement, to make every reasonable effort to obtain the
lifting or removal of such order as soon as possible; to advise you
promptly of any proposal to amend or supplement the Registration Statement
or Prospectus and to file no such amendment or supplement to which you
shall object in writing;
(e) to file promptly all reports and any definitive proxy or
information statement required to be filed by the Company with the
Commission in order to comply with the Securities Exchange Act of 1934, as
amended, (the "Exchange Act") subsequent to the date of the Prospectus and
for so long as the delivery of a prospectus is required in connection with
the offering or sale of the Shares, and to promptly notify you of such
filing;
(f) if necessary or appropriate, to file a registration statement
pursuant to Rule 462(b) under the Act;
(g) to furnish to you and, upon request, to each of the other
Underwriters for a period of five years from the date of this Agreement (i)
copies of any reports or other communications which the Company shall send
to its stockholders or shall from time to time publish or publicly
disseminate, (ii) copies of all annual, quarterly and current reports filed
with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form
as may be designated by the Commission, (iii) copies of documents or
reports filed with any national securities exchange on which any class of
securities of the Company is listed, and (iv) such other information as you
may reasonably request regarding the Company or the Subsidiary, in each
case as soon as the communication, document or information becomes
available;
(h) to advise the Underwriters promptly of the happening of any event
known to the Company within the time during which a Prospectus relating to
the Shares is required to be delivered under the Act which, in the judgment
of the Company, would require the making of any change in the Prospectus
then being used so that the Prospectus would not include an untrue
statement of material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under which
they are made, not misleading, and, during such time, to prepare and
furnish, at the Company's expense, to the Underwriters promptly such
amendments or supplements to such Prospectus as may be necessary to reflect
any such change and to furnish you a copy of such proposed amendment or
supplement before filing any such amendment or supplement with the
Commission;
9
(i) to make generally available to its security holders, and to
deliver to you, an earnings statement of the Company (which will satisfy
the provisions of Section 11(a) of the Act) covering a period of twelve
months beginning after the effective date of the Registration Statement (as
defined in Rule 158(c) of the Act) as soon as is reasonably practicable
after the termination of such twelve-month period;
(j) to furnish to its shareholders as soon as practicable after the
end of each fiscal year an annual report (including a balance sheet and
statements of income, shareholders' equity and of cash flow of the Company
for such fiscal year), accompanied by a copy of the certificate or report
thereon of nationally recognized independent certified public accountants;
(k) to furnish to you five (5) signed copies of the Registration
Statement, as initially filed with the Commission, and of all amendments
thereto (including all exhibits thereto) and sufficient conformed copies of
the foregoing (other than exhibits) for distribution of a copy to each of
the other Underwriters;
(l) to apply the net proceeds from the sale of the Shares in the
manner set forth under the caption "Use of Proceeds" in the Prospectus;
(m) to pay all costs, expenses, fees and taxes (other than any
transfer taxes and fees and disbursements of counsel for the Underwriters
except as set forth under Section 5 hereof and (iii), (iv) and (vi) below)
in connection with (i) the preparation and filing of the Registration
Statement, each Preliminary Prospectus, the Prospectus, and any amendments
or supplements thereto, and the printing and furnishing of copies of each
thereof to the Underwriters and to dealers (including costs of mailing and
shipment), (ii) the registration, issue, sale and delivery of the Shares,
(iii) the printing of this Agreement, any Agreement Among Underwriters, any
dealer agreements, any Powers of Attorney and any closing documents
(including compilations thereof) and the reproduction and/or printing and
furnishing of copies of each thereof to the Underwriters and (except
closing documents) to dealers (including costs of mailing and shipment),
(iv) the qualification of the Shares for offering and sale under state laws
and the determination of their eligibility for investment under state law
as aforesaid (including the legal fees and filing fees and other
disbursements of counsel for the Underwriters) and the printing and
furnishing of copies of any blue sky surveys or legal investment surveys to
the Underwriters and to dealers, (v) any listing of the Shares on any
securities exchange or qualification of the Shares for quotation on the
Nasdaq National Market and any registration thereof under the Exchange Act,
(vi) any filing for review of the public offering of the Shares by the
NASD, (vii) all fees and disbursements of counsel incurred by the
Underwriters in connection with the Directed Share Program and stamp
duties, similar taxes or duties or other taxes, if any, incurred by the
Underwriters in connection with the Directed Share Program and (viii) the
performance of the Company's other obligations hereunder;
(n) to furnish to you, before filing with the Commission subsequent
to the effective date of the Registration Statement and during the period
referred to in paragraph (f) above, a copy of any document proposed to be
filed pursuant to Section 13, 14 or 15(d) of the Exchange Act;
(o) not to sell, offer or agree to sell, contract to sell, grant any
option to sell or otherwise dispose of, directly or indirectly, any shares
of Common Stock or securities convertible into or exchangeable or
exercisable for Common Stock or warrants or other rights to purchase Common
Stock or any other securities of the Company that are substantially similar
to Common Stock or permit the registration under the Act of any
10
shares of Common Stock, except for (i) the registration of the Shares and
the sales to the Underwriters pursuant to this Agreement, (ii) issuances of
Common Stock upon the exercise of outstanding options, warrants, rights and
debentures, and (iii) the granting of options to acquire up to 2,385,819
shares of Common Stock under the Company's 1999 Stock Incentive Plan, for a
period of 180 days after the date hereof, without the prior written consent
of WDR;
(p) to use its best efforts to cause the Common Stock to be listed
for quotation on the Nasdaq National Market;
(q) That in connection with the Directed Share Program, the Company
will ensure that the Directed Shares will be restricted to the extent
required by the NASD or the NASD rules from sale, transfer, assignment,
pledge or hypothecation for a period of three months following the date of
the effectiveness of the Registration Statement. The Company will direct
the transfer agent to place stop transfer restrictions upon such securities
for such period of time; and
(r) That the Company will comply with all applicable securities and
other applicable laws, rules and regulations in each foreign jurisdiction
in which the Directed Shares are offered in connection with the Directed
Share Program.
5. Reimbursement of Underwriters' Expenses. If the Shares are not
---------------------------------------
delivered for any reason other than the termination of this Agreement pursuant
to the first two paragraphs of Section 8 hereof or the default by one or more of
the Underwriters in its or their respective obligations hereunder, the Company
shall, in addition to paying the amounts described in Section 4(n) hereof,
reimburse the Underwriters for all of their reasonable out-of-pocket expenses,
including the reasonable fees and disbursements of their counsel.
6. Conditions of Underwriters' Obligations. The several obligations
---------------------------------------
of the Underwriters hereunder are subject to the accuracy of the representations
and warranties on the part of the Company on the date hereof and at the time of
purchase (and the several obligations of the Underwriters at the additional time
of purchase are subject to the accuracy of the representations and warranties on
the part of the Company on the date hereof and at the time of purchase (unless
previously waived)) and at the additional time of purchase, the performance by
the Company of its obligations hereunder, and to the following additional
conditions precedent:
(a) The Company shall furnish to you at the time of purchase and at
the additional time of purchase, as the case may be, an opinion of Xxxxxxx,
Xxxxxxx & Xxxxxxxx LLP, counsel for the Company, addressed to the
Underwriters, and dated the time of purchase or the additional time of
purchase, as the case may be, with reproduced copies for each of the other
Underwriters and in form reasonably satisfactory to Shearman & Sterling,
counsel for the Underwriters, stating that:
(i) the Company is duly incorporated and is validly existing
and in good standing under the laws of the State of Delaware; the
Company has the corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Registration Statement and the Prospectus (and any amendment or
supplement thereto); the Company is duly qualified or licensed to do
business as a foreign corporation in good standing in each
jurisdiction where it conducts its business or owns or leases
property, except where the failure to so qualify would not have a
Material Adverse Effect,
11
and has the status set forth opposite the jurisdictions listed on a
schedule to such opinion;
(ii) the authorized capital stock of the Company as of
September 30, 1999 is as set forth under the heading "Actual" under
the caption "Capitalization" in the Prospectus;
(iii) all shares of capital stock of the Company outstanding
prior to the issuance of the Shares have been duly authorized and
validly issued, are, to our knowledge, fully paid and nonassessable,
and are free of any preemptive rights arising under the Company's
certificate of incorporation, as amended and restated, or the
Delaware General Corporation Law and, to such counsel's knowledge,
are free of any contractual preemptive rights, resale rights, rights
of first refusal and similar rights;
(iv) the Shares to be sold by the Company have been duly
authorized and, when issued and delivered to the Underwriters against
payment therefor in accordance with the terms of the Underwriting
Agreement, will be validly issued, fully paid and nonassessable and
free of (A) any preemptive rights arising under the Company's
certificate of incorporation, as amended and restated, or the
Delaware General Corporation Law or (B) to our knowledge, similar
rights that entitle or will entitle any person to acquire any shares
of capital stock of the Company upon the issuance and sale of the
Shares by the Company;
(v) the form of certificate for the Shares conforms in all
material respects to the requirements of the Delaware General
Corporation Law, and, to the extent permitted by the Delaware General
Corporation Law, the holders of the Shares will not be subject to
personal liability by reason of being such holders;
(vi) the Registration Statement and all post-effective
amendments, if any, have become effective under the Securities Act
and, to our knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for
that purpose are pending before or contemplated by the Commission;
and any required filing of the Prospectus pursuant to Rule 424 has
been made in accordance with Rule 424;
(vii) other than the Subsidiary, the Company does not own or
control, directly or indirectly, any corporation, association or
other entity; and to the best of such counsel's knowledge, other than
as set forth in the Registration Statement, no options, warrants or
other rights to purchase, agreements or other obligations to issue or
other rights to convert any obligation into shares of capital stock
or ownership interests in the Subsidiary are outstanding;
(viii) the Company has the corporate power and authority to enter
into this Agreement and to issue, sell and deliver the Shares to the
Underwriters as provided in this Agreement; this Agreement has been
duly authorized, executed and delivered by the Company;
12
(ix) neither the offer, sale or delivery of the Shares, the
execution, delivery or performance by the Company of this Agreement,
compliance by the Company with the provisions of this Agreement nor
consummation by the Company of the transactions contemplated by this
Agreement (A) violates the Company's certificate of incorporation, as
amended and restated, or its Bylaws, or (B) constitutes a breach of,
or a default under, any agreement, indenture, lease or other
instrument to which the Company is a party or by which the Company or
any of its U.S. properties is bound that is an exhibit to the
Registration Statement (other than German language exhibits as to
which such counsel need not express an opinion), which breach or
default would reasonably be expected to have a Material Adverse
Effect or (C) will result in any violation of any existing law or
regulation (other than applicable state securities and Blue Sky laws,
as to which such counsel need not express an opinion), or any ruling,
judgment, injunction, order or decree known to us and applicable to
the Company or any of its U.S. properties;
(x) no consent, approval, authorization or other order of, or
registration or filing with, any U.S. or California, Delaware
corporate or New York court, regulatory body, administrative agency
or other U.S. or California, Delaware corporate or New York
governmental body, agency or official is required on the part of the
Company (except (A) as have been obtained under the Act and the
Exchange Act or (B) such as may be required under state securities of
Blue Sky laws governing the purchase and distribution of the Shares
and as to which such counsel need not express an opinion) for the
valid issuance and sale of the Shares to the Underwriters as
contemplated by this Agreement;
(xi) to our knowledge, (A) there are no legal or governmental
proceedings pending or threatened against the Company, or to which
the Company or any of its U.S. properties is subject, which are
required to be described in the Registration Statement or Prospectus
(or any amendment or supplement thereto) that are not so described
and (B) there are no agreements, contracts, indentures, leases or
other instruments that are required to be described in the
Registration Statement or the Prospectus (or any amendment or
supplement thereto) or to be filed as an exhibit to the Registration
Statement that are not so described or filed, as the case may be;
(xii) the statements set forth under the caption "Description of
Capital Stock" in the Prospectus, insofar as such statements purport
to summarize certain provisions of the capital stock of the Company,
provide a fair summary of such provisions in all material respects;
(xiii) based upon a certificate provided by appropriate officers
of the Company to such counsel, the Company is not in violation of
its certificate of incorporation, as amended and restated, or its by-
laws or is in breach of, or in default under (nor has any event
occurred which with notice, lapse of time, or both would result in
any breach of, or constitute a default under), any license,
indenture, mortgage, deed of trust, bank loan or credit agreement or
other evidence of indebtedness, or any lease, contract or other
agreement or
13
instrument to which the Company is a party or by it or its U.S.
properties may be bound or affected or under any federal, state or
local law, regulation or rule or any decree, judgment or order
applicable to the Company;
(xiv) the Company is not and will not be, upon consummation of
the transactions contemplated by this Agreement and the application
of the proceeds from the offering of the Shares as set forth in the
caption "Use of Proceeds" in the Registration Statement and
Prospectus, an "investment company," or a "promoter" or "principal
underwriter" for, a "registered investment company," as such terms
are defined in the Investment Company Act of 1940, as amended;
(xv) the Registration Statement and the Prospectus (except as
to the financial statements and schedules and other financial and
statistical data contained therein, as to which such counsel need not
express an opinion) comply as to form in all material respects with
the requirements of the Act; and
(xvi) such counsel have participated in conferences with
officers and other representatives of the Company, representatives of
the independent public accountants of the Company and representatives
of the Underwriters at which the contents of the Registration
Statement and Prospectus were discussed and, although such counsel is
not passing upon and does not assume responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or Prospectus (except as and to the extent
stated in subparagraphs (ii) and (xii) above), on the basis of the
foregoing nothing has come to the attention of such counsel that
causes them to believe that the Registration Statement or any
amendment thereto at the time such Registration Statement or
amendment became effective contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the Prospectus or any supplement thereto at the
date of such Prospectus or such supplement, and at the time of
purchase or additional time of purchase, as the case may be,
contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which
they were made, not misleading (it being understood that such counsel
need express no opinion with respect to the financial statements and
schedules and other financial and statistical data included in the
Registration Statement or Prospectus).
(b) The Company shall furnish to you at the time of purchase and at
the additional time of purchase, as the case may be, an opinion of _______,
German counsel to the Company, addressed to the Underwriters, and dated the
time of purchase or the additional time of purchase, as the case may be,
with reproduced copies for each of the other Underwriters and in form
satisfactory to Shearman & Sterling, counsel for the Underwriters, stating
that:
(i) the Subsidiary has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation with full corporate power and authority
to own, lease and operate its properties and to conduct its business
as currently conducted;
14
(ii) the Subsidiary is duly qualified or licensed to do
business as a foreign corporation in good standing in each
jurisdiction where it conducts its business or owns or leases
property, except where the failure to so qualify would not have a
Material Adverse Effect;
(iii) all of the outstanding shares of capital stock of the
Subsidiary have been duly authorized and validly issued, are fully
paid and non-assessable and, except as otherwise stated in the
Registration Statement, are owned by the Company, and are not subject
to any security interest, other encumbrance or adverse claim; to the
best of such counsel's knowledge, no options, warrants or other rights
to purchase, agreements or other obligations to issue or other rights
to convert any obligation into shares of capital stock or ownership
interests in the Subsidiary are outstanding;
(iv) the Subsidiary does not have any subsidiaries;
(v) no approval authorization, consent or order of or filing
with any governmental or regulatory commission, board, body, authority
or agency of the Federal Republic of Germany or any political
subdivision thereof is required in connection with the issuance and
sale of the Shares and the consummation by the Company of the
transactions as contemplated in this Agreement;
(vi) to the best of such counsel's knowledge, the Subsidiary is
not in violation of its charter or bylaws (or similar constituent
documents) or is in breach of, or in default under (nor has any event
occurred which with notice, lapse of time, or both would result in any
breach of, or constitute a default under), any license, indenture,
mortgage, deed of trust, bank loan or credit agreement or other
evidence of indebtedness, or any lease, contract or other agreement or
instrument to which the Subsidiary is a party or by which its
properties may be bound or affected or under any law, regulation or
rule or any decree, judgment or order applicable to the Subsidiary;
and
(vii) to the best of such counsel's knowledge, there are no
actions, suits, claims, investigations or proceedings pending,
threatened or contemplated to which the Subsidiary is subject or of
which any of its properties is subject at law or in equity or before
any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency that could, either singly
or in the aggregate, result in a Material Adverse Effect.
(c) The Company shall furnish to you at the time of purchase and at
the additional time of purchase, as the case may be, an opinion of Heller,
Ehrman, White & XxXxxxxxx, patent counsel for the Company, addressed to the
Underwriters, and dated the time of purchase or the additional time of
purchase, the case may be, with reproduced copies for each of the other
Underwriters and in form satisfactory to Shearman & Sterling, counsel for
its Underwriters, stating that:
(i) to the best of such counsel's knowledge and belief, the
statements in the Registration Statement and the Prospectus under the
captions "Risk Factors - we may be involved in lawsuits to protect or
enforce our patents, which would be expensive and, if we lose, may
cause us to lose some of our intellectual property rights, which would
reduce our ability to compete in the market", " - The rights we rely
upon to protect our intellectual property underlying our products may
not be adequate, which could enable third parties to use our
technology and would reduce our ability to compete in the market",
" - Our
15
success will depend partly on our ability to operate without
infringing on or misappropriating the proprietary rights of others"
and "Business -Intellectual Property" are accurate and complete
statements or summaries of the matters therein set forth. Nothing has
come to such counsel's attention that causes them to believe that the
above-described portions of the Registration Statement at the time
such Registration Statement became effective contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus or any supplement
thereto, at the date of such Prospectus or such supplement, contained
an untrue statement of material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
(ii) to the best of such counsel's knowledge and belief, (a)
there are no legal or governmental proceedings pending relating to
patent rights, trade secrets, trademarks, service marks or other
proprietary information or materials of the Company, and (b) no such
proceedings are threatened or contemplated by governmental authorities
or others;
(iii) such counsel does not know of any contracts or other
documents, relating to the Company's patents, trade secrets,
trademarks, service marks or other proprietary information or
materials, of a character required to be filed as an exhibit to the
Registration Statement or required to be described in the Registration
Statement or the Prospectus, that are not filed or described as
required;
(iv) to the best of such counsel's knowledge and belief, (a)
the Company is not infringing or otherwise violating any patents,
trade secrets, trademarks, service marks or other proprietary
information or materials of others, and (b) there are no infringements
by others of any of the Company's patents, trade secrets, trademarks,
service marks or other proprietary information or materials which in
such counsel's judgment could affect materially the use thereof by the
Company;
(v) such counsel has no knowledge of any facts which would
preclude the Company from having valid license rights or clear title
to the patents referenced in the Prospectus; such counsel has no
knowledge that the Company lacks or will be unable to obtain any
rights or licenses to use all patents and other material intangible
property and assets necessary to conduct the business now conducted or
proposed to be conducted by the Company as described in the
Prospectus, except as described in the Prospectus; such counsel is
unaware of any facts which form a basis for a finding of
unenforceability or invalidity of any of the Company's patents and
other material property and assets;
(vi) such counsel is not aware of any material fact with
respect to the patent applications of the Company presently on file
that (a) would preclude the issuance of patents with respect to such
applications, or (b) would lead such counsel to conclude that such
patents, when issued, would not be valid and enforceable in accordance
with applicable regulations; and
(vii) (a) though such counsel has not verified the accuracy or
completeness of the statements contained in the Prospectus, nothing
has come to the attention of such counsel that causes them to believe
that, such
16
Registration Statement, at the time the Registration Statement became
effective, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or at the time of
purchase, or additional time of purchase, as the case may be, the
Prospectus under the captions "Risk Factors - we may be involved in
lawsuits to protect or enforce our patents, which would be expensive
and, if we lose, may cause us to lose some of our intellectual
property rights, which would reduce our ability to compete in the
market", " - The rights we rely upon to protect our intellectual
property underlying our products may not be adequate, which could
enable third parties to use our technology and would reduce our
ability to compete in the market", " - Our success will depend partly
on our ability to operate without infringing on or misappropriating
the proprietary rights of others" and "Business -Intellectual
Property", contained an untrue statement of a material fact or omitted
to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
Such counsel may state that, in rendering their opinion, they
have relied on certain factual representations of the Company and that
they have not independently verified the accuracy and completeness of
such representations.
(d) You shall have received from Ernst & Young LLP, letters dated,
respectively, the date of this Agreement and the time of purchase and
additional time of purchase, as the case may be, and addressed to the
Underwriters (with reproduced copies for each of the Underwriters) in the
forms heretofore approved by WDR.
(e) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, from Shearman & Sterling,
counsel for the Underwriters, such opinion or opinions with respect to the
incorporation of the Company, the validity of the Shares delivered at the
time of purchase or the additional time of purchase, as the case may be,
the Registration Statement, the Prospectus and other related matters as you
may require, and the Company shall have furnished to such counsel such
documents as they reasonably request for the purpose of enabling them to
pass upon such matters;
(f) No amendment or supplement to the Registration Statement or
Prospectus shall be filed prior to the time the Registration Statement
becomes effective to which you object in writing.
(g) The Registration Statement shall become effective, or if Rule
430A under the Act is used, the Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) under the Act, at or before 5:00 P.M.,
New York City time, on the date of this Agreement, unless a later time (but
not later than 5:00 P.M., New York City time, on the second full business
day after the date of this Agreement) shall be agreed to by the Company and
you in writing or by telephone, confirmed in writing; provided, however,
-------- -------
that the Company and you and any group of Underwriters, including you, who
have agreed hereunder to purchase in the aggregate at least 50% of the Firm
Shares may from time to time agree on a later date.
(h) Prior to the time of purchase or the additional time of purchase,
as the case may be, (i) no stop order with respect to the effectiveness of
the Registration Statement shall have been issued under the Act or
proceedings initiated under Section 8(d) or 8(e) of the Act; (ii) the
Registration Statement and all amendments thereto, or modifications
thereof, if any, shall not contain an untrue statement of a material fact
or
17
omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; and (iii) the Prospectus and
all amendments or supplements thereto, or modifications thereof, if any,
shall not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they are
made, not misleading.
(i) Between the time of execution of this Agreement and the time of
purchase or the additional time of purchase, as the case may be, (i) no
material and unfavorable change, financial or otherwise (other than as
referred to in the Registration Statement and Prospectus), in the business
or condition of the Company and the Subsidiary taken as a whole shall occur
or become known and (ii) no transaction which is material and unfavorable
to the Company shall have been entered into by the Company or the
Subsidiary.
(j) The Company will, at the time of purchase or additional time of
purchase, as the case may be, deliver to you a certificate of two of its
executive officers to the effect that the representations and warranties of
the Company as set forth in this Agreement are true and correct as of each
such date, that the Company shall have performed such of its obligations
under this Agreement as are to be performed at or before the time of
purchase and at or before the additional time of purchase, as the case may
be, and the conditions set forth in paragraphs (h) and (i) of this Section
6 have been met.
(k) Each of (i) the directors and officers of the Company, (ii) the
holders of at least 98.0% of the outstanding Common Stock and preferred
stock, and (iii) the holders of other securities convertible into or
exercisable or exchangeable for Common Stock or warrants or other rights to
purchase Common Stock (such that the aggregate of such securities which are
not subject to such agreement does not represent more than 1.8% of the
outstanding Common Stock), shall have agreed in writing not to sell, offer
to sell, contract to sell, hypothecate, grant any option to sell or
otherwise dispose of, directly or indirectly, any shares of Common Stock or
securities convertible into or exercisable or exchangeable for Common Stock
or warrants or other rights to purchase Common Stock for a period of 180
days after the date of the Prospectus.
(l) The Company shall have furnished to you such other documents and
certificates as to the accuracy and completeness of any statement in the
Registration Statement and the Prospectus as of the time of purchase and
the additional time of purchase, as the case may be, as you may reasonably
request.
(m) The Shares shall have been approved for listing for quotation on
the Nasdaq National Market, subject only to notice of issuance at or prior
to the time of purchase.
7. Effective Date of Agreement; Termination. This Agreement shall
----------------------------------------
become effective (i) if Rule 430A under the Act is not used, when you shall have
received notification of the effectiveness of the Registration Statement, or
(ii) if Rule 430A under the Act is used, when the parties hereto have executed
and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be subject
to termination in the absolute discretion of you or any group of Underwriters
(which may include you) which has agreed to purchase in the aggregate at least
50% of the Firm Shares, if, since the time of execution of this Agreement or the
respective dates as of which information is given in the Registration Statement
and Prospectus, (x) there has been any material adverse and
18
unfavorable change, financial or otherwise (other than as referred to in the
Registration Statement and Prospectus), in the operations, business, or
condition of the Company and the Subsidiary taken as a whole, which would, in
your judgment or in the judgment of such group of Underwriters, make it
impracticable to market the Shares, or (y) there shall have occurred any
downgrading, or any notice shall have been given of (i) any intended or
potential downgrading or (ii) any review or possible change that does not
indicate an improvement, in the rating accorded any securities of or guaranteed
by the Company or the Subsidiary by any "nationally recognized statistical
rating organization", as that term is defined in Rule 436(g)(2) under the Act,
or (z) if, at any time prior to the time of purchase or, with respect to the
purchase of any Additional Shares, the additional time of purchase, as the case
may be, trading in securities on the New York Stock Exchange, the American Stock
Exchange or the Nasdaq National Market shall have been suspended or limitations
or minimum prices shall have been established on the New York Stock Exchange,
the American Stock Exchange or the Nasdaq National Market, or if a banking
moratorium shall have been declared either by the United States or New York
State authorities, or if the United States shall have declared war in accordance
with its constitutional processes or there shall have occurred any material
outbreak or escalation of hostilities or other national or international
calamity or crisis of such magnitude in its effect on the financial markets of
the United States as, in your judgment or in the judgment of such group of
Underwriters, to make it impracticable to market the Shares.
If you or any group of Underwriters elects to terminate this Agreement
as provided in this Section 7, the Company and each other Underwriter shall be
notified promptly by letter or telegram.
If the sale to the Underwriters of the Shares, as contemplated by this
Agreement, is not carried out by the Underwriters for any reason permitted under
this Agreement or if such sale is not carried out because the Company shall be
unable to comply with any of the terms of this Agreement, the Company shall not
be under any obligation or liability under this Agreement (except to the extent
provided in Sections 4(n), 5, 9 and 10 hereof), and the Underwriters shall be
under no obligation or liability to the Company under this Agreement (except to
the extent provided in Section 9 hereof) or to one another hereunder.
8. Increase in Underwriters' Commitments. Subject to Sections 6 and
-------------------------------------
7, if any Underwriter shall default in its obligation to take up and pay for the
Firm Shares to be purchased by it hereunder (otherwise than for a reason
sufficient to justify the termination of this Agreement under the provisions of
Section 7 hereof) and if the number of Firm Shares which all Underwriters so
defaulting shall have agreed but failed to take up and pay for does not exceed
10% of the total number of Firm Shares, the non-defaulting Underwriters shall
take up and pay for (in addition to the aggregate number of Firm Shares they are
obligated to purchase pursuant to Section 1 hereof) the number of Firm Shares
agreed to be purchased by all such defaulting Underwriters, as hereinafter
provided. Such Shares shall be taken up and paid for by such non-defaulting
Underwriter or Underwriters in such amount or amounts as you may designate with
the consent of each Underwriter so designated or, in the event no such
designation is made, such Shares shall be taken up and paid for by all non-
defaulting Underwriters pro rata in proportion to the aggregate number of Firm
Shares set opposite the names of such non-defaulting Underwriters in Schedule A.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any Firm Shares hereunder unless all of the Firm Shares are purchased
by the Underwriters (or by substituted Underwriters selected by you with the
approval of the Company or selected by the Company with your approval).
19
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provision, the Company or you shall have the right
to postpone the time of purchase for a period not exceeding five business days
in order that any necessary changes in the Registration Statement and Prospectus
and other documents may be effected.
The term Underwriter as used in this Agreement shall refer to and
include any Underwriter substituted under this Section 8 with like effect as if
such substituted Underwriter had originally been named in Schedule A.
If the aggregate number of Shares which the defaulting Underwriter or
Underwriters agreed to purchase exceeds 10% of the total number of Shares which
all Underwriters agreed to purchase hereunder, and if neither the non-defaulting
Underwriters nor the Company shall make arrangements within the five business
day period stated above for the purchase of all the Shares which the defaulting
Underwriter or Underwriters agreed to purchase hereunder, this Agreement shall
be terminated without further act or deed and without any liability on the part
of the Company to any non-defaulting Underwriter and without any liability on
the part of any non-defaulting Underwriter to the Company. Nothing in this
paragraph, and no action taken hereunder, shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
9. Indemnity and Contribution.
--------------------------
(a) The Company agrees to indemnify, defend and hold harmless each
Underwriter, its partners, directors and officers, and any person who
controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, and the successors and assigns of all of
the foregoing persons from and against any loss, damage, expense, liability
or claim (including the reasonable cost of investigation) which, jointly or
severally, any such Underwriter or any such person may incur under the Act,
the Exchange Act, the common law or otherwise, insofar as such loss,
damage, expense, liability or claim arises out of or is based upon any
untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement (or in the Registration Statement as amended
by any post-effective amendment thereof by the Company) or in a Prospectus
(the term Prospectus for the purpose of this Section 9 being deemed to
include any Preliminary Prospectus, the Prospectus and the Prospectus as
amended or supplemented by the Company), or arises out of or is based upon
any omission or alleged omission to state a material fact required to be
stated in either such Registration Statement or Prospectus or necessary to
make the statements made therein not misleading, except insofar as any such
loss, damage, expense, liability or claim arises out of or is based upon
any untrue statement or alleged untrue statement of a material fact
contained in and in conformity with information furnished in writing by or
on behalf of any Underwriter through you to the Company expressly for use
with reference to such Underwriter in such Registration Statement or such
Prospectus or arises out of or is based upon any omission or alleged
omission to state a material fact in connection with such information
required to be stated in such Registration Statement or such Prospectus or
necessary to make such information not misleading.
If any action, suit or proceeding (together, a "Proceeding") is
brought against an Underwriter or any such person in respect of which
indemnity may be sought against the Company pursuant to the foregoing
paragraph, such Underwriter or such person shall promptly notify the
Company in writing of the institution of such Proceeding and the Company
shall assume the defense of such Proceeding, including the employment of
counsel reasonably satisfactory to such indemnified party and payment of
all reasonable
20
fees and expenses; provided, however, that the omission to so notify the
-------- -------
Company shall not relieve the Company from any liability which the Company
may have to any Underwriter or any such person or otherwise, except where
such omission materially affects the Company's ability to defend such
Proceeding. Such Underwriter or such person shall have the right to employ
its or their own counsel in any such case, but the fees and expenses of
such counsel shall be at the expense of such Underwriter or of such person
unless the employment of such counsel shall have been authorized in writing
by the Company in connection with the defense of such Proceeding or the
Company shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to have charge of the defense of such
Proceeding or such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them which are
different from, additional to or in conflict with those available to the
Company (in which case the Company shall not have the right to direct the
defense of such Proceeding on behalf of the indemnified party or parties),
in any of which events such reasonable fees and expenses shall be borne by
the Company and paid as incurred (it being understood, however, that the
Company shall not be liable for the expenses of more than one separate
counsel (in addition to any local counsel) in any one Proceeding or series
of related Proceedings in the same jurisdiction representing the
indemnified parties who are parties to such Proceeding). The Company shall
not be liable for any settlement of any Proceeding effected without its
written consent but if settled with the written consent of the Company, the
Company agrees to indemnify and hold harmless any Underwriter and any such
person from and against any loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by the second
sentence of this paragraph, then the indemnifying party agrees that it
shall be liable for any settlement of any Proceeding effected without its
written consent if (i) such settlement is entered into more than 60
business days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement and (iii) such indemnified party shall have given the
indemnifying party at least 30 days' prior written notice of its intention
to settle. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or
threatened Proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release
of such indemnified party from all liability on claims that are the subject
matter of such Proceeding and does not include an admission of fault,
culpability or a failure to act, by or on behalf of such indemnified party.
(b) Each Underwriter severally agrees to indemnify, defend and hold
harmless the Company, its directors and officers, and any person who
controls the Company within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, and the successors and assigns of all of the
foregoing persons from and against any loss, damage, expense, liability or
claim (including the reasonable cost of investigation) which, jointly or
severally, the Company or any such person may incur under the Act, the
Exchange Act, the common law or otherwise, insofar as such loss, damage,
expense, liability or claim arises out of or is based upon any untrue
statement or alleged untrue statement of a material fact contained in and
in conformity with information furnished in writing by or on behalf of such
Underwriter through you to the Company expressly for use with reference to
such Underwriter in the Registration Statement (or in the Registration
Statement as amended by any post-effective amendment thereof by the
Company) or in a Prospectus, or arises out of or is based upon any omission
or alleged omission to state a material fact in connection with such
21
information required to be stated in such Registration Statement or such
Prospectus or necessary to make such information not misleading.
If any Proceeding is brought against the Company or any such person in
respect of which indemnity may be sought against any Underwriter pursuant
to the foregoing paragraph, the Company or such person shall promptly
notify such Underwriter in writing of the institution of such Proceeding
and such Underwriter shall assume the defense of such Proceeding, including
the employment of counsel reasonably satisfactory to such indemnified party
and payment of all reasonable fees and expenses; provided, however, that
-------- -------
the omission to so notify such Underwriter shall not relieve such
Underwriter from any liability which such Underwriter may have to the
Company or any such person or otherwise, except where such omission
materially affects such Underwriter's ability to defend such Proceeding.
The Company or such person shall have the right to employ its own counsel
in any such case, but the fees and expenses of such counsel shall be at the
expense of the Company or such person unless the employment of such counsel
shall have been authorized in writing by such Underwriter in connection
with the defense of such Proceeding or such Underwriter shall not have,
within a reasonable period of time in light of the circumstances, employed
counsel to have charge of the defense of such Proceeding or such
indemnified party or parties shall have reasonably concluded that there may
be defenses available to it or them which are different from or additional
to or in conflict with those available to such Underwriter (in which case
such Underwriter shall not have the right to direct the defense of such
Proceeding on behalf of the indemnified party or parties, but such
Underwriter may employ counsel and participate in the defense thereof but
the fees and expenses of such counsel shall be at the expense of such
Underwriter), in any of which events such reasonable fees and expenses
shall be borne by such Underwriter and paid as incurred (it being
understood, however, that such Underwriter shall not be liable for the
expenses of more than one separate counsel (in addition to any local
counsel) in any one Proceeding or series of related Proceedings in the same
jurisdiction representing the indemnified parties who are parties to such
Proceeding). No Underwriter shall be liable for any settlement of any such
Proceeding effected without the written consent of such Underwriter but if
settled with the written consent of such Underwriter, such Underwriter
agrees to indemnify and hold harmless the Company and any such person from
and against any loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by the second
sentence of this paragraph, then the indemnifying party agrees that it
shall be liable for any settlement of any Proceeding effected without its
written consent if (i) such settlement is entered into more than 60
business days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement and (iii) such indemnified party shall have given the
indemnifying party at least 30 days' prior written notice of its intention
to settle. No indemnifying party shall, without the prior written consent
of the indemnified party, effect any settlement of any pending or
threatened Proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release
of such indemnified party from all liability on claims that are the subject
matter of such Proceeding.
(c) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a) and (b) of this
Section 9 in respect of any losses, damages, expenses, liabilities or
claims referred to therein, then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the
22
amount paid or payable by such indemnified party as a result of such
losses, damages, expenses, liabilities or claims (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriters on the other hand from the offering of
the Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and of the
Underwriters on the other in connection with the statements or omissions
which resulted in such losses, damages, expenses, liabilities or claims, as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other
shall be deemed to be in the same respective proportions as the total
proceeds from the offering (net of underwriting discounts and commissions
but before deducting expenses) received by the Company and the total
underwriting discounts and commissions received by the Underwriters, bear
to the aggregate public offering price of the Shares. The relative fault of
the Company on the one hand and of the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue
statement or alleged untrue statement of a material fact or omission or
alleged omission relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses,
damages, expenses, liabilities and claims referred to in this subsection
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating, preparing to
defend or defending any Proceeding.
(d) The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 9 were determined by
pro rata allocation (even if the Underwriters were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in subsection (c)
above. Notwithstanding the provisions of this Section 9, no Underwriter
shall be required to contribute any amount in excess of the amount by which
the total price at which the Shares underwritten by such Underwriter and
distributed to the public were offered to the public exceeds the amount of
any damage which such Underwriter has otherwise been required to pay by
reason of such untrue statement or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation.
The Underwriters' obligations to contribute pursuant to this Section 9 are
several in proportion to their respective underwriting commitments and not
joint.
(e) The indemnity and contribution agreements contained in this
Section 9 and the covenants, warranties and representations of the Company
contained in this Agreement shall remain in full force and effect
regardless of any investigation made by or on behalf of any Underwriter,
its partners, directors or officers or any person (including each partner,
officer or director of such person) who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, or by
or on behalf of the Company, its directors or officers or any person who
controls the Company within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, and shall survive any termination of this Agreement
or the issuance and delivery of the Shares. The Company and each
Underwriter agree promptly to notify each other of the commencement of any
Proceeding against it and, in the case of the Company, against any of the
Company's officers or directors in connection with the issuance and sale of
the Shares, or in connection with the Registration Statement or Prospectus.
23
10. Directed Share Program Indemnification. (a) The Company agrees
--------------------------------------
to indemnify and hold harmless WDR and its affiliates and each person, if any,
who controls WDR or its affiliates within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act ("WDR Entities"), from and
against any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) (i) caused by any untrue
statement or alleged untrue statement of a material fact contained in any
material prepared by or with the consent of the Company for distribution to
Participants in connection with the Directed Share Program or caused by any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages or liabilities are caused by any
such untrue statement or omission or alleged untrue statement or omission based
upon information relating to any Underwriter furnished to the Company in writing
by such Underwriter through you expressly for use therein; provided, however,
that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased
Shares, or any person controlling such Underwriter, if a copy of the Prospectus
(as then amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person, if required by law so to have been delivered, at or
prior to the written confirmation of the sale of the Shares to such person, and
if the Prospectus (as so amended or supplemented) would have cured the defect
giving rise to such losses, claims, damages or liabilities, unless such failure
is the result of noncompliance by the Company with Section 4(b) hereof; (ii)
caused by the failure of any Participant to pay for and accept delivery of
Directed Shares that the Participant agreed to purchase; or (iii) related to,
arising out of, or in connection with the Directed Share Program, other than
losses, claims, damages or liabilities (or expenses relating thereto) that are
determined to have resulted from the bad faith or gross negligence of WDR
Entities.
(b) In case any proceeding (including any governmental investigation)
shall be instituted involving any WDR Entity in respect of which indemnity
may be sought pursuant to Section 10(a), the WDR Entity seeking indemnity,
shall promptly notify the Company in writing and the Company, upon request
of the WDR Entity, shall retain counsel reasonably satisfactory to the WDR
Entity to represent the WDR Entity and any others the Company may designate
in such proceeding and shall pay the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any WDR Entity shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such WDR Entity unless (i) the Company
shall have agreed to the retention of such counsel or (ii) the named
parties to any such proceeding (including any impleaded parties) include
both the Company and the WDR Entity and representation of both parties by
the same counsel would be inappropriate due to actual or potential
differing interests between them. The Company shall not, in respect of the
legal expenses of the WDR Entities in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local counsel)
for all WDR Entities. Any such separate firm for the WDR Entities shall be
designated in writing by WDR. The Company shall not be liable for any
settlement of any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the
plaintiff, the Company agrees to indemnify the WDR Entities from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time a WDR Entity shall
have requested the Company to reimburse it for fees and expenses of counsel
as contemplated by the second and third sentences of this paragraph, the
Company agrees that it shall be liable for any settlement of any proceeding
effected without its written consent if (i) such settlement is entered into
more
24
than 30 days after receipt by the Company of the aforesaid request and (ii)
the Company shall not have reimbursed the WDR Entity in accordance with
such request prior to the date of such settlement. The Company shall not,
without the prior written consent of WDR, effect any settlement of any
pending or threatened proceeding in respect of which any WDR Entity is or
could have been a party and indemnity could have been sought hereunder by
such WDR Entity, unless such settlement includes an unconditional release
of the WDR Entities from all liability on claims that are the subject
matter of such proceeding.
(c) To the extent the indemnification provided for in Section 10(a)
is unavailable to a WDR Entity or insufficient in respect of any losses,
claims, damages or liabilities referred to therein, then the Company in
lieu of indemnifying the WDR Entity thereunder, shall contribute to the
amount paid or payable by the WDR Entity as a result of such losses,
claims, damages or liabilities (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and
the WDR Entities on the other hand from the offering of the Directed Shares
or (ii) if the allocation provided by clause 10(c)(i) above is not
permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause 10(c)(i) above
but also the relative fault of the Company on the one hand and of the WDR
Entities on the other hand in connection with any statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as
any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the WDR Entities on the other hand in
connection with the offering of the Directed Shares shall be deemed to be
in the same respective proportions as the net proceeds from the offering of
the Directed Shares (before deducting expenses) and the total underwriting
discounts and commissions received by the WDR Entities for the Directed
Shares, bear to the aggregate public offering price of the Directed Shares.
If the loss, claim, damage or liability is caused by an untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact, the relative fault of the Company on the one hand
and the WDR Entities on the other hand shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement or the
omission or alleged omission relates to information supplied by the Company
or by the WDR Entities and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission.
(d) The Company and the WDR Entities agree that it would not be just
or equitable if contribution pursuant to this Section 10 were determined by
pro rata allocation (even if the WDR Entities were treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in Section 10(c). The
amount paid or payable by the WDR Entities as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by the WDR Entities
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 10, no WDR Entity shall be
required to contribute any amount in excess of the amount by which the
total price at which the Directed Shares distributed to the public were
offered to the public exceeds the amount of any damages that such WDR
Entity has otherwise been required to pay. The remedies provided for in
this Section 10 are not exclusive and shall not limit any rights or
remedies which may otherwise be available to any indemnified party at law
or in equity.
(e) The indemnity and contribution provisions contained in this
Section 10 shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) any investigation made by or
on behalf of any WDR Entity or the
25
Company, its officers or directors or any person controlling the Company
and (iii) acceptance of and payment for any of the Directed Shares.
11. Notices. Except as otherwise herein provided, all statements,
-------
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or sent to
Warburg Dillon Read LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000-0000, Attention:
Syndicate Department and, if to the Company, shall be sufficient in all respects
if delivered or sent to the Company at the offices of the Company at Sequenom,
Inc., 00000 Xxxxxxxx Xxxxxx Xxxx, Xxx Xxxxx, XX 00000, Attention: Xxxxx
Xxxxxxxx.
12. Governing Law; Construction. This Agreement and any claim,
---------------------------
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement ("Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of New
York. The Section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
13. Parties at Interest. The Agreement herein set forth has been and
-------------------
is made solely for the benefit of the Underwriters and the Company and to the
extent provided in Section 9 hereof the controlling persons, directors and
officers referred to in such section, and their respective successors, assigns,
heirs, personal representatives and executors and administrators. No other
person, partnership, association or corporation (including a purchaser, as such
purchaser, from any of the Underwriters) shall acquire or have any right under
or by virtue of this Agreement.
14. Counterparts. This Agreement may be signed by the parties in one
------------
or more counterparts which together shall constitute one and the same agreement
among the parties.
15. Successors and Assigns. This Agreement shall be binding upon the
----------------------
Underwriters and the Company and their successors and assigns and any successor
or assign of any substantial portion of the Company's and any of the
Underwriters' respective businesses and/or assets.
16. Miscellaneous. Warburg Dillon Read LLC is not a bank and is
-------------
separate from any affiliated bank, including any U.S. branch or agency of UBS
AG. Because Warburg Dillon Read LLC is a separately incorporated entity, it is
solely responsible for its own contractual obligations and commitments,
including obligations with respect to sales and purchases of securities.
Securities sold, offered or recommended by Warburg Dillon Read LLC are not
deposits, are not insured by the Federal Deposit Insurance Corporation, are not
guaranteed by a branch or agency, and are not otherwise an obligation or
responsibility of a branch or agency.
26
If the foregoing correctly sets forth the understanding among the
Company and the Underwriters, please so indicate in the space provided below for
the purpose, whereupon this letter and your acceptance shall constitute a
binding agreement among the Company and the Underwriters, severally.
Very truly yours,
SEQUENOM, INC.
By:
----------------------------
Name:
Title:
Accepted and agreed to as of the
date first above written, on
behalf of themselves
and the other several Underwriters
named in Schedule A
WARBURG DILLON READ LLC
FLEETBOSTON XXXXXXXXX XXXXXXXX INC.
XX XXXXX SECURITIES CORPORATION
By: WARBURG DILLON READ LLC
By:
-------------------------
Name:
Title:
27
SCHEDULE A
Number of
Underwriter Firm Shares
----------- -----------
WARBURG DILLON READ LLC
FLEETBOSTON XXXXXXXXX XXXXXXXX INC.
XX XXXXX SECURITIES CORPORATION
-----------
Total............................ ===========
