2/4/98
2,000,000 SHARES
SURMODICS, INC.
COMMON STOCK
$0.05 PAR VALUE
UNDERWRITING AGREEMENT
_________________, 1998
Xxxx X. Xxxxxxx and Company, Incorporated
As Representative of the Several Underwriters
c/o Xxxx X. Xxxxxxx and Company, Incorporated
000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Ladies and Gentlemen:
SurModics, Inc., a Minnesota corporation (the "Company"), hereby
confirms its agreement to issue and sell to the underwriters named in
Schedule A attached hereto (the "Underwriters"), for which you are acting as
the representative (the "Representative"), an aggregate of 2,000,000 shares
(the "Firm Shares") of authorized common stock, $0.05 par value, of the
Company (the "Common Stock"). The Company also hereby confirms its agreement
to issue and sell to the Underwriters an aggregate of up to 300,000
additional shares of Common Stock upon the request of the Representative
solely for the purpose of covering overallotments (the "Option Shares"). The
Firm Shares and the Option Shares are collectively referred to as the
"Shares."
The Company hereby confirms the arrangements with respect to the
purchase of the Shares severally by each of the Underwriters. The Company
has been advised and hereby acknowledges that Xxxx X. Xxxxxxx and Company,
Incorporated has been duly authorized to act as the representative of the
Underwriters. As used in this Agreement, the term "Underwriter" refers to
any individual member of the underwriting syndicate and includes any party
substituted for an Underwriter under Section 9 hereof.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to and agrees with each of the
several Underwriters as follows:
(a) A registration statement on Form SB-2 (Registration No.
333-43217) with respect to the Shares has been prepared by the Company in
conformity with the requirements of the Securities Act of 1933, as amended
(the "Act"), and the rules and regulations (the "Rules and Regulations") of
the Securities and Exchange Commission (the "Commission") promulgated
thereunder and has been filed with the Commission under the Act. If the
Company has elected to rely upon Rule 462(b) under the Act to increase the
size of the offering registered under the Act, the Company will prepare and
file with the Commission a registration statement with respect to such
increase pursuant to Rule 462(b). Copies of the registration statement as
amended to date have been delivered by the Company to the Representative.
Such registration statement, including a registration statement (if any)
filed pursuant to Rule 462(b) under the Act and the information (if any)
deemed to be part thereof pursuant to Rules 430A and 434(d) under the Act,
and all prospectuses included as a part thereof, all financial statements
included in such registration statement, and all schedules and exhibits
thereto, as amended at the time when the registration statement shall become
effective, are herein referred to as the "Registration Statement," and the
term "Prospectus" as used herein shall mean the final prospectus included as
a part of the Registration Statement on file with the Commission when it
becomes effective (except that if a prospectus is filed by the Company
pursuant to Rules 424(b) and 430A under the Act, the term "Prospectus" as
used herein shall mean the prospectus so filed pursuant to Rules 424(b) and
430A (including any term sheet meeting the requirements of Rule 434 under the
Act provided by the Company for use with a prospectus subject to completion
within the meaning of Rule 434 in order to meet the requirements of Section
10(a) of the Act)). The term "Preliminary Prospectus" as used herein means
any prospectus used prior to the Effective Date (as defined in Section 5(a)
hereof) and included as a part of the Registration Statement, prior to the
time it becomes or became effective under the Act and any prospectus subject
to completion as described in Rules 430A or 434 under the Act. Copies of the
Registration Statement, including all exhibits and schedules thereto, any
amendments thereto and all Preliminary Prospectuses have been delivered to
you.
(b) The Registration Statement has been declared effective, and at
all times subsequent thereto up to each closing date, the Registration
Statement and Prospectus and all amendments thereof and supplements thereto,
will comply in all material respects with the provisions of the Act and the
Rules and Regulations. Neither the Commission nor any state securities
division has issued any order (i) preventing or suspending the use of any
Preliminary Prospectus, (ii) issuing a stop order with respect to the
offering of the Shares or (iii) requiring the recirculation of a Preliminary
Prospectus. The Registration Statement (as amended, if the Company shall
have filed with the Commission any post effective amendments thereto) does
not and will not contain any 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. Each Preliminary Prospectus, at the time of filing thereof,
the Registration Statement as of the date declared effective and at all times
subsequent thereto up to each closing date, and the Prospectus (as amended or
supplemented, if the Company shall have filed with the Commission any
amendment thereof or supplement thereto) conformed and conforms in all
material respects to the requirements of the Act and the
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Rules and Regulations and did not, does not and will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading; provided,
however, that none of the representations and warranties in this Subsection
1(b) shall apply to statements in, or omissions from, the Registration
Statement or the Prospectus or any amendment thereof or supplement thereto)
which are based upon and conform to information furnished to the Company by
the Underwriters in writing specifically for use in the preparation of the
Registration Statement or the Prospectus or any such amendment or supplement.
There is no contract or other document of the Company of a character
required by the Act or the Rules and Regulations to be described in the
Registration Statement or Prospectus or to be filed as an exhibit to the
Registration Statement that has not been described or filed as required.
(c) The Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Minnesota,
with full corporate power and authority, to own, lease and operate its
properties and conduct its business as described in the Registration
Statement and Prospectus. The Company is duly qualified to do business as a
foreign corporation in good standing in each jurisdiction in which the
ownership or lease of its properties, or the conduct of its business,
requires such qualification and in which the failure to be qualified or in
good standing would have a material adverse effect on the condition
(financial or otherwise), results of operations, shareholders' equity,
business, property or prospects of the Company.
(d) The Company has no subsidiaries, is not affiliated with or
owns any stock or other equity interest, or any other company or business
entity.
(e) The Company has all necessary material authorizations,
licenses, approvals, consents, permits, certificates and orders of and from
all state, federal, foreign and other governmental or regulatory authorities
to own its properties and to conduct its business as described in the
Registration Statement and Prospectus, is conducting its business in
substantial compliance with all applicable laws, rules and regulations of the
jurisdictions in which it is conducting business, and has received no notice
of nor has it knowledge of any basis for any proceeding or action for the
revocation or suspension of any such authorizations, licenses, approvals,
consents, permits, certificates or orders.
(f) The Company is not in violation of or in default under (i) its
Restated Articles of Incorporation, as Amended or Restated Bylaws, (ii) or in
default in the performance or observance of any material obligation,
agreement, covenant or condition contained in any bond, debenture, note or
other evidence of indebtedness or in any contract, license, indenture, bond
mortgage, loan agreement, joint venture or partnership agreement, lease,
agreement or instrument to which the Company is a party or by which the
Company or any of its properties are bound, (iii) any law, order, rule,
regulation, writ, injunction or decree of any government, governmental
instrumentality or court, domestic or foreign, which violation or default
would have a material adverse effect on the condition (financial or
otherwise), results of operations,
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shareholders' equity, business, property or prospects of the Company or the
ability of the Company to consummate the transactions contemplated hereby.
(g) The Company has full requisite power and authority to enter
into this Agreement. This Agreement has been duly authorized, executed and
delivered by the Company and will be a valid and binding agreement on the
part of the Company, enforceable in accordance with its terms, if and when
this Agreement shall have become effective in accordance with Section 8,
except as enforceability may be limited by the application of bankruptcy,
insolvency, moratorium or similar laws affecting the rights of creditors
generally and by judicial limitations on the right of specific performance
and other equitable remedies, and except as the enforceability of the
indemnification or contribution provisions hereof may be affected by
applicable federal or state securities laws. The performance of this
Agreement and the consummation of the transactions herein contemplated will
not result in a material breach or violation of any of the terms and
provisions of or constitute a material default under (i) any bond, debenture,
note or other evidence of indebtedness, or any contract, license, indenture,
mortgage, loan agreement, joint venture or partnership agreement, lease,
agreement or other instrument to which the Company is a party or by which the
property of the Company is bound, (ii) the Company's Restated Articles of
Incorporation, as Amended or Restated Bylaws, or (iii) any statute or any
order, rule or regulation of any court, governmental agency or body having
jurisdiction over the Company. No consent, approval, authorization or order
of any court, governmental agency or body is required for the consummation by
the Company of the transactions on its part herein contemplated, except such
as may be required under the Act or under state or other securities laws.
(h) There are no actions, suits or proceedings pending before any
court or governmental agency, authority or body to which the Company is a
party or of which the business or property of the Company is the subject
which (i) might result in any material adverse change in the condition
(financial or otherwise), shareholders' equity, results of operations,
business or prospects of the Company, (ii) materially and adversely affect
its properties or assets, or (iii) prevent consummation of the transactions
contemplated by this Agreement. To the best of the Company's knowledge, no
such actions, suits or proceedings are threatened.
(i) The Company has the duly authorized and outstanding
capitalization set forth under the caption "Capitalization" in the
Prospectus. The outstanding shares of capital stock of the Company have been
duly authorized and validly issued, fully paid and nonassessable. The Shares
conform in substance to all documents relating thereto contained in the
Registration Statement and Prospectus. The Shares to be sold by the Company
hereunder have been duly authorized and, when issued and delivered pursuant
to this Agreement, will be validly issued, fully paid and nonassessable and
will conform to the description thereof contained in the Prospectus. No
statutory preemptive rights or similar rights to subscribe for or purchase
shares of capital stock of any security holders of the Company exist with
respect to the issuance and sale of the Shares by the Company. Except as
described in the Prospectus, the Company has no agreement with any security
holder which gives such security holder the right to require the Company to
register under the Act any securities of any nature owned or held by such
person in connection with the transactions contemplated by this Agreement.
Except as described in the
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Prospectus, there are no outstanding options, warrants, agreements,
contracts or other rights to purchase or acquire from the Company any shares
of its capital stock. Except as described in the Prospectus, there are no
agreements among the Company's executive officers and directors and any other
persons with respect to the voting or transfer of the Company's capital stock
or with respect to other aspects of the Company's affairs. Upon payment for
and delivery of the Shares to be sold by the Company pursuant to this
Agreement, the Underwriters will acquire good and marketable title to such
Shares, free and clear of all liens, encumbrances or claims created by
actions of the Company. The certificates evidencing the Shares will comply
as to form with all applicable provisions of the laws of the State of
Minnesota.
(j) The financial statements of the Company, together with the
related notes, included in the Registration Statement and Prospectus (the
"Financial Statements") fairly and accurately present the financial position,
the results of operations and changes in stockholder's equity and cash flows
of the Company at the dates and for the respective periods to which such
Financial Statements apply. The Financial Statements have been prepared in
accordance with generally accepted accounting principles, consistently
applied throughout the periods involved, and all adjustments necessary for a
fair presentation of results for such periods have been made, except as
otherwise stated therein; and the supporting schedules included in the
Registration Statement present fairly the information required to be stated
therein. No other financial statements or schedules are required to be
included in the Registration Statement. The summary and selected
consolidated financial data included in the Registration Statement present
fairly the information shown therein on the basis stated in the Registration
Statement and have been compiled on a basis consistent with the financial
statements presented therein.
(k) Xxxxxx Xxxxxxxx, LLP, which has expressed its opinion with
respect to the financial statements filed with the Commission as part of the
Registration Statement, are independent public accountants as required by the
Act and the rules and regulations thereunder.
(l) Since the respective dates as of which information is given in
the Registration Statement and Prospectus, (i) there has not been any
material adverse change, or any development, event or occurrence in the
business of the Company that, taken together with other developments, events
and occurrences with respect to such business, would have or would reasonably
be expected to have a material adverse effect on the condition (financial or
otherwise) of the Company or the management, shareholders' equity, results of
operations, business, property or prospects of the Company, whether or not
occurring in the ordinary course of business, (ii) there has not been any
transaction not in the ordinary course of business entered into by the
Company which is material to the Company, other than transactions described
or contemplated in the Registration Statement, (iii) the Company has not
incurred any material liabilities or obligations, which are not in the
ordinary course of business or which could result in a material reduction in
the future earnings of the Company, (iv) the Company has not sustained any
material loss or interference with its business or properties from fire,
flood, windstorm, accident or other calamity, whether or not covered by
insurance, (v) there has not been any change in the capital stock of the
Company (other than upon the exercise of options described in the
Registration Statement) or any material increase in the short-term or
long-term debt (including capitalized lease obligations) of the Company, (vi)
there has not been any declaration
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or payment of any dividends or any distributions of any kind with respect to
the capital stock of the Company, other than any dividends or distributions
described or contemplated in the Registration Statement, or (vii) there has
not been any issuance of warrants, options, convertible securities or other
rights to purchase or acquire capital stock of the Company.
(m) The Company has filed all necessary federal, state, local and
foreign income and franchise tax returns and paid all taxes shown as due
thereon. The Company has no knowledge of any tax deficiency which either has
been or might be asserted against it which would materially and adversely
affect the Company's business or properties.
(n) 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 and (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only
in accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(o) The Company has good and marketable title to all of the
property, real and personal, described in the Registration Statement or
Prospectus as being owned by the Company, free and clear of all liens,
encumbrances, equities, charges or claims, except as do not materially
interfere with the uses made and to be made by the Company of such property
or as disclosed in the Financial Statements. The Company has valid and
binding leases to the real and personal property described in the
Registration Statement or Prospectus as being under lease to the Company,
except as to those leases which are not material to the Company or the lack
of enforceability of which would not materially interfere with the use made
and to be made by the Company of such leased property.
(p) There has been no unlawful storage, treatment or disposal of
waste by the Company at any of the facilities owned or leased thereby, except
for such violations which would not have a material adverse effect on the
condition, (financial or otherwise) or the shareholders' equity, results of
operation, business, properties or prospects of the Company. There has been
no material spill, discharge, leak, emission, ejection, escape, dumping or
release of any kind onto the properties owned or leased by the Company, or
into the environment surrounding those properties, of any toxic or hazardous
substances, as defined under any federal, state or local regulations, laws or
statutes, except for those releases either permissible under such
regulations, laws or statutes or otherwise allowable under applicable permits
or which would not have a material adverse effect on the condition (financial
or otherwise) or the shareholders' equity, results of operation, business,
properties or prospects of the Company.
(q) Each employee benefit plan (as defined in Section 3(3) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"))
("Employee Benefit Plan"), and each bonus, retirement, pension, profit
sharing, stock bonus, thrift, stock option, stock purchase, incentive,
severance, deferred or other compensation or welfare benefit plan, program,
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agreement or arrangement of, or applicable to employees or former employees
of, the Company or with respect to which the Company could have any liability
("Benefit Plans"), was or has been established, maintained and operated in
all material respects in compliance with all applicable federal, state, and
local statutes, orders, governmental rules and regulations, including, but
not limited to, ERISA and the Internal Revenue Code of 1986, as amended (the
"Code"). No Benefit Plan is or was subject to Title IV of ERISA or Section
302 of ERISA or Section 412 of the Code. The Company does not, either
directly or indirectly as a member of a controlled group within the meaning
of Sections 414(b), (c), (m) and (o) of the Code ("Controlled Group"), have
any material liability that remains unsatisfied or arising under Section 502
of ERISA, Subchapter D of Chapter 1 of Subtitle A of the Code or under
Chapter 43 of Subtitle D of the Code. No action, suit, grievance,
arbitration or other matter of litigation or claim with respect to any
Benefit Plan (other than routine claims for benefits made in the ordinary
course of plan administration for which plan administrative procedures have
not been exhausted) is pending or, to the Company's knowledge, threatened or
imminent against or with respect to any Benefit Plan, any member of a
Controlled Group that includes the Company, or any fiduciary within the
meaning of Section 3(21) of ERISA with respect to a Benefit Plan which, if
determined adversely to the Company, would have a material adverse effect on
the Company. Neither the Company nor any member of a Controlled Group that
includes the Company, has any knowledge of any facts that could give rise to
any action, suit, grievance, arbitration or any other manner of litigation or
claim with respect to any Benefit Plan.
(r) No labor disturbance or dispute by the employees or
consultants or contractors of the Company exists or, to the Company's
knowledge, is threatened which could reasonably be expected to have a
material adverse effect on the conduct of the business or the financial
condition (financial or otherwise), results of operations, properties or
prospects of the Company.
(s) Except as disclosed in the Prospectus:
(i) The Company owns or possesses the full rights to use or is
licensed to use those rights of the Company represented by its
patents, patent applications, inventions, copyrights, trademarks,
service marks, applications for registration of trademarks and
service marks, trade secrets, know-how (the "Proprietary Rights")
reasonably necessary for the conduct of its present or intended
business as described in the Prospectus; there are no pending legal,
governmental or administrative proceedings relating to the Proprietary
Rights to which the Company is a party or of which any property of
the Company is subject; and no such proceedings are, to the best of
the Company's knowledge, threatened or contemplated against the
Company by any governmental agency or authority or by others;
(ii) The Company has not received any notice of conflict or claim
with asserted intellectual property rights of any third parties;
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(iii) To the best of the Company's knowledge, the Company does
not infringe upon the rights or claimed rights of any person under
or, with respect to, any of the Proprietary Rights referred to in
Section 1(s)(i) above; except as disclosed in the Prospectus, the
Company is not obligated nor is it under any liability whatsoever
to make any payments by way of royalties, fees or otherwise to any
owner of, licensor of, or other claimant to, any Proprietary
Rights, with respect to the use thereof or in connection with the
conduct of its business or otherwise; and to the best of the
Company's knowledge, the Company is not using any confidential
information or trade secrets of any other party in the conduct of
its business;
(iv) The Company has not entered into any consent,
indemnification, forbearance to xxx or settlement agreement with
respect to the Proprietary Rights other than in the ordinary course
of business;
(v) To the best of the Company's knowledge, the Proprietary
Rights are valid and enforceable and no registration relating thereto
has lapsed, expired or been abandoned or canceled or is the subject of
cancellation or other adversarial proceedings, and all applications
therefor are pending and are in good standing;
(vi) The Company has complied in all material respects with its
respective contractual obligations relating to the protection of
any Proprietary Rights used pursuant to licenses; and
(vii) The Company owns and/or has the unrestricted right to use all
trade secrets, including know-how, customer lists, inventions,
designs, processes, computer programs and any other technical data
or information necessary to the development, manufacture, operation
and sale of all products sold or proposed to be sold by it, free
and clear of any rights, liens and claims of others.
(t) The Company maintains insurance, which is in full force and
effect, of the types and in the amounts reasonably adequate for its business
and, to the best of its knowledge, consistent with coverage comparable to the
insurance maintained by similar companies or businesses.
(u) The Company has not sold any securities in violation of
Section 5 of the Act.
(v) The conditions for use of a registration statement on Form
SB-2 for the distribution of the Shares have been satisfied with respect to
the Company.
(w) The Company intends to apply the proceeds from the sale of the
Shares by it to the purposes and substantially in the manner set forth in the
Prospectus.
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(x) No person is entitled, directly or indirectly, to compensation
from the Company or the Underwriters for services as a finder in connection
with the transactions contemplated by this Agreement.
(y) All material transactions between the Company and its
stockholders who beneficially own more than 5% of any class of the Company's
voting securities have been accurately disclosed in the Prospectus, and the
terms of each such transaction are fair to the Company and no less favorable
to the Company than the terms that could have been obtained from unrelated
parties.
(z) The Company has not distributed and will not distribute any
prospectus or other offering material in connection with the offering and
sale of the Shares other than any Preliminary Prospectus or the Prospectus or
other materials permitted by the Act to be distributed by the Company.
(aa) The Company has not taken and will not take, directly or
indirectly, any action designed to, or which has constituted, or which might
reasonably be expected to cause or result in, stabilization or manipulation
of the price of the Common Stock.
(bb) The Company's application for listing on the Nasdaq National
Market ("Nasdaq") has been approved, and, on the date the Registration
Statement became effective, the Company's Registration Statement on Form 8-A
or other applicable form under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), became effective.
(cc) To the Company's knowledge, none of the Company's officers,
directors or security holders has any affiliations with the National
Association of Securities Dealers, Inc., except as set forth in the
Registration Statement or as otherwise disclosed in writing to the
Representative.
(dd) The Company has obtained a written agreement in the form
substantially as set forth in Schedule B, enforceable by the Representative,
from each officer and director of the Company and such shareholders as may be
requested by the Representative that for 180 days following the Effective
Date, such person will not, without the Representative's prior written
consent, sell, transfer or otherwise dispose of, or agree to sell, transfer
or otherwise dispose of, other than by gift to donees who agree to be bound
by the same restriction or by will or the laws of descent, any of his or her
Common Stock, or any options, warrants or rights to purchase Common Stock or
any shares of Common Stock received upon exercise of any options, warrants or
rights to purchase Common Stock, which are beneficially held by such persons
during such 180 day period.
(ee) The Company is not, and upon completion of the sale of the
Shares contemplated hereby will not be, required to register as an
"investment company" under the Investment Company Act of 1940, as amended.
(ff) The Company has complied and will comply with all provisions
of Florida Statutes Section 517.075 (Chapter 92-198, Laws of Florida).
Neither the Company, nor any
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affiliate thereof, does business with the government of Cuba or with any
person of affiliate located in Cuba.
(gg) Other than as contemplated by this Agreement, the Company has
not incurred any liability for any finder's fee, broker's fee or other
agent's commission in connection with the execution and delivery of this
Agreement or the consummation of the transactions contemplated hereby.
(hh) Any certificate signed by any officer of the Company and
delivered to the Representative or counsel to the Underwriters shall be
deemed to be a representation and warranty of the Company to each Underwriter
as to the matters covered thereby.
2. PURCHASE, SALE, DELIVERY AND PAYMENT.
(a) On the basis of the representations, warranties, and
agreements herein contained, but subject to the terms and conditions herein
set forth, the Company agrees to issue and sell to each of the Underwriters,
and the Underwriters agree, severally and not jointly, to purchase from the
Company the Firm Shares, at a purchase price equal to ____% of the per Share
price to public of $_____ (the "Offering Price"), the respective amount of
Firm Shares set forth opposite such Underwriter's name in Schedule A hereto.
The Underwriters will collectively purchase all of the Firm Shares if any are
purchased.
(b) On the basis of the representations and warranties herein
contained, but subject to the terms and conditions herein set forth, the
Company hereby grants an option to the Underwriters to purchase an aggregate
of up to 300,000 Option Shares at the same purchase price as the Firm Shares
for use solely in covering any overallotments made by the Underwriters in the
sale and distribution of the Firm Shares. The option granted hereunder may
be exercised at any time (but not more than once) within 30 days after the
Effective Date (as defined in Section 5(a) hereof) upon notice (confirmed in
writing) by the Representative to the Company setting forth the aggregate
number of Option Shares as to which the Underwriters are exercising the
option and the date on which certificates for such Option Shares are to be
delivered. Option Shares shall be purchased severally for the account of each
Underwriter in proportion to the number of Firm Shares set forth opposite the
name of such Underwriter in Schedule A hereto. The option granted hereby may
be canceled by the Representative upon notice to the Company as to the Option
Shares for which the option is unexercised at the time of expiration of the
30 day period.
(c) The Company will deliver the Firm Shares to the Representative
at the offices of Xxxxxxxxxxx Xxxxx & Xxxxxxxx LLP, Plaza VII, 00 Xxxxx
Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxx, XX 00000, unless some other place is
agreed upon, at 10:00 a.m., Minneapolis time, against payment of the purchase
price at the same place, on the third full business day after trading of the
Shares has commenced, or, if the offering commences after 4:30 p.m., on the
fourth full business day after commencement of the offering, or such earlier
time as may be agreed upon between the Representative and the Company, such
time and place being herein referred to as the "First Closing Date."
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(d) The Company will deliver the Option Shares being purchased by
the Underwriters to the Representative at the above-referenced offices of
Xxxxxxxxxxx Xxxxx & Xxxxxxxx LLP set forth in Section 2(c) above, unless some
other place is agreed, at 10:00 a.m., Minneapolis time, against payment of
the purchase price at such place, on the date determined by the
Representative and of which the Company has received notice as provided in
Section 2(b), which shall not be earlier than two nor later than five full
business days after the exercise of the option as set forth in Section 2(b),
or at such other time not later than ten full business days thereafter as may
be agreed upon by the Representative and the Company, such time and date
being herein referred to as the "Second Closing Date."
(e) Certificates for the Shares to be delivered will be registered
in such names and issued in such denominations as the Underwriters shall
request two business days prior to the First Closing Date or the Second
Closing Date, as the case may be. The certificates will be made available to
the Underwriters in definitive form for the purpose of inspection and
packaging at least twenty-four (24) hours prior to the respective closing
dates.
(f) Payment for the Shares shall be made by wire transfer to a
designated account of the Company for the Shares to be sold by it or by
certified or official bank check or checks in Clearing House funds, payable
to the order of the Company for the Shares to be sold by it.
3. UNDERWRITERS' OFFERING TO THE PUBLIC.
(a) The Underwriters will make a public offering of the Shares
directly to the public (which may include selected dealers who are members in
good standing of the National Association of Securities Dealers, Inc. (the
"NASD") or foreign dealers not eligible for membership in the NASD but who
have agreed to abide by the interpretation of the NASD Board of Governor's
with respect to free-riding and withholding) as soon as the Underwriters deem
practicable after the Registration Statement becomes effective at the
Offering Price, subject to the terms and conditions of this Agreement and in
accordance with the Prospectus. Concessions from the Offering Price may be
allowed selected dealers who are members of the NASD as the Underwriters
determine and the Underwriters will furnish the Company with such information
about the distribution arrangements as may be necessary for inclusion in the
Registration Statement. It is understood that the Offering Price and such
concessions may vary after the public offering. The Underwriters shall offer
and sell the Shares only in jurisdictions in which the offering of Shares has
been duly registered or qualified, or is exempt from registration or
qualification, and shall take reasonable measures to effect compliance with
applicable state and local securities laws.
(b) It is understood that the Representative, individually and not
as a Representative, may (but shall not be obligated to) make payment on
behalf of any Underwriter or Underwriters for the Shares to be purchased by
such Underwriter or Underwriters. No such payment by the Representative
shall relieve such Underwriter or Underwriters from any of its or their other
obligations hereunder.
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4. COVENANTS OF THE COMPANY.
The Company hereby covenants and agrees with each of the several
Underwriters as follows:
(a) If the Company has elected to rely on Rule 430A under the Act,
the Company will prepare and file a Prospectus (or term sheet within the
meaning of Rule 434 under the Act) containing the information omitted
therefrom pursuant to Rule 430A under the Act with the Commission within the
time period required by, and otherwise in accordance with the provisions of,
Rules 424(b), 430A and 434, if applicable, under the Act; if the Company has
elected to rely upon Rule 462(b) under the Act to increase the size of the
offering registered under the Act, the Company will prepare and file a
registration statement with respect to such increase with the Commission
within the time period required by, and otherwise in accordance with the
provisions of, Rule 462(b) under the Act; the Company will prepare and file
with the Commission, promptly upon the request of the Representative, any
amendments or supplements to the Registration Statement or Prospectus
(including any term sheet within the meaning of Rule 434 under the Act) that,
in the opinion of the Representative, may be necessary or advisable in
connection with distribution of the Securities by Underwriters; and the
Company will not file any amendment or supplement to the Registration
Statement or Prospectus (including any term sheet within the meaning of Rule
434 under the Act) to which the Representative shall reasonably object by
notice to the Company after having been furnished with a copy a reasonable
time prior to the filing.
(b) The Company will advise the Representatives promptly of (i)
any request of the Commission for amendment of the Registration Statement or
for supplement to the Prospectus or for any additional information, (ii) the
issuance by the Commission of any stop order suspending the effectiveness of
the Registration Statement or the use of the Prospectus, (iii) the suspension
of the qualification of the Shares for offering or sale in any jurisdiction,
or (iv) the institution or threatening of any proceedings for that purpose,
and the Company will use its best efforts to prevent the issuance of any such
stop order preventing or suspending the use of the Prospectus or suspending
such qualification and to obtain as soon as possible the lifting thereof, if
issued.
(c) The Company will promptly prepare and file at its own expense
with the Commission any amendments of, or supplements to, the Registration
Statement and the Prospectus which may be necessary in connection with the
distribution of the Shares by the Underwriters. During the period when a
Prospectus relating to the Shares is required to be delivered under the Act,
the Company will promptly file any amendments of, or supplements to, the
Registration Statement and the Prospectus which may be necessary to correct
any untrue statement of a material fact or any omission to state any material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading. The Company will not file any
amendment of, or supplement to, the Registration Statement or Prospectus,
after the Effective Date, which shall not previously have been submitted to
the Representative and its counsel a reasonable time prior to such proposed
filing or to which the Representative shall have reasonably objected. In
case any Underwriter is required to deliver a
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prospectus in connection with sales of any Shares at any time nine months or
more after the effective date of the Registration Statement, upon the request
of the Representative but at the expense of such Underwriter, the Company
will prepare and deliver to such Underwriter as many copies as the
Representative may request of an amended or supplemented Prospectus complying
with Section 10(a)(3) of the Act.
(d) The Company will endeavor to qualify the Shares for sale under
the securities laws of such jurisdictions as the Representative may
reasonably designate and the Company will file such consents to service of
process or other documents necessary or appropriate in order to effect such
qualification or registration. In each jurisdiction in which the Shares
shall have been qualified or registered as above provided, the Company will
continue such qualifications or registrations in effect for so long as may be
required for purposes of the distribution of the Shares and make and file
such statements and reports in each year as are or may be reasonably required
by the laws of such jurisdiction to permit secondary trading of the same;
provided, however, that in no event shall the Company be obligated to qualify
to do business in any jurisdiction where it is not now so qualified or to
take any action which would subject it to the service of process in suits,
other than those arising out of the offering or sale of the Shares.
(e) The Company will furnish to the Representative, as soon as
available, copies of the Registration Statement and all amendments (two of
which will be signed and which shall include all exhibits), each Preliminary
Prospectus, if any, the Prospectus and any amendments or supplements to such
documents including any prospectus prepared to permit compliance with Section
10(a)(3) of the Act, all in such quantities as the Representative may from
time to time reasonably request. The Company specifically authorizes the
Underwriters and all dealers to whom any of the Shares may be sold by the
Underwriters to use and distribute copies of such Preliminary Prospectuses
and Prospectuses in connection with the sale of the Shares as and to the
extent permitted by the federal and applicable state and local securities
laws.
(f) The Company will make generally available to its security
holders an earnings statement, in a form complying with requirements of
Section 11(a) of the Act and Rule 158 thereunder, as soon as practicable and
in any event not later than 45 days after the end of its fiscal quarter in
which occurs the first anniversary date of the Effective Date, meeting the
requirements of Section 11(a) of the Act covering a period of at least 12
consecutive months beginning after the Effective Date, and will advise you in
writing when such statement has been so made available.
(g) The Company will, for such period up to five years from the
First Closing Date, deliver to the Representatives copies of its annual
report and copies of all other documents, and information furnished by the
Company to its security holders or filed with any securities exchange
pursuant to the requirements of such exchange or with the Commission pursuant
to the Act or the Exchange Act, or any state securities commission by the
Company. The Company will deliver to the Representatives similar reports
with respect to significant subsidiaries, if any, as that term is defined in
the rules and regulations under the Act, which are not consolidated in the
Company's financial statements.
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(h) The Company will not, without the prior written consent of the
Representative, offer, sell or otherwise dispose of any capital stock of the
Company or warrants, options, convertible securities or other rights to
assign any shares of capital stock (other than pursuant to employee stock
options, the conversion of convertible securities outstanding on the date of
this Agreement, or currently outstanding options and warrants) for a period
of 180 days after the Effective Date.
(i) The Company shall be responsible for and pay all costs and
expenses incident to the performance of its obligations under this Agreement
including, without limiting the generality of the foregoing, (i) all costs
and expenses in connection with the preparation, printing and filing of the
Registration Statement (including financial statements and exhibits),
Preliminary Prospectuses, if any, the Prospectus and any amendments thereof
or supplements to any of the foregoing; (ii) the issuance and delivery of the
Shares, including taxes, if any; (iii) the cost of all certificates
representing the Shares; (iv) the fees and expenses of the Transfer Agent for
the Shares; (v) the fees and disbursements of counsel for the Company; (vi)
all fees and other charges of the independent public accountants of the
Company; (vii) the cost of furnishing and delivering to the Underwriters and
dealers participating in the offering copies of the Registration Statement
(including appropriate exhibits), Preliminary Prospectuses, the Prospectus
and any amendments of, or supplements to, any of the foregoing; (viii) the
NASD filing fee; (ix) all fees and expenses of counsel for the Representative
incurred in qualifying the Shares for sale under the laws of such
jurisdictions designated by the Representative (including filing fees).
(j) The Company will not take, and will use its best efforts to
cause each of its officers and directors not to take, directly or indirectly,
any action designed to or which might reasonably be expected to cause or
result in the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Shares and will not
effect any sales of any security of the Company which are required to be
disclosed in response to Item 701 of Regulation S-X of the Commission which
have not been so disclosed in the Registration Statement.
(k) Upon completion of this offering, the Company will use its
best efforts to maintain the listing of its Common Stock on the National
Association of Securities Dealers Automated Quotation System ("Nasdaq")
National Market or any other national securities exchange.
(l) The Company will apply the net proceeds from the sale of the
Shares substantially in the manner set forth in the Prospectus.
(m) During the period ending 270 days from the Effective Date, the
Company agrees that it will issue press releases, make public statements and
respond to inquiries of the press and securities analysts only after
conferring with its counsel and with the Representative.
(n) Prior to or as of either closing date, the Company shall have
performed each condition to closing required to be performed by the Company
pursuant to Section 5 hereof.
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5. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS.
The respective obligations of the Underwriters to purchase and pay for
the Shares as provided herein shall be subject to the accuracy of the
representations and warranties of the Company, in the case of the Firm Shares
as of the date hereof and the First Closing Date (as if made on and as of the
First Closing Date), and in the case of the Option Shares, as of the date
hereof and the Second Closing Date (as if made on and as of the Second
Closing Date), to the performance by the Company of its obligations
hereunder, and to the satisfaction of the following additional conditions on
or before the First Closing Date in the case of the Firm Shares and on or
before the Second Closing Date in the case of the Option Shares:
(a) The Registration Statement has been declared effective as of
_________.m Minneapolis time on ____________, 1998 (the "Effective Date").
All filings required by Rules 424, 430A and 434 under the Act shall have been
timely made. No stop order suspending the effectiveness thereof shall have
been issued and no proceeding for that purpose shall have been initiated or,
to the knowledge of the Company or the Representative, threatened by the
Commission or any state securities commission or similar regulatory body.
Any request of the Commission for additional information (to be included in
the Registration Statement or the Prospectus or otherwise) shall have been
complied with to the satisfaction of the Underwriters and their legal counsel.
(b) The Representative shall not have advised the Company that the
Registration Statement or Prospectus, or any amendment thereof or supplement
thereto, contains any untrue statement of a fact which is material or omits
to state a fact which is material and is required to be stated therein or is
necessary to make the statements contained therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that this Section 5(b) shall not apply to statements in, or omissions from,
the Registration Statement or Prospectus or any amendment thereof or
supplement thereto, which are based upon and conform to written information
furnished to the Company by any of the Underwriters specifically for use in
the preparation of the Registration Statement or the Prospectus, or any such
amendment or supplement.
(c) Subsequent to the Effective Date, and except as contemplated
or referred to in the Prospectus, the Company shall not have incurred any
direct or contingent liabilities or obligations material to the Company, or
entered into any material transactions, except liabilities, obligations or
transactions in the ordinary course of business, or declared or paid any
dividends or made any distribution of any kind with respect to its capital
stock; and there shall not have been any change in the capital stock (other
than a change in the number of outstanding shares of Common Stock due to the
exercise of options or warrants described in the Registration Statement and
the Prospectus), or any change in the short-term debt or long-term debt
(including capitalized lease obligations) of the Company, or any issuance of
options, warrants, convertible securities or other rights to purchase the
capital stock of the Company or any change or any development involving a
prospective change in or affecting the general affairs, management, financial
position, shareholders' equity or results of operations of the Company,
otherwise than as set forth or contemplated in the Prospectus, the effect of
which, in the judgment of the Representatives
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makes it impracticable or inadvisable to proceed with the public offering or
the delivery of the Shares being delivered.
(d) The Representative shall have received the opinion of
Xxxxxxxxxx & Xxxxx, P.A., counsel for the Company, dated the First Closing
Date or the Second Closing Date, as the case may be, addressed to the
Underwriters covering certain corporate matters to the effect that:
(i) The Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of
Minnesota; has the corporate power to own, lease and operate its
properties and conduct its businesses as described in the Prospectus;
and is duly qualified to do business as a foreign corporation in good
standing in all jurisdictions where the ownership or leasing of its
properties or the conduct of its business requires such qualification
and in which the failure to be so qualified or in good standing would
have a material adverse effect on condition (financial or otherwise),
shareholders' equity, results of operations, business, properties or
prospects of the Company.
(ii) The Company has the number of authorized and
outstanding shares of capital stock of the Company as set forth
under the caption "Capitalization" of the Prospectus, and all
issued and outstanding capital stock of the Company has been duly
authorized and is validly issued, fully paid and nonassessable.
There are no statutory preemptive rights, or to the knowledge of
such counsel, no similar subscription or purchase rights of
securities holders of the Company with respect to issuance or sale
of the Shares by the Company pursuant to this Agreement, and to the
knowledge of such counsel, except as described in the Prospectus,
no rights to require registration of shares of Common Stock or
other securities of the Company because of the filing of the
Registration Statement exist. The Shares conform as to matters of
law in all material respects to the description of such made in the
Prospectus, and such description accurately sets forth the material
legal provisions thereof required to be set forth in the Prospectus.
(iii) The Shares have been duly authorized and, upon delivery
to the Underwriters against payment therefor as contemplated
therein, will be validly issued, fully paid and nonassessable.
(iv) The certificates evidencing the Shares comply as to
form with the applicable provisions of the laws of the State of
Minnesota.
(v) The Registration Statement has become effective under
the Act and, to the knowledge of such counsel, no stop orders
suspending the effectiveness of the Registration Statement have
been issued and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of such counsel,
contemplated under the Act.
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(vi) There are not material legal or governmental
proceedings pending, or to such counsel's knowledge threatened,
before any court or administrative body or regulatory agency, to
which the Company or its affiliates is a party or to which any of
the properties of the Company or its affiliates are subject that
are required to be disclosed in the Registration Statement or
Prospectus that are not so described, nor any statutes,
regulations, nor legal or governmental proceedings pending, or to
such counsel's knowledge threatened, that are required to be
described in the Registration Statement or Prospectus that are not
so described.
(vii) No authorization, approval or consent of any
governmental authority or agency is necessary in connection with
the issuance and sale of the Shares as contemplated under this
Agreement, except such as may be required under the Act or under
state or other securities laws in connection with the purchase and
distribution of the Shares by the Underwriters.
(viii) The Registration Statement and the Prospectus and any
amendments thereof or supplements thereto (other than the financial
statements and schedules and supporting financial and statistical
data and information included or incorporated therein, as to which
such counsel need express no opinion) conform in all material
respects with the requirements of the Act and the Rules and
Regulations, and the conditions for use of a registration statement
on Form SB-2 for the distribution of the Shares have been satisfied
with respect to the Company.
(ix) The statements (i) in the Prospectus under the caption
"Risk Factors --Government Regulation," "-- Hazardous Materials,"
"--Anti-Takeover Laws," "--Potential Adverse Market Impact of
Shares Eligible for Future Sale," "Business -- Current Licensing
Arrangements," "-- Government Regulation," "-- Facilities," "--
Legal Proceeding," "Management - Stock Option Plan," "Description
of Capital Stock," "Shares Eligible for Future Sale" and (ii) in
the Registration Statement in Item 14 insofar as such statements
constitute a summary of statutes, legal and governmental proceeding
contracts and other documents, are accurate summaries and fairly
present the information called for with respect to such matters.
(x) Such counsel does not know of any contracts,
agreements, documents or instruments required to be filed as
exhibits to the Registration Statement or described in the
Registration Statement or the Prospectus which are not so filed or
described as required, and does not know of any amendment to the
Registration Statement required to be filed that has not been
filed; and insofar as any statements in the Registration Statement
or the Prospectus constitute summaries of any contract, agreement,
document or instrument to which the Company is a party, such
statements are accurate summaries and fairly present the
information called for with respect to such matters.
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(xi) To such counsel's knowledge, there are no defects in
title to the Company's real property or real estate leasehold
interests, nor any liens, encumbrances, equities, charges or claims
against any real or personal property owned or leased by the
Company, not disclosed in the Registration Statement or Prospectus
which would materially affect the present occupancy or use of any
of such real or personal property owned or leased by the Company.
(xii) The Company has the corporate power and authorization
to enter this Agreement and to authorize, issue and sell the Shares
as contemplated hereby. This Agreement has been duly authorized,
executed and delivered by, and is a valid and binding agreement of
the Company, enforceable in accordance with its terms, except as
enforceability may be limited by the application of bankruptcy,
insolvency, moratorium or similar laws affecting the rights of
creditors generally and judicial limitations on the right of
specific performance and other equitable remedies and except as the
enforceability of indemnification or contribution provisions hereof
may be limited by action of a court interpreting or applying
federal or state securities laws or equitable principles.
(xiii) The performance of this Agreement and the consummation
of the transactions described herein will not result in a violation
of or default under, the Company's Restated Articles of
Incorporation, as Amended, Restated Bylaws or other governing
documents. To the best of such counsel's knowledge, (a) the
Company is not in violation of, or in default under, its Restated
Articles of Incorporation, as Amended, Restated Bylaws or other
governing documents; and (b) the performance of this Agreement and
the consummation of the transactions described herein will not
result in a material violation of, or a material default under, the
terms or provisions of (A) any bond, debenture, note, or other
evidence of indebtedness or any contract, license, indenture,
mortgage, loan agreement, joint venture or partnership agreement,
lease, agreement or instrument to which the Company is a party or
by which the Company or any of its properties is bound, or (B) any
law, order, rule, regulation, writ, injunction, or decree known to
such counsel of any government, governmental agency or court having
jurisdiction over the Company or any of its properties.
(xiv) To such counsel's knowledge, unregistered sales of
securities by the Company within three years prior to the Effective
Date were exempt from registration requirements of the Act and are
not required to be integrated, under Rule 502(a) of Regulation D of
the Act, with the public offering contemplated hereby.
(xv) To such counsel's knowledge, based on information
regarding the Company's current and contemplated business contained
in the Registration Statement, the Company is not, and immediately
upon completion of the sale of the Shares contemplated hereby will
not be required to register as, an "investment company" under the
Investment Company Act of 1940, as amended.
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(xvi) To such counsel's knowledge, the Company is not engaged
in any negotiations regarding any form of business combination with
another entity.
In expressing the foregoing opinion, as to matters of fact relevant
to conclusions of law, counsel may rely, to the extent that they deem proper,
upon certificates of public officials and of the officers of the Company, and
opinions of other legal counsel to the Company, provided that copies of all
such certificates and opinions are attached to the opinion.
In addition to the matters set forth above, such opinion shall also
include a statement to the effect that, although such counsel cannot
guarantee the accuracy, completeness or fairness of any of the statements
contained in the Registration Statement or Prospectus, in connection with
such counsel's representation, investigation and due inquiry of the Company
in the preparation of the Registration Statement and Prospectus, such counsel
has no reason to believe that, (i) as of its Effective Date, the Registration
Statement or any further amendment thereto (other than the financial
statements and related schedules therein, as to which such counsel need
express no opinion) made by the Company prior to the First Closing Date or
the Second Closing Date, 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 not misleading, or (ii),
as of its date, the Prospectus or any further amendment or supplement thereto
(other than the financial statements and related schedules therein, as to
which such counsel need express no opinion) made by the Company prior to the
First Closing Date or the Second Closing Date, as the case may be, 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 in
which they were made, not misleading or (iii), as of the First Closing Date
or the Second Closing Date, as the case may be, either the Registration
Statement or the Prospectus or any further amendment or supplement thereto
(other than the financial statements and related schedules therein, as to
which such counsel need express no opinion) made by the Company prior to the
First Closing Date or the Second Closing Date, as the case may be, contains
an untrue statement of a material fact or omits to state a material fact
necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading.
(e) The Representative shall have received on the First Closing
Date or the Second Closing Date, as the case may be, the opinion of
Xxxxxxxxxx & Xxxxx, P.A., intellectual property counsel for the Company,
dated the First Closing Date or the Second Closing Date, as the case may be,
addressed to the Underwriters, covering matters relating to the patents and
other intellectual property owned or licensed by the Company to the effect
that:
(i) To such counsel's knowledge, the statements in the
Registration Statement and the Prospectus under the caption
"Business -- Patents and Proprietary Technology" are accurate
summaries of the matters therein set forth.
(ii) Based upon counsel's search of the dockets and a
certificate of the Company officers, there are no pending legal
proceedings relating to Proprietary Rights of the Company, and, to
such counsel's knowledge, no such proceedings are threatened except
for three matters arising out of the Company's licensing.
-19-
(iii) To such counsel's knowledge, based on a certificate of
officers of the Company and on the basis of the limited reviews of
the patent and trademark matters requested of such counsel by the
Company to date, (a) the Company's products do not infringe any
patents of others, nor does the Company infringe or otherwise
violate any copyrights, trade secrets, trademarks, service marks,
or proprietary information of others, and (b) except as described
in paragraph (ii) above, no person is infringing or otherwise
violating any of the Company's Proprietary Rights in a way which
could materially affect the use thereof by the Company.
(iv) The Company is listed in the records of the United
States Patent and Trademark Office as the sole owner or assignee of
record of each of the Company's issued patents listed on a schedule
to the opinion (the "Patents") and each of the applications listed
on a schedule to the opinion (the "Applications"). To such
counsel's knowledge, there are no asserted or unasserted claims of
any persons relating to the scope or ownership of the Patents or
Applications, there are no liens which have been filed against any
of the Patents or Applications, there are no material defects of
form in the preparation or filing of the Applications, and the
Applications are being diligently prosecuted.
(v) Such counsel has no reason to believe that the
Applications will not eventuate in issued patents, or that any
patents issued in respect of any such Applications will not be
valid or will not afford the Company reasonable patent protection
relative to the subject matter thereof.
(vi) Nothing has come to the attention of such counsel that
causes such counsel to believe that the discussion of the
Proprietary Rights set forth in (A) the Registration Statement or
any amendment thereof, at the time the Registration Statement
became effective and as of the First Closing Date or the Second
Closing Date, as the case may be, contained or contains any untrue
statement of a material fact or omitted or omits to state any
material fact required to be stated therein or necessary to make
the statements therein not misleading or (B) the Prospectus as
amended or supplemented, as of the date of the Prospectus or any
such amendment of supplement and as of the First Closing Date or
the Second Closing Date, as the case may be, contained or contains
any untrue statement of a material fact or omitted or omits to
state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances in
which they were made, not misleading.
(f) The Representative shall have received from Xxxxxxxxxxx Xxxxx
& Xxxxxxxx LLP, its counsel, such opinion or opinions as the Representative
may reasonably require, dated the First Closing Date or the Second Closing
Date, as the case may be, with respect to the sufficiency of corporate
proceedings and other legal matters relating to this Agreement and the
transactions contemplated hereby, and other related matters as the
Representative may reasonably request; and the Company and its counsel shall
have furnished to
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said counsel such documents as they may have reasonably requested for the
purpose of enabling them to pass upon such matters. In connection with such
opinion, as to matters of fact relevant to conclusions of law, such counsel
may rely, to the extent that they deem proper, upon representations or
certificates of public officials and of responsible officers of the Company.
(g) The Representative and the Company shall have received
letters, dated the date hereof and the First Closing Date and the Second
Closing Date, as the case may be, from Xxxxxx Xxxxxxxx LLP, to the effect
that they are independent public accountants with respect to the Company
within the meaning of the Act and the related rules and regulations, stating
that in their opinion the financial statements and schedules examined by them
an included in the Registration Statement comply in form in all material
respects with the applicable accounting requirements of the Act and the
related rules and regulations, and containing such other statements and
information of the type ordinarily included in accountants' "comfort letters"
to underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectus.
(h) The Representative shall have received from the Company a
certificate, dated as of each Closing Date, of the Chief Executive Officer
and the Chief Financial Officer of the Company to the effect that as of the
First Closing Date and the Second Closing Date:
(i) The representations and warranties of the Company in this
Agreement are true and correct as if made on and as of each Closing
Date. The Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at, or
prior to, each such Closing Date.
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceeding for that
purpose has been instituted or is pending or to the best knowledge
of such officers contemplated under the Act.
(iii) Neither the Registration Statement nor the Prospectus
nor any amendment thereof or supplement thereto includes any untrue
statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not
misleading, and, since the Effective Date, there has occurred no
event required to be set forth in an amended or supplemented
prospectus which has not been so set forth; provided, however, that
such certificate does not require any representation concerning
statements in, or omissions from, the Registration Statement or
Prospectus or any amendment thereof or supplement thereto, which
are based upon and conform to written information furnished to the
Company by any of the Underwriters specifically for use in the
preparation of the Registration Statement or the Prospectus or any
such amendment or supplement.
(iv) Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus and except as contemplated or referred to in the
Prospectus, the Company has not incurred any direct or
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contingent liabilities or obligations material to the Company, or
entered into any material transactions, except liabilities,
obligations or transactions in the ordinary course of business, or
declared or paid any dividend or made any distribution of any kin
with respect to its capital stock, and there has not been any
change in the capital stock (other than a change in the number of
outstanding shares of Common Stock due to the exercise of options
or warrants described in the Registration Statement and the
Prospectus) and there has not been any material adverse change in
the capital stock, short-term debt, or long-term debt (including
capitalized lease obligations) of the Company, or any material
adverse change or any development involving a prospective material
adverse change (whether or not arising in the ordinary course of
business) in or affecting the general affairs, condition (financial
or otherwise), business, key personnel, property, prospects,
shareholders' equity or results of operations of the Company.
(v) Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus, the Company has not sustained any material loss of, or
damage to, its properties, whether or not insured.
(vi) Except as is otherwise expressly stated in the
Registration Statement and Prospectus there are no material
actions, suits or proceedings pending before any court or
governmental agency, authority or body, or, to the best of such
officer's knowledge, threatened, to which the Company is a party or
of which the business or property of the Company is the subject.
(i) The Representative shall have received, dated as of each
Closing Date, from the Secretary of the Company a certificate of incumbency
certifying the names, titles and signatures of the officers authorized to
execute the resolutions of the Board of Directors of the Company authorizing
and approving the execution, delivery and performance of this Agreement, a
copy of such resolutions to be attached to such certificate, certifying such
resolutions and certifying that the Restated Articles of Incorporation, as
Amended and the Restated Bylaws of the Company have been validly adopted and
have not been amended or modified, except as described in the Prospectus.
(j) The Representative shall have received a written agreement in
the form substantially as set forth in Schedule B, enforceable by the
Representative, from each of officer and director of the Company and such
shareholders as may be requested by the Representative that for 180 days
following the Effective Date, such person will not, without the
Representative's prior written consent, sell, transfer or otherwise dispose
of, or agree to sell, transfer or otherwise dispose of, other than by gift to
donees who agree to be bound by the same restriction or by will or the laws
of descent, any of his or her Common Stock, or any options, warrants or
rights to purchase Common Stock or any shares of Common Stock received upon
exercise of any options, warrants or rights to purchase Common Stock, all of
which are beneficially held by such persons during the 180 day period.
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(k) The Company's Common Stock shall have been approved for
listing on the Nasdaq National Market.
(l) The Company shall have furnished to the Underwriters, dated as
of the date of each Closing Date, such further certificates and documents as
the Underwriters shall have reasonably required.
(m) All such opinions, certificates, letters and documents will be
in compliance with the provisions hereof only if they are reasonably
satisfactory to the Representative and their legal counsel. All statements
contained in any certificate, letter or other document delivered pursuant
hereto by, or on behalf of, the Company shall be deemed to constitute
representations and warranties of the Company.
(n) The Representative may waive in writing the performance of any
one or more of the conditions specified in this Section 5 or extend the time
for their performance.
(o) If any of the conditions specified in this Section 5 shall not
have been fulfilled when and as required by this Agreement to be fulfilled,
this Agreement and all obligations of the Underwriters hereunder may be
canceled at, or at any time prior to, each closing date by the
Representative. Any such cancellation shall be without liability of the
Underwriters to the Company or to any other party, and shall not relieve the
Company of its obligations under Section 4(h) hereof. Notice of such
cancellation shall be given to the Company at the address specified in
Section 11 hereof in writing, or by facsimile or telephone and confirmed in
writing.
6. INDEMNIFICATION.
(a) The Company hereby agrees to indemnify and hold harmless each
Underwriter, each officer and director thereof, and each person, if any, who
controls any Underwriter within the meaning of the Act, against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter
or each such person may become subject, under the Act, the Exchange Act, the
common law or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof), arise out of, or are based upon,
(i) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, any Preliminary Prospectus or the
Prospectus including any amendment thereof, or (ii) the omission or alleged
omission to state in the Registration Statement, any Preliminary Prospectus
or Prospectus including any amendment thereof 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; or (iii) any untrue
statement or alleged untrue statement of a material fact contained in any
application or other statement executed by the Company or based upon written
information furnished by the Company filed in any jurisdiction in order to
quality the Shares under, or exempt the Shares or the sale thereof from
qualification under, the securities laws of such jurisdiction, or the
omission or alleged omission to state in such application or statement 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; and the Company will reimburse each Underwriter and each such
controlling person for any legal or other expenses reasonably
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incurred by such Underwriter or controlling person (subject to the limitation
set forth in Section 6(c) hereof, in connection with investigating or
defending against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that the Company will not be liable
in any such case to the extent that any such loss, claim, damage or liability
arises out of, or is based upon, any untrue statement, or alleged untrue
statement, omission or alleged omission, made in reliance upon and in
conformity with information furnished to the Company by, or on behalf of, any
Underwriter in writing specifically for use in the preparation of the
Registration Statement or any such post effective amendment thereof, any such
Preliminary Prospectus or the Prospectus or any such amendment thereof or
supplement thereto; and provided further, that the foregoing indemnity
agreement is subject to the condition that, insofar as it relates to any
untrue statement, alleged untrue statement, omission or alleged omission made
in any Preliminary Prospectus but eliminated, remedied or corrected in the
Prospectus (or any amendment or supplement thereto) such indemnity agreement
shall not inure to the benefit of any Underwriter (or to the benefit of any
person who controls such Underwriter), if the person asserting any loss,
claim, damage or liability as a result of such untrue statement or omission
purchased the Shares from such Underwriter and was not sent or given a copy
of the Prospectus with, or prior to, the written confirmation of the sale of
such Shares to such person by such Underwriter unless such failure to deliver
the Prospectus (as amended or supplemented) was the result of noncompliance
by the Company with Section 4(c). This indemnity agreement is in addition to
any liability which the Company may otherwise have.
(b) Each Underwriter severally, but not jointly, agrees to
indemnify and hold harmless the Company, each of the Company's directors,
each of the Company's officers who has signed the Registration Statement and
each person who controls the Company within the meaning of the Act against
any losses, claims, damages or liabilities to which the Company or any such
director, officer, or controlling person may become subject, under the Act,
the Exchange Act, the common law, or otherwise, insofar as such losses,
claims, damages, or liabilities (or actions in respect thereof) arise out of,
or are based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, any Preliminary
Prospectus or Prospectus, including any amendment thereof, (ii) the omission
or alleged omission to state in the Registration Statement, any Preliminary
Prospectus or Prospectus including any amendment thereof 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; or
(iii) any untrue statement or alleged untrue statement of a material fact
contained in any application or other statement executed by the Company or by
any Underwriter and filed in any jurisdiction in order to qualify the Shares
under, or exempt the Shares or the sale thereof from qualification under, the
securities laws of such jurisdiction, or the omission or alleged omission to
state in such application or statement 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; in each of the
above cases to the extent, but only the extent, that such untrue statement,
alleged untrue statement, omission or alleged omission, was made in reliance
upon and in conformity with information furnished to the Company by, or on
behalf of, any Underwriter in writing specifically for use in the preparation
of the Registration Statement or any such post effective amendment thereof,
any such Preliminary Prospectus or the Prospectus or any such amendment
thereof or supplement thereto, or in any application or other statement
executed
-24-
by the Company or by any Underwriter and filed in any jurisdiction; and each
Underwriter will reimburse any legal or other expenses reasonably incurred by
the Company or any such director, officer or controlling person in connection
with investigating or defending against any such loss, claim, damage,
liability or action as such expenses are incurred. This indemnity agreement
is in addition to any liability which the Underwriters may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 6 of notice of the commencement of any action or proceeding
(including any governmental investigation), such indemnified party will, if a
claim in respect thereof is to be made against any indemnifying party under
this Section 6, notify in writing the indemnifying party of the commencement
thereof. The failure to so notify the indemnifying party will not relieve
such party from any liability under this Section 6 as to the particular item
for which indemnification is then being sought, unless such failure so to
notify prejudices the indemnifying party's ability to defend such action. In
case any such action is brought against any indemnified party and the
indemnified party notifies an indemnifying party of the commencement thereof,
the indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel who shall be reasonably
satisfactory to such indemnified party; and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section 6 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation; provided,
however, that if, in the reasonable judgment of the indemnified party, it is
advisable for such parties and controlling persons to be represented by
separate counsel, any indemnified party shall have the right to employ
separate counsel to represent it and all other parties and their controlling
persons who may be subject to liability arising out of any claim in respect
of which indemnity may be sought by the Underwriters against the Company or
by the Company against the Underwriters hereunder, in which event the fees
and expenses of such separate counsel shall be borne by the indemnifying
party; provided, however, if the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available
to the indemnifying party, or the indemnified and indemnifying parties may
have conflicting interests which would make it inappropriate for the same
counsel to represent both of them, the indemnified party shall have the right
to select separate counsel to assume such defense and to otherwise
participate in the defense of such action on behalf of such indemnified party
and all other parties and their controlling persons. Any such indemnifying
party shall not be liable to any such indemnified party on account of any
settlement of any claim or action effected without the consent of such
indemnifying party.
7. CONTRIBUTION.
(a) If the indemnification provided for in Section 6 is
unavailable or insufficient to hold harmless any indemnified party in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities
in such proportion as is appropriate to reflect the relative benefits
received by the Company and the
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Underwriters from the offering of the Shares. In the event that the
allocation provided by the immediately preceding sentence is not permitted by
applicable law, then each indemnifying party shall contribute in such
proportion as is appropriate to reflect not only the relative benefits
referred to above but also the relative fault of the Company and the
Underwriters in connection with the statements or omissions which resulted in
such losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. The Company and the Underwriters agree that
contribution determined by per capita allocation (even if the Underwriters
were considered a single person) would not be equitable. The respective
relative benefits received by the Company on the one hand, and the
Underwriters, on the other, shall be deemed to be in the same proportion (a)
in the case of the Company, as the total price paid to the Company for the
Shares by the Underwriters (net of underwriting discount received but before
deducting expenses) bears to the aggregate Offering Price of the Shares, and
(b) in the case of the Underwriters, as the aggregate underwriting discount
received by them bears to the aggregate Offering Price of the Shares, in each
case as reflected in the Prospectus. The relative fault of the Company and
the Underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company 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, claims, damages and liabilities referred to above
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating or defending any
action or claim. Notwithstanding the provisions of this Section 7, 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 it were
offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any untrue or
alleged untrue statement or omission or alleged omission in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto. The Underwriters' obligation to contribute pursuant to
this Section 7 is several and not joint. No person guilty of fraudulent
misrepresentation (within the meaning of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person who controls
an Underwriter within the meaning of the Act or the Exchange Act shall have
the same rights to contribution as such Underwriter, each person who controls
the Company within the meaning of the Act or the Exchange Act shall have the
same rights to contribution as the Company and each officer of the Company
who shall have signed the Registration Statement and each director of the
Company shall have the same rights to contribution as the Company.
(b) Promptly after receipt by a party to this Agreement of notice
of the commencement of any action, suit, or proceeding, such person will, if
a claim for contribution in respect thereof is to be made against another
party (the "Contributing Party"), notify the Contributing Party of the
commencement thereof, but the failure to so notify the Contributing Party
will not relieve the Contributing Party from any liability which it may have
to any party other than under this Section 7, unless such failure to so
notify prejudices the Contributing Party's ability to defend such action. Any
notice given pursuant to Section 6 hereof shall be deemed to be like notice
hereunder. In case any such action, suit or proceeding is brought
-26-
against any party, and such person notifies a Contributing Party of the
commencement thereof, the Contributing Party will be entitled to participate
therein with the notifying party and any other Contributing Party similarly
notified.
(c) The obligations of the Company under this Section 7 shall be
in addition to any liability which the Company may otherwise have, and the
obligations of the Underwriter under this Section 7 shall be in addition to
any liability which the Underwriters may otherwise have.
8. EFFECTIVE DATE AND TERMINATION.
(a) This Agreement shall become effective at the later of (i) the
day upon which this Agreement shall have been executed and delivered by the
parties hereto, or (ii) (ii) at 10:00 a.m. Minneapolis time, on the first
full business day following the Effective Date, or at such earlier time after
the Effective Date as the Representative in its discretion shall first
release the Shares for offering to the public. For purposes of this Section
8, the Shares shall be deemed to have been released to the public upon
release by the Representative of the publication of a newspaper advertisement
relating to the Shares or upon release of a telegram or a letter offering the
Shares for sale to securities dealers, whichever shall first occur.
(b) The Representative shall have the right to terminate this
Agreement by giving notice to the Company as hereinafter specified at any
time prior to the First Closing Date, and the option referred to in Section
2(b), if exercised, may be canceled at any time by the Representative by
giving such notice to the Company at any time prior to the Second Closing
Date, if (i) the Company shall have failed, refused or been unable, at or
prior to the First Closing Date, to perform any material agreement on its
part to be performed hereunder; (ii) any other condition of the Underwriters'
obligations hereunder is not fulfilled; (iii) trading in securities generally
on the New York Stock Exchange, American Stock Exchange or the Nasdaq Stock
Market shall have been suspended, or minimum or maximum prices for trading
shall have been required or established by the Commission or by any such
exchange or the Nasdaq Stock Market; (iv) a banking moratorium shall have
been declared by federal, New York or Minnesota authorities; (v) there shall
have been such a material adverse change in general economic, monetary,
political or financial conditions, or the effect of international conditions
on the financial markets in the United States shall be such as, in the
judgment of the Representative, makes it impracticable or inadvisable to
proceed with the completion of the sale of and payment for the Shares; (vi)
there shall have been the enactment, publication, decree or other
promulgation of any federal or state statute, regulation, rule or order of
any court or other governmental authority, which in the judgment of the
Representative materially and adversely affects or will materially and
adversely affect the business or operations of the Company; or (vii) there
shall be an outbreak of major hostilities (or an escalation thereof) in which
the United States is involved or a formal declaration of war by the United
States of America shall have occurred or any other substantial national or
international calamity or any other event or occurrence of a similar
character shall have occurred since the execution of this Agreement that, in
the judgment of the Representative, makes it impracticable or inadvisable to
proceed with the completion of the sale of and payment for the Shares. Any
such termination shall be without
-27-
liability of any party to any other party, except as provided in Sections 6
and 7 hereof; provided, however, that the Company shall remain obligated to
pay costs and expenses to the extent provided in Section 4(i) hereof.
(c) If the Representative elects to prevent this Agreement from
becoming effective or to terminate this Agreement as provided in this Section
8, it shall notify the Company promptly by telecopy or telephone, confirmed
by letter sent to the address specified in Section 11 hereof. If the Company
shall elect to prevent this Agreement from becoming effective, it shall
notify the Representative promptly by telecopy or telephone, confirmed by
letter sent to the address specified in Section 11 hereof.
(d) If the Company shall fail at the First Closing Date to sell
and deliver the number of Shares which it is obligated to sell hereunder,
then this Agreement shall terminate without any liability on the part of any
Underwriter. No action taken pursuant to this Section 8(d) shall relieve the
Company from liability, if any, in respect of such default.
9. DEFAULT OF UNDERWRITER.
If on the First Closing Date or the Second Closing Date, as the case may
be, any Underwriter shall fail to purchase and pay for the portion of the
Shares which such Underwriter has agreed to purchase and pay for on such date
(otherwise than by reason of any default on the part of the Company), you, as
Representative of the Underwriters, shall use your best efforts to procure
within 36 hours thereafter one or more of the other Underwriters, or any
others, to purchase from the Company such amounts as may be agreed upon, and
upon the terms set fort herein, of the Firm Shares or Option Shares, as the
case may be, which the defaulting Underwriter or Underwriters failed to
purchase. If during such 36 hours you, as Representative, shall not have
procured such other Underwriters, or any others, to purchase the Firm Shares or
Option Shares, as the case may be, agreed to be purchased by the defaulting
Underwriter or Underwriters, then (i) if the aggregate number of Shares with
respect to which such default shall occur does no exceed 10% of the Firm Shares
or Option Shares, as the case may be, covered hereby the other Underwriters
shall be obligated, severally, in proportion to the respective numbers of Firm
Shares or Option Shares, as the case may be, which they are obligated to
purchase hereunder, to purchase the Firm Shares or Option Shares, as the case
may be, which such defaulting Underwriter or Underwriters failed to purchase or
(ii) if the aggregate number of shares of Firm Shares or Option Shares, as the
case may be, with respect to which such default shall occur exceeds 10% of the
Firm Shares or Option Shares, as the case may be, covered hereby, the Company
or you as the Representative of the Underwriters will have the right, by
written notice given within the next 36-hour period to the parties to this
Agreement, to terminate this Agreement without liability on the part of the non-
defaulting Underwriters or of the Company except for expenses to be borne by
the Company and the Underwriters as provided in Section 4(i) hereof and the
indemnity and contribution agreements in Sections 6 and 7 hereof. In the event
of a default by any Underwriter or Underwriters, as set forth in this Section
9, the First Closing Date or Second Closing Date, as the case may be, may be
postponed for such period, not exceeding seven days, as you, as
Representatives, may determine in order that the required
-28-
changes, not including a reduction in the number of Firm Shares, in the
Registration Statement or in the Prospectus or in any other documents or
arrangements may be effected. The term "Underwriter" includes any person
substituted for a defaulting Underwriter. Any action taken under this Section
9 shall not relieve any defaulting Underwriter from liability in respect of
any default of such Underwriter under this Agreement.
10. SURVIVAL.
The respective indemnity and contribution agreements of the Company and
the Underwriters contained in Sections 6 and 7, respectively, the
representations and warranties of the Company set forth in Section 1 hereof
and the covenants of the Company set forth in Section 4 hereof shall remain
operative and in full force and effect, regardless of any investigation made
by, or on behalf of, the Underwriters, the Company, any of its officers and
directors or any controlling person referred to in Sections 6 and 7 and shall
survive the delivery of and payment for the Shares. The aforesaid indemnity
and contribution agreements shall also survive any termination or
cancellation of this Agreement. Any successor of any party or of any such
controlling person, or any legal representative of such controlling person,
as the case may be, shall be entitled to the benefit of the respective
indemnity and contribution agreements.
11. NOTICES.
All notices or communications hereunder, except as herein otherwise
specifically provided, shall be in writing and, if sent to the Representative
or any of the Underwriters, shall be mailed, delivered, or telecopied and
confirmed, to Xxxx X. Xxxxxxx and Company, Incorporated, 000 Xxxxxx Xxxxxx
Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxx, with a copy
to D. Xxxxxxx Xxxxxxx, Esq., Xxxxxxxxxxx Xxxxx & Xxxxxxxx LLP, Plaza VII, 00
Xxxxx Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxxxx, Xxxxxxxxx 00000; or, if sent
to the Company, shall be mailed, delivered, or telegraphed, and confirmed, to
SurModics, Inc., 0000 Xxxx 00xx Xxxxxx, Xxxx Xxxxxxx, Xxxxxxxxx 00000,
Attention: Xxxx X. Xxxxxx, with a copy to Xxxxx X. Xxxxx, Esq., Xxxxxxxxxx &
Xxxxx, P.A., 000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxxxxxx, Xxxxxxxxx
00000.
12. INFORMATION FURNISHED BY THE UNDERWRITER.
The statements relating to the stabilization activities of the
Underwriters and the statements in paragraphs 3, 5 and 7 under the caption
"Underwriting" in any Preliminary Prospectus and in the Prospectus constitute
the information furnished by, or on behalf of, the Underwriters in writing
specifically for use with reference to the Underwriters referred to in
Section 1(b) and Section 6 hereof.
13. PARTIES.
This Agreement shall inure to the benefit of and be binding upon each of
the Underwriters and the Company, their respective successors and assigns and
the officers, directors and controlling persons referred to in Sections 6 and
7. Nothing expressed in this Agreement is
-29-
intended or shall be construed to give any person or corporation, other than
the parties hereto, their respective successors and assigns and the
controlling persons, officers and directors referred to in Sections 6 and 7
any legal or equitable right, remedy or claim under, or in respect of, this
Agreement or any provision herein contained, this Agreement and all
conditions and provisions hereof being intended to be and being for the sole
and exclusive benefit of the parties hereto and their respective executors,
administrators, successors, assigns and such controlling persons, officers
and directors, and for the benefit of no other person or corporation. No
purchaser of any Shares from the Underwriters shall be construed to be a
successor or assign merely by reason of such purchase.
14. GOVERNING LAW.
This Agreement shall be construed and enforced in accordance with the
laws of the State of Minnesota, without regard to conflict of law provisions.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed counterpart of this
Agreement, whereupon it will become a binding agreement between the Company
and each of the several Underwriters in accordance with its terms.
Very truly yours,
SURMODICS, INC.
By
-------------------------------------
Its
----------------------------------
The foregoing Underwriting Agreement
is hereby confirmed and accepted by us
for itself and as Representative of the
several Underwriters referred to in the
foregoing Agreement as of the date
first above written.
XXXX X. XXXXXXX
AND COMPANY, INCORPORATED
By
---------------------------------
Its
--------------------------------
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SCHEDULE A
NAME OF UNDERWRITER NUMBER OF FIRM SHARES
Xxxx X. Xxxxxxx and Company, Incorporated
Total 2,000,000
-31-
SCHEDULE B
FORM OF LOCK UP AGREEMENT
Xxxx X. Xxxxxxx & Company, Incorporated
As Representative of the Several Underwriters
000 Xxxxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
Re: SurModics, Inc.
Ladies & Gentlemen:
The undersigned is an owner of certain shares of common Stock of the Company
("Common Stock") or securities convertible into or exchangeable or
exercisable for Common Stock. The Company proposes to carry out a public
offering of Common Stock (the "Offering") for which you will act as
representative to the Underwriters (the "Representative"). In that regard,
the Company intends to file with the Securities and Exchange Commission (the
"SEC") a registration statement on Form S-1 (the "Registration Statement")
for the offer and sale of shares of Common Stock. The undersigned
recognizes that the Offering will benefit the undersigned and the Company by,
among other things, raising additional capital for the Company's operations.
The undersigned acknowledges that you will rely upon the representations and
agreements of the undersigned contained in this letter in carrying out the
Offering and entering into underwriting arrangements with the Company.
In consideration of the foregoing, for a period commencing on today's date
and continuing to a date 180 days from the effective date of the Registration
Statement, the undersigned hereby agrees that the undersigned will not,
without the prior written consent of Xxxx X. Xxxxxxx & Company, Incorporated
(which consent may be withheld in its sole discretion), directly or
indirectly, sell, assign, offer, pledge, transfer, encumber, grant any option
for the sale of, or otherwise dispose of any shares of Common Stock, options
or warrants to acquire shares of Common Stock, or securities exchangeable or
exercisable for or convertible into shares of Common Stock currently or
hereafter owned by the undersigned, or publicly announce the undersigned's
intention to do any of the foregoing.
During the time period described above, the undersigned also agrees and
consents to the entry of stop transfer instructions with the Company's
transfer agent and registrar against the transfer of shares of Common Stock
or securities convertible into or exchangeable or exercisable for Common
Stock held by the undersigned. This Agreement is irrevocable and will be
binding on the undersigned and the respective successors, heirs, personal
representatives, and assigns of the undersigned.
If the SEC does not declare the Registration Statement effective by June 30,
1998, this Lock Up Agreement shall be null and void.
DATED: Shareholder or Optionee:
----------------------------
X
-----------------------------------
(SIGNATURE of Shareholder, Optionee
or authorized person)
By:
--------------------------------
(If Shareholder or Optionee is not
an individual, print name and title
of signatory)
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