Exhibit 1.1
BRUKER BIOSCIENCES CORPORATION
[ Shares]
Common Stock
($0.01 Par Value)
[FORM OF]
UNDERWRITING AGREEMENT
[Trade Date]
UNDERWRITING AGREEMENT
[Trade Date]
UBS Securities LLC
Bear, Xxxxxxx & Co. Inc.
XX Xxxxx Securities Corporation
as Managing Underwriters
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Bruker Biosciences Corporation, a Delaware corporation (the "Company"),
proposes to issue and sell and the persons named under the caption Selling
Stockholders in Schedule B annexed hereto (the "Selling Stockholders" and
collectively with the Company, the "Sellers") propose to sell to the
underwriters named in Schedule A annexed hereto (the "Underwriters"), for
whom you are acting as representative(s), an aggregate of 15,000,000 shares
(the "Firm Shares") of Common Stock, $0.01 par value (the "Common Stock"), of
the Company, of which 3,000,000 shares are to be issued and sold by the
Company and an aggregate of 12,000,000 shares are to be sold by the Selling
Stockholders in the respective amounts set forth under the caption "Firm
Shares" in Schedule B annexed hereto. In addition, solely for the purpose of
covering over-allotments, the Sellers propose to grant to the Underwriters
the option to purchase from the Sellers up to an additional 2,250,000 shares
of Common Stock (the "Additional Shares") in the respective maximum amounts
set forth under the caption "Additional Shares" in Schedule B hereto. The
Firm Shares and the Additional Shares are hereinafter collectively sometimes
referred to as the "Shares." The Shares are described in the Prospectus which
is referred to below.
The Company has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the "Act"), with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 333-113774)
including a prospectus, relating to the Shares, which incorporates by reference
documents which the Company has filed or will file in accordance with the
provisions of the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (collectively, the "Exchange Act"). The Company has
furnished to you, for use by the Underwriters and by dealers, copies of one or
more preliminary prospectuses and the documents incorporated by reference
therein (each thereof, including the documents incorporated therein by
reference, being herein called a "Preliminary
Prospectus") relating to the Shares. Except where the context otherwise
requires, the registration statement, as amended when it becomes effective,
including all documents filed as a part thereof or incorporated by reference
therein, and including any information contained in a prospectus subsequently
filed with the Commission pursuant to Rule 424(b) under the Act and deemed to be
part of the registration statement at the time of effectiveness pursuant to Rule
430(A) under the Act and also including any registration statement filed
pursuant to Rule 462(b) under the Act, is herein called the "Registration
Statement," and the prospectus, including all documents incorporated therein by
reference, in the form filed by the Company with the Commission pursuant to Rule
424(b) under the Act on or before the second business day after the date hereof
(or such earlier time as may be required under the Act) or, if no such filing is
required, the form of final prospectus included in the Registration Statement at
the time it became effective, is herein called the "Prospectus." As used herein,
"business day" shall mean a day on which the New York Stock Exchange is open for
trading.
The Company, the Selling Stockholders and the Underwriters agree as
follows:
1. SALE AND PURCHASE. Upon the basis of the representations and
warranties and subject to the terms and conditions herein set forth, the Company
and each of the Selling Stockholders, severally and not jointly, agrees to issue
and sell to the respective Underwriters and each of the Underwriters, severally
and not jointly, agrees to purchase from the Company and each Selling
Stockholder the respective number of Firm Shares (subject to such adjustment as
you may determine to avoid fractional shares) which bears the same proportion to
the number of Firm Shares to be sold by the Company or by such Selling
Stockholders, as the case may be, as the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule A attached hereto, subject to
adjustment in accordance with Section 10 hereof, in each case at a purchase
price of $______ per Share. The Company and each Selling Stockholder is advised
by you that the Underwriters intend (i) to make a public offering of their
respective portions of the Firm Shares as soon after the effective date of the
Registration Statement as in your judgment is advisable and (ii) initially to
offer the Firm Shares upon the terms set forth in the Prospectus. You may from
time to time increase or decrease the public offering price after the initial
public offering to such extent as you may determine.
In addition, the Company and the Selling Stockholders listed on
Schedule B heretohereby grant to the several Underwriters the option to
purchase, and upon the basis of the representations and warranties and subject
to the terms and conditions herein set forth, the Underwriters shall have the
right to purchase, severally and not jointly, from the Company and the Selling
Stockholders listed on Schedule B hereto, ratably in accordance with the number
of Firm Shares to be purchased by each of them, all or a portion of the
Additional Shares as may be necessary to cover over-allotments made in
connection with the offering of the Firm Shares, at the same purchase price per
share to be paid by the Underwriters to the Company and the Selling Stockholders
listed on Schedule B hereto for the Firm Shares. This option may be exercised by
UBS Securities LLC ("UBS") on behalf of the several Underwriters at any time and
from time to time on or before the thirtieth day following the date hereof, by
written notice to the Company and the Selling Stockholders listed on Schedule B
hereto. Such notice shall set forth the aggregate number of Additional Shares as
to which the option is being exercised, and the date and time when the
Additional Shares are to be delivered (such date
2
and time being herein referred to as the "additional time of purchase");
PROVIDED, HOWEVER, that the additional time of purchase shall not be earlier
than the time of purchase (as defined below) nor earlier than the second
business day after the date on which the option shall have been exercised nor
later than the tenth business day after the date on which the option shall
have been exercised. The number of Additional Shares to be purchased by each
Underwriter shall be the number which bears the same proportion to the
aggregate number of Additional Shares being purchased as the number of Firm
Shares set forth opposite the name of such Underwriter on Schedule A hereto
bears to the total number of Firm Shares (subject, in each case, to such
adjustment as you may determine to eliminate fractional shares), subject to
adjustment in accordance with Section 10 hereof. If, at any time, the
Underwriters purchase a portion of the Additional Shares, the number of
Additional Shares to be sold by each Seller shall be the number which bears
the same proportion to the aggregate number of Additional Shares being sold
as the number of Firm Shares set forth opposite the name of such Seller on
Schedule B hereto bears to the total number of Firm Shares (subject, in each
case, to such adjustment as you may determine to eliminate fractional
shares), subject to adjustment in accordance with Section 10 hereof.
Pursuant to powers of attorney, which shall be satisfactory to counsel
for the Underwriters, granted by each Selling Stockholder, Xxxxx X. Xxxxxxx,
Ph.D. and Xxxxxxx Xxxxx will act as representatives of the Selling Stockholders.
The foregoing representatives (the "Representatives of the Selling
Stockholders") are authorized, on behalf of each Selling Stockholder, to execute
any documents necessary or desirable in connection with the sale of the Shares
to be sold hereunder by each Selling Stockholder, to make delivery of the
certificates of such Shares, to receive the proceeds of the sale of such Shares,
to give receipts for such proceeds, to pay therefrom the expenses to be borne by
each Selling Stockholder in connection with the sale and public offering of the
Shares, to distribute the balance of such proceeds to each Selling Stockholder
in proportion to the number of Shares sold by each Selling Stockholder, to
receive notices on behalf of each Selling Stockholder and to take such other
action as may be necessary or desirable in connection with the transactions
contemplated by this Agreement.
2. PAYMENT AND DELIVERY. Payment of the purchase price for the Firm
Shares shall be made to the Company and each of the Selling Stockholders by
Federal Funds wire transfer, against delivery of the certificates for the Firm
Shares to you through the facilities of The Depository Trust Company (DTC) for
the respective accounts of the Underwriters. Such payment and delivery shall be
made at 10:00 A.M., New York City time, on _______________, 2004 (unless another
time shall be agreed to by you and the Company and the Representatives of the
Selling Stockholders or unless postponed in accordance with the provisions of
Section 10 hereof). The time at which such payment and delivery are to be made
is hereinafter sometimes called "the time of purchase." Electronic transfer of
the Firm Shares shall be made to you at the time of purchase in such names and
in such denominations as you shall specify.
Payment of the purchase price for the Additional Shares shall be made
at the additional time of purchase in the same manner and at the same office as
the payment for the Firm Shares. Electronic transfer of the Additional Shares
shall be made to you at the additional time of purchase in such names and in
such denominations as you shall specify.
Deliveries of the documents described in Section 8 hereof with respect
to the purchase of the Shares shall be made at the offices of Xxxxx Xxxxxxxxxx
LLP, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 9:00 A.M., New
York City time, on the date of the closing of the purchase of the Firm Shares or
the Additional Shares, as the case may be.
3
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has been declared effective
under the Act; no stop order of the Commission preventing or suspending
the use of any Preliminary Prospectus or the effectiveness of the
Registration Statement has been issued and no proceedings for such
purpose have been instituted or, to the Company's knowledge after due
inquiry, are contemplated by the Commission; each Preliminary
Prospectus, at the time of filing thereof, complied in all material
respects to the requirements of the Act and the last Preliminary
Prospectus distributed in connection with the offering of the Shares
did not, as of its date, and does not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; the
Registration Statement complied when it became effective, complies and
will comply, at the time of purchase and any additional time of
purchase, in all material respects with the requirements of the Act and
the Prospectus will comply, as of its date and at the time of purchase
and any additional times of purchase, in all material respects with the
requirements of the Act and any statutes, regulations, contracts or
other documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement have been and will be so described or filed; the
conditions to the use of Form S-3 have been satisfied; the Registration
Statement did not when it became effective, does not and will not, at
the time of purchase and any additional time of purchase, contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading and the Prospectus will not, as of its date and
at the time of purchase and any additional time of purchase, contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; PROVIDED, HOWEVER, that the Company makes no warranty or
representation with respect to any statement contained in the
Preliminary Prospectus, the Registration Statement or the Prospectus in
reliance upon and in conformity with information concerning an
Underwriter and furnished in writing by or on behalf of such
Underwriter through you to the Company expressly for use in the
Preliminary Prospectus, the Registration Statement or the Prospectus;
the documents incorporated by reference in the Preliminary Prospectus,
the Registration Statement and the Prospectus, at the time they became
effective or were filed with the Commission, complied in all material
respects with the requirements of the Exchange Act and did not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; and the Company has not distributed and will not distribute
any offering material in connection with the offering or sale of the
Shares other than the Registration Statement, the Preliminary
Prospectus and the Prospectus;
(b) as of the date of this Agreement, the Company has an
authorized and outstanding capitalization as set forth under the
heading "Actual" in the section of the
4
Registration Statement and the Prospectus entitled "Capitalization"
and, as of the time of purchase and the additional time of purchase, as
the case may be, the Company shall have an authorized and outstanding
capitalization as set forth under the heading "As Adjusted" in the
section of the Registration Statement and the Prospectus entitled
"Capitalization"; all of the issued and outstanding shares of capital
stock, including the Common Stock, of the Company have been duly
authorized and validly issued and are fully paid and non-assessable,
have been issued in compliance with all federal and state securities
laws and were not issued in violation of any preemptive right, resale
right, right of first refusal or similar right;
(c) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with full corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Registration Statement and the Prospectus, to execute and deliver this
Agreement and to issue, sell and deliver the Shares as contemplated
herein;
(d) the Company is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where the
ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to be so
qualified and in good standing would not, individually or in the
aggregate, have a material adverse effect on the business, properties,
financial condition, results of operation or prospects of the Company
and the Subsidiaries (as hereinafter defined) taken as a whole (a
"Material Adverse Effect");
(e) the Company has no subsidiaries (as defined in the
Exchange Act) other than those set forth on SCHEDULE C hereto
(collectively, the "Subsidiaries"); the Company owns 100% of the
outstanding common stock of the Subsidiaries; other than the capital
stock of the Subsidiaries and except as disclosed in the Registration
Statement and Prospectus, the Company does not own, directly or
indirectly, any shares of stock or any other equity or long-term debt
securities of any corporation or have any equity interest in any firm,
partnership, joint venture, association or other entity; complete and
correct copies of the certificates of incorporation and the by-laws of
the Company and the Subsidiaries and all amendments thereto have been
delivered to you, and except as set forth in the exhibits to the
Registration Statement no changes therein will be made subsequent to
the date hereof and prior to the time of purchase or, if later, the
additional time of purchase; each Subsidiary has been duly incorporated
and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, with full corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and the
Prospectus; each Subsidiary is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction where
the ownership or leasing of its properties or the conduct of its
business requires such qualification, except where the failure to be so
qualified and in good standing would not, individually or in the
aggregate, have a Material Adverse Effect; all of the outstanding
shares of capital stock of each of the Subsidiaries have been duly
authorized and validly issued, are fully paid and non-assessable and
(except as
5
otherwise described in this Section 3(e)) are owned directly or
indirectly by the Company subject to no security interest, other
encumbrance or adverse claims other than foreign ownership restrictions
under applicable laws, rules and regulations; and no options, warrants
or other rights to purchase, agreements or other obligations to issue
or other rights to convert any obligation into shares of capital stock
or ownership interests in the Subsidiaries are outstanding;
(f) the Shares have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will
be duly and validly issued, fully paid and non-assessable and free of
statutory and contractual preemptive rights, resale rights, rights of
first refusal and similar rights;
(g) the capital stock of the Company, including the Shares,
conforms in all material respects to the description thereof contained
in the Registration Statement and the Prospectus and the certificates
for the Shares are in due and proper form and the holders of the Shares
will not be subject to personal liability by reason of being such
holders;
(h) this Agreement has been duly authorized, executed and
delivered by the Company;
(i) neither the Company nor any of the Subsidiaries is in
breach or violation of or in default under (nor has any event occurred
which with notice, lapse of time or both would result in any breach of,
constitute a default under or give the holder of any indebtedness (or a
person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a part of such
indebtedness under) its respective charter or by-laws, or any
indenture, mortgage, deed of trust, bank loan or credit agreement or
other evidence of indebtedness, or any license, lease, contract or
other agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which any of them or any of their
properties may be bound or affected, and the execution, delivery and
performance of this Agreement, the issuance and sale of the Shares and
the consummation of the transactions contemplated hereby will not
conflict with, result in any breach or violation of or constitute a
default under (nor constitute any event which with notice, lapse of
time or both would result in any breach of or constitute a default
under) the charter or by-laws of the Company or any of the
Subsidiaries, or any indenture, mortgage, deed of trust, bank loan or
credit agreement or other evidence of indebtedness, or any license,
lease, contract or other agreement or instrument to which the Company
or any of the Subsidiaries is a party or by which any of them or any of
their respective properties may be bound, or any federal, state, local
or foreign law, regulation or rule or any decree, judgment or order
applicable to the Company or any of the Subsidiaries;
(j) no approval, authorization, consent or order of or filing
with any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency is required in connection
with the issuance and sale of the Shares or the
6
consummation by the Company of the transactions contemplated hereby
other than registration of the Shares under the Act, which has been or
will be effected, and any necessary qualification under the securities
or blue sky laws of the various jurisdictions in which the Shares are
being offered by the Underwriters or under the rules and regulations of
the NASD;
(k) except as set forth in the Registration Statement and the
Prospectus, (i) no person has the right, contractual or otherwise, to
cause the Company to issue or sell to it any shares of Common Stock or
shares of any other capital stock or other equity interests of the
Company, (ii) no person has any preemptive rights, resale rights,
rights of first refusal or other rights to purchase any shares of
Common Stock or shares of any other capital stock or other equity
interests of the Company, and (iii) no person has the right to act as
an underwriter or as a financial advisor to the Company in connection
with the offer and sale of the Shares, in the case of each of the
foregoing clauses (i), (ii) and (iii), whether as a result of the
filing or effectiveness of the Registration Statement or the sale of
the Shares as contemplated thereby or otherwise; no person has the
right, contractual or otherwise, to cause the Company to register under
the Act any shares of Common Stock or shares of any other capital stock
or other equity interests of the Company, or to include any such shares
or interests in the Registration Statement or the offering contemplated
thereby, whether as a result of the filing or effectiveness of the
Registration Statement or the sale of the Shares as contemplated
thereby or otherwise;
(l) each of the Company and the Subsidiaries has all necessary
licenses, authorizations, consents and approvals and has made all
necessary filings required under any federal, state, local or foreign
law, regulation or rule, and has obtained all necessary authorizations,
consents and approvals from other persons, in order to conduct its
respective business, except where the absence of such license,
authorization, consent, approval or filing, would not, individually or
in the aggregate, have a Material Adverse Effect; neither the Company
nor any of the Subsidiaries is in violation of, or in default under, or
has received notice of any proceedings relating to revocation or
modification of, any such license, authorization, consent or approval
or any federal, state, local or foreign law, regulation or rule or any
decree, order or judgment applicable to the Company or any of the
Subsidiaries, except where such violation, default, revocation or
modification would not, individually or in the aggregate, have a
Material Adverse Effect;
(m) all legal or governmental proceedings, affiliate
transactions, off-balance sheet transactions (including, without
limitation, transactions related to, and the existence of "variable
interest entities" within the meaning of Financial Accounting Standards
Board Interpretation No. 46), contracts, licenses, agreements, leases
or documents of a character required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit
to the Registration Statement have been so described or filed as
required;
(n) there are no actions, suits, claims, investigations or
proceedings pending or threatened or, to the Company's knowledge,
contemplated to which the Company or any of
7
the Subsidiaries or any of their respective directors or officers is a
party or of which any of their respective properties is subject at law
or in equity, before or by any federal, state, local or foreign
governmental or regulatory commission, board, body, authority or
agency, except any such action, suit, claim, investigation or
proceeding which would not result in a judgment, decree or order
having, individually or in the aggregate, a Material Adverse Effect or
preventing consummation of the transactions contemplated hereby;
(o) Ernst & Young LLP, whose report on the consolidated
financial statements of the Company and the Subsidiaries is filed with
the Commission as part of the Registration Statement and the
Prospectus, are independent public accountants as required by the Act
and by Rule 3600T of the Public Company Accounting Oversight Board
("PCAOB");
(p) the financial statements included in the Registration
Statement and the Prospectus, together with the related notes and
schedules, present fairly the financial position of the Company as of
the dates indicated and the results of operations and cash flows of the
Company for the periods specified and have been prepared in compliance
with the requirements of the Act and in conformity with generally
accepted accounting principles applied on a consistent basis during the
periods involved; any pro forma financial statements or data included
in the Registration Statement and the Prospectus comply with the
requirements of Regulation S-X of the Act, including, without
limitation, Article 11 thereof, and the assumptions used in the
preparation of such pro forma financial statements and data are
reasonable, the pro forma adjustments used therein are appropriate to
give effect to the transactions or circumstances described therein and
the pro forma adjustments have been properly applied to the historical
amounts in the compilation of those statements and data; the other
financial and statistical data set forth in the Registration Statement
and the Prospectus are accurately presented and prepared on a basis
consistent with the financial statements and books and records of the
Company; there are no financial statements (historical or pro forma)
that are required to be included in the Registration Statement and the
Prospectus (including, without limitation, as required by Rules 3-12 or
3-05 or Article 11 of Regulation S-X under the Act) that are not
included as required; the Company does not have any material
liabilities or obligations, direct or contingent (including any
off-balance sheet obligations or any "variable interest entities"
within the meaning of Financial Accounting Standards Board
Interpretation No. 46), not disclosed in the Registration Statement and
the Prospectus; and all disclosures contained in the Registration
Statement or the Prospectus regarding "non-GAAP financial measures" (as
such term is defined by the rules and regulations of the Commission)
comply with Regulation G of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (collectively, the
"EXCHANGE ACT") and Item 10 of Regulation S-K under the Act, to the
extent applicable;
(q) subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, there has
not been (i) any material adverse change, or any development involving
a prospective material adverse change, in the business, properties,
management, financial condition or results of operations of the Company
and the
8
Subsidiaries taken as a whole, (ii) any transaction entered into by the
Company or its Subsidiaries which is material to the Company and the
Subsidiaries taken as a whole, (iii) any obligation, direct or
contingent (including any off-balance sheet obligations), incurred by
the Company or the Subsidiaries, which is material to the Company and
the Subsidiaries taken as a whole, (iv) any change in the capital stock
or outstanding indebtedness of the Company or the Subsidiaries or (v)
any dividend or distribution of any kind declared, paid or made on the
capital stock of the Company;
(r) the Company has obtained for the benefit of the
Underwriters the agreement (a "Lock-Up Agreement"), in the form set
forth as EXHIBIT A hereto, of each of the Selling Stockholders and each
of its directors and officers;
(s) Neither the Company nor any Subsidiary is and, after
giving effect to the offering and sale of the Shares, will not be an
"investment company" or an entity "controlled" by an "investment
company," as such terms are defined in the Investment Company Act of
1940, as amended (the "Investment Company Act");
(t) Neither the Company nor any Subsidiary is and, after
giving effect to the offering and sale of the Shares, will be a
"holding company" or a "subsidiary company" of a "holding company" or
an "affiliate" of a "holding company" or of a "subsidiary company," as
such terms are defined in the Public Utility Holding Company Act of
1935, as amended "the Public Utility Holding Company Act;"
(u) Except as disclosed in the Registration Statement and
Prospectus, the Company and each of the Subsidiaries has good and
marketable title to all property (real and personal) described the
Registration Statement and in the Prospectus as being owned by each of
them, free and clear of all liens, claims, security interests or other
encumbrances, except for such liens, claims, security interests or
other encumbrances that would not, individually or in the aggregate,
have a Material Adverse Effect; all the property described in the
Registration Statement and the Prospectus as being held under lease by
the Company or a Subsidiary is held thereby under valid, subsisting and
enforceable leases;
(v) the Company and the Subsidiaries own, or have obtained
valid and enforceable licenses for, or other rights to use, the
inventions, patent applications, patents, trademarks (both registered
and unregistered), tradenames, copyrights, trade secrets and other
proprietary information described in the Registration Statement and the
Prospectus as being owned or licensed by them or which are necessary
for the conduct of their respective businesses, except where the
failure to own, license or have such rights would not, individually or
in the aggregate, have a Material Adverse Effect (collectively,
"Intellectual Property"); (i) to the Company's knowledge, there are no
third parties who have or will be able to establish rights to any
Intellectual Property, except for the ownership rights of the owners of
the Intellectual Property which is licensed to the Company; (ii) to the
Company's knowledge, there is no infringement by third parties of any
Intellectual Property; (iii) there is
9
no pending or threatened action, suit, proceeding or claim by others
challenging the Company's rights in or to any Intellectual Property,
and the Company is unaware of any facts which could form a reasonable
basis for any such claim; (iv) there is no pending or threatened
action, suit, proceeding or claim by others challenging the validity or
scope of any Intellectual Property, and the Company is unaware of any
facts which could form a reasonable basis for any such claim; (v) there
is no pending or threatened action, suit, proceeding or claim by others
that the Company infringes or otherwise violates any patent, trademark,
copyright, trade secret or other proprietary rights of others, and the
Company is unaware of any facts which could form a reasonable basis for
any such claim; (vi) to the Company's knowledge, there is no patent or
patent application that contains claims that interfere with the issued
or pending claims of any of the Intellectual Property; and (vii) to the
Company's knowledge, there is no prior art that may render any patent
application owned by the Company of the Intellectual Property
unpatentable that has not been disclosed to the U.S. Patent and
Trademark Office;
(w) Neither the U.S. Government nor any agency, department or
instrumentality thereof holds any rights, whether under U.S. Army
contract DAAA15-87-C-008, any subcontract thereunder or otherwise, to
U.S. patents number: 5,028,777; 5,170,054; 5,298,746; 5,331,157;
5,347,127; 5,386,113; 5,521,379; 5,528,031; or 5,559,325;
(x) The Company has reviewed, and consulted with intellectual
property counsel regarding, U.S. patent number 4,963,736; neither the
Company nor any of the Subsidiaries has, through the manufacture,
testing or sale of any mass spectrometers or otherwise, infringed nor
is any one of them infringing U.S. patent number 4,963,736; and to the
Company's knowledge no third party has instituted or threatened to
institute legal proceedings claiming that the Company or any Subsidiary
has infringed such patent;
(y) The Company has reviewed, and consulted with intellectual
property counsel regarding, the letter dated on or about October 28,
2002 to the Company from Cabinet Regimbeau, as intellectual property
counsel for the French company Xenocs ("Xenocs"); to the Company's
knowledge, neither the Company nor any of the Subsidiaries has
infringed nor is any one of them infringing any patent or other
intellectual property rights of Xenocs; and to the Company's knowledge,
Xenocs has not instituted or threatened to institute legal proceeding
against the Company or any of the Subsidiaries, whether involving a
claim of infringement by the Company or any of the Subsidiaries of any
patent or other intellectual property rights of Xenocs or otherwise;
(z) The Company has reviewed, and consulted with intellectual
property counsel regarding, the letter dated on or about December 12,
2002 (the "Avantium Letter") to the Company from Avantium Technologies
of Amsterdam, The Netherlands ("Avantium"); the Company and the
Subsidiaries (each to the extent obligated under such agreement) at all
times complied in all material respects with the terms of the
non-disclosure agreement with Crystallics, BV, of Amsterdam, The
Netherlands referenced in the Avantium Letter; to the Company's
10
knowledge, neither the Company nor any of the Subsidiaries has
infringed nor is any one of them infringing any patent or other
intellectual property rights of Avantium; and to the Company's
knowledge, Avantium has not instituted or threatened to institute legal
proceeding against the Company or any of the Subsidiaries, whether
claiming infringement by the Company or any of the Subsidiaries of
patent or other intellectual property rights of Avantium or otherwise;
(aa) The Company has reviewed, and consulted with intellectual
property counsel regarding, the e-mail communication dated on or about
July 3, 2003 to the Company from Oxford Danfysik of Oxford, UK
("Oxford"); neither the Company nor any of the Subsidiaries has
infringed nor is any one of them infringing U.S. patent number
6,596,994 or, to the Company's knowledge, any other patent or other
intellectual property rights of Oxford; and to the Company's knowledge,
Oxford has not instituted or threatened to institute legal proceeding
against the Company or any of the Subsidiaries, whether claiming
infringement by the Company or any of the Subsidiaries of patent or
other intellectual property rights of Oxford or otherwise;
(bb) neither the Company nor any of the Subsidiaries is
engaged in any unfair labor practice; except for matters which would
not, individually or in the aggregate, have a Material Adverse Effect,
(i) there is (A) no unfair labor practice complaint pending or, to the
Company's knowledge after due inquiry, threatened against the Company
or any of the Subsidiaries before the National Labor Relations Board,
and no grievance or arbitration proceeding arising out of or under
collective bargaining agreements is pending or threatened, (B) no
strike, labor dispute, slowdown or stoppage pending or, to the
Company's knowledge after due inquiry, threatened against the Company
or any of the Subsidiaries and (C) no union representation dispute
currently existing concerning the employees of the Company or any of
the Subsidiaries, and (ii) to the Company's knowledge after due
inquiry, (A) no union organizing activities are currently taking place
concerning the employees of the Company or any of the Subsidiaries and
(B) there has been no violation of any federal, state, local or foreign
law relating to discrimination in the hiring, promotion or pay of
employees, any applicable wage or hour laws or any provision of the
Employee Retirement Income Security Act of 1974 ("ERISA") or the rules
and regulations promulgated thereunder concerning the employees of the
Company or any of the Subsidiaries;
(cc) the Company and the Subsidiaries and their properties,
assets and operations are in compliance with, and hold all permits,
authorizations and approvals required under, Environmental Laws (as
defined below), except to the extent that failure to so comply or to
hold such permits, authorizations or approvals would not, individually
or in the aggregate, have a Material Adverse Effect; there are no past,
present or, to the Company's knowledge, reasonably anticipated future
events, conditions, circumstances, activities, practices, actions,
omissions or plans that could reasonably be expected to give rise to
any material costs or liabilities to the Company or the Subsidiaries
under, or to interfere with or prevent compliance by the Company or the
Subsidiaries with, Environmental Laws; except as would
11
not, individually or in the aggregate, have a Material Adverse Effect,
neither the Company nor any of the Subsidiaries (i) is the subject of
any investigation, (ii) has received any notice or claim, (iii) is a
party to or affected by any pending or threatened action, suit or
proceeding, (iv) is bound by any judgment, decree or order or (v) has
entered into any agreement, in each case relating to any alleged
violation of any Environmental Law or any actual or alleged release or
threatened release or cleanup at any location of any Hazardous
Materials (as defined below) (as used herein, "Environmental Law" means
any federal, state, local or foreign law, statute, ordinance, rule,
regulation, order, decree, judgment, injunction, permit, license,
authorization or other binding requirement, or common law, relating to
health, safety or the protection, cleanup or restoration of the
environment or natural resources, including those relating to the
distribution, processing, generation, treatment, storage, disposal,
transportation, other handling or release or threatened release of
Hazardous Materials, and "Hazardous Materials" means any material
(including, without limitation, pollutants, contaminants, hazardous or
toxic substances or wastes) that is regulated by or may give rise to
liability under any Environmental Law);
(dd) all tax returns required to be filed by the Company and
each of the Subsidiaries have been filed, and all taxes and other
assessments of a similar nature (whether imposed directly or through
withholding) including any interest, additions to tax or penalties
applicable thereto due or claimed to be due from such entities have
been paid, other than those being contested in good faith and for which
adequate reserves have been provided;
(ee) the Company and each of the Subsidiaries maintains
insurance covering its properties, operations, personnel and businesses
as the Company deems adequate and as previously disclosed to the
Underwriters; such insurance insures against such losses and risks to
an extent which is adequate in accordance with customary industry
practice to protect the Company and the Subsidiaries and their
businesses; all such insurance is fully in force on the date hereof and
will be fully in force at the time of purchase and any additional time
of purchase;
(ff) neither the Company nor any of the Subsidiaries has
sustained since the date of the last audited financial statements
included in the Registration Statement and the Prospectus any loss or
interference with its respective business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any
labor dispute or court or governmental action, order or decree;
(gg) the Company has not sent or received any communication
regarding termination of, or intent not to renew, any of the contracts
or agreements referred to or described in, or filed as an exhibit to,
the Registration Statement, and no such termination or non-renewal has
been threatened by the Company or, to the Company's knowledge, any
other party to any such contract or agreement;
12
(hh) the Company and each of the Subsidiaries 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 authorization; (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;
(ii) the Company has established and maintains disclosure
controls and procedures (as such term is defined in Rule 13a-15 and
15d-15 under the Exchange Act) and internal controls over financial
reporting (as such term is defined in Rule 13a-15 and 15d-15 under the
Exchange Act); such disclosure controls and procedures are designed to
ensure that material information relating to the Company, including its
consolidated subsidiaries, is made known to the Company's Chief
Executive Officer and its Chief Financial Officer by others within
those entities, and such disclosure controls and procedures are
effective to perform the functions for which they were established; the
Company's auditors and the Audit Committee of the Board of Directors
have been advised of: (i) all significant deficiencies and material
weaknesses in the design or operation of internal controls over
financial reporting, except for those that would not be reasonably
likely, individually or in the aggregate, to adversely affect the
Company's ability to record, process, summarize, and report financial
information; and (ii) any fraud, whether or not material, that involves
management or other employees who have a role in the Company's internal
controls; any material weaknesses in internal controls have been
identified for the Company's auditors; and since the date of the most
recent evaluation of such disclosure controls and procedures, there
have been no significant changes in internal controls or in other
factors that could significantly affect internal controls, including
any corrective actions with regard to significant deficiencies and
material weaknesses;
(jj) the Company has provided you true, correct, and complete
copies of all documentation pertaining to any extension of credit in
the form of a personal loan made, directly or indirectly, by the
Company to any director or executive officer of the Company, or to any
family member or affiliate of any director or executive officer of the
Company; and since July 30, 2002, the Company has not, directly or
indirectly, including through any subsidiary: (i) extended credit,
arranged to extend credit, or renewed any extension of credit, in the
form of a personal loan, to or for any director or executive officer of
the Company, or to or for any family member or affiliate of any
director or executive officer of the Company; or (ii) made any material
modification, including any renewal thereof, to any term of any
personal loan to any director or executive officer of the Company, or
any family member or affiliate of any director or executive officer,
which loan was outstanding on July 30, 2002;
(kk) any statistical and market-related data included in the
Registration Statement and the Prospectus are based on or derived from
sources that the Company believes to be
13
reliable and accurate, and the Company has obtained the written consent
to the use of such data from such sources to the extent required;
(ll) neither the Company nor any of the Subsidiaries nor, to
the Company's knowledge, any employee or agent of the Company or the
Subsidiaries has made any payment of funds of the Company or the
Subsidiaries or received or retained any funds in violation of any law,
rule or regulation, which payment, receipt or retention of funds is of
a character required to be disclosed in the Registration Statement or
the Prospectus;
(mm) neither the Company nor any of the Subsidiaries nor any
of their respective directors, officers, affiliates or controlling
persons has taken, directly or indirectly, any action designed, or
which has constituted or might reasonably be expected to cause or
result in, under the Exchange Act or otherwise, the stabilization or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Shares; and
(nn) to the Company's knowledge after due inquiry, there are
no affiliations or associations between any member of the NASD and any
of the Company's officers, directors or 5% or greater securityholders,
except as set forth in the Registration Statement and the Prospectus.
(oo) The Company and the Subsidiaries and any of the officers
and directors of the Company and any of the Subsidiaries, in their
capacities as such, are in compliance in all material respects with the
provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated thereunder.
In addition, any certificate signed by any officer of the Company or
any of the Subsidiaries and delivered to the Underwriters or counsel for the
Underwriters in connection with the offering of the Shares shall be deemed to be
a representation and warranty by the Company or Subsidiary, as the case may be,
as to matters covered thereby, to each Underwriter.
4. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS. Each
Selling Stockholder, severally and not jointly, represents and warrants to each
Underwriter that:
(a) such Selling Stockholder now is and at the time of
delivery of such Shares (whether the time of purchase or additional
time of purchase, as the case may be) will be, the lawful owner of the
number of Shares to be sold by such Selling Stockholder pursuant to
this Agreement and has and, at the time of delivery thereof, will have
valid and marketable title to such Shares, and upon delivery of and
payment for such Shares (whether at the time of purchase or the
additional time of purchase, as the case may be), the Underwriters will
acquire valid and marketable title to such Shares free and clear of any
claim, lien, encumbrance, security interest, community property right,
restriction on transfer or other defect in title;
14
(b) such Selling Stockholder has and at the time of delivery
of such Shares (whether the time of purchase or additional time of
purchase, as the case may be) will have, full legal right, power and
capacity, and any approval required by law (other than those imposed by
the Act and the securities or blue sky laws of certain jurisdictions),
to sell, assign, transfer and deliver such Shares in the manner
provided in this Agreement;
(c) this Agreement and the Custody Agreement among American
Stock Transfer & Trust Company, as custodian, and the Selling
Stockholders (the "Custody Agreement") have been duly executed and
delivered by such Selling Stockholder and each is a legal, valid and
binding agreement of such Selling Stockholder enforceable in accordance
with its terms;
(d) such Selling Stockholder has reviewed carefully the
Registration Statement and Prospectus and the Registration Statement or
any amendment thereto as to information relating to such Selling
Stockholder did not when it became effective, does not and will not, at
the time of purchase and the additional time of purchase, contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, not misleading and, the Prospectus or any supplement thereto
as to information relating to such Selling Stockholder, did not as of
its date, does not and will not, at the time of purchase and the
additional time of purchase, contain an untrue statement of material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and to such
Selling Stockholder's knowledge, the Registration Statement or any
amendment thereto did not when it became effective, does not and will
not, at the time of purchase and the additional time of purchase,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, not misleading; and to such Selling Stockholder's
knowledge, the Prospectus or any supplement thereto did not as of its
date, does not and will not, at the time of purchase and the additional
time of purchase, contain an untrue statement of material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(e) such Selling Stockholder has duly and irrevocably
authorized the Representatives of the Selling Stockholders, on behalf
of such Selling Stockholder, to execute and deliver this Agreement and
any other document necessary or desirable in connection with the
transactions contemplated thereby and to deliver the Shares to be sold
by such Selling Stockholder and receive payment therefor pursuant
hereto;
(f) the sale of such Selling Stockholder's Shares pursuant to
this Agreement is not prompted by any information concerning the
Company which is not set forth in the Prospectus; and
(g) at the time of purchase, all stock transfer or other taxes
(other than income taxes which are required to be paid in connection
with the sale and transfer of the Shares to be
15
sold by such Selling Stockholder to the several Underwriters hereunder
will have been fully paid or provided for by such Selling Stockholder
and all laws imposing such taxes will have been fully complied with.
5. CERTAIN COVENANTS
(a) The Company hereby agrees:
(i) to furnish such information as may be required and
otherwise to cooperate in qualifying the Shares for offering and sale
under the securities or blue sky laws of such states or other
jurisdictions as you may designate and to maintain such qualifications
in effect so long as you may request for the distribution of the
Shares; PROVIDED that the Company shall not be required to qualify as a
foreign corporation or to consent to the service of process under the
laws of any such jurisdiction (except service of process with respect
to the offering and sale of the Shares); and to promptly advise you of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for
such purpose;
(ii) to make available to the Underwriters in New York
City, as soon as practicable after the Registration Statement becomes
effective, and thereafter from time to time to furnish to the
Underwriters, as many copies of the Prospectus (or of the Prospectus as
amended or supplemented if the Company shall have made any amendments
or supplements thereto after the effective date of the Registration
Statement) as the Underwriters may request for the purposes
contemplated by the Act; in case any Underwriter is required to deliver
a prospectus after the nine-month period referred to in Section
10(a)(3) of the Act in connection with the sale of the Shares, the
Company will prepare, at its expense, promptly upon request such
amendment or amendments to the Registration Statement and the
Prospectus as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the Act;
(iii) if, at the time this Agreement is executed and
delivered, it is necessary for the Registration Statement or any
post-effective amendment thereto to be declared effective before the
offering of the Shares may commence, the Company will endeavor to cause
the Registration Statement or such post-effective amendment to become
effective as soon as possible and the Company will advise you promptly
and, if requested by you, will confirm such advice in writing, (i) when
the Registration Statement and any such post-effective amendment
thereto has become effective, and (ii) if Rule 430A under the Act is
used, when the Prospectus is filed with the Commission pursuant to Rule
424(b) under the Act (which the Company agrees to file in a timely
manner under such Rule);
(iv) to advise you promptly, confirming such advice in
writing, of any request by the Commission for amendments or supplements
to the Registration Statement or the Prospectus or for additional
information with respect thereto, or of notice of institution of
proceedings for, or the entry of a stop order, suspending the
effectiveness of the Registration Statement
16
and, if the Commission should enter a stop order suspending the
effectiveness of the Registration Statement, to use its best efforts to
obtain the lifting or removal of such order as soon as possible; to
advise you promptly of any proposal to amend or supplement the
Registration Statement or the Prospectus, including by filing any
documents that would be incorporated therein by reference, and to
provide you and Underwriters' counsel copies of any such documents for
review and comment a reasonable amount of time prior to any proposed
filing and to file no such amendment or supplement to which you shall
object in writing;
(v) subject to Section 5(a)(iv) hereof, to file promptly
all reports and any definitive proxy or information statement required
to be filed by the Company with the Commission in order to comply with
the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with the
offering or sale of the Shares; to provide you with a copy of such
reports and statements and other documents to be filed by the Company
pursuant to Section 13, 14 or 15(d) of the Exchange Act during such
period a reasonable amount of time prior to any proposed filing, and to
promptly notify you of such filing;
(vi) if necessary or appropriate, to file a registration
statement pursuant to Rule 462(b) under the Act;
(vii) to advise the Underwriters promptly of the happening
of any event within the time during which a prospectus relating to the
Shares is required to be delivered under the Act which could require
the making of any change in the Prospectus then being used so that the
Prospectus would not include an untrue statement of material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they are made, not
misleading, and, during such time, subject to Section 5(a)(iv) hereof,
to promptly prepare, file with the Commission and furnish to the
Underwriters, each at the Company's expense, such amendments or
supplements to such Prospectus as may be necessary to reflect any such
change;
(viii) to make generally available to its security
holders, and to deliver to you, an earnings statement of the Company
(which will satisfy the provisions of Section 11(a) of the Act)
covering a period of twelve months beginning after the effective date
of the Registration Statement (as defined in Rule 158(c) of the Act) as
soon as is reasonably practicable after the termination of such
twelve-month period but not later than June 30, 2005;
(ix) to furnish to its shareholders as soon as practicable
after the end of each fiscal year an annual report (including a
consolidated balance sheet and statements of income, shareholders'
equity and cash flow of the Company and the Subsidiaries for such
fiscal year, accompanied by a copy of the certificate or report thereon
of nationally recognized independent certified public accountants);
17
(x) to furnish to you 4 copies of the Registration
Statement, as initially filed with the Commission, and of all
amendments thereto (including all exhibits thereto and documents
incorporated by reference therein) and sufficient copies of the
foregoing (other than exhibits) for distribution of a copy to each of
the other Underwriters;
(xi) to furnish to you promptly and, upon request, to
each of the other Underwriters for a period of five years from the date
of this Agreement (i) copies of any reports or other communications
which the Company shall send to its stockholders or shall from time to
time publish or publicly disseminate, (ii) copies of all annual,
quarterly and current reports filed with the Commission on Forms 10-K,
10-Q and 8-K, or such other similar forms as may be designated by the
Commission, (iii) copies of documents or reports filed with any
national securities exchange on which any class of securities of the
Company is listed, and (iv) such other information as you may
reasonably request regarding the Company or the Subsidiaries;
(xii) to furnish to you as early as practicable prior to
the time of purchase, and any additional time of purchase, as the case
may be, but not later than two business days prior thereto, a copy of
the latest available unaudited interim and monthly consolidated
financial statements, if any, of the Company and the Subsidiaries which
have been read by the Company's independent certified public
accountants, as stated in their letter to be furnished pursuant to
Section 8(i) hereof;
(xiii) to apply the net proceeds from the sale of the
Shares in the manner set forth under the caption "Use of Proceeds" in
the Prospectus;
(xiv) not to sell, offer to sell, contract or agree to
sell, hypothecate, pledge, grant any option to purchase or otherwise
dispose of or agree to dispose of, directly or indirectly, any Common
Stock or securities convertible into or exchangeable or exercisable for
Common Stock or warrants or other rights to purchase Common Stock or
any other securities of the Company that are substantially similar to
Common Stock, or file or cause to be declared effective a registration
statement under the Act relating to the offer and sale of any shares of
Common Stock or securities convertible into or exercisable or
exchangeable for Common Stock or other rights to purchase Common Stock
or any other securities of the Company that are substantially similar
to Common Stock for a period of 180 days after the date hereof (the
"Lock-Up Period"), without the prior written consent of Bear Xxxxxxx
and UBS, except that except that if (i) during the period that begins
on the date that is 15 calendar days plus three business days before
the last day of the 180-day restricted period and ends on the last day
of the 180-day restricted period, the Company issues an earnings
release or material news or a material event relating to the Company
occurs, or (ii) prior to the expiration of the 180-day restricted
period, the Company announces that it will release earnings results
during the 16-day period beginning on the last day of the 180-day
period, the restrictions imposed by this section shall continue to
apply until the expiration of the date that is 15 calendar days plus
three business days after the date on which the issuance of the
earnings release or the material news or material event occurs,
provided however, this provision will not apply if, within three
18
days of the termination of the 180-day restricted period, the Company
delivers to Bear Xxxxxxx and UBS a certificate, signed by the Chief
Financial Officer or Chief Executive Officer of the Company, certifying
on behalf of the Company that the Company's shares of Common Stock are,
as of the date of delivery of such certificate, "actively trading
securities," as defined in Regulation M, 17 CFR 242.101(c)(1) (such
notice shall be delivered in accordance with Section 13 hereof). This
section shall not apply to (i) the registration of the Shares and the
sales to the Underwriters pursuant to this Agreement, (ii) issuances of
Common Stock upon the exercise of options or warrants disclosed as
outstanding in the Registration Statement and the Prospectus, (iii) the
issuance of employee stock options not exercisable during the Lock-Up
Period pursuant to stock option plans described in the Registration
Statement and the Prospectus; and (iv) the issuance of up to an
aggregate of 8,900,000 shares of Common Stock in connection with an
acquisition, strategic licensing arrangement, corporate partnering
transaction or similar extraordinary corporate transaction; provided
that the recipient(s) of such shares agrees in writing with the
Underwriters prior to the issuance of such shares not to sell, offer to
sell, contract or agree to sell, hypothecate, pledge, grant any option
to purchase or otherwise dispose of or agree to dispose of, directly or
indirectly, any of the shares of Common Stock during the Lock-Up
Period.
(xv) to use its best efforts to cause the Common Stock to
be listed for quotation on the National Association of Securities
Dealers Automated Quotation National Market System ("NASDAQ");
(xvi) to maintain a transfer agent and, if necessary under
the jurisdiction of incorporation of the Company, a registrar for the
Common Stock; and
(xvii) Upon the written request of any Underwriter, the
Company shall (i) furnish to such Underwriter, a certification, as
contemplated by and in compliance with Treasury regulations section
1.897-2(h), that as of the time of purchase, any additional time of
purchase, or such other date as may be specified in such request, the
Shares are not United States real property interests as defined in
section 897(c)(1) of the Internal Revenue Code of 1986, as amended,
(ii) file such certification with the Internal Revenue Service in the
manner and within the time period specified in Treasury regulations
section 1.897-2(h) and (iii) promptly after such filing, furnish to the
Underwriter that has requested such certification, as the case may be,
proof of such filing.
(b) The Company and the Selling Stockholders, jointly and
severally, hereby agree:
(i) to pay all costs, expenses, fees and taxes in
connection with (i) the preparation and filing of the Registration
Statement, each Preliminary Prospectus, the Prospectus, and any
amendments or supplements thereto, and the printing and furnishing of
copies of each thereof to the Underwriters and to dealers (including
costs of mailing and shipment), (ii) the registration, issue, sale and
delivery of the Shares including any stock or transfer taxes and
19
stamp or similar duties payable upon the sale, issuance or delivery of
the Shares to the Underwriters, (iii) the producing, word processing
and/or printing of this Agreement, any Agreement Among Underwriters,
any dealer agreements, any Powers of Attorney and any closing documents
(including compilations thereof) and the reproduction and/or printing
and furnishing of copies of each thereof to the Underwriters and
(except closing documents) to dealers (including costs of mailing and
shipment), (iv) the qualification of the Shares for offering and sale
under state or foreign laws and the determination of their eligibility
for investment under state or foreign law as aforesaid (including the
reasonable legal fees and filing fees and other reasonable
disbursements of counsel for the Underwriters) and the printing and
furnishing of copies of any blue sky surveys or legal investment
surveys to the Underwriters and to dealers, (v) any listing of the
Shares on any securities exchange or qualification of the Shares for
quotation on NASDAQ and any registration thereof under the Exchange
Act, (vi) any filing for review of the public offering of the Shares by
the NASD, including the reasonable legal fees and filing fees and other
reasonable disbursements of counsel to the Underwriters, (vii) the fees
and disbursements of any transfer agent or registrar for the Shares,
(viii) the costs and expenses of the Company relating to presentations
or meetings undertaken in connection with the marketing of the offering
and sale of the Shares to prospective investors and the Underwriters'
sales forces, including, without limitation, expenses associated with
the production of road show slides and graphics, fees and expenses of
any consultants engaged in connection with the road show presentations,
travel, lodging and other expenses incurred by the officers of the
Company and any such consultants, and the cost of any aircraft
chartered in connection with the road show, and (ix) the performance of
the Company's other obligations hereunder; provided, that the foregoing
shall not prevent the Company and the Selling Stockholders to allocate
responsibility for the above expenses among themselves.
(c) The Selling Stockholders hereby agree:
(i) to deliver to the Underwriters, prior to at the time
of purchase, a properly completed and executed United States Treasury
Department Form W-9 (or other applicable form or statement specified by
Treasury Department regulations in lieu thereof) in order to document
the Underwriters' compliance with the reporting and withholding
provisions of the Tax Equity and Fiscal Responsibility Act of 1982 with
respect to the transactions contemplated herein;
(ii) not to sell, offer to sell, contract or agree to sell,
hypothecate, pledge, grant any option to purchase or otherwise dispose
of or agree to dispose of, directly or indirectly, any Common Stock or
securities convertible into or exchangeable or exercisable for Common
Stock or warrants or other rights to purchase Common Stock or any other
securities of the Company that are substantially similar to Common
Stock, or file or cause to be declared effective a registration
statement under the Act relating to the offer and sale of any shares of
Common Stock or securities convertible into or exercisable or
exchangeable for Common Stock or other rights to purchase Common Stock
or any other securities of the Company that are substantially similar
to Common Stock for a period of 180 days after the date hereof (the
20
"Lock-Up Period"), without the prior written consent of Bear Xxxxxxx
and UBS, except that except that if (i) during the period that begins
on the date that is 15 calendar days plus three business days before
the last day of the 180-day restricted period and ends on the last day
of the 180-day restricted period, the Company issues an earnings
release or material news or a material event relating to the Company
occurs, or (ii) prior to the expiration of the 180-day restricted
period, the Company announces that it will release earnings results
during the 16-day period beginning on the last day of the 180-day
period, the restrictions imposed by this section shall continue to
apply until the expiration of the date that is 15 calendar days plus
three business days after the date on which the issuance of the
earnings release or the material news or material event occurs,
provided however, this provision will not apply if, within three days
of the termination of the 180-day restricted period, the Company
delivers to Bear Xxxxxxx and UBS a certificate, signed by the Chief
Financial Officer or Chief Executive Officer of the Company, certifying
on behalf of the Company that the Company's shares of Common Stock are,
as of the date of delivery of such certificate, "actively trading
securities," as defined in Regulation M, 17 CFR 242.101(c)(1) (such
notice shall be delivered in accordance with Section 13 hereof). This
section shall not apply to (i) the registration of the Shares and the
sales to the Underwriters pursuant to this Agreement, (ii) issuances of
Common Stock upon the exercise of options or warrants disclosed as
outstanding in the Registration Statement and the Prospectus, and (iii)
the issuance of employee stock options not exercisable during the
Lock-Up Period pursuant to stock option plans described in the
Registration Statement and the Prospectus; and
(iii) to advise the Underwriters promptly of the happening
of any event within the time during which a prospectus relating to the
Shares is required to be delivered under the Act which could require
the making of any change in the Prospectus then being used so that the
Prospectus would not include an untrue statement of material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they are made, not
misleading.
7. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the Shares are not
delivered for any reason other than the termination of this Agreement pursuant
to the fifth paragraph of Section 10 hereof or the default by one or more of the
Underwriters in its or their respective obligations hereunder, the Company and
the Selling Stockholders, jointly and severally, shall, in addition to paying
the amounts described in Section 5(b)(i) hereof, reimburse the Underwriters for
all of their out-of-pocket expenses, including the fees and disbursements of
their counsel.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations of
the Underwriters hereunder are subject to the accuracy of the representations
and warranties on the part of the Company and the Selling Stockholders on the
date hereof, at the time of purchase and, if applicable, at the additional time
of purchase, the performance by the Company and each of the Selling Stockholders
of its obligations hereunder and to the following additional conditions
precedent:
21
(a) The Company and the Selling Stockholders shall furnish to
you at the time of purchase and, if applicable, at the additional time
of purchase, an opinion of Xxxxx Xxxxxxx LLP, counsel for the Company,
addressed to the Underwriters, and dated the time of purchase or the
additional time of purchase, as the case may be, with reproduced copies
for each of the other Underwriters and in form and substance
satisfactory to Xxxxx Xxxxxxxxxx LLP, counsel for the Underwriters, in
the form set forth in EXHIBIT B hereto.
(b) The Company shall furnish to you at the time of purchase
and, if applicable, at the additional time of purchase, the opinion of
Xxxx and Xxxxx, special counsel for the Company with respect to patents
and proprietary rights, addressed to the Underwriters, and dated the
time of purchase or the additional time of purchase, as the case may
be, and in form and substance satisfactory to Xxxxx Xxxxxxxxxx LLP,
counsel for the Underwriters, in the form set forth in EXHIBIT C
hereto.
(c) The Company shall furnish to you at the time of purchase
and, if applicable, at the additional time of purchase, the opinion of
Xxxx and Xxxx LLP, special counsel for the Company with respect to
patents and proprietary rights, addressed to the Underwriters, and
dated the time of purchase or the additional time of purchase, as the
case may be, and in form and substance satisfactory to Xxxxx Xxxxxxxxxx
LLP, counsel for the Underwriters, in the form set forth in EXHIBIT C-1
hereto.
(d) The Company shall furnish to you at the time of purchase
and, if applicable, at the additional time of purchase, the opinion of
Kohler Xxxxxx & Partner, special counsel for the Company with respect
to patents and proprietary rights, addressed to the Underwriters, and
dated the time of purchase or the additional time of purchase, as the
case may be, and in form and substance satisfactory to Xxxxx Xxxxxxxxxx
LLP, counsel for the Underwriters, in the form set forth in EXHIBIT C-2
hereto.
(e) The Company shall furnish to you at the time of purchase
and, if applicable, at the additional time of purchase, the letter from
Xxxxxxx & Jobse LLP, special counsel for the Company with respect to
patents and proprietary rights, dated the time of purchase or the
additional time of purchase, as the case may be, and in form and
substance satisfactory to Xxxxx Xxxxxxxxxx LLP, counsel for the
Underwriters, in the form set forth in EXHIBIT C-3 hereto; and the
Company shall have furnished to you a certificate of its Chief
Executive Officer relating to certain intellectual property matters in
a form reasonably satisfactory to Xxxxx Xxxxxxxxxx LLP, counsel for the
Underwriters.
(f) The Company shall furnish to you at the time of purchase
and, if applicable, at the additional time of purchase, the certificate
of Xxxxxx Xxxxxxx, officer for the Company with respect to patents and
proprietary rights, addressed to the Underwriters, and dated the time
of purchase or the additional time of purchase, as the case may be, and
in form and substance satisfactory to Xxxxx Xxxxxxxxxx LLP, counsel for
the Underwriters, in the form set forth in EXHIBIT C-4 hereto.
22
(g) The Company shall furnish to you at the time of purchase
and, if applicable, at the additional time of purchase, the opinion of
Xx. X. Xxxxxxx & Partner, Bremen, counsel for Bruker Daltonic GmbH,
addressed to the Underwriters, and dated the time of purchase or the
additional time of purchase, as the case may be, and in form and
substance satisfactory to Xxxxx Xxxxxxxxxx LLP, counsel for the
Underwriters, in the form set forth in EXHIBIT D hereto.
(h) The Company shall furnish to you at the time of purchase
and, if applicable, at the additional time of purchase, the opinion of
Rechtsanwalte Xxxxxxxxxxx & Xxxxxxx, counsel for Bruker AXS GmbH,
addressed to the Underwriters, and dated the time of purchase or the
additional time of purchase, as the case may be, and in form and
substance satisfactory to Xxxxx Xxxxxxxxxx LLP, counsel for the
Underwriters, in the form set forth in EXHIBIT D-1 hereto.
(i) You shall have received from Ernst & Young LLP and
PricewaterhouseCoopers LLP letters dated, respectively, the date of
this Agreement, the time of purchase and, if applicable, the additional
time of purchase, and addressed to the Underwriters (with reproduced
copies for each of the Underwriters) in the forms heretofore approved
by Bear Xxxxxxx and UBS.
(j) You shall have received at the time of purchase and, if
applicable, at the additional time of purchase, the favorable opinion
of Xxxxx Xxxxxxxxxx LLP, counsel for the Underwriters, dated the time
of purchase or the additional time of purchase, as the case may be, as
to the matters referred to in subparagraphs (4), (5), (8) (with respect
to the Shares only), (9), (10) and the last subparagraph of EXHIBIT B.
(k) No Prospectus or amendment or supplement to the
Registration Statement or the Prospectus, including documents deemed to
be incorporated by reference therein, shall have been filed to which
you object in writing.
(l) The Registration Statement shall become effective not
later than 5:30 P.M. New York City time on the date of this Agreement
and, if Rule 430A under the Act is used, the Prospectus shall have been
filed with the Commission pursuant to Rule 424(b) under the Act at or
before 5:30 P.M., New York City time, on the second full business day
after the date of this Agreement.
(m) Prior to the time of purchase, and, if applicable, the
additional time of purchase, (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued
under the Act or proceedings initiated under Section 8(d) or 8(e) of
the Act; (ii) the Registration Statement and all amendments thereto
shall not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; and (iii) the Prospectus
and all amendments or supplements thereto shall not contain an untrue
statement of a material fact or omit
23
to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under
which they are made, not misleading.
(n) Between the time of execution of this Agreement and the
time of purchase or the additional time of purchase, as the case may
be, no material adverse change or any development involving a
prospective material adverse change in the business, properties,
management, financial condition or results of operations of the Company
and the Subsidiaries taken as a whole shall occur or become known.
(o) The Company will, at the time of purchase and, if
applicable, at the additional time of purchase, deliver to you a
certificate of its Chief Executive Officer and its Chief Financial
Officer to the form attached as EXHIBIT E hereto.
(p) You shall have received signed Lock-up Agreements referred
to in Section 3(r) hereof.
(q) The Company and the Selling Stockholders shall have
furnished to you such other documents and certificates as to the
accuracy and completeness of any statement in the Registration
Statement and the Prospectus as of the time of purchase and, if
applicable, the additional time of purchase, as you may reasonably
request.
(r) The Shares shall have been approved for quotation on
NASDAQ, subject only to notice of issuance at or prior to the time of
purchase or the additional time of purchase, as the case may be.
(s) The Selling Stockholders will at the time of purchase and
the additional time of purchase, as the case may be deliver to you a
certificate of the Representatives of the Selling Stockholders to the
effect that the representations and the warranties of the Selling
Stockholders as set forth in this Agreement are true and correct as of
each such date.
9. EFFECTIVE DATE OF AGREEMENT; TERMINATION. This Agreement shall
become effective (i) if Rule 430A under the Act is not used, when you shall have
received notification of the effectiveness of the Registration Statement, or
(ii) if Rule 430A under the Act is used, when the parties hereto have executed
and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be subject
to termination in the absolute discretion of Bear, Xxxxxxx & Co. Inc. ("Bear
Xxxxxxx") and UBS, jointly, or any group of Underwriters (which may include Bear
Xxxxxxx and/or UBS) which has agreed to purchase in the aggregate at least 50%
of the Firm Shares, if (x) since the time of execution of this Agreement or the
earlier respective dates as of which information is given in the Registration
Statement and the Prospectus, there has been any material adverse change or any
development involving a prospective material adverse change in the business,
properties, management, financial condition or results of operation of the
Company and the Subsidiaries taken as a whole, which would, in Bear Xxxxxxx and
UBS'
24
judgment or in the judgment of such group of Underwriters, make it impracticable
or inadvisable to proceed with the public offering or the delivery of the Shares
on the terms and in the manner contemplated in the Registration Statement and
the Prospectus, or (y) there shall have occurred: (i) a suspension or material
limitation in trading in securities generally on the New York Stock Exchange,
the American Stock Exchange or the NASDAQ; (ii) a suspension or material
limitation in trading in the Company's securities on the NASDAQ; (iii) a general
moratorium on commercial banking activities declared by either federal or New
York State authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United States; (iv) an
outbreak or escalation of hostilities or acts of terrorism involving the United
States or a declaration by the United States of a national emergency or war; or
(v) any other calamity or crisis or any change in financial, political or
economic conditions in the United States or elsewhere, if the effect of any such
event specified in clause (iv) or (v) in Bear Xxxxxxx and UBS' judgment or in
the judgment of such group of Underwriters makes it impracticable or inadvisable
to proceed with the public offering or the delivery of the Shares on the terms
and in the manner contemplated in the Registration Statement and the Prospectus,
or (z) there shall have occurred any downgrading, or any notice or announcement
shall have been given or made of (i) any intended or potential downgrading or
(ii) any watch, review or possible change that does not indicate an affirmation
or improvement, in the rating accorded any securities of or guaranteed by the
Company or any Subsidiary by any "nationally recognized statistical rating
organization," as that term is defined in Rule 436(g)(2) under the Act.
If Bear Xxxxxxx and UBS, jointly, or any group of Underwriters elects
to terminate this Agreement as provided in this Section 9, the Company, the
Representatives of the Selling Stockholders and each other Underwriter shall be
notified promptly in writing.
If the sale to the Underwriters of the Shares, as contemplated by this
Agreement, is not carried out by the Underwriters for any reason permitted under
this Agreement or if such sale is not carried out because the Company or the
Selling Stockholders, as the case may be, shall be unable to comply with any of
the terms of this Agreement, the Company or the Selling Stockholders, as the
case may be, shall not be under any obligation or liability under this Agreement
(except to the extent provided in Sections 5(b)(i), 7 and 11 hereof), and the
Underwriters shall be under no obligation or liability to the Company and the
Selling Stockholders under this Agreement (except to the extent provided in
Section 9 hereof) or to one another hereunder.
10. INCREASE IN UNDERWRITERS' COMMITMENTS. Subject to Sections 8 and 9
hereof, if any Underwriter shall default in its obligation to take up and pay
for the Firm Shares to be purchased by it hereunder (otherwise than for a
failure of a condition set forth in Section 8 hereof or a reason sufficient to
justify the termination of this Agreement under the provisions of Section 9
hereof) and if the number of Firm Shares which all Underwriters so defaulting
shall have agreed but failed to take up and pay for does not exceed 10% of the
total number of Firm Shares, the non-defaulting Underwriters shall take up and
pay for (in addition to the aggregate number of Firm Shares they are obligated
to purchase pursuant to Section 1 hereof) the number of Firm Shares agreed to be
purchased by all such defaulting Underwriters, as hereinafter provided. Such
Shares shall be taken up and paid for by such non-defaulting Underwriters in
such amount or amounts as you may designate with the consent of
25
each Underwriter so designated or, in the event no such designation is made,
such Shares shall be taken up and paid for by all non-defaulting Underwriters
pro rata in proportion to the aggregate number of Firm Shares set opposite the
names of such non-defaulting Underwriters in Schedule A.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company and each of the Selling Stockholders agrees with the
non-defaulting Underwriters that it will not sell any Firm Shares hereunder
unless all of the Firm Shares are purchased by the Underwriters (or by
substituted Underwriters selected by you with the approval of the Company or
selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provision, the Company or you shall have the right
to postpone the time of purchase for a period not exceeding five business days
in order that any necessary changes in the Registration Statement and the
Prospectus and other documents may be effected.
The term Underwriter as used in this Agreement shall refer to and
include any Underwriter substituted under this Section 10 with like effect as if
such substituted Underwriter had originally been named in Schedule A.
If the aggregate number of Firm Shares which the defaulting Underwriter
or Underwriters agreed to purchase exceeds 10% of the total number of Firm
Shares which all Underwriters agreed to purchase hereunder, and if neither the
non-defaulting Underwriters nor the Company shall make arrangements within the
five business day period stated above for the purchase of all the Firm Shares
which the defaulting Underwriter or Underwriters agreed to purchase hereunder,
this Agreement shall terminate without further act or deed and without any
liability on the part of the Company to any non-defaulting Underwriter and
without any liability on the part of any non-defaulting Underwriter to the
Company. Nothing in this paragraph, and no action taken hereunder, shall relieve
any defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
11. INDEMNITY AND CONTRIBUTION.
(a) The Company agrees to indemnify, defend and hold harmless
each Underwriter, its partners, directors and officers, and any person
who controls any Underwriter within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, and the successors and assigns
of all of the foregoing persons, from and against any loss, damage,
expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, any such Underwriter or any
such person may incur under the Act, the Exchange Act, the common law
or otherwise, insofar as such loss, damage, expense, liability or claim
arises out of or is based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or in the Registration Statement as amended by any
post-effective amendment thereof by the Company) or in a Prospectus
(the term Prospectus
26
for the purpose of this Section 11 being deemed to include any
Preliminary Prospectus, the Prospectus and the Prospectus as amended or
supplemented by the Company) or arises out of or is based upon any
omission or alleged omission to state a material fact required to be
stated in either such Registration Statement or such Prospectus or
necessary to make the statements made therein not misleading, except
insofar as any such loss, damage, expense, liability or claim arises
out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in and in conformity with
information concerning such Underwriter furnished in writing by or on
behalf of such Underwriter through you to the Company expressly for use
in such Registration Statement or such Prospectus or arises out of or
is based upon any omission or alleged omission to state a material fact
in connection with such information required to be stated in such
Registration Statement or such Prospectus or necessary to make such
information not misleading; and PROVIDED THAT the indemnification
provided in this Section 11(a)(i) with respect to any Preliminary
Prospectus shall not inure to the benefit of any Underwriter who failed
to deliver a Prospectus (as then amended or supplemented, provided by
the Company to the several Underwriters in the requisite quantity and
on a timely basis to permit proper delivery on or prior to the Closing
Date) to the person asserting any losses, claims, damages and
liabilities and judgments caused by any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, if such material
misstatement or omission or alleged material misstatement or omission
was identified as such to the Underwriters by the Company and was
cured, as determined by a court of competent jurisdiction in a decision
not subject to further appeal, in such Prospectus and such Prospectus
was required by law to be delivered at or prior to the written
confirmation of sale to such person, (ii) any untrue statement or
alleged untrue statement made by the Company in Section 3 hereof or the
failure by the Company to perform when and as required any agreement or
covenant contained herein, or (iii) any untrue statement or alleged
untrue statement of any material fact contained in any audio or visual
materials provided by the Company or based upon written information
furnished by or on behalf of the Company including, without limitation,
slides, videos, films or tape recordings used in connection with the
marketing of the Shares;
(b) the Selling Stockholders, jointly and severally, agree to
indemnify, defend and hold harmless each Underwriter, its partners,
directors and officers, and any person who controls any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, and the successors and assigns of all of the foregoing
persons, from and against any loss, damage, expense, liability or claim
(including the reasonable cost of investigation) which, jointly or
severally, any such Underwriter or any such person may incur under the
Act, the Exchange Act, the common law or otherwise, insofar as such
loss, damage, expense, liability or claim arises out of or is based
upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or in the Registration
Statement as amended by any post-effective amendment thereof by the
Company) or in a Prospectus or arises out of or is based upon any
omission or alleged omission to state a material fact required to be
stated in either such Registration Statement or such Prospectus or
27
necessary to make the statements made therein not misleading insofar as
any such loss, damage, expense, liability or claim arises out of or is
based upon information relating to any Selling Stockholder; PROVIDED
THAT the indemnification provided in this Section 11(b)(i) with respect
to any Preliminary Prospectus shall not inure to the benefit of any
Underwriter who failed to deliver a Prospectus (as then amended or
supplemented, provided by the Company to the several Underwriters in
the requisite quantity and on a timely basis to permit proper delivery
on or prior to the Closing Date) to the person asserting any losses,
claims, damages and liabilities and judgments caused by any untrue
statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, if such
material misstatement or omission or alleged material misstatement or
omission was identified as such to the Underwriters by the Selling
Stockholders and was cured, as determined by a court of competent
jurisdiction in a decision not subject to further appeal, in such
Prospectus and such Prospectus was required by law to be delivered at
or prior to the written confirmation of sale to such person, (ii) any
untrue statement or alleged untrue statement made by such Selling
Stockholder in Section 4 hereof or the failure by such Selling
Stockholder to perform when and as required any agreement or covenant
contained herein; PROVIDED, FURTHER, that no Selling Stockholder shall
be responsible, pursuant to this indemnity for losses, expenses,
liability or claims for an amount in excess of the proceeds to be
received by such Selling Stockholder (before deducting expenses) from
the sale of the Shares hereunder.
If any action, suit or proceeding (each, a "Proceeding") is brought
against an Underwriter or any such person in respect of which indemnity may be
sought against the Company or any Selling Stockholder pursuant to the foregoing
paragraph, such Underwriter or such person shall promptly notify the Company and
the Representatives of the Selling Stockholders in writing of the institution of
such Proceeding and the Company or such Selling Stockholder, as the case may be,
shall assume the defense of such Proceeding, including the employment of counsel
reasonably satisfactory to such indemnified party and payment of all fees and
expenses; PROVIDED, HOWEVER, that the omission to so notify the Company or the
Representative of the Selling Stockholders shall not relieve the Company or such
Selling Stockholder from any liability which the Company or such Selling
Stockholder may have to any Underwriter or any such person or otherwise if the
Company or the Selling Stockholder is not materially prejudiced by such delay.
Such Underwriter or such person shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such Underwriter or of such person unless the employment of such
counsel shall have been authorized in writing by the Company or such Selling
Stockholder in connection with the defense of such Proceeding or the Company or
such Selling Stockholder shall not have, within a reasonable period of time in
light of the circumstances, employed counsel to have charge of the defense of
such Proceeding or such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them which are different
from, additional to or in conflict with those available to the Company or such
Selling Stockholder (in which case the Company or such Selling Stockholder shall
not have the right to direct the defense of such Proceeding on behalf of the
indemnified party or parties), in any of which events such fees and expenses
shall be borne by the Company
28
or such Selling Stockholder and paid as incurred (it being understood, however,
that the Company or such Selling Stockholder shall not be liable for the
expenses of more than one separate counsel (in addition to any local counsel) in
any one Proceeding or series of related Proceedings in the same jurisdiction
representing the indemnified parties who are parties to such Proceeding). The
Company or such Selling Stockholder shall not be liable for any settlement of
any Proceeding effected without its written consent but if settled with the
written consent of the Company or such Selling Stockholder, the Company or such
Selling Stockholder agrees to indemnify and hold harmless any Underwriter and
any such person from and against any loss or liability by reason of such
settlement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
sentence of this paragraph, then the indemnifying party agrees that it shall be
liable for any settlement of any Proceeding effected without its written consent
if (i) such settlement is entered into more than 60 business days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall not have fully reimbursed the indemnified party in accordance with
such request prior to the date of such settlement and (iii) such indemnified
party shall have given the indemnifying party at least 30 days' prior notice of
its intention to settle. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened Proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such Proceeding and does not include an admission of fault, culpability or a
failure to act, by or on behalf of such indemnified party.
(c) Each Underwriter severally agrees to indemnify, defend and
hold harmless the Company, its directors and officers, each Selling
Stockholder and any person who controls the Company within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act, and the
successors and assigns of all of the foregoing persons, from and
against any loss, damage, expense, liability or claim (including the
reasonable cost of investigation) which, jointly or severally, the
Company, any Selling Stockholder or any such person may incur under the
Act, the Exchange Act, the common law or otherwise, insofar as such
loss, damage, expense, liability or claim arises out of or is based
upon any untrue statement or alleged untrue statement of a material
fact contained in and in conformity with information concerning such
Underwriter furnished in writing by or on behalf of such Underwriter
through you to the Company expressly for use in the Registration
Statement (or in the Registration Statement as amended by any
post-effective amendment thereof by the Company) or in a Prospectus, or
arises out of or is based upon any omission or alleged omission to
state a material fact in connection with such information required to
be stated in such Registration Statement or such Prospectus or
necessary to make such information not misleading.
If any Proceeding is brought against the Company, any Selling
Stockholder or any such person in respect of which indemnity may be sought
against any Underwriter pursuant to the foregoing paragraph, the Company, any
Selling Stockholder or such person shall promptly notify such Underwriter in
writing of the institution of such Proceeding and such Underwriter shall assume
the
29
defense of such Proceeding, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses;
PROVIDED, HOWEVER, that the omission to so notify such Underwriter shall not
relieve such Underwriter from any liability which such Underwriter may have to
the Company, any Selling Stockholder or any such person or otherwise if the
Underwriter is not materially prejudiced by such delay. The Company, any Selling
Stockholder or such person shall have the right to employ its own counsel in any
such case, but the fees and expenses of such counsel shall be at the expense of
the Company, any Selling Stockholder or such person unless the employment of
such counsel shall have been authorized in writing by such Underwriter in
connection with the defense of such Proceeding or such Underwriter shall not
have, within a reasonable period of time in light of the circumstances, employed
counsel to defend such Proceeding or such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or them
which are different from or additional to or in conflict with those available to
such Underwriter (in which case such Underwriter shall not have the right to
direct the defense of such Proceeding on behalf of the indemnified party or
parties, but such Underwriter may employ counsel and participate in the defense
thereof but the fees and expenses of such counsel shall be at the expense of
such Underwriter), in any of which events such fees and expenses shall be borne
by such Underwriter and paid as incurred (it being understood, however, that
such Underwriter shall not be liable for the expenses of more than one separate
counsel (in addition to any local counsel) in any one Proceeding or series of
related Proceedings in the same jurisdiction representing the indemnified
parties who are parties to such Proceeding). No Underwriter shall be liable for
any settlement of any such Proceeding effected without the written consent of
such Underwriter but if settled with the written consent of such Underwriter,
such Underwriter agrees to indemnify and hold harmless the Company, any Selling
Stockholder and any such person from and against any loss or liability by reason
of such settlement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
sentence of this paragraph, then the indemnifying party agrees that it shall be
liable for any settlement of any Proceeding effected without its written consent
if (i) such settlement is entered into more than 60 business days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement and (iii) such indemnified party
shall have given the indemnifying party at least 30 days' prior notice of its
intention to settle. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened Proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such Proceeding.
(d) If the indemnification provided for in this Section 11 is
unavailable to an indemnified party under subsections (a), (b) or (c)
of this Section 11 or insufficient to hold an indemnified party
harmless in respect of any losses, damages, expenses, liabilities or
claims referred to therein, then each applicable indemnifying party
shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, damages, expenses, liabilities or
claims (i) in such proportion as is appropriate to reflect the relative
benefits received
30
by the Company and the Selling Stockholder on the one hand and the
Underwriters on the other hand from the offering of the Shares or (ii)
if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the
relative fault of the Company and the Selling Stockholders on the one
hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, damages,
expenses, liabilities or claims, as well as any other relevant
equitable considerations. The relative benefits received by the Company
and the Selling Stockholders on the one hand and the Underwriters on
the other shall be deemed to be in the same respective proportions as
the total proceeds from the offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Company and
the Selling Stockholders and the total underwriting discounts and
commissions received by the Underwriters, bear to the aggregate public
offering price of the Shares. The relative fault of the Company and the
Selling Stockholders on the one hand and of the Underwriters on the
other shall be determined by reference to, among other things, whether
the untrue statement or alleged untrue statement of a material fact or
omission or alleged omission relates to information supplied by the
Company and/or the Selling Stockholders or by the Underwriters and the
parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The
amount paid or payable by a party as a result of the losses, damages,
expenses, liabilities and claims referred to in this subsection shall
be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating, preparing to
defend or defending any Proceeding.
(e) The Company, the Selling Stockholders and the Underwriters
agree that it would not be just and equitable if contribution pursuant
to this Section 11 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation that does not take account of the equitable
considerations referred to in subsection (d) above. Notwithstanding the
provisions of this Section 11, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price
at which the Shares underwritten by such Underwriter and distributed to
the public were offered to the public exceeds the amount of any damage
which such Underwriter has otherwise been required to pay by reason of
such untrue statement or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant
to this Section 11 are several in proportion to their respective
underwriting commitments and not joint.
(f) The indemnity and contribution agreements contained in
this Section 11 and the covenants, warranties and representations of
the Company and the Selling Stockholders contained in this Agreement
shall remain in full force and effect regardless of any investigation
made by or on behalf of any Underwriter, its partners, directors or
officers or any person (including each partner, officer or director of
such person) who controls any Underwriter
31
within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, or by or on behalf of the Company, its directors or
officers, any Selling Stockholder or any person who controls the
Company within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, and shall survive any termination of this Agreement
or the issuance and delivery of the Shares. The Company, each of the
Selling Stockholders and each Underwriter agree promptly to notify each
other of the commencement of any Proceeding against it and, in the case
of the Company or the Selling Stockholders, against any of the
Company's or Selling Stockholder's officers or directors, as the case
may be, in connection with the issuance and sale of the Shares, or in
connection with the Registration Statement or the Prospectus.
12. INFORMATION FURNISHED BY THE UNDERWRITERS. The statements set forth
in the last paragraph on the cover page of the Prospectus and the statements set
forth in the seventh, thirteenth, fourteenth, fifteenth, sixteenth and
eighteenth paragraphs under the caption "Underwriting" in the Prospectus, only
insofar as such statements relate to the amount of the selling concession and
reallowance or to over-allotment and stabilization activities that may be
undertaken by the Underwriters constitute the only information furnished by or
on behalf of the Underwriters as such information is referred to in Sections 3
and 11 hereof.
13. NOTICES. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or sent to
UBS Securities LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000-0000, Attention:
Syndicate Department and Bear, Xxxxxxx & Co., Inc., 000 Xxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Parish, Senior Managing Director,
Equity Capital Markets; if to the Company, shall be sufficient in all respects
if delivered or sent to the Company at the offices of the Company at 00 Xxxxxxx
Xxxx, Xxxxxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxx, Ph.D.; and if
to the Selling Stockholders, shall be sufficient in all respects if delivered or
sent to the Representatives of the Selling Stockholders at Xxxxx Xxxxxxx LLP,
000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, Attention: Xxxxxxx Xxxxx.
14. GOVERNING LAW; CONSTRUCTION. This Agreement and any claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement ("Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of New
York. The Section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
15. SUBMISSION TO JURISDICTION. Except as set forth below, no Claim may
be commenced, prosecuted or continued in any court other than the courts of the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, which courts shall
have jurisdiction over the adjudication of such matters, and the Company
consents to the jurisdiction of such courts and personal service with respect
thereto. The Company and each of the Selling Stockholders hereby consents to
personal jurisdiction, service and venue in any court in which any Claim arising
out of or in any way relating to this Agreement is brought by any third party
against Bear Xxxxxxx and/or UBS or any indemnified party. Each of Bear Xxxxxxx,
UBS,
32
the Selling Stockholders and the Company (on its behalf and, to the extent
permitted by applicable law, on behalf of its stockholders and affiliates)
waives all right to trial by jury in any action, proceeding or counterclaim
(whether based upon contract, tort or otherwise) in any way arising out of or
relating to this Agreement. The Company and each of the Selling Stockholders
agrees that a final judgment in any such action, proceeding or counterclaim
brought in any such court shall be conclusive and binding upon the Company and
may be enforced in any other courts to the jurisdiction of which the Company is
or may be subject, by suit upon such judgment.
16. PARTIES AT INTEREST. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters, the Selling Stockholders and
the Company and to the extent provided in Section 11 hereof the controlling
persons, directors and officers referred to in such section, and their
respective successors, assigns, heirs, personal representatives and executors
and administrators. No other person, partnership, association or corporation
(including a purchaser, as such purchaser, from any of the Underwriters) shall
acquire or have any right under or by virtue of this Agreement.
17. COUNTERPARTS. This Agreement may be signed by the parties in one or
more counterparts which together shall constitute one and the same agreement
among the parties.
18. SUCCESSORS AND ASSIGNS. This Agreement has been and is made solely
for the benefit of the Underwriters, the Company and the Selling Stockholders
and their respective successors, executors, administrators, heirs and assigns,
and the officers, directors and controlling persons referred to herein, and no
other person will have any right or obligation hereunder. The term "successors"
shall not include any purchaser of the Shares merely because of such persons.
19. MISCELLANEOUS. UBS, an indirect, wholly owned subsidiary of UBS AG,
is not a bank and is separate from any affiliated bank, including any U.S.
branch or agency of UBS AG. Because UBS is a separately incorporated entity, it
is solely responsible for its own contractual obligations and commitments,
including obligations with respect to sales and purchases of securities.
Securities sold, offered or recommended by UBS are not deposits, are not insured
by the Federal Deposit Insurance Corporation, are not guaranteed by a branch or
agency, and are not otherwise an obligation or responsibility of a branch or
agency.
33
If the foregoing correctly sets forth the understanding among the
Company, the Selling Stockholders and the Underwriters, please so indicate in
the space provided below for the purpose, whereupon this agreement and your
acceptance shall constitute a binding agreement among the Company, the Selling
Stockholders and the Underwriters, severally, in accordance with its terms.
Very truly yours,
BRUKER BIOSCIENCES CORPORATION
By:
-----------------------------
Title:
THE SELLING STOCKHOLDERS NAMED IN
SCHEDULE B ATTACHED HERETO
By:
-----------------------------
Attorney-in-Fact
34
Accepted and agreed to as of the
date first above written, on
behalf of themselves and
the other several Underwriters
named in Schedule A
UBS SECURITIES LLC
BEAR, XXXXXXX & CO. INC.
XX XXXXX SECURITIES CORPORATION.
By: UBS SECURITIES LLC
By: __________________________
Name:
Title:
By: __________________________
Name:
Title:
By: BEAR, XXXXXXX & CO. INC.
By: __________________________
Name:
Title:
35
SCHEDULE A
Number of
UNDERWRITER FIRM SHARES
UBS SECURITIES LLC
BEAR, XXXXXXX & CO. INC.
XX XXXXX SECURITIES CORPORATION
-------
Total....................
=======
1
SCHEDULE B
NUMBER OF NUMBER OF
SELLERS FIRM SHARES ADDITIONAL SHARES
-------------------- ----------- -----------------
Company 3,000,000 450,000
Selling Stockholders:
Xxxxxx Xxxxxxx 3,333,334 500,000
Xxxx Xxxxxxx 3,333,333 500,000
Xxxx Xxxxxxx 2,000,000 300,000
Xxxx Xxxxxxx 3,333,333 500,000
---------- ---------
Total.................. 15,000,000 2,250,000
========== =========
1
SCHEDULE C
==========
SUBSIDIARY JURISDICTION OF INCORPORATION
---------- -----------------------------
Bruker AXS Inc. Delaware, USA
Bruker Daltonics Inc. Delaware, USA
Bruker AXS GmbH Germany
Nihon Bruker AXS KK Japan
Bruker Nonius B.V. The Netherlands
Bruker AXS do Brasil Ltda. Brazil
Bruker AXS Ltd.* United Kingdom
Bruker AXS SA* France
Bruker AXS SrL* Italy
Bruker AXS Pte Ltd (Singapore) Singapore
Bruker AXS GmbH* Austria
Bruker AXS (Pty) Ltd.* South Africa
Bruker Daltonics Ltd. England
Bruker Daltonique S.A. France
Nihon Bruker Daltonics K.K. Japan
Bruker Daltonics AG Switzerland
Bruker Daltonics Scandinavia AB Sweden
Bruker Daltonik GmbH Germany
Bruker Daltonics LTD Canada
Bruker Daltonics S.r.l. Italy
Bruker Daltonics Pte Ltd (Singapore) Singapore
Bruker Daltonics Australia Pty. Ltd. Australia
Bruker Daltonics B.V. The Netherlands
Bruker Daltonics SPRL Belgium
* These entities are indirect subsidiaries of Bruker AXS Inc. ("BAXS"). Each is
a wholly-owned subsidiary of Bruker AXS GmbH; Bruker AXS GmbH, in turn, is a
wholly-owned subsidiary of BAXS.
1
EXHIBIT A
---------
BRUKER BIOSCIENCES CORPORATION
------------------------------
Common Stock
$0.01Par Value
March ____, 2004
UBS Securities LLC
Bear, Xxxxxxx & Co. Inc.
XX Xxxxx Securities Corporation
As Representative of the several Underwriters
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This Lock-Up Letter Agreement is being delivered to you in connection
with the proposed Underwriting Agreement (the "Underwriting Agreement") to be
entered into by Bruker Biosciences Corporation (the "Company"), certain selling
shareholders and you, as Representative of the several Underwriters named
therein, with respect to the public offering (the "Offering") of Common Stock,
par value $0.01 per share, of the Company (the "Common Stock").
In order to induce you to enter into the Underwriting Agreement, the
undersigned agrees that for a period from the date of the Preliminary Prospectus
until 180 days after the date of the final prospectus relating to the Offering
the undersigned will not, without the prior written consent of Bear Xxxxxxx and
UBS, (i) sell, offer to sell, contract or agree to sell, hypothecate, pledge,
grant any option to purchase or otherwise dispose of or agree to dispose of,
directly or indirectly, or file (or participate in the filing of) a registration
statement with the Securities and Exchange Commission (the "Commission") in
respect of, or establish or increase a put equivalent position or liquidate or
decrease a call equivalent position within the meaning of Section 16 of the
Securities Exchange Act of 1934, as amended, and the rules and regulations of
the Commission promulgated thereunder with respect to, any Common Stock of the
Company or any securities convertible into or exercisable or exchangeable
1
for Common Stock, or warrants or other rights to purchase Common Stock, (ii)
enter into any swap or other arrangement that transfers to another, in whole or
in part, any of the economic consequences of ownership of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock, or
warrants or other rights to purchase Common Stock, whether any such transaction
is to be settled by delivery of Common Stock or such other securities, in cash
or otherwise, or (iii) publicly announce an intention to effect any transaction
specified in clause (i) or (ii). The foregoing sentence shall not apply to (a)
the registration of or sale to the Underwriters of any Common Stock pursuant to
the Offering and the Underwriting Agreement, (b) bona fide gifts, provided the
recipient thereof agrees in writing with the Underwriters to be bound by the
terms of this Lock-Up Letter Agreement and confirm that he, she or it has been
in compliance with the terms of this Lock-Up Letter Agreement since the date of
the Preliminary Prospectus or (c) dispositions to any trust for the direct or
indirect benefit of the undersigned and/or the immediate family of the
undersigned, provided that such trust agrees in writing with the Underwriters to
be bound by the terms of this Lock-Up Letter Agreement and confirms that it has
been in compliance with the terms of this Lock-Up Letter Agreement since the
date of the Preliminary Prospectus.
If (i) during the period that begins on the date that is 15 calendar days plus
three business days before the last day of the 180-day restricted period and
ends on the last day of the 180-day restricted period, the Company issues an
earnings release or material news or a material event relating to the Company
occurs, or (ii) prior to the expiration of the 180-day restricted period, the
Company announces that it will release earnings results during the 16-day period
beginning on the last day of the 180-day period, the restrictions imposed by
this letter shall continue to apply until the expiration of the date that is 15
calendar days plus three business days after the date on which the issuance of
the earnings release or the material news or material event occurs, provided
however, this paragraph will not apply if, within three days of the termination
of the 180-day restricted period, the Company delivers to Bear Xxxxxxx and UBS a
certificate, signed by the Chief Financial Officer or Chief Executive Officer of
the Company, certifying on behalf of the Company that the Company's shares of
Common Stock are, as of the date of delivery of such certificate, "actively
trading securities," as defined in Regulation M, 17 CFR 242.101(c)(1). Such
notice shall be delivered in accordance with Section 13 of the Underwriting
Agreement.
In addition, the undersigned hereby waives any rights the undersigned
may have to require registration of Common Stock in connection with the filing
of a registration statement relating to the Offering. The undersigned further
agrees that, for a period from the date of the Preliminary Prospectus until 180
days after the date of the final prospectus relating to the Offering, the
undersigned will not, without the prior written consent of Bear Xxxxxxx and UBS,
make any demand for, or exercise any right with respect to, the registration of
Common Stock of the Company or any securities convertible into or exercisable or
exchangeable for Common Stock, or warrants or other rights to purchase Common
Stock.
If (i) the Company notifies you in writing that it does not intend to
proceed with the Offering, (ii) the registration statement filed with the
Securities and Exchange Commission with respect to the Offering is withdrawn or
(iii) for any reason the Underwriting Agreement shall be
2
terminated prior to the time of purchase (as defined in the Underwriting
Agreement), this Lock-Up Letter Agreement shall be terminated and the
undersigned shall be released from its obligations hereunder. This lock-up
agreement shall automatically terminate and the undersigned shall be released
from its obligations hereunder on the 90th day after the date of the Preliminary
Prospectus if the purchase of the Firm Shares (as defined in the Underwriting
Agreement) by the Underwriters has not occurred by such date.
Yours very truly,
-------------------------------
Name:
3
EXHIBIT B
---------
OPINION OF XXXXX XXXXXXX
------------------------
1. the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with full
corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement and the
Prospectus, to execute and deliver the Underwriting Agreement and to issue, sell
and deliver the Shares as contemplated herein;
2. each of Bruker Daltonics Inc. and Bruker AXS Inc. (the
"Subsidiaries") has been duly incorporated and is validly existing as a
corporation in good standing under the laws of its jurisdiction of
incorporation, with full corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Registration
Statement and the Prospectus;
3. the Company and the Subsidiaries are duly qualified to do business
as a foreign corporation and are in good standing in each jurisdiction where the
ownership or leasing of their properties or the conduct of their business
requires such qualification, except where the failure to be so qualified and in
good standing would not, individually or in the aggregate, have a Material
Adverse Effect;
4. the Underwriting Agreement has been duly authorized, executed and
delivered by the Company;
5. the Shares have been duly authorized and validly issued and are
fully paid and non-assessable;
6. the Company has an authorized and outstanding capitalization as set
forth in the Registration Statement and the Prospectus; all of the issued and
outstanding shares of capital stock of the Company have been duly authorized and
validly issued, are fully paid and non-assessable and are free of statutory
preemptive rights and, to such counsel's knowledge, contractual preemptive
rights, resale rights, rights of first refusal and similar rights; the Shares
are free of statutory preemptive rights and, to such counsel's knowledge,
contractual preemptive rights, resale rights, rights of first refusal and
similar rights; the certificates for the Shares are in due and proper form and
the holders of the Shares will not be subject to personal liability by reason of
being such holders;
7. all of the outstanding shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are fully paid and
non-assessable and, except as otherwise stated in the Registration Statement and
the Prospectus, are owned directly or indirectly by the Company, in each case
subject to no security interest, or adverse claim (as defined in Article 8 of
the Uniform Commercial Code) except foreign ownership restrictions under
applicable laws, rules and regulations; and to such counsel's knowledge, no
options, warrants or other rights to purchase, agreements or other obligations
to issue or other rights to convert any obligation into shares of capital stock
or ownership interests in the Subsidiaries are outstanding;
B-1
8. the capital stock of the Company, including the Shares, conforms as
to legal matters in all material respects to the description thereof contained
in the Registration Statement and the Prospectus;
9. the Registration Statement and the Prospectus (except as to the
financial statements and schedules and other financial data contained therein,
as to which such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act; and the conditions to the
use of Form S-3 have been satisfied; the documents incorporated by reference in
the Registration Statement and the Prospectus, at the time they became effective
or were filed with the Commission, complied as to form in all material respects
with the requirements of the Exchange Act (except as to the financial statements
and schedules and other financial data contained therein, as to which such
counsel need express no opinion);
10. the Registration Statement has become effective under the Act and,
to such counsel's knowledge, no stop order proceedings with respect thereto are
pending or threatened under the Act and any required filing of the Prospectus
and any supplement thereto pursuant to Rule 424 under the Act has been made in
the manner and within the time period required by such Rule 424;
11. no approval, authorization, consent or order of or filing with any
federal, state or local governmental or regulatory commission, board, body,
authority or agency is required in connection with the issuance and sale of the
Shares and consummation by the Company of the transactions contemplated hereby
other than registration of the Shares under the Act (except such counsel need
express no opinion as to any necessary qualification under the state securities
or blue sky laws of the various jurisdictions in which the Shares are being
offered by the Underwriters);
12. the execution, delivery and performance of the Underwriting
Agreement by the Company, the issuance and sale of the Shares by the Company and
the consummation by the Company of the transactions contemplated thereby do not
and will not conflict with, result in any breach or violation of or constitute a
default under (nor constitute any event which with notice, lapse of time or both
would result in any breach of or constitute a default under) the charter or
by-laws of the Company or any of the Subsidiaries, or any indenture, mortgage,
deed of trust, bank loan or credit agreement or other evidence of indebtedness,
or any license, lease, contract or other agreement or instrument to which the
Company or any of the Subsidiaries is a party or by which any of them or any of
their respective properties may be bound or affected currently filed as an
exhibit to the Registration Statement or currently filed as an exhibit to any
document incorporated by reference in the Registration Statement or the
Prospectus, or any federal, state, local or foreign law, regulation or rule or
any decree, judgment or order applicable to the Company or any of the
Subsidiaries;
13. to such counsel's knowledge, neither the Company nor any of the
Subsidiaries is in breach or violation of or in default under (nor has any event
occurred which with notice, lapse of time, or both would result in any breach
of, or constitute a default under or give the holder of any indebtedness (or a
person acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a part of such indebtedness under) its
respective charter or by-laws, or any indenture, mortgage, deed of trust, bank
loan or credit agreement or other evidence
B-2
of indebtedness, or any license, lease, contract or other agreement or
instrument to which the Company or any of the Subsidiaries is a party or by
which any of them or any of their respective properties may be bound, all as
currently filed as an exhibit to the Registration Statement or currently filed
as an exhibit to any document incorporated by reference in the Registration
Statement or the Prospectus, or any federal, Delaware or Massachusetts law,
regulation or rule or any decree, judgment or order applicable to the Company or
any of the Subsidiaries;
14. to such counsel's knowledge, there are no affiliate transactions,
off-balance sheet transactions, contracts, licenses, agreements, leases or
documents of a character which are required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the Registration
Statement which have not been so described or filed;
15. to such counsel's knowledge, there are no actions, suits, claims,
investigations or proceedings pending, threatened or contemplated to which the
Company or any of the Subsidiaries or any of their respective directors or
officers is a party or to which any of their respective properties is subject at
law or in equity, before or by any federal, state, local or foreign governmental
or regulatory commission, board, body, authority or agency which are required to
be described in the Registration Statement or the Prospectus but are not so
described;
16. the Company is not and, after giving effect to the offering and
sale of the Shares, will not be an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act;
17. the information in the Registration Statement and the Prospectus
and the Company's Annual Report for the year ended December 31, 2003 filed on
Form 10-K under the sixth sentence under the heading "Risk factors - If we lose
our strategic partners, our marketing efforts could be impaired," and under the
headings "Risk factors - We have agreed to share our name, portions of our
intellectual property rights and distribution channels with other entities under
common control which could result in the loss of our name and to lock in the
price of products we may sell to these entities which may not be the best price
available for these products," "Risk factors - Other companies may have
difficulty acquiring us, even if doing so would benefit our stockholders, due to
provisions under our corporate charter, bylaws, option plans, stockholder rights
agreement and some of our employment agreements, as well as Delaware law,"
"Business - Government Contracts," "Business - Government Regulation," and in
the Registration Statement and the Prospectus under the headings "Description of
Common Stock," "Part II. Information Not Required in Prospectus - Item 15.
Indemnification of Directors and Officers," insofar as such statements
constitute a summary of documents or matters of law, and are descriptions of
contracts, agreements or other legal documents or of legal proceedings, or refer
to statements of law or legal conclusions, are accurate in all material respects
and present fairly the information required to be shown;
18. no person has the right, pursuant to the terms of any contract,
agreement or other instrument described in or filed as an exhibit to the
Registration Statement or otherwise known to such counsel, to cause the Company
to register under the Act any shares of Common Stock or shares of any other
capital stock or other equity interest of the Company, or to include any such
shares
B-3
or interest in the Registration Statement or the offering contemplated thereby,
whether as a result of the filing or effectiveness of the Registration Statement
or the sale of the Shares as contemplated thereby or otherwise;
19. the Underwriting Agreement and the Custody Agreement have been duly
executed and delivered by or on behalf of each of the Selling Stockholders;
20. each Selling Stockholder has full legal right and power, and has
obtained any authorization or approval required by law (other than those imposed
by the Act and the securities or blue sky laws of certain jurisdictions), to
sell, assign, transfer and deliver the Shares to be sold by such Selling
Stockholder in the manner provided in the Underwriting Agreement;
21. Assuming that the Underwriters acquire the Shares sold by the
Selling Stockholders for value and without notice of any adverse claim (as
defined in Article 8 of the Uniform Commercial Code) with respect to such
Shares, then, upon delivery to the Underwriters of the certificates representing
such Shares, either registered in the name of the Underwriters or indorsed to
the Underwriters or in blank by an effective endorsement, the Underwriters will
acquire such Shares free of any adverse claim.
22. each of the Representatives of the Selling Stockholders has been
duly authorized by each Selling Stockholder to execute and deliver on behalf of
such Selling Stockholder this Agreement and any other document necessary or
desirable in connection with the transactions contemplated hereby and to deliver
the Shares to be sold by such Selling Stockholder; and
23. to the best of such counsel's knowledge, the statements in the
Prospectus under the caption "Principal and Selling Stockholders" insofar as
such statements constitute a summary of the matters referred to therein present
fairly the information called for with respect to such matters.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the independent public accountants of the Company
and representatives of the Underwriters at which the contents of the
Registration Statement and the Prospectus were discussed and, although such
counsel has not undertaken to independently determine, is not passing upon and
does not assume responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus (except as
and to the extent stated in subparagraphs (6), (8) and (17) above), on the basis
of the foregoing nothing has come to the attention of such counsel that causes
them to believe that the Registration Statement or any amendment thereto at the
time such Registration Statement or amendment became effective (or, if later, at
the time of filing of the Company's most recent annual report on Form 10-K)
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus or any supplement thereto at the date of
such Prospectus or such supplement, and at the time of purchase or the
additional time of purchase, as the case may be, contained an untrue statement
of a material fact
B-4
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading (it being understood that such counsel need express no
opinion with respect to the financial statements and schedules and other
financial data and statistical data derived therefrom included in the
Registration Statement or the Prospectus).
B-5
EXHIBIT C
---------
OPINION OF XXXX AND XXXXX
Such counsel shall state that they served as special counsel to the
Company with respect to patents and proprietary rights, and shall opine that:
1. To such counsel's knowledge, the statements in the Registration
Statement and the Prospectus under the captions under the caption Intellectual
Property and under the headings "Risk factors - Our success depends on our
ability to operate without infringing or misappropriating the proprietary rights
of others," "Risk factors - If we are unable to effectively protect our
intellectual property, third parties may use our technology, which would impair
our ability to compete in our markets," "Risk factors - Third parties may
infringe our patents, and we may become involved in lawsuits to protect or
enforce our patents that are brought by us which could be expensive and time
consuming and adversely affect our patent position," "Risk factors - We have
agreed to share our name, portions of our intellectual property rights and
distribution channels with other entities under common control which could
result in the loss of our name and to lock in the price of products we may sell
to or buy from these entities, which may not be the most favorable prices for us
for these products," are accurate and complete statements or summaries of the
matters therein set forth. Nothing has come to such counsel's attention that
causes them to believe that the above-described portions of the Registration
Statement at the time such Registration Statement became effective contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or that the Prospectus or any supplement thereto, at the date of such Prospectus
or such supplement and at the time of purchase or the additional time of
purchase, as the case may be, contained an untrue statement of material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
2. To such counsel's knowledge, with the exception of applications
pending before the U.S. Patent and Trademark Office, (a) there are no legal or
governmental proceedings pending relating to patent rights, trade secrets,
trademarks, service marks or other proprietary information or materials of the
Company, and (b) no such proceedings are threatened or contemplated by
governmental authorities or others.
3. Such counsel does not know of any contracts or other documents,
relating to the Company's patents, trade secrets, trademarks, service marks or
other proprietary information or materials, of a character required to be
described in the Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement which have not been so described or filed
required.
4. To such counsel's knowledge, the Company is not infringing or
otherwise violating any patents, trade secrets, trademarks, service marks or
other proprietary information or materials of others.
C-1
5. Such counsel has no knowledge of any facts which would preclude the
Company from having valid license rights or clear title to the patents
referenced in the Registration Statement and the Prospectus. Such counsel has no
knowledge that the Company lacks or will be unable to obtain any rights or
licenses to use all patents and other material intangible property and assets
necessary to conduct the business now conducted or proposed to be conducted by
the Company as described in the Registration Statement and the Prospectus,
except as described in the Registration Statement and the Prospectus. Counsel is
unaware of any facts which form a basis for a finding of unenforceability or
invalidity of any of the Company's patents.
6. Such counsel is not aware of any material fact with respect to the
patent applications of the Company presently on file that (a) would preclude the
issuance of patents with respect to such applications, or (b) would lead such
counsel to conclude that such patents, when issued, would not be valid and
enforceable in accordance with applicable regulations.
C-2
EXHIBIT C-1
-----------
OPINION OF XXXX AND XXXX LLP
Such counsel shall state that they served as special counsel to the
Company with respect to patents and proprietary rights, and shall opine that:
1. To such counsel's knowledge, the statements in the Registration
Statement and the Prospectus under the captions "Intellectual Property," second
and fifth paragraphs and "Risk Factors" under the captions "Our success depends
on our ability to operate without infringing or misappropriating the proprietary
rights of others," "If we are unable to effectively protect our intellectual
property, third parties may use our technology, which would impair our ability
to compete in our markets," and "Third parties may infringe our patents, and we
may become involved in lawsuits to protect or enforce our patents that are
brought by us which could be expensive and time consuming and adversely affect
our patent position" are accurate and complete statements or summaries of the
matters therein set forth. Nothing has come to such counsel's attention that
causes them to believe that the above-described portions of the Registration
Statement at the time such Registration Statement became effective contained an
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
or that the Prospectus or any supplement thereto, at the date of such Prospectus
or such supplement and at the time of purchase or the additional time of
purchase, as the case may be, contained an untrue statement of material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
2. To such counsel's knowledge, (a) there are no legal or governmental
proceedings pending relating to patent rights, trade secrets, trademarks,
service marks or other proprietary information or materials of the Company, and
(b) except as set forth in the letter of February 5, 2002 from the U.S. Army
Aberdeen Acquisition Center Chemical and Biological Defense Command Branch, to
the Company, no such proceedings are threatened or contemplated by governmental
authorities or others.
3. To such counsel's knowledge, with the possible exception of the
manufacture, testing and sales of five individual mass spectrometers that
arguably could infringe US Patent No. 4,963,736 if such patent is found to be
valid, the Company is not infringing or otherwise violating any patents, trade
secrets, trademarks, service marks or other proprietary information or materials
of others.
4. Such counsel has no knowledge of any facts that according to such
counsel's knowledge and understanding would preclude the Company from having
valid license rights or clear title to the patents referenced in the
Registration Statement and the Prospectus. Counsel is unaware of any facts which
form a basis for a finding of unenforceability or invalidity of any of the
Company's patents and other material property and assets.
C-3
5. Such counsel is not aware of any material fact that has not been
brought to the attention of the patent office with respect to the patent
applications of the Company presently on file that according to such counsel's
knowledge and understanding (a) would preclude the issuance of patents with
respect to such applications, or (b) would lead such counsel to conclude that
such patents, when issued, would not be valid and enforceable in accordance with
applicable regulations.
C-4
EXHIBIT C-2
-----------
OPINION OF KOHLER XXXXXX & PARTNER
Such counsel shall state that they served as special counsel to Bruker
AXS GmbH (the "Company") with respect to patents and proprietary rights, and
shall opine that:
1. To such counsel's knowledge, the statements in the Registration
Statement and the Prospectus under the caption Intellectual Property and under
the headings "Risk factors - Our success depends on our ability to operate
without infringing or misappropriating the proprietary rights of others," "Risk
factors - If we are unable to effectively protect our intellectual property,
third parties may use our technology, which would impair our ability to compete
in our markets," "Risk factors - Third parties may infringe our patents, and we
may become involved in lawsuits to protect or enforce our patents that are
brought by us which could be expensive and time consuming and adversely affect
our patent position," "Risk factors - We have agreed to share our name, portions
of our intellectual property rights and distribution channels with other
entities under common control which could result in the loss of our name and to
lock in the price of products we may sell to or buy from these entities, which
may not be the most favorable prices for us for these products," are accurate
and complete statements or summaries of the matters therein set forth. Nothing
has come to such counsel's attention that causes them to believe that the
above-described portions of the Registration Statement at the time such
Registration Statement became effective contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
Prospectus or any supplement thereto, at the date of such Prospectus or such
supplement and at the time of purchase or the additional time of purchase, as
the case may be, contained an untrue statement of material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
2. To such counsel's knowledge, (a) there are no legal or governmental
proceedings pending relating to patent rights, trade secrets, trademarks,
service marks or other proprietary information or materials of the Company, and
(b) no such proceedings are threatened or contemplated by governmental
authorities or others.
3. Such counsel does not know of any contracts or other documents,
relating to the Company's patents, trade secrets, trademarks, service marks or
other proprietary information or materials, of a character required to be
described in the Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement which have not been so described or filed
required.
4. To such counsel's knowledge, the Company is not infringing or
otherwise violating any patents, trade secrets, trademarks, service marks or
other proprietary information or materials of others.
5. Such counsel has no knowledge of any facts which would preclude the
Company from having valid license rights or clear title to the patents
referenced in the Registration Statement
C-5
and the Prospectus. Such counsel has no knowledge that the Company lacks or will
be unable to obtain any rights or licenses to use all patents and other material
intangible property and assets necessary to conduct the business now conducted
or proposed to be conducted by the Company as described in the Registration
Statement and the Prospectus, except as described in the Registration Statement
and the Prospectus. Counsel is unaware of any facts which form a basis for a
finding of unenforceability or invalidity of any of the Company's patents and
other material property and assets.
6. Such counsel is not aware of any material fact with respect to the
patent applications of the Company presently on file that (a) would preclude the
issuance of patents with respect to such applications, or (b) would lead such
counsel to conclude that such patents, when issued, would not be valid and
enforceable in accordance with applicable regulations.
C-6
EXHIBIT C-3
-----------
OPINION OF KUDRIKA & JOBSE LLP
1. Such counsel is not aware of any invalid license rights or title
defects in the patents that we know to be used in Bruker AXS Inc.'s (the
"Company) business, and such counsel is not aware of any rights of third parties
to any Company patents that interfere in any material respect with the Company's
use of, or right to use, the Company's patents.
2. Such counsel is not aware of any infringement or other violation by
third parties of any of the Company patents. A product brochure from the Company
INEL, of Artenay, France, was forwarded to such counsel by Xxx He on August 20,
2002 regarding a possible infringement of the U.S. Patent No. 5,359,640, owned
by the Company, but such counsel was never asked to investigate that potential
infringement further.
3. Such counsel is not aware of any pending or threatened action, suit,
proceeding or claim that the Company infringes or otherwise violates any third
party patent rights. Nor is such counsel aware of any specific facts or
circumstances that, in such counsel's opinion, should be reasonably considered
as a basis for such action, suit, proceeding or claim, provided however, that
such counsel is aware of the Company being contacted by third parties regarding
their alleged intellectual property rights as described in the following three
paragraphs:
On October, 28, 2002, the Company was sent a letter from
Cabinet Regimbeau of Paris, France, which was intellectual property counsel for
the French Company Xenocs. The letter did not charge infringement, and simply
stated that patent applications had been filed for two-dimensional x-ray
mirrors. Such counsel was not asked to do a formal investigation into this
matter, and did not participate in any discussions with Xenocs.
On December 12, 2002, a letter was sent to the Company from a
vice president of Avantium Technologies in Amsterdam, The Netherlands. This
letter identified Avantium as a partner of Crystallics, BV, also of Amsterdam.
The letter referenced a nondisclosure agreement between the Company and
Crystallics, and alleged a breach of that agreement by the Company. The letter
also stated that several patent applications had been filed by Crystallics
covering certain apparatus and methods for x-ray diffractometers. The letter did
not charge infringement, but requested that the Company cease certain activities
related to the technology in question. Such counsel was not asked to do a formal
investigation of either the nondisclosure agreement or the patent applications,
and did not participate in any discussions with Avantium/Crystallics.
On July 3, 2003, the Company received an e-mail communication
from the managing director of Oxford Danfysik, Oxford, UK. This message stated
that Oxford Danfysik was a licensee of a patent application owned by the U.S.
Department of Energy. Subsequent communications between the Company and Oxford
Danfysik indicated that Oxford sought to supply the Company with a product
referred to as a "quadrant pin diode," which was alleged to be covered under the
patent application. After issuance of a patent (U.S. Patent No. 6,596,994) from
the patent application
C-7
mentioned in the e-mail messages, such counsel sent a letter to Oxford Danfysik
on the Company's behalf, requesting specific details regarding any allegation of
infringement and evidence of Oxford Danfysik's alleged status as exclusive
licensee. No such additional details were ever provided to such counsel. Such
counsel was not asked to do a formal infringement investigation regarding this
patent.
4. Such counsel is not aware of any pending or threatened action, suit,
proceeding or claim challenging the rights of the Company in or to, or
challenging the scope of, any Company patent, nor is such counsel aware of any
specific facts or circumstances that, in such counsel's opinion, should be
reasonably considered a basis for such an action, suit, proceeding or claim.
5. Such counsel is not aware of any inventorship challenges or any
interferences that have been declared or provoked with respect to any Company
patent or Company patent application presently on file, nor is such counsel
aware of any specific facts or circumstances that, in such counsel's opinion,
should be reasonably considered a basis for such an inventor challenge or
interference.
6. Such counsel is not aware of any patents having claims that would
clearly dominate the claims of the Company patents.
7. Such counsel is not aware of any specific facts or circumstances
that, in such counsel's opinion, should render any Company patents invalid or
unenforceable or should render the claims of any pending Company patent
application unpatentable.
C-8
EXHIBIT C-4
-----------
CERTIFICATE OF XXXXXX XXXXXXX
1. To such officer's knowledge, the statements in the Registration
Statement and the Prospectus under the caption Intellectual Property and under
the headings "Risk factors - Our success depends on our ability to operate
without infringing or misappropriating the proprietary rights of others," "Risk
factors - If we are unable to effectively protect our intellectual property,
third parties may use our technology, which would impair our ability to compete
in our markets," "Risk factors - Third parties may infringe our patents, and we
may become involved in lawsuits to protect or enforce our patents that are
brought by us which could be expensive and time consuming and adversely affect
our patent position," "Risk factors - We have agreed to share our name, portions
of our intellectual property rights and distribution channels with other
entities under common control which could result in the loss of our name and to
lock in the price of products we may sell to or buy from these entities, which
may not be the most favorable prices for us for these products," are accurate
and complete statements or summaries of the matters therein set forth with
respect to Bruker Daltonik GmbH (the "Company"). Nothing has come to such
officer's attention that causes such officer to believe that the above-described
portions of the Registration Statement at the time such Registration Statement
became effective, in each case with respect to the Company (a) 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 (b) that the Prospectus or any supplement thereto, at the date of such
Prospectus or such supplement and at the time of purchase or the additional time
of purchase, as the case may be, contained an untrue statement of material fact
or omitted to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading.
2. To such officer's knowledge, (a) there are no legal or governmental
proceedings pending relating to patent rights, trade secrets, trademarks,
service marks or other proprietary information or materials of the Company, and
(b) no such proceedings are threatened or contemplated by governmental
authorities or others.
3. Such officer does not know of any contracts or other documents,
relating to the Company's patents, trade secrets, trademarks, service marks or
other proprietary information or materials, of a character required to be
described in the Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement which have not been so described or filed
required.
4. To such officer's knowledge, the Company is not infringing or
otherwise violating any patents, trade secrets, trademarks, service marks or
other proprietary information or materials of others.
5. Such officer has no knowledge of any facts which would preclude the
Company from having valid license rights or clear title to the patents
referenced in the Registration Statement and the Prospectus. Such counsel has no
knowledge that the Company lacks or will be unable to obtain any rights or
licenses to use all patents and other material intangible property and assets
necessary to
C-9
conduct the business now conducted or proposed to be conducted by the Company as
described in the Registration Statement and the Prospectus, except as described
in the Registration Statement and the Prospectus. Officer is unaware of any
facts which form a basis for a finding of unenforceability or invalidity of any
of the Company's patents and other material property and assets.
6. Subject to normal patent prosecution tactics, such as filing broad
claims, and the approaches of governmental patent offices, such officer is not
aware of any material fact with respect to the patent applications of the
Company presently on file that (a) would preclude the issuance of patents with
respect to such applications, or (b) would lead such officer to conclude that
such patents, when issued, would not be valid and enforceable in accordance with
applicable regulations.
C-10
EXHIBIT D
---------
OPINION OF XX. X. XXXXXXX & PARTNER, BREMEN
1. Bruker Daltonic GmbH, Bremen (XXXX GmbH) a company organized under
the laws of federal republic of Germany (FRG) has been duly incorporated and is
validly existing as a corporation under the laws of FRG, with all requisite
power and authority to own, lease and operate its properties and to conduct its
business as currently conducted.
2. All of the issued and outstanding shares of capital stock of the
XXXX GmbH have been duly authorized and validly issued, are fully paid and
non-assessable and, except as otherwise stated in the Registration Statement and
the Prospectus, are owned by Bruker BioSciences Corp. and Bruker Daltonics Inc.
(the Company); and to such counsel's knowledge, no options, warrants or other
rights to purchase, agreements or other obligations to issue or other rights to
convert any obligation into shares of capital stock or ownership interests in
XXXX GmbH are outstanding.
3. To such counsel's knowledge, there is no litigation or governmental
or other action, suit, proceedings or investigations before any court or before
or by any public, regulatory or governmental agency or body pending or, to such
counsel's knowledge, threatened in FRG against or involving the properties or
business of the XXXX GmbH in FRG which, if determined adversely to XXXX GmbH,
would have a material adverse effect on the business, properties, financial
condition, results of operation or prospects of the Company and XXXX GmbH taken
as a whole.
4. To such counsel's knowledge, the execution, delivery and performance
of the Underwriting Agreement by the Company, the issuance and sale of the
Shares by the Company and the consummation by the Company of the transactions
contemplated hereby do not, and, based on facts and law in existence at the date
of such opinion, will not, conflict with, result in any breach or violation of
or constitute a default under (nor constitute any event which with notice, lapse
of time or both would result in any breach or violation of or constitute a
default under) (A) the charter documents of XXXX GmbH, or (B) any indenture,
mortgage, deed of trust, bank loan or credit agreement, other evidence of
indebtedness, license, lease, contract or other agreement or instrument to which
XXXX GmbH is a party or by which it or any of its properties may be bound filed
as an exhibit to the Registration Statement or any document incorporated by
reference in the Registration Statement or the Prospectus or any document or
instrument which has otherwise been identified to such counsel by the Company or
XXXX GmbH in writing as being material, or (C) any FRG law, regulation or rule
or any decree, judgment or order applicable to XXXX GmbH and known to such
counsel.
D-1
EXHIBIT D-1
-----------
OPINION OF RECHTSANWALTE XXXXXXXXXXX & XXXXXXX
1. Bruker AXS GmbH, a company organized under the laws of Germany has
been duly incorporated and is validly existing as a corporation under the laws
of Germany, with all requisite power and authority to own, lease and operate its
properties and to conduct its business as currently conducted.
2. All of the issued and outstanding shares of capital stock of Bruker
AXS GmbH have been duly authorized and validly issued, are fully paid and
non-assessable and, except as otherwise stated in the Registration Statement and
the Prospectus, are owned by the Company; and to such counsel's knowledge, no
options, warrants or other rights to purchase, agreements or other obligations
to issue or other rights to convert any obligation into shares of capital stock
or ownership interests in Bruker AXS GmbH are outstanding.
3. To such counsel's knowledge, there is no litigation or governmental
or other action, suit, proceedings or investigations before any court or before
or by any public, regulatory or governmental agency or body pending or, to such
counsel's knowledge, threatened in Germany against or involving the properties
or business of Bruker AXS GmbH in Germany which, if determined adversely to
Bruker AXS GmbH, would have a material adverse effect on the business,
properties, financial condition, results of operation or prospects of the
Company and Bruker AXS GmbH taken as a whole.
4. To such counsel's knowledge, the execution, delivery and performance
of the Underwriting Agreement by the Company, the issuance and sale of the
Shares by the Company and the consummation by the Company of the transactions
contemplated hereby do not, and, based on facts and law in existence at the date
of such opinion, will not, conflict with, result in any breach or violation of
or constitute a default under (nor constitute any event which with notice, lapse
of time or both would result in any breach or violation of or constitute a
default under) (A) the charter documents of Bruker AXS GmbH, or (B) any
indenture, mortgage, deed of trust, bank loan or credit agreement, other
evidence of indebtedness, license, lease, contract or other agreement or
instrument to which Bruker AXS GmbH is a party or by which it or any of its
properties may be bound filed as an exhibit to the Registration Statement or any
document incorporated by reference in the Registration Statement or the
Prospectus or any document or instrument which has otherwise been identified to
such counsel by the Company or Bruker AXS GmbH in writing as being material, or
(C) any German law, regulation or rule or any decree, judgment or order
applicable to Bruker AXS GmbH and known to such counsel.
D-2
EXHIBIT E
---------
OFFICERS' CERTIFICATE
1. I have reviewed the Registration Statement and the Prospectus.
2. The representations and warranties of the Company as set forth in this
Agreement are true and correct as of the time of purchase and, if
applicable, the additional time of purchase.
3. The Company has performed all of its obligations under this Agreement as
are to be performed at or before the time of purchase and at or before the
additional time of purchase, as the case may be.
4. The conditions set forth in paragraphs (m) and (n) of Section 8 of this
Agreement have been met.
5. The financial statements and other financial information included in the
Registration Statement and the Prospectus fairly present in all material
respects the financial condition, results of operations, and cash flows of
the Company as of, and for, the periods presented in the Registration
Statement.
E-1
