3,750,000 SHARES
INTEGRA LIFESCIENCES HOLDINGS CORPORATION
COMMON STOCK
FORM OF UNDERWRITING AGREEMENT
_____________________, 2001
U.S. BANCORP XXXXX XXXXXXX INC.
ABN AMRO ROTHSCHILD INCORPORATED
CIBC World Markets CORP.
XXXXX, XXXXXXXX & Xxxx, INC.
c/o U.S. Bancorp Xxxxx Xxxxxxx Inc.
800 Nicollet Mall
Mail Station J1012005
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000
Ladies and Gentlemen:
Integra LifeSciences Holdings Corporation, a Delaware corporation (the
"Company"), Quantum Industrial Partners LDC, a Cayman Islands limited duration
company ("Quantum"), and SFM Domestic Investments LLC, a Delaware limited
liability company ("SFM" and, together with Quantum, the "Selling
Stockholders"), severally propose to sell to the several underwriters named in
Schedule I hereto (the "Underwriters") an aggregate of 3,750,000 shares (the
"Firm Shares") of common stock, $.01 par value per share (the "Common Stock"),
of the Company, of which 3,500,000 shares will be sold by the Company and
250,000 shares will be sold by the Selling Stockholders. The respective number
of Firm Shares to be sold by the Selling Stockholders are set forth opposite
their names on Schedule II hereto. The Company and the Selling Stockholders have
also granted to the several Underwriters an option to purchase up to 562,500
additional shares of Common Stock to cover over-allotments (the "Option
Shares"). The Firm Shares and any Option Shares purchased pursuant to this
Purchase Agreement are herein collectively called the "Securities."
The Company and the Selling Stockholders hereby confirm their agreement
with respect to the sale of the Securities to the Underwriters.
1. REGISTRATION STATEMENT AND PROSPECTUS. A registration
statement on Form S-3 (File No. 333-62176) with respect to the Securities,
including a preliminary form of prospectus, has been prepared by the Company in
conformity with the requirements of the Securities Act of 1933, as amended (the
"Act"), and the rules and regulations ("Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") thereunder and has been
filed with the Commission; one or more amendments to such registration statement
have also been so prepared and have been, or will be, so filed; and, if the
Company has elected to rely upon Rule 462(b) of the Rules and Regulations to
increase the size of the offering registered under the Act, the Company will
prepare and file with the Commission a registration statement with respect to
such increase pursuant to Rule 462(b). Copies of such registration statement(s)
and amendments and each related preliminary prospectus have been delivered to
you. The Company has complied with the conditions for the use of Form S-3.
If the Company has elected not to rely upon Rule 430A of the Rules and
Regulations, the Company has prepared and will promptly file an amendment to the
registration statement and an amended
prospectus (including a term sheet meeting the requirements of Rule 434 of the
Rules and Regulations). If the Company has elected to rely upon Rule 430A of the
Rules and Regulations, it will prepare and file a prospectus (or a term sheet
meeting the requirements of Rule 434) pursuant to Rule 424(b) that discloses the
information previously omitted from the prospectus in reliance upon Rule 430A.
Such registration statement as amended at the time it is or was declared
effective by the Commission, and, in the event of any amendment thereto after
the effective date and prior to the First Closing Date (as hereinafter defined),
such registration statement as so amended (but only from and after the
effectiveness of such amendment), including (i) the documents incorporated by
reference in the prospectus contained in such registration statement at the time
of its effectiveness, (ii) a registration statement (if any) filed pursuant to
Rule 462(b) of the Rules and Regulations increasing the size of the offering
registered under the Act and (iii) information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rules 430A(b)
and 434(d) of the Rules and Regulations, is hereinafter called the "Registration
Statement." The prospectus included in the Registration Statement at the time it
is or was declared effective by the Commission is hereinafter called the
"Prospectus," except that if any prospectus (including any term sheet meeting
the requirements of Rule 434 of the Rules and Regulations provided by the
Company for use with a prospectus subject to completion within the meaning of
Rule 434 in order to meet the requirements of Section 10(a) of the Rules and
Regulations) filed by the Company with the Commission pursuant to Rule 424(b)
(and Rule 434, if applicable) of the Rules and Regulations or any other such
prospectus provided to the Underwriters by the Company for use in connection
with the offering of the Securities (whether or not required to be filed by the
Company with the Commission pursuant to Rule 424(b) of the Rules and
Regulations) differs from the prospectus on file at the time the Registration
Statement is or was declared effective by the Commission, the term "Prospectus"
shall refer to such differing prospectus (including any term sheet within the
meaning of Rule 434 of the Rules and Regulations) from and after the time such
prospectus is filed with the Commission or transmitted to the Commission for
filing pursuant to such Rule 424(b) (and Rule 434, if applicable) or from and
after the time it is first provided to the Underwriters by the Company for such
use. The term "Preliminary Prospectus" as used herein means any preliminary
prospectus included in the Registration Statement prior to the time it becomes
or became effective under the Act and any prospectus subject to completion as
described in Rule 430A or 434 of the Rules and Regulations. Any reference herein
to a Prospectus or Preliminary Prospectus shall be deemed to refer to and
include the documents incorporated therein by reference pursuant to Item 12 of
Form S-3 under the Act as of the date of such Prospectus or Preliminary
Prospectus, as the case may be.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING
STOCKHOLDERS.
(a) The Company represents and warrants to, and agrees
with, the Underwriters as follows:
(i) No order preventing or suspending the use of
any Preliminary Prospectus has been issued by the Commission and each
Preliminary Prospectus, at the time of filing thereof, 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 the light of the circumstances under which they were made,
not misleading; except that the foregoing shall not apply to statements
in or omissions from any Preliminary Prospectus in reliance upon, and
in conformity with, written information furnished to the Company by
you, or by any Underwriter through you, specifically for use in the
preparation thereof.
(ii) As of the time the Registration Statement
(or any post-effective amendment thereto, including a registration
statement (if any) filed pursuant to Rule 462(b) of the Rules and
Regulations increasing the size of the offering registered under the
Act) is or was declared effective by the Commission, upon the filing or
first delivery to the Underwriters of the
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Prospectus (or any supplement to the Prospectus (including any term
sheet meeting the requirements of Rule 434 of the Rules and
Regulations)) and at the First Closing Date and Second Closing Date (as
hereinafter defined), (A) the Registration Statement and Prospectus (in
each case, as so amended and/or supplemented) conformed or will conform
in all material respects to the requirements of the Act and the Rules
and Regulations, (B) the Registration Statement (as so amended) did not
or will not include 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 (C) the Prospectus (as
so supplemented), including any prospectus wrapper did not or will not
include 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 in which they are or
were made, not misleading; except that the foregoing shall not apply to
statements in or omissions from any such document in reliance upon, and
in conformity with, written information furnished to the Company by
you, or by any Underwriter through you, specifically for use in the
preparation thereof. If the Registration Statement has been declared
effective by the Commission, no stop order suspending the effectiveness
of the Registration Statement has been issued, and no proceeding for
that purpose has been initiated or, to the Company's knowledge,
threatened by the Commission.
(iii) The consolidated financial statements of the
Company and its subsidiaries, together with the notes thereto, set
forth in or incorporated by reference in the Registration Statement and
Prospectus comply in all material respects with the requirements of the
Act and the Rules and Regulations and fairly present the consolidated
financial condition of the Company and its subsidiaries, as of the
dates indicated, the results of operations, changes in cash flows and
changes in stockholders' equity of the Company and its subsidiaries, as
the case may be, for the periods therein specified in conformity with
generally accepted accounting principles consistently applied
throughout the periods involved (subject, in the case of unaudited
financial statements, to normal year-end adjustments and except as
otherwise stated therein); the supporting schedules included in or
incorporated by reference in the Registration Statement present fairly
the information required to be stated therein and comply in all
material respects with the requirements of the Act and the Rules and
Regulations; and the other financial and statistical information and
data set forth in the Registration Statement and Prospectus or
incorporated by reference in are, in all material respects, accurately
presented and prepared on a basis consistent with such financial
statements and the books and records of the Company and its
subsidiaries, as the case may be. No other financial statements or
schedules are required to be included in or incorporated by reference
in the Registration Statement or Prospectus. Pricewaterhouse Coopers
LLP, which has expressed their opinion with respect to financial
statements and schedules and included in or incorporated by reference
in the Registration Statement and Prospectus, are independent public
accountants as required by the Act and the Rules and Regulations.
(iv) The pro forma financial data of the Company
and its subsidiaries and the related notes thereto set forth in the
Registration Statement and the Prospectus have been prepared on a basis
consistent with the historical financial statements of the Company and
its subsidiaries, give effect to the assumptions used in the
preparation thereof on a reasonable basis and in good faith and present
fairly the historical and proposed transactions contemplated by the
Registration Statement and the Prospectus. Such pro forma financial
data have been prepared in accordance with the applicable requirements
of the Act and the Rules and Regulations.
(v) Each of the Company and its subsidiaries has
been duly organized and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation. Each of
the Company and its subsidiaries has full corporate power and authority
to
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own its properties and conduct its business as currently being carried
on and as described in the Registration Statement and Prospectus, and
is duly qualified to do business as a foreign corporation in good
standing in each jurisdiction in which it owns or leases real property
or in which the conduct of the business makes such qualification
necessary and in which the failure to so qualify would have a material
adverse effect upon its business, condition (financial or otherwise)
prospects, results of operations, assets, liabilities or properties of
the Company and its subsidiaries, taken as a whole (a "Material Adverse
Effect").
(vi) Except as otherwise stated in the
Registration Statement and the Prospectus, subsequent to the respective
dates as of which information is given in the Registration Statement
and the Prospectus, neither the Company nor any of its subsidiaries has
incurred any material liabilities or obligations, direct or contingent,
or entered into any material transactions, or declared or paid any
dividends or made any distribution of any kind with respect to its
capital stock and, except as otherwise stated in the Registration
Statement and the Prospectus, there has not been any change in the
capital stock (other than a change in the number of outstanding shares
of Common Stock due to the issuance of shares upon the exercise of
outstanding options or warrants), or any material change in the
short-term or long-term debt, or any issuance of options, warrants,
convertible securities or other rights to purchase the capital stock,
of the Company or any of its subsidiaries, or any material adverse
change, or any development involving a prospective material adverse
change, in the condition (financial or otherwise), business, prospects,
results of operations, assets, liabilities or properties of the Company
and its subsidiaries, taken as a whole (a "Material Adverse Change").
(vii) Except as otherwise stated in the
Registration Statement and the Prospectus, there is not pending or, to
the knowledge of the Company, threatened or contemplated, any action,
suit or proceeding to which the Company or any of its subsidiaries is a
party before or by any court or governmental agency, authority or body,
or any arbitrator, which could reasonably be expected to result in any
Material Adverse Change.
(viii) There are no contracts or documents of the
Company or any of its subsidiaries that are required to be filed as
exhibits to the Registration Statement by the Act or by the Rules and
Regulations that have not been so filed or incorporated by reference
therein.
(ix) This Agreement has been duly authorized,
executed and delivered by the Company. The execution, delivery and
performance of this Agreement and the consummation of the transactions
herein contemplated will not result in a breach or violation of any of
the terms and provisions of, or constitute a default under, any
statute, any agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it is bound or to which any of its
properties is subject, the Company's charter or by-laws, or any order,
rule, regulation or decree of any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or any
of its properties; no consent, approval, authorization or order of, or
filing with, any court or governmental agency or body is required for
the execution, delivery and performance of this Agreement or for the
consummation of the transactions contemplated hereby, including the
Company's issuance or sale of the Securities to be sold by it
hereunder, except such as may be required under the Act or state
securities or blue sky laws; and the Company has full power and
authority to enter into this Agreement and to authorize, issue and sell
the Securities as contemplated by this Agreement.
(x) The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectus in the
column entitled "Actual" under the caption "Capitalization." All of the
issued and outstanding shares of capital stock of the Company,
including any
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outstanding shares of Common Stock, will be at the First Closing and
the Second Closing duly authorized and validly issued, fully paid and
nonassessable, have been issued in compliance with all federal and
state securities laws, were not issued in violation of or subject to
any preemptive rights or other rights to subscribe for or purchase
securities, and the holders thereof are not subject to personal
liability by reason of being such holders; the Securities which may be
sold hereunder by the Company have been duly authorized and, when
issued, delivered and paid for in accordance with the terms hereof,
will have been validly issued and will be fully paid and nonassessable,
and the holders thereof will not be subject to personal liability by
reason of being such holders; and the capital stock of the Company,
including the Common Stock, conforms to the description thereof in the
Registration Statement and Prospectus. Except as otherwise stated in
the Registration Statement and Prospectus, there are no preemptive
rights or other rights to subscribe for or to purchase, or any
restriction upon the voting or transfer of, any shares of Common Stock
pursuant to the Company's charter, by-laws or any agreement or other
instrument to which the Company is a party or by which the Company is
bound, or, to the knowledge of the Company, to which any stockholder is
a party or by which any stockholder is bound. Neither the filing of the
Registration Statement nor the offering or sale of the Securities as
contemplated by this Agreement gives rise to any rights for or relating
to the registration of any shares of Common Stock or other securities
of the Company which have not been fully satisfied or validly waived.
All of the issued and outstanding shares of capital stock of each of
the Company's subsidiaries have been duly and validly authorized and
issued and are fully paid and nonassessable, and, the Company owns of
record and beneficially, free and clear of any security interests,
claims, liens, proxies, equities or other encumbrances, all of the
issued and outstanding shares of capital stock of each subsidiary of
the Company. Except as otherwise stated in the Registration Statement
and the Prospectus, there are no options, warrants, agreements,
contracts or other rights in existence to purchase or acquire from the
Company or any subsidiary of the Company any shares of the capital
stock of the Company or any subsidiary of the Company.
(xi) The Company and each of its subsidiaries
holds, and is operating in compliance in all respects with, all
franchises, grants, authorizations, licenses, permits, easements,
consents, certificates and orders of any governmental or
self-regulatory body, including without limitation the Food and Drug
Administration of the U.S. Department of Health and Human Services (the
"FDA"), required for the conduct of its business, except where the
failure to so hold or comply would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect.
All such franchises, grants, authorizations, licenses, permits,
easements, consents, certifications and orders are valid and in full
force and effect; and the Company and each of its subsidiaries is and
has been in compliance in all respects with all applicable federal,
state, local and foreign laws, regulations, orders and decrees, except
where the failure to so hold or comply would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse
Effect.
(xii) The Company and its subsidiaries have good
and marketable title to all property described in the Registration
Statement and Prospectus as being owned by them, in each case free and
clear of all liens, claims, security interests or other encumbrances
except such as otherwise stated in the Registration Statement and the
Prospectus; and the property held under lease by the Company and its
subsidiaries is held by them under valid, subsisting and enforceable
leases with only such exceptions with respect to any particular lease
as do not interfere in any material respect with the conduct of the
business of the Company or its subsidiaries taken as a whole.
(xiii) The Company and each of its subsidiaries
owns or possesses all patents, patent applications, trademarks, service
marks, trade names, trademark registrations, service xxxx
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registrations, copyrights, licenses, inventions, trade secrets and
rights necessary for the conduct of the business of the Company and its
subsidiaries as currently carried on and as described in the
Registration Statement and Prospectus ("Intellectual Property Rights");
except as stated in the Registration Statement and Prospectus, (A) no
name that the Company or any of its subsidiaries uses and no other
aspect of the business of the Company or any of its subsidiaries will
involve or give rise to any infringement of, or license or similar fees
for, the Intellectual Property Rights or other similar rights of others
material to the business or prospects of the Company and neither the
Company nor any of its subsidiaries has received any notice alleging
any such infringement or fee, (B) the Company is not under any
obligation to pay any material third-party royalties or fees of any
kind whatsoever with respect to the Intellectual Property Rights
developed, employed or used in the Company's business as currently
conducted and as proposed to be conducted as discussed in the
Prospectus, (C) there is no pending or threatened action, suit,
proceeding or claim by others challenging the Company's rights to the
Intellectual Property Rights and the Company is unaware of any facts
which would form a reasonable basis for any such claim, (D) there is no
pending or threatened action, suit, proceeding or claim by others
challenging the validity or scope of any such Intellectual Property
Rights, and the Company is unaware of facts that would form a
reasonable basis for any such claim and (E) there is no pending,
threatened, threatened action, suit, proceeding or claim by others that
the Company infringes or otherwise violates any patent, trademark,
service xxxx, trade name, trademark registrations, service xxxx
registrations, copyrights, licenses, inventions or trade secrets or
other proprietary rights of others and the Company is unaware of any
other fact which would form a reasonable basis for such claim.
(xiv) To the Company's best knowledge, there is no
U.S. patent or published U.S. patent application which contains claims
that dominate or may dominate any Intellectual Property Rights
described in the Registration Statement or the Prospectus as being
owned or licensed to the Company or that interferes with the issued or
pending claims of any such Intellectual Property Rights. The Company is
unaware of any prior art that may render any U.S. patent held by the
Company invalid or any U.S. patent application held by the Company
unpatentable which has not been disclosed to the U.S. Patent and
Trademark Office.
(xv) Neither the Company nor any of its
subsidiaries is in violation of its respective charter, by-laws or
certificate or in breach of or otherwise in default in the performance
of any material obligation, agreement or condition contained in any
bond, debenture, note, indenture, loan agreement or any other material
contract, lease or other instrument to which it is subject or by which
any of them may be bound, or to which any of the material property or
assets of the Company or any of its subsidiaries is subject.
(xvi) The Company and its subsidiaries have filed
all federal, state, local and foreign income and franchise tax returns
required to be filed and are not in default in the payment of any taxes
which were payable pursuant to said returns or any assessments with
respect thereto, other than any which the Company or any of its
subsidiaries is contesting in good faith.
(xvii) The Company has not distributed and will not
distribute any prospectus or other offering material in connection with
the offering and sale of the Securities other than any Preliminary
Prospectus or the Prospectus or other materials permitted by the Act to
be distributed by the Company.
(xviii) The Securities have been approved for
listing on the Nasdaq National Market System, subject to official
notice of issuance and, on the date the Registration Statement became
or becomes effective.
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(xix) Other than the subsidiaries of the Company
listed in Exhibit 21.1 to the Registration Statement, the Company owns
no capital stock or other equity or ownership or proprietary interest
in any corporation, partnership, association, trust or other entity.
(xx) The Company maintains a system of internal
accounting controls sufficient to provide reasonable assurances that
(A) transactions are executed in accordance with management's general
or specific authorization; (B) transactions are recorded as necessary
to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain accountability
for assets; (C) access to assets is permitted only in accordance with
management's general or specific authorization; and (D) the recorded
accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
(xxi) Other than as contemplated by this
Agreement, the Company has not incurred any liability for any finder's
or broker's fee or agent's commission in connection with the execution
and delivery of this Agreement or the consummation of the transactions
contemplated hereby.
(xxii) Neither the Company nor any of its
subsidiaries is, and upon issuance and sale of the Securities as
contemplated herein and the application of the net proceeds therefrom
as described in the Prospectus 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.
(xxiii) No material labor dispute with the employees
of the Company or any of its subsidiaries exists or is threatened or
imminent.
(xxiv) The Company and its subsidiaries are insured
by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary in the
business in which they are engaged; neither the Company nor any of its
subsidiaries has been refused any insurance coverage sought or applied
for; and neither the Company nor any of its subsidiaries has any reason
to believe that it will not be able to renew its existing insurance
coverage from similar insurers as may be necessary to continue its
business at a cost that would not have a Material Adverse Effect.
(xxv) The Company and each of its subsidiaries (A)
are in compliance with any and all applicable foreign, federal, state
and local laws and regulations relating to the protection of human
health and safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), except where
the failure to be in compliance would not have a Material Adverse
Effect, (B) have received all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their
respective businesses, except where the failure to be in compliance
would not have a Material Adverse Effect and (C) are in compliance with
all terms and conditions of such permits, licenses or other approvals
except where the failure to comply with the terms and conditions of
such permits, licenses or other approvals would not, singly or in the
aggregate, have a Material Adverse Effect.
(xxvi) There has been no storage, disposal,
generation, manufacture, refinement, transportation, handling or
treatment of medical wastes, toxic wastes, hazardous wastes or
hazardous substances by the Company or any of its subsidiaries at or
upon or from any of the property now or previously owned or leased by
the Company or any of its subsidiaries in violation of any applicable
law, ordinance, rule, regulation, order, judgment, decree or permit or
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which would require remedial action under any applicable law,
ordinance, rule, regulation, order, judgment, decree or permit, except
for any violation or remedial action which would not have, or could not
be reasonably likely to have, singularly or in the aggregate with all
such violations and remedial actions a Material Adverse Effect; there
has been no material spill, discharge, leak, emission, injection,
escape, dumping or release of any kind onto such property or of any
medical wastes, toxic wastes, hazardous wastes or hazardous substances
due to or caused by the Company or any of its subsidiaries or with
respect to which the Company or any of its subsidiaries had knowledge,
except for any such spills, discharges, leaks, emissions, injections,
escapes, dumpings or releases which would not, or could not be
reasonably likely to have, singularly or in the aggregate with all such
spills, discharges, leaks, emissions, injections, escapes, dumpings and
releases a Material Adverse Effect; and the terms "medical wastes,"
"toxic wastes," "hazardous wastes" and "hazardous substances" shall
have the meanings specified in any applicable local, state, federal and
foreign laws or regulations with respect to environmental protection.
(xxvii) The Company and its subsidiaries and any
"employee benefit plan" (as defined under the Employee Retirement
Income Security Act of 1974, as amended, and the regulations and
published interpretations thereunder (collectively, "ERISA")
established or maintained by the Company, its subsidiaries or their
"ERISA Affiliates" (as defined below) are in compliance in all material
respects with ERISA. "ERISA Affiliate" means, with respect to the
Company or a subsidiary, any member of any group of organizations
described in Sections 414(b), (c), (m) or (o) of the Internal Revenue
Code of 1986, as amended, and the regulations and published
interpretations thereunder (the "Code") of which the Company or such
subsidiary is a member. No "reportable event" (as defined under ERISA)
has occurred or is reasonably expected to occur with respect to any
"employee benefit plan" established or maintained by the Company, its
subsidiaries or any of their ERISA Affiliates. No "employee benefit
plan" established or maintained by the Company, its subsidiaries or any
of their ERISA Affiliates, if such "employee benefit plan" were
terminated, would have any "amount of unfunded benefit liabilities" (as
defined under ERISA). Neither the Company, its subsidiaries nor any of
their ERISA Affiliates has incurred or reasonably expects to incur any
liability under (A) Title IV of ERISA with respect to termination of or
withdrawal from, any "employee benefit plan" or (B) Sections 412, 4971,
4975 or 4980B of the Code. Each "employee benefit plan" established or
maintained by the Company, its subsidiaries or any of their ERISA
Affiliates that is intended to be qualified under Section 40 1 (a) of
the Code is so qualified and nothing has occurred, whether by action or
failure to act, which would cause the loss of such qualification.
(xxviii) Neither the Company nor any of its
affiliates is presently doing business with the government of Cuba or
with any person or affiliate located in Cuba.
(xxix) The Company has not taken and will not take,
directly or indirectly, any action designed to or that might be
reasonably expected to cause or result in stabilization or manipulation
of the price of the Common Stock to facilitate the sale or resale of
the Common Stock.
(xxx) Neither the Company nor any of its
subsidiaries nor, to the best of the Company's knowledge, any employee
or agent of the Company or any subsidiary, has made any contribution or
other payment to any official of, or candidate for, any federal, state
or foreign office in violation of any law of the character required to
be disclosed in the Prospectus.
(xxxi) Except as otherwise stated in the
Registration Statement and the Prospectus, the Company is not currently
prohibited from paying any dividends or from making any other
distribution on the Company's or such subsidiary's capital stock,
respectively, out of
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positive retained earnings or from repaying to the Company or its
stockholders, respectively, any loans or advances to such subsidiary
from the Company or to the Company from such stockholders, as the case
may be.
(xxxii) The documents incorporated by reference in
the Prospectus, at the time they were or hereafter are filed with the
Commission, complied or when so filed will comply, as the case may be,
in all material respects with the requirements of the Securities
Exchange Act of 1934, and the rules and regulations promulgated
thereunder, and, when read together and with the other information in
the Prospectus and as such documents maybe modified or superseded by
the Prospectus, did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the
light of the circumstances under which they were or are made, not
misleading.
(b) Each Selling Stockholder severally represents and
warrants to, and agrees with, the several Underwriters as follows:
(i) Such Selling Stockholder is the record and
beneficial owner of, and has, and on the First Closing Date and the
Second Closing Date will have, valid and marketable title to the
Securities to be sold by it, free and clear of all security interests,
claims, liens, restrictions on transferability, legends, proxies,
equities or other encumbrances; and upon delivery of and payment for
such Securities hereunder, the several Underwriters will acquire valid
and marketable title thereto, free and clear of any security interests,
claims, liens, restrictions on transferability, legends, proxies,
equities or other encumbrances or adverse claims. Such Selling
Stockholder is selling the Securities to be sold by it for its own
account and is not selling such Securities, directly or indirectly, for
the benefit of the Company, and no part of the proceeds of such sale
received by such Selling Stockholder will inure, either directly or
indirectly, to the benefit of the Company other than as described in
the Registration Statement and Prospectus.
(ii) The certificates representing the Securities
to be sold by such Selling Stockholder have been or will be duly and
properly endorsed in blank for transfer, or are or will be at the First
Closing and the Second Closing accompanied by all documents duly and
properly executed that are necessary to validate the transfer of title
thereto, to the Underwriters, free of any legend, restriction on
transferability, proxy, lien or claim, whatsoever.
(iii) Such Selling Stockholder has the power and
authority to enter into this Agreement, the Power of Attorney (as
defined below) and the Custody Agreement (as defined below) and to
sell, transfer and deliver the Securities to be sold by it hereunder.
(iv) This Agreement, the Power of Attorney and
the Custody Agreement have been duly authorized, executed and delivered
by or on behalf of such Selling Stockholder. Each of the Power of
Attorney and the Custody Agreement constitutes a valid and binding
agreement of such Selling Stockholder, enforceable in accordance with
its terms, except as rights to indemnity and contribution hereunder may
be limited by federal or state securities laws and except as such
enforceability may be limited by bankruptcy, insolvency, reorganization
or laws affecting the rights of creditors generally and subject to
general principles of equity. The execution and delivery of this
Agreement, the Power of Attorney and the Custody Agreement and the
performance of the terms hereof and thereof and the consummation of the
transactions herein and therein contemplated will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under, any agreement or instrument to which such
Selling Stockholder is a party or by which such Selling Stockholder is
bound, or any law, regulation, order or decree applicable to such
Selling Stockholder; no consent, approval, authorization or
-9-
order of, or filing with, any court or governmental agency or body is
required for the execution, delivery and performance of this Agreement,
the Power of Attorney and the Custody Agreement or for the consummation
of the transactions contemplated hereby or thereby, including the sale
of the Securities being sold by such Selling Stockholder, except such
as may be required under the Act or state securities laws or blue sky
laws.
(v) Such Selling Stockholder has not distributed
and will not distribute any prospectus or other offering material in
connection with the offering and sale of the Securities other than any
Preliminary Prospectus or the Prospectus or other materials permitted
by the Act to be distributed by such Selling Stockholder.
(vi) Such Selling Stockholder has reviewed those
parts of the Registration Statement and Prospectus under the captions
"Principal and Selling Stockholders" which provide information about
such Selling Stockholder and with regard to such information only (A)
the Registration Statement does not and will not as of the First
Closing Date or the Second Closing Date contain any untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
(B) the Prospectus does not contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, in each case insofar as it relates to such Selling
Stockholder or its affiliates.
(vii) Such Selling Stockholder (A) has no reason
to believe that the representations and warranties of the Company
contained in this Section 2 are not true and correct, (B) is familiar
with the Registration Statement and (C) has no knowledge of any
material fact, condition or information not disclosed in the Prospectus
or any supplement thereto which has had or may have a Material Adverse
Effect; provided, however, that the representations in this
subparagraph 2(b)(vii) shall not be construed as imposing on such
Selling Stockholder the duty to independently investigate or verify the
statements made therein, and the sale of Securities by such Selling
Stockholder pursuant hereto is not prompted by any adverse information
concerning the Company or any of its subsidiaries which is not set
forth in the Prospectus or any supplement thereto.
(viii) Such Selling Stockholder has not taken and
will not take, directly or indirectly, any action designed to or which
has constituted or which might reasonably be expected to cause or
result, under the Securities Exchange Act of 1934 (the "Exchange Act")
or otherwise, in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Securities.
(ix) Certificates in negotiable form for such
Selling Stockholder's Securities have been placed in custody, for
delivery pursuant to the terms of this Agreement, under a Power of
Attorney and a Custody Agreement, both executed and delivered by the
Selling Stockholder, in the form heretofore furnished to you (the
"Power of Attorney" and the "Custody Agreement") with each of Xxxx X.
Xxxxxxxx, III [others] as attorney-in-fact and with [ ] as custodian
(the "Custodian"); the Securities represented by the certificates so
held in custody for each of the Selling Stockholders are subject to the
interests hereunder of the Underwriters, the Company and the other
Selling Stockholders; the arrangements for custody and delivery of such
certificates, made by the Selling Stockholder hereunder and under the
Power of Attorney and the Custody Agreement, are not subject to
termination by any acts of such Selling Stockholder, or by operation of
law, whether by the occurrence of any event, including, without
limitation, the commencement of any bankruptcy, insolvency or similar
proceedings involving such Selling Stockholder; and if any such event
shall occur before the delivery of such Securities hereunder,
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certificates for the Securities will be delivered by the Custodian in
accordance with the terms and conditions of this Agreement, the Power
of Attorney and the Custody Agreement as if such event had not
occurred, regardless of whether or not the Custodian shall have
received notice of such.
(c) Any certificate signed by any officer of the Company
and delivered to you or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby; any certificate signed by or on behalf of a Selling Stockholder
and delivered to you or to counsel for the Underwriters shall be deemed a
representation and warranty by that Selling Stockholder to each Underwriter as
to the matters covered thereby.
3. PURCHASE, SALE AND DELIVERY OF SECURITIES.
(a) On the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company agrees to issue and sell 3,500,000 Firm Shares and each
Selling Stockholder agrees to sell the number of Firm Shares set forth opposite
such Selling Stockholders's name on Schedule II hereto to the several
Underwriters, and each Underwriter agrees, severally and not jointly, to
purchase from the Company and the Selling Stockholders the number of Firm Shares
set forth opposite the name of such Underwriter in Schedule I hereto. The
purchase price for each Firm Share shall be [$__________] per share. The
obligation of each Underwriter to the Company and the Selling Stockholders shall
be to purchase from the Company and the Selling Stockholders that number of Firm
Shares (as adjusted by U.S. Bancorp Xxxxx Xxxxxxx Inc. to exclude fractional
shares) which represents the same proportion of the number of Firm Shares to be
sold by each of the Company and the Selling Stockholders pursuant to this
Agreement as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I hereto represents to the total number of Firm Shares
to be purchased by all Underwriters pursuant to this Agreement. In making this
Agreement, each Underwriter is contracting severally and not jointly; except as
provided in paragraph (c) of this Section 3 and in Section 8 hereof, the
agreement of each Underwriter is to purchase only the respective number of Firm
Shares specified in Schedule I.
The Firm Shares will be delivered by the Company and the Custodian to
you for the accounts of the several Underwriters against payment of the purchase
price therefor by wire/same day funds payable to the order of the Company at the
offices of U.S. Bancorp Xxxxx Xxxxxxx Inc., 000 Xxxxxxxx Xxxx, Xxxx Xxxxxxx:
J1012005, Xxxxxxxxxxx, Xxxxxxxxx, 00000-0000 or such other location as may be
mutually acceptable, at 9:00 a.m. Central time on the third (or if the
Securities are priced, as contemplated by Rule 15c6-1(c) under the Exchange Act,
after 4:30 p.m. Eastern time, the fourth) full business day following the date
hereof, or at such other time and date as you and the Company determine pursuant
to Rule 15c6-1(a) under the Exchange Act, such time and date of delivery being
herein referred to as the "First Closing" and the "First Closing Date,"
respectively. If U.S. Bancorp Xxxxx Xxxxxxx Inc. so elects, delivery of the Firm
Shares may be made by credit through full fast transfer to the accounts at The
Depository Trust Company designated by U.S. Bancorp Xxxxx Xxxxxxx Inc.
Certificates representing the Firm Shares, in definitive form and in such
denominations and registered in such names as you may request upon at least two
business days' prior notice to the Company and the Custodian, will be made
available for checking and packaging not later than 10:30 a.m., Central time, on
the business day next preceding the First Closing Date at the offices of Piper
U.S. Bancorp Jaffray Inc., 000 Xxxxxxxx Xxxx, Xxxx Xxxxxxx: J1012005,
Xxxxxxxxxxx, Xxxxxxxxx, 00000-0000, or such other location as may be mutually
acceptable.
(b) On the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company and the Selling Stockholders hereby grant to the several
Underwriters an option to purchase all or any portion of the Option Shares at
the same purchase price as the Firm Shares, for use solely in covering any
over-allotments made by the
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Underwriters in the sale and distribution of the Firm Shares. The maximum number
of Option Shares to be sold by the Company is 500,000, and the maximum number of
Option Shares to be sold by each of the Selling Stockholders is set forth such
Selling Stockholder's name on Schedule II hereto. The option granted hereunder
may be exercised at any time (but not more than once) within 30 days after the
effective date of this Agreement upon notice (confirmed in writing) by U.S.
Bancorp Xxxxx Xxxxxxx Inc. to the Company and the Selling Stockholders setting
forth the aggregate number of Option Shares as to which the several Underwriters
are exercising the option, the names and denominations in which the certificates
for the Option Shares are to be registered and the date and time, as determined
by you, when the Option Shares are to be delivered, such time and date being
herein referred to as the "Second Closing" and "Second Closing Date,"
respectively; provided, however, that the Second Closing Date shall not be
earlier than the First Closing Date nor earlier than the second business day
after the date on which the option shall have been exercised. The number of
Option Shares to be purchased by each Underwriter shall be the same percentage
of the total number of Option Shares to be purchased by the several Underwriters
as the number of Firm Shares to be purchased by such Underwriter is of the total
number of Firm Shares to be purchased by the several Underwriters, as adjusted
by U.S. Bancorp Xxxxx Xxxxxxx Inc. in such manner as U.S. Bancorp Xxxxx Xxxxxxx
Inc. deems advisable to avoid fractional shares. No Option Shares shall be sold
and delivered unless the Firm Shares previously have been, or simultaneously
are, sold and delivered.
The Option Shares will be delivered by the Company and the
Selling Stockholders to you for the accounts of the several Underwriters against
payment of the purchase price therefor by wire/same day funds payable to the
order of the Company and the Custodian, as applicable, at the offices of U.S.
Bancorp Xxxxx Xxxxxxx Inc., 000 Xxxxxxxx Xxxx, Xxxx Xxxxxxx: J1012005,
Xxxxxxxxxxx, Xxxxxxxxx, 00000-0000, or such other location as may be mutually
acceptable at 9:00 a.m., Central time, on the Second Closing Date. If U.S.
Bancorp Xxxxx Xxxxxxx Inc. so elects, delivery of the Option Shares may be made
by credit through full fast transfer to the accounts at The Depository Trust
Company designated by U.S. Bancorp Xxxxx Xxxxxxx Inc. Certificates representing
the Option Shares in definitive form and in such denominations and registered in
such names as you have set forth in your notice of option exercise, will be made
available for checking and packaging not later than 10:30 a.m., Central time, on
the business day next preceding the Second Closing Date at the office of U.S.
Bancorp Xxxxx Xxxxxxx Inc., 000 Xxxxxxxx Xxxx, Xxxx Xxxxxxx: J1012005,
Xxxxxxxxxxx, Xxxxxxxxx, 00000-0000, or such other location as may be mutually
acceptable.
(c) It is understood that any of the Underwriters may
(but shall not be obligated to) make payment to the Company or the Selling
Stockholders, on behalf of any other Underwriter for the Securities to be
purchased by such Underwriter. Any such payment by you shall not relieve any
such Underwriter of any of its obligations hereunder. Nothing herein contained
shall result in any of the Underwriters being deemed an unincorporated
association or partner with the Company or the Selling Stockholders.
4. Covenants.
(a) The Company covenants and agrees with the several
Underwriters as follows:
(i) If the Registration Statement has not
already been declared effective by the Commission, the Company will use
its best efforts to cause the Registration Statement and any
post-effective amendments thereto to become effective as promptly as
possible; the Company will notify you promptly of the time when the
Registration Statement or any post-effective amendment to the
Registration Statement has become effective or any supplement to the
Prospectus (including any term sheet within the meaning of Rule 434 of
the Rules and Regulations) has been filed and of any request by the
Commission for any amendment or
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supplement to the Registration Statement or Prospectus or additional
information; if the Company has elected to rely on Rule 430A of the
Rules and Regulations, the Company will prepare and file a Prospectus
(or term sheet within the meaning of Rule 434 of the Rules and
Regulations) containing the information omitted therefrom pursuant to
Rule 430A of the Rules and Regulations with the Commission within the
time period required by, and otherwise in accordance with the
provisions of, Rules 424(b), 430A and 434, if applicable, of the Rules
and Regulations; if the Company has elected to rely upon Rule 462(b) of
the Rules and Regulations to increase the size of the offering
registered under the Act, the Company will prepare and file a
registration statement with respect to such increase with the
Commission within the time period required by, and otherwise in
accordance with the provisions of, Rule 462(b) of the Rules and
Regulations; the Company will prepare and file with the Commission,
promptly upon your request, any amendments or supplements to the
Registration Statement or Prospectus (including any term sheet within
the meaning of Rule 434 of the Rules and Regulations) that, in your
opinion, may be necessary or advisable in connection with the
distribution of the Securities by the Underwriters; the Company will
not file any amendment or supplement to the Registration Statement or
Prospectus (including any term sheet within the meaning of Rule 434 of
the Rules and Regulations or any document that is incorporated by
reference in the Registration Statement or Prospectus) to which you
shall reasonably object by notice to the Company after having been
furnished a copy a reasonable time prior to the filing; and the Company
will file on a timely basis all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission subsequent to the date of the Prospectus and prior to the
termination of the offering of Shares by the Underwriters.
(ii) The Company will advise you, promptly after
it receives notice or obtains knowledge thereof, of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement, of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, or of the
initiation or threatening of any proceeding for any such purpose; and
the Company will promptly use its best efforts to prevent the issuance
of any stop order or to obtain its withdrawal if such a stop order
should be issued.
(iii) Within the time during which a prospectus
(including any term sheet within the meaning of Rule 434 of the Rules
and Regulations) relating to the Securities is required to be delivered
under the Act, the Company will comply as far as it is able with all
requirements imposed upon it by the Act, as now and hereafter amended,
and by the Rules and Regulations, as from time to time in force, so far
as necessary to permit the continuance of sales of or dealings in the
Securities as contemplated by the provisions hereof and the Prospectus.
If during such period any event occurs as a result of which the
Prospectus would include an untrue statement of a material fact or omit
to state a material fact necessary to make the statements therein, in
the light of the circumstances then existing, not misleading, or if
during such period it is necessary to amend the Registration Statement
or supplement the Prospectus to comply with the Act, the Company will
promptly notify you and will amend the Registration Statement or
supplement the Prospectus (at the expense of the Company) so as to
correct such statement or omission or effect such compliance.
(iv) The Company will use its best efforts to
qualify the Securities for sale under the securities laws of such
jurisdictions (domestic or foreign) as you reasonably designate and to
continue such qualifications in effect so long as required for the
distribution of the Securities, except that the Company shall not be
required in connection therewith to qualify as a foreign corporation or
to execute a general consent to service of process in any state.
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(v) The Company will furnish to the Underwriters
copies of the Registration Statement (three of which will include all
exhibits), one set of executed signature pages to the Registration
Statement, each Preliminary Prospectus, the Prospectus, and all
amendments and supplements (including any term sheet within the meaning
of Rule 434 of the Rules and Regulations) to such documents, in each
case as soon as available and in such quantities as you may from time
to time reasonably request.
(vi) During a period of five years commencing
with the date hereof, the Company will furnish to each Underwriter
copies of all periodic and special reports furnished to the
stockholders of the Company and all information, documents and reports
filed with the Commission, the NASD, the Nasdaq National Market or any
securities exchange.
(vii) The Company will make generally available to
its security holders as soon as practicable, but in any event not later
than 15 months after the end of the Company's current fiscal quarter,
an earnings statement (which need not be audited) covering a 12-month
period beginning after the effective date of the Registration Statement
that shall satisfy the provisions of Section 11(a) of the Act and Rule
158 of the Rules and Regulations and will advise the Underwriters in
writing when such statement has been so made available.
(viii) The Company, whether or not the transactions
contemplated hereunder are consummated or this Agreement is prevented
from becoming effective under the provisions of Section 9(a) hereof or
is terminated, will pay or cause to be paid (A) all expenses (including
transfer taxes allocated to the respective transferees) incurred in
connection with the delivery to the Underwriters of the Securities, (B)
all expenses and fees (including, without limitation, fees and expenses
of the Company's accountants and counsel but, except as otherwise
provided below, not including fees of the Underwriters' counsel) in
connection with the preparation, printing, filing, delivery, and
shipping of the Registration Statement (including the financial
statements therein and all amendments, schedules, and exhibits
thereto), the Securities, each Preliminary Prospectus, the Prospectus,
and any amendment thereof or supplement thereto, and the printing,
delivery, and shipping of this Agreement and other underwriting
documents, including Blue Sky Memoranda, (C) all filing fees and fees
and disbursements of the Underwriters' counsel incurred in connection
with the qualification of the Securities for offering and sale by the
Underwriters or by dealers under the securities or blue sky laws of the
states and other jurisdictions which you shall designate in accordance
with Section 4(a)(iv) hereof, (D) the fees and expenses of any transfer
agent or registrar, (E) the filing fees and other fees and expenses
(including, without limitation, the reasonable fees and disbursements
of counsel for the Underwriters) incident to any required review by the
NASD of the terms of the sale of the Securities, (F) listing fees, and
(G) all other costs and expenses incident to the performance of its
obligations hereunder that are not otherwise specifically provided for
herein. If the sale of the Securities provided for herein is not
consummated by reason of action by the Company pursuant to Section 9(a)
hereof which prevents this Agreement from becoming effective, or by
reason of any failure, refusal or inability on the part of the Company
or the Selling Stockholders to perform any agreement on its or their
part to be performed, or because any other condition of the
Underwriters' obligations hereunder required to be fulfilled by the
Company or the Selling Stockholders is not fulfilled, the Company will
reimburse the several Underwriters for all out-of-pocket disbursements
(including fees and disbursements of counsel) incurred by the
Underwriters in connection with their investigation, preparing to
market and marketing the Securities or in contemplation of performing
their obligations hereunder. The Company shall not in any event be
liable to any of the Underwriters for loss of anticipated profits from
the transactions covered by this Agreement.
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(ix) The Company will apply the net proceeds from
the sale of the Securities to be sold by it hereunder for the purposes
set forth in the Prospectus.
(x) The Company will not, without U.S. Bancorp
Xxxxx Xxxxxxx Inc.'s prior written consent, offer for sale, sell,
contract to sell, grant any option for the sale of or otherwise issue
or dispose of any Common Stock or any securities convertible into or
exchangeable for, or any options or rights to purchase or acquire,
Common Stock, except (A) for the sale by the Company of the Securities
to the Underwriters pursuant to this Agreement, (B) for the issuance by
the Company of shares of Common Stock upon the exercise of an option or
warrant or the conversion of a security outstanding on the date hereof
of which the Underwriters have been advised in writing and which are
disclosed in the Registration Statement and the Prospectus, and (C) for
the grant by the Company of any option or right to purchase shares of
Common Stock pursuant to the Company's [stock option plans], each as in
effect on the date of this Agreement, so long as each recipient of
options or rights to purchase 1,000 or more shares of Common Stock
executes the letter contemplated by paragraph (xi) below.
(xi) The Company either has caused to be
delivered to U.S. Bancorp Xxxxx Xxxxxxx or will cause to be delivered
to U.S. Bancorp Xxxxx Xxxxxxx prior to the effective date of the
Registration Statement a letter in the form of Exhibit A hereto from
each of the Company's directors and officers and stockholders
identified in Schedule III hereto stating that such person agrees that
such person will not, without U.S. Bancorp Xxxxx Xxxxxxx'x prior
written consent, offer for sale, sell, contract to sell or otherwise
dispose of any shares of Common Stock or rights to purchase Common
Stock, except to the Underwriters pursuant to this Agreement, for a
period of 90 days after the date of the Prospectus.
(xii) The Company has not taken and will not take,
directly or indirectly, any action designed to or which might
reasonably be expected to cause or result in, or which has constituted,
the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities, and has not
effected any sales of Common Stock which are required to be disclosed
in response to Item 701 of Regulation S-K under the Act which have not
been so disclosed in the Registration Statement.
(xiii) The Company will not incur any liability for
any finder's or broker's fee or agent's commission in connection with
the execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby.
(xiv) The Company will inform the Florida
Department of Banking and Finance at any time prior to the consummation
of the distribution of the Securities by the Underwriters if it
commences engaging in business with the government of Cuba or with any
person or affiliate located in Cuba. Such information will be provided
within 90 days after the commencement thereof or after a change occurs
with respect to previously reported information.
(xv) The Company shall not invest, or otherwise
use the proceeds received by the Company from its sale of Securities as
contemplated herein in such a manner as would require the Company or
any of its subsidiaries to register as an investment company under the
1940 Act.
(b) Each of the Selling Stockholders severally covenants
and agrees with the several Underwriters as follows:
(i) Except as otherwise agreed to by the Company
and such Selling Stockholders, such Selling Stockholders will pay all
taxes, if any, on the transfer and sale,
-15-
respectively, of the Securities being sold by such Selling Stockholder,
and the fees of counsel to such Selling Stockholder and all other costs
and expenses incident to the performance of its obligations hereunder
that are not otherwise specifically provided for in this Agreement,
provided, however, that such Selling Stockholder severally will
reimburse the Company for any reimbursement made by the Company to the
Underwriters pursuant to Section 4(a)(viii) hereof to the extent such
reimbursement resulted from the willful failure or refusal on the part
of such Selling Stockholder to comply under the terms or fulfill any of
the conditions of this Agreement.
(ii) If this Agreement is terminated by the
Underwriters because of any willful failure, refusal or inability on
the part of such Selling Stockholder to perform any agreement to be
performed by such Selling Stockholder, or because any other condition
of the Underwriters' obligations hereunder required to be fulfilled by
such Selling Stockholder is not fulfilled, such Selling Stockholder
will reimburse the several Underwriters for all out-of-pocket
disbursements (including fees and disbursements of counsel for the
Underwriters) incurred by the Underwriters in connection with their
investigation, preparing to market and marketing the Securities or in
contemplation of performing their obligations hereunder. Such Selling
Stockholder will not in any event be liable to any of the Underwriters
for loss of anticipated profits from the transactions covered by this
Agreement.
(iii) The Securities to be sold by such Selling
Stockholder are subject to the interest of the several Underwriters,
and the obligations of such Selling Stockholder hereunder are
irrevocable and shall not be terminated, except as provided in this
Agreement, by any act of such Selling Stockholder, by operation of law,
whether by the liquidation, dissolution or merger of such Selling
Stockholder, or by the occurrence of any other event. If such Selling
Stockholder should liquidate, dissolve, be a party to a merger or if
any other such event should occur before the delivery of the Securities
hereunder, certificates for the Securities will be delivered in
accordance with the terms and conditions of this Agreement as if such
liquidation, dissolution, merger, death or other event had not
occurred.
(iv) Such Selling Stockholder or any of its
affiliates has not taken and will not take, directly or indirectly, any
action designed to or which might reasonably be expected to cause or
result in stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities, and has
not effected any sales of Common Stock which, if effected by the
Company, would be required to be disclosed in response to Item 701 of
Regulation S-K.
(v) Such Selling Stockholder will immediately
notify you if any event occurs, or of any change in information
relating to such Selling Stockholder, which results in the Prospectus
(as supplemented) including an untrue statement of a material fact
relating to the Selling Stockholders or omitting to state any material
fact relating to such Selling Stockholder necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
(vi) In order to document the Underwriters'
compliance with the reporting and withholding provisions of the Tax
Equity and Fiscal Responsibility Act of 1982 and the Interest and
Dividend Tax Compliance Act of 1983 with respect to the transactions
herein contemplated, such Selling Stockholder agrees to deliver to you
prior to or at the First Closing Date a properly completed and executed
United States Treasury Department Form W-8 or W-9 (or other applicable
form or statement specified by Treasury Department regulations in lieu
thereof).
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(vii) Such Selling Stockholder either has caused
to be delivered to U.S. Bancorp Xxxxx Xxxxxxx or will cause to be
delivered to U.S. Bancorp Xxxxx Xxxxxxx prior to the effective date of
the Registration Statement a letter from such Selling Stockholder in
the form of Exhibit A hereto stating that such Selling Stockholder
agrees that it will not, without U.S. Bancorp Xxxxx Xxxxxxx'x prior
written consent, offer for sale, sell, contract to sell or otherwise
dispose of any shares of Common Stock or rights to purchase Common
Stock or rights to purchase Common Stock, except to the Underwriters
pursuant to this Agreement, for a period of 90 days after the date of
the Prospectus.
5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of
the Underwriters hereunder are subject to the accuracy, as of the date hereof
and at each of the First Closing Date and the Second Closing Date (as if made at
such Closing Date), of and compliance with all representations, warranties and
agreements of the Company and the Selling Stockholders contained herein, to the
performance by the Company and the Selling Stockholders of their respective
obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have become
effective not later than 5:00 p.m., Central time, on the date of this Agreement,
or such later time and date as you shall approve and all filings required by
Rules 424, 430A and 434 of the Rules and Regulations shall have been timely
made; no stop order suspending the effectiveness of the Registration Statement
or any amendment thereof shall have been issued; no proceedings for the issuance
of such an order shall have been initiated or threatened; and any request of the
Commission for additional information (to be included in the Registration
Statement or the Prospectus or otherwise) shall have been complied with to your
satisfaction.
(b) No Underwriter shall have advised the Company that
the Registration Statement or the Prospectus, or any amendment thereof or
supplement thereto (including any term sheet within the meaning of Rule 434 of
the Rules and Regulations), contains an untrue statement of fact which, in your
opinion, is material, or omits to state a fact which, in your opinion, is
material and is required to be stated therein or necessary to make the
statements therein not misleading.
(c) Except as otherwise stated in the Registration
Statement and the Prospectus, subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, neither
the Company nor any of its subsidiaries shall have incurred any material
liabilities or obligations, direct or contingent, or entered into any material
transactions, or declared or paid any dividends or made any distribution of any
kind with respect to its capital stock; and, except as contemplated in the
Prospectus, there shall not have been any change in the capital stock (other
than a change in the number of outstanding shares of Common Stock due to the
issuance of shares upon the exercise of outstanding options or warrants, or any
material change in the short-term or long-term debt of the Company, or any
issuance of options, warrants, convertible securities or other rights to
purchase the capital stock of the Company or any of its subsidiaries, which
would constitute a Material Adverse Change that, in your judgment, makes it
impractical or inadvisable to offer or deliver the Securities on the terms and
in the manner contemplated in the Prospectus.
(d) On each Closing Date, there shall have been furnished
to you the opinion of Xxxxxx & Xxxxxxx [and Xxxx X. Xxxxxxxx, III, Senior Vice
President, Chief Administrative Officer and Secretary], counsel for the Company,
dated such Closing Date and addressed to you, to the effect that:
(i) The Company and each of its subsidiaries has
been duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of
-17-
incorporation. Each of the Company and its subsidiaries has full
corporate power and authority to own its properties and conduct its
business as currently being carried on and as described in the
Registration Statement and Prospectus and is duly qualified to do
business as a foreign corporation in good standing in each jurisdiction
in which it is required to be so qualified, except where the failure to
be so qualified would not have a Material Adverse Effect.
(ii) The capital stock of the Company conforms as
to legal matters to the description thereof contained in the Prospectus
under the caption "Description of Capital Stock." All of the issued and
outstanding shares of the capital stock of the Company, including the
Securities to be sold by the Selling Stockholders, hereunder have been
duly authorized and validly issued and are fully paid and
nonassessable, and the holders thereof are not subject to personal
liability by reason of being such holders. The Securities to be issued
and sold by the Company hereunder have been duly authorized and, when
issued, delivered and paid for in accordance with the terms of this
Agreement, will have been validly issued and will be fully paid and
nonassessable, and the holders thereof will not be subject to personal
liability by reason of being such holders. Except as otherwise stated
in the Registration Statement and Prospectus, there are no preemptive
rights or other rights to subscribe for or to purchase, or any
restriction upon the voting or transfer of, any shares of Common Stock
pursuant to the Company's charter, by-laws or any agreement or other
instrument known to such counsel to which the Company is a party or by
which the Company is bound. To such counsel's knowledge, neither the
filing of the Registration Statement nor the offering or sale of the
Securities as contemplated by this Agreement gives rise to any rights
for or relating to the registration of any shares of Common Stock or
other securities of the Company, which have not been fully satisfied or
validly waived.
(iii) All of the issued and outstanding shares of
capital stock of each of the Company's subsidiaries have been duly and
validly authorized and issued and are fully paid and nonassessable,
and, the Company or its subsidiaries owns of record, free and clear of
any security interests, claims, liens, proxies, equities or other
encumbrances, all of the issued and outstanding shares of capital stock
of each subsidiary of the Company. To such counsel's knowledge, except
as described in the Registration Statement and Prospectus, there are no
options, warrants, agreements, contracts or other rights in existence
to purchase or acquire from the Company or any subsidiary any shares of
the capital stock of the Company or any subsidiary of the Company.
(iv) The Registration Statement has become
effective under the Act and, to the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement has
been issued and no proceeding for that purpose has been instituted or,
to the knowledge of such counsel, threatened by the Commission.
(v) The descriptions in or incorporated by
reference the Registration Statement and Prospectus of statutes, legal
and governmental proceedings, contracts and other documents are
accurate and present fairly the information required to be shown; and
such counsel does not know of any statutes or legal or governmental
proceedings required to be described in the Prospectus that are not
described as required, or of any contracts or documents of a character
required to be described in the Registration Statement or Prospectus or
incorporated by reference therein or included as exhibits to the
Registration Statement or such documents that are not described or
included as required.
(vi) The Company has full corporate power and
authority to enter into this Agreement, and this Agreement has been
duly authorized, executed and delivered by the Company; the execution,
delivery and performance of this Agreement and the consummation of the
transactions herein contemplated will not result in a breach or
violation of any of the terms
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and provisions of, or constitute a default under any statute, rule or
regulation, any agreement or instrument known to such counsel to which
the Company or any of its subsidiaries is a party or by which it is
bound or to which any of its property is subject, the Company's or any
of its subsidiaries' charter or by-laws, or any order or decree known
to such counsel of any court or governmental agency or body having
jurisdiction over the Company, any of its subsidiaries or any of its
respective properties; and no consent, approval, authorization or order
of, or filing with, any court or governmental agency or body is
required for the execution, delivery and performance of this Agreement
or for the consummation of the transactions contemplated hereby,
including the Company's issuance or sale of the Securities to be sold
by it hereunder, except such as may be required under the Act or state
securities laws.
(vii) Neither the Company nor any of its
subsidiaries is and, after giving effect to the offering and sale of
the Securities and the application of the proceeds thereof as described
in the Registration Statement and the Prospectus, neither the Company
nor any material subsidiary will be an "investment company" as such
term is defined in the Investment Company Act of 1940, as amended.
(viii) To the best of such counsel's knowledge and
other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any
of its subsidiaries is the subject that, individually or in the
aggregate, would reasonably be expected to have a Material Adverse
Effect, would adversely affect the sale of the Securities or would
affect the validity of this Agreement; and, to the best of such
counsel's knowledge, no such proceedings are threatened by governmental
authorities or others.
(ix) Except as otherwise stated in the
Registration Statement and the Prospectus and except for patent
application proceedings, there are no pending legal or governmental
proceedings to which the Company is a party which challenge the patent
rights of the Company, and to such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or others.
(x) To such counsel's knowledge, without such
counsel having conducted an independent review of any third-party
patents or products by others and except as disclosed in the
Registration Statement and the Prospectus, the Company is not
infringing or otherwise violating any Intellectual Property Rights of
others, and, to such counsel's knowledge, except as disclosed in the
Registration Statement and the Prospectus, there are no infringements
by others of the Company's Intellectual Property Rights.
(xi) Neither the Company nor any of its
subsidiaries is in violation of its Certificate of Incorporation or
By-laws or other organizational documents or, except for such defaults
that would not have a Material Adverse Effect, in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound.
(xii) The Registration Statement and the
Prospectus, and any amendment thereof or supplement thereto (including
any term sheet within the meaning of Rule 434 of the Rules and
Regulations), comply as to form in all material respects with the
requirements of the Act and the Rules and Regulations (except for the
financial statements, schedules and other financial data, as to which
counsel need express no opinion). The documents incorporated by
reference in the Prospectus or any further amendment or supplement
thereto made by the
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Company prior to such Closing Date (except for the financial
statements, schedules, and other financial data, as to which counsel
need express no opinion), when they became effective or were filed with
the Commission, as the case may be, complied as to form in all material
respects with the requirements of Exchange Act, and the rules and
regulations of the Commission thereunder. On the basis of conferences
with officers of the Company, examination of documents referred to in
the Registration Statement and Prospectus and such other procedures as
such counsel deemed appropriate, nothing has come to the attention of
such counsel that causes such counsel to believe that the Registration
Statement or any amendment thereof, at the time the Registration
Statement became effective and as of such Closing Date (including any
Registration Statement filed under Rule 462(b) of the Rules and
Regulations), contained or contains any untrue statement of a material
fact or omitted or omits to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading or that the Prospectus (as of its date and as of such
Closing Date), as amended or supplemented, includes any untrue
statement of material fact or omits to state a material fact necessary
to make the statements therein, in light of the circumstances under
which they were made, not misleading; it being understood that the
foregoing statement may be contained in a separate letter addressed to
the Underwriters and that such counsel need express no opinion as to
the financial statements, schedules or other financial data included in
any of the documents mentioned in this sentence.
(e) On each Closing Date, there shall have been furnished
to you the opinion of [__________________], special regulatory counsel for the
Company, dated such Closing Date and addressed to you to the effect that:
(i) The statements under the captions "Risk
Factors -- To Market Our Products under Development We Will First Need
to Obtain Regulatory Approval -- Further, If We Fail to Comply with the
Extensive Governmental Regulations That Affect Our Business, We Could
Be Subject to Penalties and Could Be Precluded from Marketing Our
Products -- Certain of Our Products Contain Materials Derived from
Animal Sources, and May as a Result Become Subject to Additional
Regulation -- We Are Subject to Other Regulatory Requirements Relating
to Occupational Health and Safety and the Use of Hazardous Substances
which May Impose Significant Compliance Costs on Us" and "Business --
Government Regulation", in each case insofar as they purport to
describe the provision of law, documents and proceedings referred
therein, fairly summarize the matters therein described (collectively,
the "Covered Sections").
(ii) To such counsel's knowledge, the Company has
such permits, licenses, franchises, authorizations and clearances of
the FDA and/or any committee thereof, that are necessary to own its
properties and are material to conduct its business in the manner
described in the Prospectus ("FDA Permits"), subject to such exceptions
and qualifications as may be set forth in the Prospectus, the Company
has fulfilled and performed all of its material obligations with
respect to the FDA Permits, and no event has occurred which allows, or
after notice or lapse of time would allow, revocation or termination
thereof or results in any other material impairment of the rights of
the holder of any FDA Permit, subject in each case to such exceptions
and qualifications as may be set forth in the Prospectus and except
where such revocation, termination or impairment would not have a
Material Adverse Effect.
(iii) On the basis of conferences with officers of
the Company, examination of documents referred to in the Covered
Sections of the Registration Statement and Prospectus and such other
procedures as such counsel deemed appropriate, nothing has come to the
attention of such counsel that causes such counsel to believe that the
Covered Sections of the Registration Statement or any amendment
thereof, at the time the Registration Statement became effective and as
of such Closing Date (including any Registration Statement filed under
Rule 462(b) of the
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Rules and Regulations), contained or contains any untrue statement of a
material fact or omitted or omits to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus (as of its date and as of such
Closing Date), as amended or supplemented, with respect to the Covered
Sections includes any untrue statement of material fact or omits to
state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
it being understood that the foregoing statement may be contained in a
separate letter addressed to the Underwriters and that such counsel
need express no opinion as to the financial statements, schedules or
other financial data included in any of the documents mentioned in this
sentence.
(f) On each Closing Date, there shall have been furnished
to you such opinion or opinions from Xxxxxxx Xxxx & Xxxxxxxxx, counsel for the
several Underwriters, dated such Closing Date and addressed to you, with respect
to the formation of the Company, the validity of the Securities, the
Registration Statement, the Prospectus and other related matters as you
reasonably may request, and such counsel shall have received such papers and
information as they request to enable them to pass upon such matters.
(g) On each Closing Date, there shall have been furnished
to you the opinion of _______________, counsel for the Selling Stockholders,
dated such Closing Date and addressed to you, to the effect that:
(i) The Selling Stockholders are, to such
counsel's knowledge, the sole record owner of the Securities to be sold
by the Selling Stockholders. Upon delivery of the certificates for the
Securities to be sold by the Selling Stockholders pursuant to this
Agreement, and payment therefor by the Underwriters, good and valid
title to such Securities will pass to the Underwriters and the
Underwriters will acquire all the rights of the Selling Stockholders in
the Securities (assuming the Underwriters have no knowledge of an
adverse claim), free and clear of any security interests, claims, liens
or other encumbrances.
(ii) The Selling Stockholders have the power and
authority to enter into this Agreement, the Power of Attorney and
Custody Agreement and to perform and discharge the Selling
Stockholders' obligations hereunder and thereunder; and this Agreement
has been duly and validly authorized, executed and delivered by the
Selling Stockholders. Each of the Power of Attorney and Custody
Agreement is a valid and binding agreement of the Selling Stockholders,
enforceable in accordance with its terms (except as rights to indemnity
and contribution hereunder may be limited by federal or state
securities laws and except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally and subject to general principles of
equity).
(iii) The execution and delivery of this
Agreement, the Power of Attorney and Custody Agreement and the
performance of the terms hereof and thereof and the consummation of the
transactions herein and therein contemplated will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under the Selling Stockholders' charter, by-laws
or other similar organizational documents, any statute, rule or
regulation, or any agreement or instrument or any order or decree known
to such counsel of any court or government agency or body having
jurisdiction over the Selling Stockholders or any of their respective
properties; and no consent, approval, authorization or order of, or
filing with, any court or governmental agency or body is required for
the execution, delivery and performance of this Agreement or for the
consummation of the transactions contemplated hereby and thereby,
including the sale of the Securities being sold by the Selling
Stockholders, except in each case
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those which, if not made or obtained, would not, individually or in the
aggregate, have a material adverse effect on the ability of the Selling
Stockholders to perform their obligations hereunder such as may be
required under the Act or state securities laws or blue sky laws.
(h) On each Closing Date you shall have received a letter
from PricewaterhouseCoopers LLP, dated such Closing Date and addressed to you,
confirming that they are independent public accountants within the meaning of
the Act and are in compliance with the applicable requirements relating to the
qualifications of accountants under Rule 2-01 of Regulation S-X of the
Commission, and stating, as of the date of such letter (or, with respect to
matters involving changes or developments since the respective dates as of which
specified financial information is given in the Prospectus, as of a date not
more than five days prior to the date of such letter), the conclusions and
findings of said firm with respect to the financial information and other
matters covered by its letter delivered to you concurrently with the execution
of this Agreement, and the effect of the letter so to be delivered on such
Closing Date shall be to confirm the conclusions and findings set forth in such
prior letter.
(i) On such Closing Date, there shall have been furnished
to you a certificate, dated such Closing Date and addressed to you, signed by
each of the chief executive officer, the chief administrative officer and the
chief financial officer of the Company, to the effect that:
(i) The representations and warranties of the
Company in this Agreement are true and correct, as if made at and as of
such Closing Date, and the Company has complied with all the agreements
and satisfied all the conditions on its part to be performed or
satisfied at or prior to such Closing Date;
(ii) No stop order or other order suspending the
effectiveness of the Registration Statement or any amendment thereof or
the qualification of the Securities for offering or sale has been
issued, and no proceeding for that purpose has been instituted or, to
the best of their knowledge, is contemplated by the Commission or any
state or regulatory body; and
(iii) The signers of said certificate have
carefully examined the Registration Statement and the Prospectus, and
any amendments thereof or supplements thereto (including any term sheet
within the meaning of Rule 434 of the Rules and Regulations), and (A)
the Registration Statement, or any amendment thereof, does not contain
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading, and the Prospectus, as amended or supplemented,
does not include any untrue statement of material fact or omit to state
a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, (B) since
the effective date of the Registration Statement, there has occurred no
event required to be set forth in an amended or supplemented prospectus
which has not been so set forth, (C) subsequent to the respective dates
as of which information is given in the Registration Statement and the
Prospectus, neither the Company nor any of its subsidiaries has
incurred any material liabilities or obligations, direct or contingent,
or entered into any material transactions, not in the ordinary course
of business, or declared or paid any dividends or made any distribution
of any kind with respect to its capital stock, and except as disclosed
in the Prospectus, there has not been any change in the capital stock
(other than a change in the number of outstanding shares of Common
Stock due to the issuance of shares upon the exercise of outstanding
options or warrants), or any material change in the short-term or
long-term debt, or any issuance of options, warrants, convertible
securities or other rights to purchase the capital stock, of the
Company, or any of its subsidiaries, or any event or development which
would constitute a Material Adverse
-22-
Change, and (D) except as stated in the Registration Statement and the
Prospectus, there is not pending, or, to the knowledge of the Company,
threatened or contemplated, any action, suit or proceeding to which the
Company or any of its subsidiaries is a party before or by any court or
governmental agency, authority or body, or any arbitrator, which could
reasonably be expected to result in a Material Adverse Effect.
(j) On each Closing Date, there shall have been furnished
to you a certificate or certificates, dated such Closing Date and addressed to
you, signed by each of the Selling Stockholders to the effect that the
representations and warranties of such Selling Stockholder contained in this
Agreement are true and correct as if made at and as of such Closing Date, and
such Selling Stockholder has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to such
Closing Date.
(k) The Nasdaq Stock Market, Inc. shall have approved the
Securities for listing on the Nasdaq National Market, subject only to official
notice of issuance and evidence of satisfactory distribution.
(l) The "lock-up" agreements, each substantially in the
form of Exhibit A hereto, between you and the directors, officers and
stockholders of the Company listed on Schedule II relating to sales and certain
other dispositions of Common Stock, or certain other securities, delivered to
you, shall be in full force and effect.
(m) The Company shall have furnished to you and counsel
for the Underwriters such additional documents, certificates and evidence as you
or they may have reasonably requested.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to you and counsel for the Underwriters. The Company will furnish you
with such conformed copies of such opinions, certificates, letters and other
documents as you shall reasonably request.
6. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless
each Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise (including in settlement of any litigation if such settlement is
effected with the written consent of the Company), insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, including the information deemed
to be a part of the Registration Statement at the time of effectiveness pursuant
to Rules 430A and 434(d) of the Rules and Regulations, if applicable, any
Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto
(including any term sheet within the meaning of Rule 434 of the Rules and
Regulations), or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by it in connection with
investigating or defending against such loss, claim, damage, liability or
action; provided, however, that the Company shall not be liable in any such case
to the extent that any such loss, claim, damage, liability or action arises out
of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission made in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any such amendment or supplement, in reliance
upon and in conformity with written information furnished to the Company by you,
or by any Underwriter through you, specifically for use in the preparation
thereof.
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In addition to their other obligations under this Section 6(a), the
Company agrees that, as an interim measure during the pendency of any claim,
action, investigation, inquiry or other proceeding arising out of or based upon
any statement or omission, or any alleged statement or omission, described in
this Section 6(a), it will reimburse each Underwriter on a monthly basis for all
reasonable legal fees or other expenses incurred in connection with
investigating or defending any such claim, action, investigation, inquiry or
other proceeding, notwithstanding the absence of a judicial determination as to
the propriety and enforceability of the Company's obligation to reimburse the
Underwriters for such expenses and the possibility that such payments might
later be held to have been improper by a court of competent jurisdiction. To the
extent that any such interim reimbursement payment is so held to have been
improper, the Underwriters that received such payment shall promptly return it
to the party or parties that made such payment, together with interest,
compounded daily, determined on the basis of the prime rate (or other commercial
lending rate for borrowers of the highest credit standing) announced from time
to time by U.S. Bank (the "Prime Rate"). Any such interim reimbursement payments
which are not made to the Underwriters or the Selling Stockholders within 30
days of a request for reimbursement shall bear interest at the Prime Rate from
the date of such request. This indemnity agreement shall be in addition to any
liabilities which the Company may otherwise have.
(b) Each Selling Stockholder, jointly and severally,
agrees to indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise (including in settlement of any
litigation if such settlement is effected with the written consent of such
Selling Stockholder), insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in the Registration
Statement, including the information deemed to be a part of the Registration
Statement at the time of effectiveness pursuant to Rules 430A and 434(d) of the
Rules and Regulations, if applicable, any Preliminary Prospectus, the
Prospectus, or any amendment or supplement thereto (including any term sheet
within the meaning of Rule 434 of the Rules and Regulations), or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by it in connection with investigating or defending against
such loss, claim, damage, liability or action; provided however that each
Selling Stockholder shall not be liable in any such case to the extent that any
such loss, claim, damage, liability or action arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement, any Preliminary Prospectus, the Prospectus,
or any such amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company by you, or by any Underwriter
through you, specifically for use in the preparation thereof; provided further
that such indemnity obligation shall not exceed the net proceeds received by any
such Selling Stockholder from the sale of Securities hereunder (before deducting
expenses).
(c) Each Underwriter will indemnify and hold harmless the
Company and the Selling Stockholders against any losses, claims, damages or
liabilities to which the Company or the Selling Stockholders may become subject,
under the Act or otherwise (including in settlement of any litigation, if such
settlement is effected with the written consent of such Underwriter), insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto (including
any term sheet within the meaning of Rule 434 of the Rules and Regulations), or
arise out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any such amendment or supplement, in reliance
-24-
upon and in conformity with written information furnished to the Company or the
Selling Stockholders by you, or by such Underwriter through you, specifically
for use in the preparation thereof, and will reimburse the Company for any legal
or other expenses reasonably incurred by the Company or the Selling Stockholders
in connection with investigating or defending against any such loss, claim,
damage, liability or action.
(d) Promptly after receipt by an indemnified party under
subsection (a), (b) or (c) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the indemnifying
party in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve the indemnifying party from any liability
that it may have to any indemnified party to the extent it is not materially
prejudiced as a result of such omission and in any event shall not relieve it
from any liability it may have otherwise than under this Agreement. In case any
such action shall be brought against any indemnified party, and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate in, and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party, and after notice
from the indemnifying party to such indemnified party of the indemnifying
party's election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of investigation; provided,
however, that if the defendants in any such action include both the indemnified
party or parties and the indemnifying party, and the indemnified party or
parties shall have concluded that there may be legal defenses or claims
available to it or them which are different from or additional to those
available to the indemnifying party, or if there is a conflict of interest which
would prevent counsel for the indemnifying party or parties from also
representing the indemnified party or parties, and that it is advisable for the
indemnified party or parties to be represented by separate counsel, then the
indemnified party or parties shall have the right to employ a single counsel (in
addition to any local counsel) to represent the indemnified party or the
indemnified parties as a group, in which event the reasonable fees and expenses
of the separate counsel shall be borne by the indemnifying party or parties. An
indemnifying party shall not be obligated under any settlement agreement
relating to any action under this Section 6 to which it has not agreed in
writing, which consent shall not be unreasonably withheld. In addition, the
indemnifying party will not, without the prior written consent of the
indemnified party, settle or compromise or consent to the entry of any judgment
in any pending or threatened claim, action or proceeding of which
indemnification may be sought hereunder (whether or not any indemnified party is
an actual or potential party to such claim, action or proceeding) unless such
settlement, compromise or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action or
proceeding.
(e) If the indemnification provided for in this Section 6
is unavailable or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a), (b) or
(c)) above, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Selling Stockholders on the one hand
and the Underwriters on the other from the offering of the Securities 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 the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other shall be deemed
to be in the same
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proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover page of the Prospectus. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company and the Selling Stockholders or
the Underwriters and the parties' relevant intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Company, the Selling Stockholders and the Underwriters agree that
it would not be just and equitable if contributions pursuant to this subsection
(e) were to be determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to in the
first sentence of this subsection (e). The amount paid by an indemnified party
as a result of the losses, claims, damages or liabilities referred to in the
first sentence of this subsection (e) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending against any action or claim which is the subject of
this subsection (e). Notwithstanding the provisions of this subsection (e), (i)
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission and (ii)
a Selling Stockholder's contribution obligation hereunder shall not exceed the
net proceeds received such Selling Stockholders from the sale of the Securities
hereunder (before deducting expenses). 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 in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company and the Selling
Stockholders under this Section 6 shall be in addition to any liability which
the Company and the Selling Stockholders may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 6 shall be in addition to any liability that the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company (including any person who, with
his consent, is named in the Registration Statement as about to become a
director of the Company), to each officer of the Company who has signed the
Registration Statement and to each person, if any, who controls the Company and
the Selling Stockholders within the meaning of the Act.
7. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties, and agreements of the Company and the Selling
Stockholders contained herein or in certificates delivered pursuant hereto, and
the agreements of the several Underwriters, the Company and the Selling
Stockholders contained in Section 6 hereof, shall remain operative and in full
force and effect regardless of any investigation made by or on behalf of any
Underwriter or any controlling person thereof, or the Company or any of its
officers, directors, or controlling persons, or the Selling Stockholders or any
controlling person thereof and shall survive delivery of, and payment for, the
Securities to and by the Underwriters hereunder.
8. SUBSTITUTION OF UNDERWRITERS.
(a) If any Underwriter shall fail to take up and pay for
the amount of Firm Shares agreed by such Underwriter to be purchased hereunder,
upon tender of such Firm Shares in accordance with the terms hereof, and the
amount of Firm Shares not purchased does not aggregate more than 10% of the
total aggregate amount of Firm Shares set forth in Schedule I hereto, the
remaining Underwriters shall
-26-
be obligated to take up and pay for (in proportion to their respective
underwriting obligations hereunder as set forth in Schedule I hereto, as
applicable, except as may otherwise be determined by you) the Firm Shares that
the withdrawing or defaulting Underwriter agreed but failed to purchase.
(b) If any Underwriter shall fail to take up and pay for
the amount of Firm Shares agreed by such Underwriter to be purchased hereunder,
upon tender of such Firm Shares in accordance with the terms hereof, and the
amount of Firm Shares not purchased aggregates more than 10% of the total
aggregate amount of Firm Shares set forth in Schedule I hereto, and arrangements
satisfactory to you for the purchase of such Firm Shares, as applicable by other
persons are not made within 36 hours thereafter, this Agreement shall terminate.
In the event of any such termination, neither the Company nor the Selling
Stockholders shall be under any liability to any Underwriter (except to the
extent provided in Section 4(a)(viii) and Section 6 hereof) nor shall any
Underwriter (other than an Underwriter who shall have failed, otherwise than for
some reason permitted under this Agreement, to purchase the amount of Firm
Shares agreed by such Underwriter to be purchased hereunder) be under any
liability to the Company or the Selling Stockholders (except to the extent
provided in Section 6 hereof).
If Firm Shares to which a default relates are to be purchased by the
non-defaulting Underwriters or by any other party or parties, you or the Company
shall have the right to postpone the First Closing Date for not more than seven
business days in order that the necessary changes in the Registration Statement,
Prospectus and any other documents, as well as any other arrangements, may be
effected. As used herein, the term "Underwriter" includes any person substituted
for an Underwriter under this Section 8.
9. EFFECTIVE DATE OF THIS AGREEMENT AND TERMINATION.
(a) This Agreement shall become effective at 10:00 a.m.,
Central time, on the first full business day following the effective date of the
Registration Statement, or at such earlier time after the effective time of the
Registration Statement as you in your discretion shall first release the
Securities for sale to the public; provided, that if the Registration Statement
is effective at the time this Agreement is executed, this Agreement shall become
effective at such time as you in your discretion shall first release the
Securities for sale to the public. For the purpose of this Section, the
Securities shall be deemed to have been released for sale to the public upon
release by you of the publication of a newspaper advertisement relating thereto
or upon release by you of telexes offering the Securities for sale to securities
dealers, whichever shall first occur. By giving notice as hereinafter specified
before the time this Agreement becomes effective, you or the Company may prevent
this Agreement from becoming effective without liability of any party to any
other party, except that the provisions of Section 4(a)(viii) and Section 6
hereof shall at all times be effective.
(b) You shall have the right to terminate this Agreement
by giving notice as hereinafter specified at any time at or prior to the First
Closing Date, and the option referred to in Section 3(b), if exercised, may be
cancelled at any time prior to the Second Closing Date, if (i) the Company or
the Selling Stockholders shall have failed, refused or been unable, at or prior
to such Closing Date, to perform any agreement on its part to be performed
hereunder, (ii) any other condition of the Underwriters' obligations hereunder
is not fulfilled, (iii) trading on the New York Stock Exchange, the Nasdaq
National Market or the American Stock Exchange shall have been wholly suspended,
(iv) minimum or maximum prices for trading shall have been fixed, or maximum
ranges for prices for securities shall have been required, on the New York Stock
Exchange, the Nasdaq National Market or the American Stock Exchange, by such
Exchange or by order of the Commission or any other governmental authority
having jurisdiction, (v) a banking moratorium shall have been declared by
Federal or New York authorities, or (vi) there has occurred any material adverse
change in the financial markets in the United
-27-
States or an outbreak of major hostilities (or an escalation thereof) in which
the United States is involved, a declaration of war by Congress, any other
substantial national or international calamity or any other event or occurrence
of a similar character shall have occurred since the execution of this Agreement
that, in your judgment, makes it impractical or inadvisable to proceed with the
completion of the sale of and payment for the Securities. Any such termination
shall be without liability of any party to any other party except that the
provisions of Section 4(a)(viii), Section 4(b)(ii) and Section 6 hereof shall at
all times be effective.
(c) If you elect to prevent this Agreement from becoming
effective or to terminate this Agreement as provided in this Section, the
Company and the Selling Stockholders shall be notified promptly by you by
telephone, confirmed by letter. If the Company elects to prevent this Agreement
from becoming effective, you and the Selling Stockholders shall be notified by
the Company by telephone, confirmed by letter.
10. DEFAULT BY THE COMPANY. If the Company shall fail at the First
Closing Date to sell and deliver the number of Securities which it is obligated
to sell hereunder, then this Agreement shall terminate without any liability on
the part of any non-defaulting party.
No action taken pursuant to this Section shall relieve the Company from
liability, if any, in respect of such default.
11. INFORMATION FURNISHED BY UNDERWRITERS. The statements set
forth in (i) the second and sixth paragraphs of text under the caption
"Underwriting" concerning the terms of the offering by the Underwriters, (ii)
the eighth paragraph of text under the caption "Underwriting" concerning other
related services provided to the Company by the underwriters for which they
receive fees and (iii) the ninth and tenth paragraphs of text under the caption
"Underwriting" concerning stabilization and over-allotment in the Prospectus
constitute the written information furnished by or on behalf of the Underwriters
referred to in Section 2 and Section 6 hereof.
12. NOTICES. Except as otherwise provided herein, all
communications hereunder shall be in writing and, if to the Underwriters, shall
be delivered by mail, hand delivery or facsimile transmission c/o U.S. Bancorp
Xxxxx Xxxxxxx Inc., 000 Xxxxxxxx Xxxx, Xxxxx 000, Xxxx Xxxxxxx: J1012005,
Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, except that notices given to an Underwriter
pursuant to Section 6 hereof shall be sent to such Underwriter at the address
stated in the Underwriters' Questionnaire furnished by such Underwriter in
connection with this offering; if to the Company, shall be delivered by mail,
hand delivery or facsimile transmission to it at 000 X Xxxxxxxxxx Xxxxx,
Xxxxxxxxxx, Xxx Xxxxxx 00000 Attention: Xxxx X. Xxxxxxxx, III; if for the
Selling Stockholders, _______________ Attention: _______________; All notices
given by facsimile shall be promptly confirmed by letter. Any party to this
Agreement may change such address for notices by sending to the parties to this
Agreement written notice of a new address for such purpose.
13. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of and be binding upon the parties hereto and their
respective successors and assigns and the controlling persons, officers and
directors referred to in Section 6. Nothing in this Agreement is intended or
shall be construed to give to any other person, firm or corporation any legal or
equitable remedy or claim under or in respect of this Agreement or any provision
herein contained. The term "successors and assigns" as herein used shall not
include any purchaser, as such purchaser, of any of the Securities from any of
the several Underwriters.
14. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of [New York].
-28-
[Signature Page Follows]
-29-
Please sign and return to the Company and the Selling Stockholders the
enclosed duplicates of this letter whereupon this letter will become a binding
agreement among the Company, the Selling Stockholders and the several
Underwriters in accordance with its terms.
Very truly yours,
INTEGRA LIFESCIENCES HOLDINGS CORPORATION
By
---------------------------------------
Name:
Title:
QUANTUM INDUSTRIAL PARTNERS LDC
By
---------------------------------------
Name:
Title:
SFM DOMESTIC INVESTMENTS LLC
By
---------------------------------------
Name:
Title:
Confirmed as of the date first above
mentioned, on behalf of themselves
and the other several Underwriters
named in Schedule I hereto.
U.S. BANCORP XXXXX XXXXXXX INC.
ABN AMRO ROTHSCHILD INCORPORATED
CIBC WORLD MARKETS CORP.
XXXXX, XXXXXXXX & XXXX, INC.
By: U.S. Bancorp Xxxxx Xxxxxxx Inc.
By
---------------------------------------
Name:
Title:
SCHEDULE I
UNDERWRITER NUMBER OF FIRM SHARES (1)
U.S. Bancorp Xxxxx Xxxxxxx Inc....................
---------------
ABN AMRO Incorporated.............................
---------------
CIBC World Markets Corp...........................
---------------
Xxxxx Xxxxxxxx & Xxxx, Inc. ......................
---------------
Total.............................................
===============
----------
(1) The Underwriters may purchase up to an additional 562,500 Option Shares, to
the extent the option described in Section 3(b) of the Agreement is
exercised, in the proportions and in the manner described in the Agreement.
SCHEDULE II
Maximum Number
Number of of Option Shares
Name of Selling Stockholder Firm Shares to be Sold
--------------------------- ----------- ----------
Quantum Industrial Partner LDC _____ _____
SFM Domestic Investments LDC _____ _____
SCHEDULE III
Xxxxxx X. Xxxxx
Xxxxxx X. XxXxxxxx, III, Ph.D.
Xxxx X. Xxxxxxxx, III
Xxxxxx X. X'Xxxxx
Xxxxxxx X. Xxxxxxxxxxxxx, Ph.D.
Xxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx, Ph.D.
Xxxxx X. Xxxxxxxx
Xxxxx Xxxxxxx, Ph.X.
Xxxx Moszkowski
SFM Domestic Investments LLC
Quantum Industrial Partners LDC
Xxxxxxx X. Xxxxx
Trust Partnership, the partners of which are:
Pagliacci Trust
Rigoletto Trust
Trust for Xxxxxxxx Xxxxx Xxxxxx
Trust for Xxxxx Xxxxx Xxxxxx
Xxxxxxx X. Xxxxxx, Ph.D.
Provco
EXHIBIT A
LOCK-UP AGREEMENT
July __, 2001
U.S. Bancorp Xxxxx Xxxxxxx Inc.
800 Nicollet Mall
Mail Station J1012005
Xxxxxxxxxxx, Xxxxxxxxx 00000
Re: Integra LifeSciences Corporation
Ladies and Gentlemen:
The undersigned understands that you will act as a representative
for a group of underwriters (the "Underwriters") who propose to enter into a
Purchase Agreement (the "Purchase Agreement") with Integra LifeSciences
Corporation (the "Company") and certain stockholders party thereto providing for
the public offering (the "Offering") by the Underwriters of Common Stock of the
Company (the "Common Stock") pursuant to the Company's Registration Statement on
Form S-3 filed with the Securities and Exchange Commission.
To induce the Underwriters that may participate in the Offering to
continue their efforts in connection with the Offering, and for other good and
valuable consideration, receipt of which is hereby acknowledged, the undersigned
hereby agrees, from the date hereof until the date that is 90 days after the
date of the Purchase Agreement, not to, without the prior written consent of
U.S. Bancorp Xxxxx Xxxxxxx Inc. (which consent may be withheld in its sole
discretion), directly or indirectly, offer for sale, sell, contract to sell,
grant any option for the sale of (including without limitation any short sale),
pledge, transfer, establish an open "put equivalent position" within the meaning
of Rule 16A-1(h) or otherwise dispose of any shares of Common Stock, options or
warrants to acquire shares of Common Stock or any security or instrument related
to such Common Stock, options or warrants, or publicly announce the
undersigned's intention to do any of the foregoing. Notwithstanding the
foregoing, the undersigned may sell or otherwise transfer shares of Common Stock
(i) as a BONA FIDE gift or gifts, provided that the undersigned provides prior
written notice of such gift or gifts to you and the donee or donees thereof
agree in writing with you to be bound by the restrictions set forth herein, (ii)
acquired in the public market on or after the date of the Purchase Agreement or
(iii) to any affiliate (as such term is defined in Rule 405 of the Securities
Act of 1933), provided that, such affiliate agrees in writing with you to be
bound by the restrictions set forth herein.
In addition, the undersigned hereby waives any and all notice
requirements and rights with respect to registration of securities pursuant to
any agreement, understanding or otherwise setting forth the terms of any
security of the Company held by the undersigned, including any registration
rights agreement to which the undersigned and the Company may be party, provided
that such waiver shall apply only to the Offering, and any other action taken by
the Company in connection with the Offering.
Furthermore, the undersigned hereby agrees and consents to the
entry of stop transfer instructions with the Company's transfer agent against
the transfer of securities of the Company held by the undersigned except in
compliance with this Lock-Up Agreement.
The undersigned recognizes that the Offering will be of benefit to
the undersigned and will benefit the Company by, among other things, raising
additional capital for its operations. The undersigned acknowledges that the
Underwriters are relying on the representations and agreements of the
undersigned contained in this Lock-Up Agreement in carrying out the Offering and
in entering into underwriting arrangements with respect to the Offering. This
Lock-Up Agreement is irrevocable and will be binding on the undersigned and the
respective successors, heirs, personal representatives and assigns of the
undersigned. If the Offering does not close by November 1, 2001, this Lock-Up
Agreement shall terminate immediately upon such date and you will release us
from our obligations under this Agreement.
Very truly yours,
Signature:
Printed Name:
-------------------------------------
Address:
------------------------------------------
(Indicate capacity of person signing if signing as
custodian or trustee or on behalf of an entity)
Address:
------------------------------------------
------------------------------------------
------------------------------------------
Accepted as of the date
first set forth above:
U.S. BANCORP XXXXX XXXXXXX INC.
By:
----------------------------
Managing Director
