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EXHIBIT 1.1
UNIVERSAL HOSPITAL SERVICES, INC.
5,000,000 Shares
Common Stock
($0.01 Par Value)
UNDERWRITING AGREEMENT
________ __, 2001
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UNDERWRITING AGREEMENT
________ __, 2001
UBS Warburg LLC
U.S. Bancorp Xxxxx Xxxxxxx Inc.
CIBC World Markets Corp.
As representatives of the several Underwriters
named in Schedule A hereto
c/o UBS Warburg LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Universal Hospital Services, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell to the Underwriters named in Schedule A
annexed hereto (the "Underwriters") an aggregate of 5,000,000 shares (the "Firm
Shares") of common stock, $0.01 par value per share, of the Company (the "Common
Stock"). In addition, solely for the purpose of covering over-allotments, the
selling stockholders named in Schedule B annexed hereto (the "Selling
Stockholders") propose to grant to the Underwriters the option to purchase from
the Selling Stockholders up to an additional 750,000 shares of Common Stock (the
"Additional Shares"). The Firm Shares and the Additional Shares are hereinafter
collectively sometimes referred to as the "Shares." The Shares are described in
the Prospectus, which is referred to below.
The Company has filed, in accordance with the provisions of
the Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the "Act"), with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (File No. 333-65988)
including a prospectus, relating to the Shares. The Company has furnished to
you, for use by the Underwriters and by dealers, copies of one or more
preliminary prospectuses (each thereof being herein called a "Preliminary
Prospectus") relating to the Shares. Except where the context otherwise
requires, the registration statement, as amended when it becomes effective,
including all documents filed as a part thereof, and including any information
contained in a prospectus subsequently filed with the Commission pursuant to
Rule 424(b) under the Act and deemed to be part of the registration statement at
the time of effectiveness pursuant to Rule 430(A) under the Act, and also
including any registration statement filed pursuant to Rule 462(b) under the Act
with respect to the offering contemplated by such registration statement (as so
amended), is herein called the "Registration Statement," and the prospectus, in
the form filed by the Company with the Commission pursuant to Rule 424(b) under
the Act on or before the second business day after the date hereof (or such
earlier time as may be required under the Act) or, if no such filing is
required, the form of final prospectus included in the
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Registration Statement at the time the Registration Statement became effective,
is herein called the "Prospectus."
The Company, the Selling Stockholders and the Underwriters
agree as follows:
1. Sale and Purchase. Upon the basis of the representations
and warranties and subject to the terms and conditions herein set forth, the
Company agrees to sell to the respective Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase from the Company the
aggregate number of Firm Shares set forth opposite the name of such Underwriter
in Schedule A attached hereto, in each case at a purchase price of $____ per
Share. The Company is advised by you that the Underwriters intend (i) to make a
public offering of their respective portions of the Firm Shares as soon after
the effective date of the Registration Statement as in your judgment is
advisable and (ii) initially to offer the Firm Shares upon the terms set forth
in the Prospectus. You may from time to time increase or decrease the public
offering price after the initial public offering to such extent as you may
determine.
In addition, upon the basis of the representations and
warranties and subject to the terms and conditions herein set forth, the Selling
Stockholders hereby grant to the several Underwriters the option to purchase and
the Underwriters shall have the right to purchase, severally and not jointly,
from the Selling Stockholders, ratably in accordance with the number of Firm
Shares to be purchased by each of them, all or a portion of the Additional
Shares as may be necessary to cover over-allotments made in connection with the
offering of the Firm Shares, at the same purchase price per share to be paid by
the Underwriters to the Company for the Firm Shares. This option may be
exercised by you on behalf of the several Underwriters at any time and from time
to time on or before the thirtieth (30th) day following the date hereof, by
written notice to the Company and the Selling Stockholders. Such notice shall
set forth the aggregate number of Additional Shares as to which the option is
being exercised and the date and time when the Additional Shares are to be
delivered (such date and time being herein referred to as the "additional time
of purchase"); provided, however, that the additional time of purchase shall not
be earlier than the time of purchase (as defined below) nor earlier than the
second business day(1) after the date on which the option shall have been
exercised nor later than the tenth business day after the date on which the
option shall have been exercised. The number of Additional Shares to be sold to
each Underwriter shall be the number which bears the same proportion to the
aggregate number of Additional Shares being purchased as the number of Firm
Shares set forth opposite the name of such Underwriter on Schedule A hereto
bears to the total number of Firm Shares (subject, in each case, to such
adjustment as you may determine to eliminate fractional shares).
2. Payment and Delivery. Payment of the purchase price for the
Firm Shares shall be made to the Company by wire transfer of Federal (same-day)
funds against delivery of the certificates for the Firm Shares to you through
the facilities of the Depository Trust Company ("DTC") for the respective
accounts of the Underwriters. Such payment and delivery shall be
------------------------------------
(1) As used herein "business day" shall mean a day on which
the New York Stock Exchange is open for trading.
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made at 10:00 A.M., New York City time, on _________ __, 2001 (unless another
time shall be agreed to by you and the Company or unless postponed in accordance
with the provisions of Section 10 hereof). The time at which such payment and
delivery are actually made is hereinafter sometimes called the "time of
purchase." Certificates for the Firm Shares shall be delivered to you in
definitive form registered in such names and in such denominations as you shall
specify on the second business day preceding the time of purchase. For the
purpose of expediting the checking of the certificates for the Firm Shares by
you, the Company agrees to make such certificates available to you for such
purpose at least one full business day preceding the time of purchase at the
office of DTC or its designated custodian (the "Designated Office").
Payment of the purchase price for the Additional Shares shall
be made at the additional time of purchase to the Selling Stockholders by
Federal Funds wire transfer in United States dollars to the order of the
Custodian (as defined below). Certificates for the Additional Shares shall be
delivered to you in definitive form registered in such names and in such
denominations as you shall specify no later than the second business day
preceding the additional time of purchase. For the purpose of expediting the
checking of the certificates for the Additional Shares by you, the Company and
the Selling Stockholders agree to make such certificates available to you for
such purpose at least one full business day preceding the additional time of
purchase at the Designated Office.
Deliveries of the documents described in Section 9 below with
respect to the purchase of the Shares shall be made at the offices of Xxxxx
Xxxxxxxxxx LLP, 1301 Avenue of the Americas, New York, New York at 9:00 A.M.,
New York City time, on the date of the closing of the purchase of the Firm
Shares or the Additional Shares, as the case may be.
3. Representations and Warranties of the Company. The Company
represents and warrants to each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and
delivered by the Company and is a legal, valid and binding agreement of
the Company, enforceable against the Company in accordance with its
terms, except as rights to indemnity hereunder may be limited by
federal or state securities laws and except as the enforcement thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditors or by general
equitable principles.
(b) The Shares have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will
be duly and validly issued, fully paid and non-assessable. The holders
of the Shares will not be subject to personal liability by reason of
being such holders. The certificates for the Shares are in due and
proper form and conform in all material respects to the requirements of
the Delaware General Corporation Law.
(c) No approval, authorization, consent or order of or filing
with any national, state or local governmental or regulatory
commission, board, body, authority or agency is required to be obtained
or made by the Company in connection with the execution, delivery and
performance by the Company of this Agreement, or with the issuance and
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sale of the Shares contemplated hereby and by the Registration
Statement, other than (1) registration of the Shares under the Act and
under the Securities Exchange Act of 1934, as amended, and the rules
and regulations thereunder (collectively, the "Exchange Act"), which
has been or will be effected by the Company, and (2) any necessary
qualification under (i) the securities or blue sky laws of the various
jurisdictions in which the Shares are being offered by the Underwriters
or (ii) the rules and regulations of the NASD and (3) any such
approvals, authorizations, consents or orders the failure to obtain or
make would not adversely affect the consummation of the transactions
contemplated by this Agreement and by the Registration Statement.
(d) The Company has timely filed with the Commission as
required all periodic reports and proxy statements pursuant to the
Exchange Act (collectively, the "Exchange Act Reports"). The Exchange
Act Reports, when they were filed with the Commission, conformed in all
material respects with the requirements of the Exchange Act and the
rules and regulations of the Commission thereunder. None of the
Exchange Act Reports, in each case as amended or supplemented, contains
an untrue statement of a material fact or omits to state a material
fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(e) The Company has not received, and has no notice of, any
order of the Commission preventing or suspending the use of any
Preliminary Prospectus, or instituting proceedings for that purpose,
and each Preliminary Prospectus, at the time of filing thereof,
conformed in all material respects to the requirements of the Act. When
the Registration Statement became or becomes effective, the
Registration Statement and the Prospectus complied or will comply in
all material respects with the provisions of the Act, and the
Registration Statement did not or will not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and the Prospectus did not or will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading
and the Prospectus, any Preliminary Prospectus and any supplement
thereto or prospectus wrapper prepared in connection therewith, at
their respective times of issuance and at the time of purchase and
additional time of purchase, as the case may be, complied and will
comply in all material respects with any applicable laws or regulations
of jurisdictions in which the Prospectus and such preliminary
prospectus, as amended or supplemented, if applicable, are distributed
in connection with the offer and sale of the Shares; provided, however,
that the Company makes no representation or warranty with respect to
any statement contained in or omitted from the Registration Statement
or the Prospectus in reliance upon and in reasonable conformity with
information concerning the Underwriters and furnished in writing by or
on behalf of any Underwriter through you to the Company expressly for
use in the Registration Statement or the Prospectus. Neither the
Company nor, to the Company's knowledge, any of its affiliates (as
defined in the Act) has distributed directly or indirectly any offering
material in connection with the offering or sale of the Shares other
than the Registration Statement, the Preliminary Prospectus, the
Prospectus or any other materials, if any, permitted by the Act.
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(f) The audited financial statements of the Company included
in the Registration Statement and the Prospectus present fairly the
financial position and results of operations of the Company as of the
dates and for the periods indicated; such financial statements have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis during the periods involved;
the pro forma financial data included in the Registration Statement and
the Prospectus comply as to form in all material respects with the
applicable accounting requirements of Regulation S-X of the Act, and
the pro forma adjustments have been properly applied to the historical
amounts in the compilation of those statements; the other financial and
statistical data set forth in the Registration Statement and the
Prospectus are accurately presented and prepared on a basis consistent
with such financial statements and the books and records of the
Company; and there are no financial statements (historical or pro
forma) that are required to be included in the Registration Statement
and the Prospectus that are not included as required.
(g) PricewaterhouseCoopers LLP, whose report on the financial
statements of the Company is filed with the Commission as part of the
Registration Statement and Prospectus, are independent public
accountants as required by the Act.
(h) All legal or governmental proceedings, all statutes and
regulations and all contracts, leases or documents of a character
required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement
have been so described or filed as required. All statistical and
market-related data included in the Prospectus are based on or derived
from sources that the Company believes to be reliable and accurate, and
the Company has obtained the written consent to the use of such data
from such sources to the extent required.
(i) Except as set forth in the Registration Statement and the
Prospectus: (i) no person has the right, contractual or otherwise, to
cause the Company to issue or sell to it, or register pursuant to the
Act, any shares of capital stock or other equity interests; (ii) no
person has any preemptive rights, co-sale rights, rights of first
refusal or other rights to purchase any shares of Common Stock and
(iii) no person has the right to act as an underwriter, or as a
financial advisor to the Company, in connection with the offer and sale
of the Shares. No person has the right, contractual or otherwise, to
cause the Company to register under the Act any shares of capital stock
or other equity interests as a result of the filing or effectiveness of
the Registration Statement or the sale of the Shares as contemplated
thereby.
(j) Immediately after the issuance and sale of the Shares to
the Underwriters, no shares of preferred stock of the Company shall be
issued and outstanding, and no holder of any shares of capital stock,
securities convertible into or exchangeable or exercisable for capital
stock or options, warrants or other rights to purchase capital stock or
any other securities of the Company shall have any existing or future
right to acquire any shares of preferred stock of the Company.
(k) Each "employee benefit plan" within the meaning of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
in which employees of
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the Company participate or as to which the Company has any liability
(the "ERISA Plans") is in material compliance with the applicable
provisions of ERISA and the Internal Revenue Code of 1986, as amended
(the "Code"). The Company has fulfilled its obligations under the
minimum funding standards of Section 302 of ERISA and Section 412 of
the Code. The value of the aggregate vested and nonvested benefit
liabilities under each of the ERISA Plans that is subject to Section
412 of the Code, determined as of the end of such ERISA Plan's most
recently ended plan year on the basis of the actuarial assumptions
specified for funding purposes in such ERISA Plan's most recent
actuarial valuation report, did not exceed the aggregate current value
of the assets of such ERISA Plan allocable to such benefit liabilities.
The Company has no liability under Title IV of ERISA, nor does the
Company expect that any such liability will be incurred, that would be
reasonably expected, individually or in the aggregate, to have a
Material Adverse Effect.
(l) The Company is not, and after the offering and sale of the
Shares, will not be, an "investment company" or an entity "controlled"
by an "investment company," as such terms are defined in the Investment
Company Act of 1940, as amended (the "Investment Company Act").
(m) The Company has obtained for the benefit of the
Underwriters the agreement (a "Lock-Up Agreement"), in the form set
forth as Exhibit A hereto, of each of its officers, directors and
securityholders identified on Exhibit B hereto. The Company has
provided to UBS Warburg and to Xxxxx Xxxxxxxxxx LLP, counsel for the
Underwriters, a complete and accurate list of all securityholders of
the Company and the number and type of securities held by each
securityholder. The Company has provided to UBS Warburg and to Xxxxx
Xxxxxxxxxx LLP, counsel for the Underwriters, true, accurate and
complete copies of all of the Lock-Up Agreements presently in effect or
effected hereby. The Company will not purport to release any of its
officers, directors or other securityholders from any Lock-Up
Agreements currently existing or hereafter effected without the prior
written consent of UBS Warburg. For the purposes of this Agreement,
"Outstanding Diluted Common Stock" shall mean the outstanding shares of
Common Stock and any shares of Common Stock issuable upon conversion,
exercise or exchange of any outstanding securities, notes or other
instruments (including options and warrants).
(n) Neither the Company nor, to the Company's knowledge, any
of its affiliates has taken, directly or indirectly, any action
designed to or which has constituted or which might reasonably be
expected to cause or result, under 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 Shares.
(o) The Company has been duly incorporated and is validly
existing as a corporation and is in good standing under the laws of the
State of Delaware and has corporate authority to own, lease and operate
its properties and conduct its business as described in the
Registration Statement. The Company is duly qualified to do business as
a foreign corporation and is in good standing in each jurisdiction in
which the ownership or leasing of its properties or the conduct of its
business requires such qualification, except where the failure to so
qualify would not reasonably be expected to have a
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material adverse effect on the business, prospects, properties,
condition (financial or otherwise) or results of operation of the
Company (a "Material Adverse Effect").
(p) The capital stock of the Company, including the Shares,
conforms in all material respects to the description thereof contained
in the Registration Statement and Prospectus. As of the date of this
Agreement, the Company has an authorized and outstanding capital stock
as set forth under the heading entitled "Actual" in the section of the
Registration Statement and the Prospectus entitled "Capitalization"
and, as of the time of purchase, and assuming the receipt and
application of the net proceeds as described under the section of the
Registration Statement and the Prospectus entitled "Use of proceeds,"
the Company shall have an authorized and outstanding capital stock as
set forth under the heading entitled "Pro forma as adjusted" in the
section of the Registration Statement and the Prospectus entitled
"Capitalization." All of the outstanding shares of capital stock of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable, have been issued in compliance with all
federal and state securities laws and have not have been issued in
violation of any preemptive right, resale right, right of first refusal
or similar right. The shares of Common Stock issuable upon conversion
of the outstanding preferred stock of the Company upon completion of
the offering contemplated hereby have been duly and validly authorized
and reserved for issuance, and upon issuance, they will be duly and
validly issued and fully paid and non-assessable, will have been issued
in compliance with all federal and state securities laws and will not
have been issued in violation of any preemptive right, resale right,
right of first refusal or similar right.
(q) The Company does not have any subsidiaries (as defined in
the Act). The Company does not own, directly or indirectly, any shares
of stock or any other equity or long-term debt securities of any
corporation or have any equity interest in any firm, partnership,
limited liability company, joint venture, association or other entity
except as described in the Registration Statement and the Prospectus.
Complete and correct copies of the charter and bylaws and other
organizational documents of the Company and all amendments thereto have
been delivered to you, and except as described in the Prospectus and
set forth in the exhibits to the Registration Statement, no changes
therein will be made subsequent to the date hereof and prior to the
time of purchase or, if later, the additional time of purchase.
(r) The Company has not violated and is not in violation of
any federal, state, local or foreign law, ordinance, administrative or
governmental rule or regulation applicable to the Company or any
applicable decree of any court or governmental agency or body having
jurisdiction over the Company, which violation would be reasonably
likely, individually or in the aggregate, to have a Material Adverse
Effect. The Company has all necessary licenses, permits, franchises,
authorizations, consents and approvals, and made all filings required
under any federal, state, local or foreign law, regulation or rule, and
has obtained all necessary authorizations, consents and approvals from
other persons, in order to conduct its business, except where the
effect of the failure to have or obtain such licenses, permits,
franchises, authorizations, consents and approvals, or to make such
filings, would not reasonably be likely, individually or in the
aggregate, to have a Material Adverse Effect; and the Company is not in
violation of, or in default
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under, any such license, permit, franchise, authorization, consent or
approval, the effect of which would be reasonably likely, individually
or in the aggregate, to have a Material Adverse Effect. Without
limiting the generality of the foregoing, the Company has operated and
currently is in compliance in all material respects with all applicable
U.S. Food and Drug Administration ("FDA") rules, regulations and
policies, and all deficiencies identified by the FDA with respect
to the Company or its facilities, personnel or operations as a result
of FDA inspections, audits or otherwise have been, in all material
respects, corrected.
(s) The Company is not in breach or violation of, or in
default under (and no event has occurred which with notice, lapse of
time or both would result in any breach or violation of, or constitute
a default under), its charter or bylaws or other organizational
documents or in the performance or observance of any obligation,
agreement, covenant or condition contained in any indenture, mortgage,
deed of trust, bank loan or credit agreement or other evidence of
indebtedness, or any lease, contract or other agreement or instrument
to which the Company is a party or by which any of it or any of its
properties is bound or affected, the effect of which would be
reasonably likely, individually or in the aggregate, to have a Material
Adverse Effect. The execution, delivery and performance of this
Agreement and the issuance and sale of the Shares contemplated hereby
and by the Registration Statement will not conflict with, or result in
any breach or violation of or constitute a default under (nor
constitute any event which with notice, lapse of time or both would
result in any breach or violation of, or constitute a default under),
any provisions of the charter or bylaws or other organizational
documents of the Company or under any provision of any license, permit,
franchise, indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any lease, contract or
other agreement or instrument to which the Company is a party or by
which it or its properties may be bound or affected, or under any
federal, state, local or foreign law, regulation or rule or any decree,
judgment or order applicable to the Company, the result of which would
be reasonably likely, individually or in the aggregate, to have a
Material Adverse Effect; and the execution, delivery and performance of
this Agreement and the issuance and sale of the Shares contemplated
hereby and by the Registration Statement will not conflict with, or
result in any breach or violation of, constitute a default under (nor
constitute any event which with notice, lapse of time or both would
result in any breach or violation of, or constitute a default under) or
result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company pursuant to any indenture,
mortgage, deed of trust, bank loan or credit agreement or other
evidence of indebtedness, or any lease, contract or other agreement or
instrument to which the Company is a party or by which it or its
properties is bound or affected, the result of which would be
reasonably likely, individually or in the aggregate, to have a Material
Adverse Effect.
(t) Except as described in the Registration Statement and the
Prospectus, there are no private or governmental actions, suits,
claims, investigations or proceedings pending, or, to the Company's
knowledge, threatened or contemplated, to which the Company or, to the
Company's knowledge, any of its directors or officers is subject or of
which any of its properties is subject, whether at law, in equity or
before or by any federal, state, local or foreign governmental or
regulatory commission, board, body,
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authority or agency which, if adversely decided, could result in a
judgment, decree or order which would be reasonably likely,
individually or in the aggregate, to have a Material Adverse Effect.
(u) Except as described 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, there has
not been (i) any material adverse change, or, to the Company's
knowledge, any development with respect to the Company which, in the
reasonable judgment of the Company, is reasonably likely to cause a
prospective material adverse change in the business, prospects,
properties, condition (financial or otherwise) or results of operations
of the Company, (ii) any transaction that is material to the Company,
(iii) the incurrence by the Company of any obligation, direct or
contingent, and whether or not in the ordinary course of business,
which is material to the Company, (iv) any change in the capital stock
or other equity interest or outstanding indebtedness of the Company,
other than in the ordinary course of business, or (v) any dividend or
distribution of any kind declared, paid or made on the capital stock or
other equity interest of the Company. The Company has no contingent
obligations that are material to the Company, which are not disclosed
in the Registration Statement and which would reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect.
(v) Other than as set forth in the Registration Statement and
the Prospectus, or as would not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect (i) the
Company owns or possesses those trademarks, trademark registrations,
service marks, service xxxx registrations, trade names, patents, patent
rights, copyrights, licenses, approvals, inventions, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures) and
other similar rights or intellectual property described in the
Prospectus as being owned or used by or licensed to the Company or
necessary for the conduct of its business as currently conducted
(collectively, the "Intellectual Property"); (ii) the Company has taken
all reasonable steps necessary to secure assignments of the
Intellectual Property from, where applicable, its officers, employees,
consultants and contractors; (iii) none of the technology employed by
the Company has been obtained or is being used by the Company in
violation of any contractual or fiduciary obligation binding on the
Company or, to the Company's knowledge, its directors or executive
officers or any of the Company's employees or consultants; (iv) the
Company has taken and will maintain reasonable measures to prevent the
unauthorized dissemination or publication of its confidential
information; (v) the Company has not infringed, interfered with or
misappropriated any patents, patent rights, trade names, trademarks,
copyrights or other intellectual property rights of others, which
infringement; (vi) there is no pending or, to the Company's knowledge,
threatened private or governmental action, suit, proceeding or claim
(a) challenging the rights of the Company in or to any such
Intellectual Property; (b) challenging the validity or scope of, or any
rights relating to, any such Intellectual Property of the Company, or
(c) alleging that the Company infringes or otherwise violates, or would
infringe or otherwise violate, any patent, trademark, copyright, trade
secret or other proprietary rights of others; and (vii) the Company is
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unaware of any facts which would form a reasonable basis for of the
claims described in clause (vi) above.
(w) The Company has good and marketable title to all property
(real and personal) described in the Prospectus as being owned by it,
free and clear of all liens, claims, security interests or other
encumbrances except such as are described in the Registration Statement
and the Prospectus and except for such property (real and personal) for
which the failure to hold such good and marketable title would not
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect. To the Company's knowledge, all the property
held under lease by the Company is held thereby under valid, subsisting
and enforceable leases with such exceptions as are not material and do
not interfere with the use made and proposed to be made of such
property and buildings by the Company.
(x) The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amount as are
customary in the business in which it is engaged. All policies of
insurance insuring the Company or any of its businesses, assets,
employees, officers and directors are in full force and effect, except
where the failure of such policies to be in full force and effect would
not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect, and the Company is in compliance with the
terms of such policies in all material respects. There are no claims by
the Company under any such policy or instrument as to which any
insurance company is denying liability or defending under a reservation
of rights clause, except where such claims would not reasonably be
expected, individually or in the aggregate, to have a Material Adverse
Effect.
(y) The Company has not sent or received any notice of
termination of any of the contracts or agreements referred to or
described in, or filed as an exhibit to, the Registration Statement,
and no such termination has been threatened by the Company or, to the
Company's knowledge, by any other party to any such contract or
agreement.
(z) Since the date of the latest audited financial statements
included in the Prospectus, the Company has not sustained any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as disclosed in the Prospectus or other than any loss or
interference which would not be reasonably likely, individually or in
the aggregate, to have a Material Adverse Effect.
(aa) The Company maintains a system of internal accounting
controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with
management's general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to
any differences.
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(bb) The Company has filed all federal, state, local and
foreign tax returns and tax forms required to be filed, other than
those filings being contested in good faith. Such returns and forms are
complete and correct in all material respects, and all taxes shown by
such returns or otherwise assessed that are due or payable have been
paid, except such taxes as are being contested in good faith and as to
which adequate reserves have been provided. All payroll withholdings
required to be made by the Company with respect to employees have been
made. The charges, accruals and reserves on the books of the Company in
respect of any tax liability for any year not finally determined are
adequate to meet any assessments or reassessments for additional taxes.
There have been no tax deficiencies asserted and, to the Company's
knowledge, no tax deficiency might be reasonably asserted or threatened
against the Company that would be reasonably likely, individually or in
the aggregate, to have a Material Adverse Effect.
In addition, any certificate signed by any officer of the
Company, delivered to the Underwriters or counsel for the Underwriters in
connection with the offering of the Shares shall be deemed to be a
representation and warranty by the Company, as to matters covered thereby, to
each Underwriter.
4. Representations and Warranties of the Selling
Stockholders. Each Selling Stockholder, severally and not jointly, represents
and warrants to each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Stockholder.
(b) The Custody Agreement signed by such Selling Stockholder
and Xxxxxxxx & Worcester LLP, as custodian (the "Custodian"), relating
to the deposit of the Additional Shares to be sold by such Selling
Stockholder (the "Custody Agreement"), and the Lock-Up Agreement of
such Selling Stockholder, has each been duly authorized, executed and
delivered by such Selling Stockholder and is a valid and binding
agreement of such Selling Stockholder, enforceable in accordance with
its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws relating to or affecting the rights and remedies of creditors or
by general equitable principles. Such Selling Stockholder has duly
executed and delivered a Power of Attorney, in the form heretofore
furnished to you (a "Power of Attorney"), appointing the persons
indicated in Schedule C annexed hereto, and each of them, as each of
the Selling Stockholder's attorneys-in-fact (the "Attorneys-in-Fact")
with authority to execute and deliver this Agreement on behalf of the
Selling Stockholders, to determine the purchase price to be paid by the
Underwriters to the Selling Stockholders as provided in Section 1
hereof, to authorize the delivery of the Additional Shares to be sold
by the Selling Stockholders hereunder and otherwise to act on behalf of
the Selling Stockholders in connection with the transactions
contemplated by this Agreement and the Custody Agreement.
(c) Such Selling Stockholder agrees that the Additional
Shares to be sold by such Selling Stockholder, which have been duly
placed in custody with the Custodian, are subject to the interests of
the Underwriters, that the arrangements made for such custody are to
that extent irrevocable, and that the obligations of such Selling
Stockholder
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hereunder shall not be terminated, except as provided in this Agreement
or in the Custody Agreement, by any act of such Selling Stockholder, by
operation of law, by death or incapacity of such individual Selling
Stockholder or, in the case of an estate or trust, by the death or
incapacity of any executor or trustee or the termination of such estate
or trust, or in the case of a partnership or corporation, by the
dissolution of such partnership or corporation, or by the occurrence of
any other event. If such Selling Stockholder should die or become
incapacitated, or if any of the other events referred to in the
immediately preceding sentence should occur, or any other event should
occur, before the delivery of the Additional Shares to be sold by such
Selling Stockholder hereunder, the documents evidencing the Additional
Shares to be sold by such Selling Stockholder then in custody with the
Custodian shall be delivered by the Custodian in accordance with the
terms and conditions of this Agreement as if such death, incapacity or
other event had not occurred, regardless of whether or not the
Custodian shall have received notice thereof; and actions taken by the
Attorneys-in-Fact pursuant to the Powers of Attorney shall be as valid
as if such death, incapacity, termination, dissolution or other event
had not occurred, regardless of whether or not the Custodian, the
Attorneys-in-Fact, or any of them, shall have received notice of such
death, incapacity, termination, dissolution or other event.
(d) Such Selling Stockholder has the legal right and power,
and all authorizations and approvals required by law to enter into this
Agreement, its Custody Agreement and its Power of Attorney to sell,
transfer and deliver all of the Additional Shares which may be sold by
such Selling Stockholder pursuant to this Agreement and to comply with
its other obligations hereunder and thereunder.
(e) Such Selling Stockholder has, and at the time of purchase
and the additional time of purchase, as the case may be, will have,
good and valid title to the Additional Shares to be sold by such
Selling Stockholder under this Agreement, free and clear of all liens,
encumbrances, equities or claims other than pursuant to this Agreement,
the Custody Agreement and the Power of Attorney; and, upon delivery of
such Additional Shares and payment therefor pursuant hereto, and
assuming each Underwriter has no notice of any adverse claim, good and
valid title to such Additional Shares, free and clear of all liens,
encumbrances, equities or claims, will pass to the several
Underwriters.
(f) No consent, approval, authorization or order of any court
or governmental agency or body or any other entity or person is
required to be obtained by the Selling Stockholder for the consummation
by such Selling Stockholder of the transactions contemplated herein,
the Custody Agreement or the Power of Attorney, except (1) such as may
have been obtained under the Act and the Exchange Act, (2) the approval
of the NASD with respect to fairness of the underwriting arrangements
relating to this Agreement, (3) such as may be required under the blue
sky laws of any jurisdiction in connection with the purchase and
distribution of the Additional Shares by the Underwriters and such
other approvals as have been obtained and (4) any such approvals,
authorizations, consents or orders the failure to obtain would not
adversely affect the consummation of the transactions contemplated by
this Agreement and by the Registration Statement.
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(g) Neither the sale of the Additional Shares being sold by
such Selling Stockholder nor the consummation of any other of the
transactions herein and therein contemplated by such Selling
Stockholder or the fulfillment of the terms hereof, the Custody
Agreement or the Power of Attorney by such Selling Stockholder will
conflict with, result in a breach or violation of, or constitute a
default under the charter, by-laws and/or other organizational document
of such Selling Stockholder, or, to the Selling Stockholder's
knowledge, any law or the terms of any indenture or other agreement or
instrument to which such Selling Stockholder is party or bound (or to
which any of the property or assets of such Selling Stockholder is
subject), any judgment, order or decree applicable to such Selling
Stockholder or any court or regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over such Selling
Stockholder, the result of which would be reasonably likely,
individually or in the aggregate, to have a Material Adverse Effect.
(h) Other than the inclusion of the Additional Shares to be
sold by such Selling Stockholder, such Selling Stockholder does not
have any registration or other similar rights to have any equity or
debt securities registered for sale by the Company under the
Registration Statement or included in the offering contemplated by this
Agreement that have not been waived.
(i) Such Selling Stockholder does not have, or has waived
prior to the date hereof, any preemptive right, co-sale right or right
of first refusal or other similar right to purchase any of the Shares
that are to be sold by the Company or any of the other Selling
Stockholders to the Underwriters pursuant to this Agreement; and such
Selling Stockholder does not own any warrants, options or similar
rights to acquire, and does not have any right or arrangement to
acquire, any capital stock, right, warrants, options or other
securities from the Company, other than those described in the
Prospectus.
(j) All information furnished by or on behalf of such Selling
Stockholder through the Company in writing expressly for use with
reference to such Selling Stockholder in the Registration Statement and
Prospectus is, and at the additional time of purchase will be, true,
correct and complete in all material respects, and does not, and at the
additional time of purchase will not, contain any untrue statement of a
material fact or omit to state any material fact necessary to make such
information not misleading. Such Selling Stockholder confirms as
accurate the number of shares of Common Stock set forth opposite the
Selling Stockholder's name in the Prospectus, to the extent so named,
under the caption "Principal and selling Stockholders" (both prior to
and after giving effect to the sale of the Shares). The Underwriters
acknowledge that the only information provided by or on behalf of such
Selling Stockholder through the Company is set forth under the caption
"Principal and selling Stockholders" (the "Selling Stockholder's
Disclosure") and that the Selling Stockholder's Disclosure constitutes
the only information provided by or on behalf of such Selling
Stockholder for use in the Registration Statement, the Preliminary
Prospectus or the Prospectus.
(k) Such Selling Stockholder has not taken, directly or
indirectly, any action which is designed to or which has constituted or
which might be reasonably expected to
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cause or result under 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 Shares.
(l) Such Selling Stockholder has not distributed and will not
distribute, prior to the later of the additional time of purchase or
the completion of the Underwriters' distribution of the Shares, any
offering material in connection with the offering and sale of the
Shares by such Selling Stockholder other than the Preliminary
Prospectus, the Prospectus or the Registration Statement.
(m) Certificates in negotiable form for all the Additional
Shares to be sold by such Selling Stockholder under this Agreement have
been validly placed in custody with the Custodian for the purpose of
effecting delivery under this Agreement.
(n) The representations and warranties of the Selling
Stockholders in the Custody Agreement are, and at the time of purchase
and the additional time of purchase, as the case may be, will be, true
and correct in all material respects.
Any certificate signed by or on behalf of any Selling
Stockholders and delivered to the Underwriters or to counsel for the
Underwriters in connection with the offering of the Shares shall be deemed to be
a representation and warranty by such Selling Stockholder, as to the matters
covered thereby, to each Underwriter.
5. Representations and Warranties of the Underwriters. You,
on behalf of the several Underwriters, represent and warrant to the Company that
the information provided by you and set forth in the last paragraph on the cover
page of the Prospectus and in the _________ paragraphs under the caption
"Underwriting" in the Prospectus constitutes the only information provided by or
on behalf of the Underwriters through you for use in the Registration Statement
and the Prospectus. You represent and warrant that you have been authorized by
each of the other Underwriters to enter into this Agreement on behalf of each of
the other Underwriters and to act for each of them in the manner herein
provided.
6. Certain Covenants of the Company. The Company hereby
agrees:
(a) to furnish such information as may be required and
otherwise to cooperate in qualifying the Shares for offering and sale
under the securities or blue sky laws of such states as you may
designate and to maintain such qualifications in effect so long as
required for the distribution of the Shares; provided, however, that
the Company shall not be required to qualify as a foreign corporation
or to consent to the service of process under the laws of any such
state (except service of process with respect to the offering and sale
of the Shares); and to promptly advise you of the receipt of any
notification with respect to the suspension of the qualification of the
Shares for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose;
(b) to make available to the Underwriters in New York City,
as soon as practicable after the Registration Statement becomes
effective, and thereafter from time to time to furnish to the
Underwriters, as many copies of the Prospectus (or of the Prospectus as
amended or supplemented if the Company shall have made any amendments
or supplements thereto after the effective date of the Registration
Statement)
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as the Underwriters may request for the purposes contemplated by the
Act; and in case any Underwriter is required to deliver a prospectus
beyond the nine-month period referred to in Section 10(a)(3) of the Act
in connection with the sale of the Shares, the Company will prepare
promptly upon request such amendment or amendments to the Registration
Statement and such prospectuses as may be necessary to permit
compliance with the requirements of Section 10(a)(3) of the Act;
(c) to advise you promptly and (if requested by you) to
confirm such advice in writing, (i) when the Registration Statement has
become effective and when any post-effective amendment thereto becomes
effective and (ii) if Rule 430A under the Act is used, when the
Prospectus is filed with the Commission pursuant to Rule 424(b) under
the Act (which the Company agrees to file in a timely manner under such
Rules);
(d) to advise you promptly, and to confirm such advice in
writing, of any request by the Commission for amendments or supplements
to the Registration Statement or Prospectus or for additional
information with respect thereto, or of notice of institution of
proceedings for, or the entry of a stop order suspending the
effectiveness of the Registration Statement and, if the Commission
should enter a stop order suspending the effectiveness of the
Registration Statement, to use its best efforts to obtain the lifting
or removal of such order as soon as possible; to advise you promptly of
any proposal to amend or supplement the Registration Statement or
Prospectus and to file no such amendment or supplement to which you
shall object in writing;
(e) subject to Section 6(o) hereof, to file promptly all
reports and any definitive proxy or information statement required to
be filed by the Company with the Commission in order to comply with the
Exchange Act subsequent to the date of the Prospectus and for so long
as the delivery of a prospectus is required in connection with the
offering or sale of the Shares, and to promptly notify you of such
filing;
(f) if necessary or appropriate, to file in a timely fashion
a registration statement pursuant to Rule 462(b) under the Act;
(g) to furnish to you and, upon request, to each of the other
Underwriters for a period of five (5) years from the date of this
Agreement (i) copies of any reports or other communications which the
Company shall send to its stockholders or shall from time to time
publish or publicly disseminate, (ii) copies of all annual, quarterly
and current reports filed with the Commission on Forms 10-K, 10-Q and
8-K, or such other similar form as may be designated by the Commission,
and (iii) copies of documents or reports filed with any national
securities exchange on which any class of securities of the Company is
listed;
(h) to advise the Underwriters promptly of the occurrence of
any event known to the Company within the time during which a
Prospectus relating to the Shares is required to be delivered under the
Act which would require the making of any change in the Prospectus then
being used so that the Prospectus would not 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 under which
they are made, not
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misleading, and, during such time, to prepare, file (subject to Section
6(d) hereof) and furnish promptly to the Underwriters, at the Company's
expense, such amendments or supplements to such Prospectus as may be
necessary to reflect any such change and to furnish you a copy of such
proposed amendment or supplement before filing any such amendment or
supplement with the Commission;
(i) to make generally available to its security holders, and
to deliver to you, as soon as practicable an earnings statement of the
Company, which need not be audited, (which will satisfy the provisions
of Section 11(a) of the Act) covering a period of twelve (12) months
beginning after the effective date of the Registration Statement (as
defined in Rule 158(c) of the Act) and ending not later than fifteen
(15) months thereafter;
(j) to furnish to its stockholders as soon as practicable
after the end of each fiscal year an annual report (including a balance
sheet and statements of income, stockholders' equity and of cash flow
of the Company for such fiscal year, accompanied by a copy of the
certificate or report thereon of nationally recognized independent
certified public accountants);
(k) to furnish to you such number of conformed copies of the
Registration Statement, as initially filed with the Commission, and of
all amendments thereto (including all exhibits thereto) as you shall
reasonably request;
(l) to furnish to you as early as practicable prior to the
time of purchase and the additional time of purchase, as the case may
be, but not later than two (2) business days prior thereto, a copy of
the latest available quarterly or monthly unaudited interim
consolidated financial statements of the Company, which have been read
by the Company's independent certified public accountants, as stated in
their letter to be furnished pursuant to Section 9(c) hereof;
(m) to apply the net proceeds from the sale of the Shares in
the manner set forth under the caption "Use of proceeds" in the
Prospectus;
(n) the Company covenants and agrees with the Underwriters
and each of the Selling Stockholders that the Company (A) will pay all
costs, expenses, fees and taxes in connection with (i) the preparation
and filing of the Registration Statement, each Preliminary Prospectus,
the Prospectus, and any amendments or supplements thereto, and the
printing and furnishing of copies of each thereof to the Underwriters
and to dealers (including costs of mailing and shipment), (ii) the
registration, issue, sale and delivery of the Shares, (iii) the
producing, word processing and/or printing of this Agreement, any
agreement among underwriters, any dealer agreements, any Powers of
Attorney and any closing documents (including compilations thereof) and
the reproduction and/or printing and furnishing of copies of each
thereof to the Underwriters and (except closing documents) to dealers
(including costs of mailing and shipment), (iv) the qualification of
the Shares for offering and sale under state laws and the determination
of their eligibility for investment under state law as aforesaid
(including the reasonable legal fees and filing fees and other
disbursements of counsel for the Underwriters) and the printing and
furnishing of copies of any blue sky surveys or legal investment
surveys to the
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Underwriters and to dealers, (v) any listing of the Shares on any
securities exchange or qualification of the Shares for quotation on the
Nasdaq National Market and any registration thereof under the Exchange
Act, (vi) the review of the public offering of the Shares by the NASD,
including the associated filing fees and the reasonable fees and
disbursements of counsel for the Underwriters, (vii) the cost and
expenses of the Company relating to presentations or meetings
undertaken in connection with the marketing of the offer and sale of
the Shares to prospective investors and the Underwriters' sales forces,
including, without limitation, expenses associated with the production
of road show slides and graphics, fees and expenses of any consultants
engaged, with the prior approval of the Company, in connection with the
road show presentations, travel, lodging and other expenses incurred by
the representatives and officers of the Company and any such
consultants, and the cost of any aircraft chartered in connection with
the road show and (viii) the performance of the Company's other
obligations hereunder; and (B) will pay or cause to be paid (i) the
cost of preparing stock certificates, (ii) the cost and charges of any
transfer agent or registrar, (iii) the fees and expenses of the
Attorney-in-Fact and the Custodian and (iv) all costs and expenses
incident to the performance of the Selling Stockholders' obligations
hereunder which are not otherwise specifically provided for in this
Section 6(n), including (y) any fees and expenses of counsel for the
Selling Stockholders and (z) all expenses and taxes incident to the
sale and delivery of the Additional Shares to be sold by the Selling
Stockholders to the Underwriters hereunder, but excluding the
underwriting discounts or commissions payable with respect to any
purchase by the Underwriters of any Additional Shares to be sold by the
Selling Stockholders pursuant to the terms of this Agreement;
(o) to furnish to you, before filing with the Commission
subsequent to the effective date of the Registration Statement and
during the period referred to in paragraph (h) above, a copy of any
document proposed to be filed pursuant to Section 13, 14 or 15(d) of
the Exchange Act;
(p) not to sell, offer to sell, contract to sell,
hypothecate, pledge, grant any option to sell or otherwise dispose of,
directly or indirectly, any shares of Common Stock or securities
convertible into or exchangeable or exercisable for Common Stock or
options, warrants or other rights to purchase Common Stock or any other
shares of the Company that are substantially similar to Common Stock or
file a registration statement under the Act relating to the offer and
sale of any shares of Common Stock or securities convertible into or
exercisable or exchangeable for Common Stock or options, warrants or
other rights to purchase Common Stock or any other shares of the
Company that are substantially similar to Common Stock for a period of
one hundred and eighty (180) days after the date hereof (the "Lock-up
Period"), without the prior written consent of UBS Warburg, except for
(i) the registration of the Shares and the sales to the Underwriters
pursuant to this Agreement, (ii) issuances of Common Stock upon the
exercise of outstanding options or warrants as disclosed in the
Registration Statement and the Prospectus to persons who have entered
into Lock-Up Agreements with the Underwriters and (iii) the issuance of
employee stock options not exercisable during the Lock-up Period
pursuant to stock option plans described in the Registration Statement
and the Prospectus; and
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(q) to use its best efforts to cause the Common Stock to be
listed for quotation on the Nasdaq National Market.
7. Certain Covenants of the Selling Stockholders. Each
Selling Stockholder, severally and not jointly, hereby covenants and agrees with
each Underwriter as follows:
(a) to comply with the terms of the Lock-Up Agreement
executed by such Selling Stockholder;
(b) in order to document the Underwriters' compliance with
the reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, to deliver to the Representatives, prior to the time of
purchase, a properly completed and executed United States Treasury
Department Form W-8 (if the Selling Stockholder is a non-United States
person) or Form W-9 (if the Selling Stockholder is a United States
Person), or other applicable form or statement specified by Treasury
Department regulations in lieu thereof;
(c) such Selling Stockholder will not take, directly or
indirectly, any action designed to or which might reasonably be
expected to cause or result, under 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 Shares; and
(d) to the extent not deposited into custody on or prior to
the date hereof, to duly deposit, prior to the date of purchase, with
the Custodian, pursuant to and under the Custody Agreement executed by
such Selling Stockholder, the Additional Shares to be sold by such
Selling Stockholder pursuant to this Agreement.
8. Reimbursement of Underwriters' Expenses. The Company
agrees that if the Shares are not delivered for any reason other than the
termination of this Agreement pursuant to subsections (ii), (iii) or (iv) of the
second paragraph of Section 10 hereof or the last paragraph of Section 11 hereof
or the default by one or more of the Underwriters in its or their respective
obligations hereunder, it shall, in addition to paying the amounts described in
Section 6(n) hereof, reimburse the Underwriters for all of the out-of-pocket
expenses actually incurred by the Underwriters, including the reasonable fees
and disbursements of their counsel.
9. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company on the date hereof and at the time
of purchase as if made at the time of purchase (and the several obligations of
the Underwriters at the additional time of purchase are subject to the accuracy
of the representations and warranties of the Company on the date hereof and at
the time of purchase (unless previously waived) and at the additional time of
purchase, as the case may be, as if made at such time), the timely performance
by the Company of its obligations hereunder and to the following additional
conditions precedent:
(a) The Company shall furnish to you at the time of purchase
and at the additional time of purchase, as the case may be, an opinion
of Xxxxxx & Xxxxxxx LLP, counsel for the Company, addressed to the
Underwriters, and dated the time of purchase or the additional time of
purchase, as the case may be, with reproduced copies for each of
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the other Underwriters and in form reasonably satisfactory to Xxxxx
Xxxxxxxxxx LLP, counsel for the Underwriters, stating that:
(i) the Company has been duly incorporated and is validly
existing as a corporation and is in good standing under the laws
of the State of Delaware and has corporate power to own, lease and
operate its properties and conduct its business as described in
the Registration Statement and the Prospectus, to execute and
deliver this Agreement and to issue, sell and deliver the Shares
as herein contemplated;
(ii) the Company is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction
in which the ownership or leasing of its properties or the conduct
of its business requires such qualification, except where the
failure to so qualify would not be reasonably likely to have a
Material Adverse Effect;
(iii) this Agreement has been duly authorized, executed
and delivered by the Company;
(iv) the Shares have been duly authorized and, when
issued and delivered to and paid for by the Underwriters, will be
validly issued, fully paid and non-assessable;
(v) the Company has authorized shares of capital stock as
set forth in the Registration Statement and the Prospectus under
the heading "Capitalization"; the outstanding shares of capital
stock of the Company (A) have been duly and validly authorized and
issued and are fully paid and non-assessable, (B) are free of any
preemptive rights, resale rights, rights of first refusal and
similar rights under the Delaware General Corporation Law or under
any contract, agreement or instrument described in or filed as an
exhibit to the Registration Statement and (C) to such counsel's
knowledge, were issued in compliance with all applicable federal
and state securities laws; the Shares when issued will be free of
any preemptive rights, resale rights, rights of first refusal and
similar rights under the Delaware General Corporation Law or the
charter or bylaws or other organizational documents of the Company
or under any contract, agreement or instrument known to such
counsel, and the holders of the Shares will not be subject to
personal liability by reason of being such holders under the
Delaware General Corporation Law or the laws of the State of
Minnesota (except for, and only to the extent of, any future
dividends or other distributions on such shares that are
ultimately determined to have been made in violation of applicable
law); the certificates for the Shares conform in all material
respects to the requirements of the Delaware General Corporation
Law;
(vi) the capital stock of the Company, including the
Shares, conforms as to legal matters in all material respects to
the description thereof contained in the Registration Statement
and Prospectus;
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(vii) the Registration Statement and the Prospectus
(except as to the financial statements and schedules and other
financial and statistical data contained therein, as to which such
counsel need express no opinion) comply as to form in all material
respects with the requirements of the Act;
(viii) the Registration Statement has become effective
under the Act and, to such counsel's knowledge, no stop order
proceedings with respect thereto are pending or threatened under
the Act and any required filing of the Prospectus, and any
supplement thereto pursuant to Rule 424 under the Act, has been
made in the manner and within the time period required by such
Rule 424;
(ix) no approval, authorization, consent or order of or
filing with any national, governmental or state regulatory
commission, board, body, authority or agency is required in
connection with the execution, delivery and performance of this
Agreement, the issuance and sale of the Shares and the
consummation of the transactions contemplated hereby and by the
Registration Statement, other than those that have been obtained
under the Act, the Exchange Act and the rules of the Nasdaq
National Market and other than any necessary qualification under
the state securities or blue sky laws of the various jurisdictions
in which the Shares are being offered by the Underwriters or any
necessary approval of the Corporate Financing Department of NASD
Regulation, Inc., as to which such qualification and approval such
counsel need express no opinion;
(x) the execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of
the transactions contemplated hereby and by the Registration
Statement do not and will not result in any breach or violation
of, or constitute a default under (nor constitute any event which
with notice, lapse of time, or both, would result in any breach or
violation of, or constitute a default under) or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company pursuant to (A) any provision of
the charter or bylaws of the Company, (B) any provision of any
license, permit, franchise, indenture, mortgage, deed of trust,
note, bank loan or credit agreement or other evidence of
indebtedness, or any lease, contract or other agreement or
instrument filed as an exhibit to the Registration Statement, (C)
any law of the United States or the State of Minnesota or the
Delaware General Corporation Law, any rule or regulation of any
governmental authority or regulatory body of the United States or
the State of Minnesota or (D) any judgment, order or decree know
to such counsel and applicable to the Company of any court or
governmental authority, except, in the case of clauses (A), (C)
and (D) above, for any such breach, violation or default which
would not reasonably be likely, individually or in the aggregate,
to have a Material Adverse Effect;
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(xi) to such counsel's knowledge, there are no pending or
overtly threatened lawsuits or claims against the Company which
are required to be described in the Prospectus but which are not
so described;
(xii) the Company is not, and solely as a result of the
sale of the Shares and the use of the proceeds therefrom as
described in the Prospectus will not be, an "investment company"
or an entity controlled by an "investment company," as such term
is defined in the Investment Company Act;
(xiii) those statements in the Prospectus that are
descriptions of contracts, agreements or other legal documents or
of legal proceedings, or refer to statements of law or legal
conclusions, are accurate in all material respects and present
fairly the information required to be shown;
(xiv) the statements in the Registration Statement and
the Prospectus referencing regulatory matters, insofar as such
statements constitute summaries of food and drug regulatory
matters with respect to the Company, as of the date of the
Registration Statement and the Prospectus and as of the date of
such opinion, are in all material respects accurate and complete
statements or summaries of the matters therein set forth;
(xv) no person has the right, pursuant to the terms of
any contract, agreement or other instrument described in or filed
as an exhibit to the Registration Statement or otherwise known to
such counsel, to cause the Company to register under the Act any
shares of capital stock or other equity interests as a result of
the filing or effectiveness of the Registration Statement or the
sale of the Shares as contemplated hereby;
In addition, such counsel shall state that it has
participated in conferences with officers and other representatives of
the Company, representatives of the independent public accountants of
the Company and representatives of the Underwriters at which the
contents of the Registration Statement and Prospectus were discussed
and, although such counsel is not passing upon and does not assume
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or Prospectus
(except as and to the extent stated in subparagraph (vi) above, on the
basis of the foregoing nothing has come to the attention of such
counsel that causes such counsel to believe that the Registration
Statement or any amendment thereto at the time such Registration
Statement or amendment became effective contained an untrue statement
of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the Prospectus or any supplement thereto at the
date of such Prospectus or such supplement, and at all times up to and
including the time of purchase or additional time of purchase, as the
case may be, contained or contains an untrue statement of a material
fact or omitted or omits to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being
understood that such counsel need express no opinion with respect to
the financial
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statements and schedules and other financial and statistical data
included in the Registration Statement or Prospectus).
(b) The Selling Stockholders shall furnish to you at the time
of purchase and at the additional time of purchase, as the case may be,
an opinion of Xxxxxxxx & Worcester LLP, counsel for the Selling
Stockholders, addressed to the Underwriters, and dated the time of
purchase or the additional time of purchase, as the case may be, with
reproduced copies for each of the other Underwriters and in form
reasonably satisfactory to Xxxxx Xxxxxxxxxx LLP, counsel for the
Underwriters, stating that:
(i) this Agreement, the Custody Agreement and the Power
of Attorney have been duly authorized, executed and delivered
by or on behalf of such Selling Stockholder and constitute
valid and binding agreements of such Selling Stockholder; and
such Selling Stockholder has power to sell, transfer and
deliver in the manner provided in this Agreement and the
Custody Agreement the Additional Shares being sold by the
Selling Stockholders hereunder;
(ii) immediately prior to the time of purchase or the
additional time of purchase, as the case may be, such Selling
Stockholder was the sole owner of the Additional Shares
registered on the books and records of the Company to be sold
at such time by such Selling Stockholder under this
Agreement, with requisite power to sell, assign, transfer and
deliver the Additional Shares to be sold by such Selling
Stockholder hereunder;
(iii) the delivery of certificates for the Additional
Shares pursuant hereto will pass good and valid title thereto
to the Underwriters (assuming each such Underwriter has no
notice of any adverse claim), free and clear of any claim,
lien, encumbrance, security interest, community property
right, or other defect in title or restriction on transfer,
except for such restrictions as are generally applicable to
holders of Common Stock and as are described in the
Registration Statement and Prospectus;
(iv) no consent, approval, authorization or order of, or
other action by or filing with, any court or governmental
agency or body is required for such Selling Stockholder to
authorize, execute and deliver (whether directly or through
the Power of Attorney) the Custody Agreement, the Power of
Attorney or this Agreement or for such Selling Stockholder to
consummate the transactions contemplated herein and therein,
except such as may have been obtained under the Act or the
Exchange Act and such as may be required under the blue sky
laws of any jurisdiction or by the Corporate Financing
Department of NASD Regulation, Inc. (as to which such
consents, approvals, authorizations or orders such counsel
need express no opinion) in connection with the purchase and
distribution of the Additional Shares by the Underwriters;
and
(v) none of the authorization, execution or delivery of
this Agreement, the Custody Agreement or the Power of
Attorney by or on behalf of such Selling Stockholder, the
sale of the Additional Shares being sold by such Selling
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Stockholder hereunder and thereunder, the consummation of any
other of the transactions herein contemplated by such Selling
Stockholder or the compliance and fulfillment of the terms
hereof and thereof by such Selling Stockholder will conflict
with, result in a breach or violation of, or constitute a
default under (A) the charter, bylaws or other organizational
documents of such Selling Stockholder, (B) the terms of any
indenture or other agreement or instrument known to such
counsel, after due inquiry, and to which any Selling
Stockholder is a party (C) any law of the United States or
the Delaware General Corporation Law, the Delaware Uniform
Limited Partnership Act or the Delaware Limited Liability
Company Act and any rule or regulation of any governmental
authority or regulatory body of the United States or (D) any
judgment, order or decree known to such counsel and
applicable to the Selling Stockholders of any court or
governmental authority, except, in the case of clauses (B),
(C) and (D) above, for any such breach, violation or default
which would not reasonably be likely, individually or in the
aggregate, to have a Material Adverse Effect;
(c) You shall have received at the time of purchase and at
the additional time of purchase, as the case may be, the favorable
opinion of Xxxxx Xxxxxxxxxx LLP, counsel for the Underwriters, dated
the time of purchase or the additional time of purchase, as the case
may be, with respect to the issuance and sale of the Shares by the
Company, the Registration Statement, the Prospectus (together with any
supplement thereto) and such other related matters as the Underwriters
may reasonably require.
(d) You shall have received from PricewaterhouseCoopers LLP,
letters dated, respectively, the date of this Agreement and the time of
purchase and additional time of purchase, as the case may be, and
addressed to the Underwriters (with reproduced copies for each of the
Underwriters) in the forms heretofore approved by Xxxxx Xxxxxxxxxx LLP,
counsel for the Underwriters.
(e) No amendment or supplement to the Registration Statement
or Prospectus shall be filed prior to the time the Registration
Statement becomes effective to which you object in writing.
(f) The Registration Statement shall become effective, or if
Rule 430A under the Act is used, the Prospectus shall have been filed
with the Commission pursuant to Rule 424(b) under the Act, at or before
5:30 P.M., New York City time, on the date of this Agreement, unless a
later time (but not later than 5:30 P.M., New York City time, on the
second full business day after the date of this Agreement) shall be
agreed to by the Company and you in writing or by telephone, confirmed
in writing; provided, however, that the Company and you and any group
of Underwriters, including you, who have agreed hereunder to purchase
in the aggregate at least fifty percent (50%) of the Firm Shares may
from time to time agree on a later date.
(g) Prior to the time of purchase or the additional time of
purchase, as the case may be, (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued
under the Act or proceedings initiated under Section 8(d) or 8(e) of
the Act; (ii) the Registration Statement and all amendments thereto, or
modifications
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thereof, if any, shall not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and (iii) the
Prospectus and all amendments or supplements thereto, or modifications
thereof, if any, shall not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
(h) Between the time of execution of this Agreement and the
time of purchase or the additional time of purchase, as the case may
be, (i) no material and adverse change, or any development involving a
prospective material and adverse change (other than as specifically
identified in the Registration Statement and Prospectus), in the
business, prospects, properties, condition (financial or otherwise) or
results of operations of the Company, shall occur or become known and
(ii) no transaction which is material and unfavorable to the Company
shall have been entered into by the Company.
(i) The Company will, at the time of purchase or additional
time of purchase, as the case may be, deliver to you a certificate of
its President and its Chief Financial Officer to the effect that the
representations and warranties of the Company as set forth in this
Agreement are true and correct as of each such date, that the Company
has performed such of its obligations under this Agreement as are to be
performed at or before the time of purchase and at or before the
additional time of purchase, as the case may be, and the conditions set
forth in paragraphs (f), (g) and (h) of this Section 9 have been met.
(j) You shall have received signed Lock-Up Agreements, dated
the date of this Agreement, from each of the persons identified on
Exhibit B hereto.
(k) The Company shall have furnished to you such other
documents and certificates as to the accuracy and completeness of any
statement in the Registration Statement and the Prospectus as of the
time of purchase and the additional time of purchase, as the case may
be, as you may reasonably request.
(l) The Shares shall have been approved for listing for
quotation on the Nasdaq National Market, subject only to notice of
issuance at or prior to the time of purchase or the additional time of
purchase, as the case may be.
10. Effective Date of Agreement; Termination. This Agreement
shall become effective (i) if Rule 430A under the Act is not used, when you
shall have received notification of the effectiveness of the Registration
Statement, or (ii) if Rule 430A under the Act is used, when the parties hereto
have executed and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be
subject to termination in the absolute discretion of you or any group of
Underwriters (which may include you) which has agreed to purchase in the
aggregate at least fifty percent (50%) of the Firm Shares, (i) if, since the
time of execution of this Agreement or the respective dates as of which
information is given in the Registration Statement and Prospectus, there has
been any material adverse change, or any development involving a prospective
material adverse change (other than
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as specifically identified in the Registration Statement and Prospectus) in the
business, prospects, properties, condition (financial or otherwise) or results
of operations of the Company, which would, in your judgment or in the judgment
of such group of Underwriters, make it impracticable to market the Shares, or,
(ii) if, at any time prior to the time of purchase or, with respect to the
purchase of any Additional Shares, the additional time of purchase, as the case
may be, trading in securities on the New York Stock Exchange, the American Stock
Exchange or the Nasdaq National Market shall have been suspended or limitations
or minimum prices shall have been established on the New York Stock Exchange,
the American Stock Exchange or the Nasdaq National Market, or (iii) if a banking
moratorium shall have been declared either by the United States or New York
State authorities, or (iv) if the United States shall have declared war in
accordance with its constitutional processes or there shall have occurred any
material outbreak or escalation of hostilities or other national or
international calamity or crisis of such magnitude in its effect on the
financial markets of the United States as, in your judgment or in the judgment
of such group of Underwriters, make it impracticable to market the Shares.
If you or any group of Underwriters elects to terminate this
Agreement as provided in this Section 10, the Company and each other Underwriter
shall be notified promptly by letter or telegram.
If the sale to the Underwriters of the Shares, as
contemplated by this Agreement, is not carried out by the Underwriters for any
reason permitted under this Agreement or if such sale is not carried out because
the Company shall be unable to comply with any of the terms of this Agreement,
the Company shall not be under any obligation or liability under this Agreement
(except to the extent provided in Sections 6(n), 8 and 12 hereof), and the
Underwriters shall be under no obligation or liability to the Company under this
Agreement (except to the extent provided in Section 12 hereof) or to one another
hereunder.
11. Increase in Underwriters' Commitments. Subject to
Sections 9 and 10, if any Underwriter shall default in its obligation to take up
and pay for the Firm Shares to be purchased by it hereunder (otherwise than for
a reason sufficient to justify the termination of this Agreement under the
provisions of Section 10 hereof) and if the number of Firm Shares which all
Underwriters so defaulting shall have agreed but failed to take up and pay for
does not exceed ten percent (10%) of the total number of Firm Shares, the
non-defaulting Underwriters shall take up and pay for (in addition to the
aggregate number of Firm Shares they are obligated to purchase pursuant to
Section 1 hereof) the number of Firm Shares agreed to be purchased by all such
defaulting Underwriters, as hereinafter provided. Such Shares shall be taken up
and paid for by such non-defaulting Underwriter or Underwriters in such amount
or amounts as you may designate with the consent of each Underwriter so
designated or, in the event no such designation is made, such Shares shall be
taken up and paid for by all non-defaulting Underwriters pro rata in proportion
to the aggregate number of Firm Shares set opposite the names of such
non-defaulting Underwriters in Schedule A.
Without relieving any defaulting Underwriter from its
obligations hereunder, the Company agrees with the non-defaulting Underwriters
that it will not sell any Firm Shares hereunder unless all of the Firm Shares
are purchased by the Underwriters (or by substituted Underwriters selected by
you with the approval of the Company or selected by the Company with your
approval).
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If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provision, the Company or you shall have the right
to postpone the time of purchase for a period not exceeding five (5) business
days in order that any necessary changes in the Registration Statement and
Prospectus and other documents may be effected.
The term Underwriter as used in this Agreement shall refer to
and include any Underwriter substituted under this Section 11 with like effect
as if such substituted Underwriter had originally been named in Schedule A.
If the aggregate number of Shares which the defaulting
Underwriter or Underwriters agreed to purchase exceeds ten percent (10%) of the
total number of Shares which all Underwriters agreed to purchase hereunder, and
if neither the non-defaulting Underwriters nor the Company shall make
arrangements within the five (5) business day period stated above for the
purchase of all the Shares which the defaulting Underwriter or Underwriters
agreed to purchase hereunder, this Agreement shall be terminated without further
act or deed and without any liability on the part of the Company to any
non-defaulting Underwriter and without any liability on the part of any
non-defaulting Underwriter to the Company. Nothing in this paragraph, and no
action taken hereunder, shall relieve any defaulting Underwriter from liability
in respect of any default of such Underwriter under this Agreement.
12. Indemnity and Contribution.
(a) The Company will indemnify, defend and hold harmless each
Underwriter, its partners, directors and officers, and each person who controls
any Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, and the successors and assigns of all of the foregoing persons,
from and against any loss, damage, expense, liability or claim (including the
reasonable cost of investigation) which, jointly or severally, any such
Underwriter or any such person may incur under the Act, the Exchange Act, the
common law or otherwise, insofar as such loss, damage, expense, liability or
claim (or actions in respect thereof) arises out of or is based upon (i) any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement (or in the Registration Statement as amended by any
post-effective amendment thereof by the Company) or in a Prospectus (the term
Prospectus for the purpose of this Section 12 being deemed to include any
Preliminary Prospectus, the Prospectus and the Prospectus as amended or
supplemented by the Company) or arises out of or is based upon any omission or
alleged omission to state a material fact required to be stated in the
Registration Statement or the Prospectus or necessary to make the statements
made therein not misleading, except insofar as any such loss, damage, expense,
liability or claim arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in and in conformity with
information furnished in writing by or on behalf of any Underwriter through you
to the Company expressly for use with reference to such Underwriter in such
Registration Statement or such Prospectus or arises out of or is based upon any
omission or alleged omission to state a material fact in connection with such
information required to be stated in such Registration Statement or such
Prospectus or necessary to make such information not misleading or (ii) any
untrue statement or alleged untrue statement made by the Company in Section 3 of
this Agreement or the failure by the Company to perform when and as required any
agreement or covenant contained herein or (iii) any untrue statement or alleged
untrue statement
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of any material fact contained in any audio or visual materials provided by the
Company or based upon written information furnished by or on behalf of the
Company including, without limitation, slides, videos, films, tape recordings,
used in connection with the marketing of the Shares; further provided, that with
respect to any untrue statement in or omission from the Preliminary Prospectus,
the indemnity agreement contained in this section 12(a) shall not inure to the
benefit of any Underwriter to the extent that the sale to any person asserting
any such loss, claim, damage, liability or action was an initial resale by such
Underwriter and any such loss, claim, damage, liability or action of or with
respect to such Underwriter results from the fact that both (A) to the extent
required by applicable law, a copy of the Prospectus was not sent or given to
such person at or prior to the written confirmation of the sale of such Shares
to such person and (B) the untrue statement in or omission from the Preliminary
Prospectus was corrected in the Prospectus unless, in either case, such failure
to deliver the Prospectus was a result of non-compliance by the Company with
Section 6(k).
(b) Each Selling Stockholder will severally, and not jointly,
indemnify, defend and hold harmless each Underwriter, its partners, directors
and officers, and each person who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, and the successors and
assigns of all of the foregoing persons, from and against any loss, damage,
expense, liability or claim (including the reasonable cost of investigation)
which, jointly or severally, any such Underwriter or any such person may incur
under the Act, the Exchange Act, the common law or otherwise, insofar as such
loss, damage, expense, liability or claim (or actions in respect thereof) arises
out of or is based upon any untrue statement or alleged untrue statement of a
material fact contained in and in conformity with information furnished in
writing by or on behalf of such Selling Stockholder through the Company
expressly for use with reference to such Selling Stockholder in the Registration
Statement (or in the Registration Statement as amended by any post-effective
amendment thereof by the Company) or the Prospectus. The Underwriters
acknowledge that the Selling Stockholders' Disclosure constitutes the only
information so furnished in writing by or on behalf of the several Selling
Stockholders through the Company to you for inclusion in the Registration
Statement or the Prospectus; provided, however, that with respect to any untrue
statement in or omission from the Preliminary Prospectus, the indemnity
agreement contained in this section 12(b) shall not inure to the benefit of any
Underwriter to the extent that the sale to any person asserting any such loss,
claim, damage, liability or action was an initial resale by such Underwriter and
any such loss, claim, damage, liability or action of or with respect to such
Underwriter results from the fact that both (A) to the extent required by
applicable law, a copy of the Prospectus was not sent or given to such person at
or prior to the written confirmation of the sale of such Shares to such person
and (B) the untrue statement in or omission from the Preliminary Prospectus was
corrected in the Prospectus unless, in either case, such failure to deliver the
Prospectus was a result of non-compliance by the Company with Section 6(k).
If any action, suit or proceeding (together, a "Proceeding")
is brought against an Underwriter or any such person in respect of which
indemnity may be sought against the Company and/or the Selling Stockholders
pursuant to the foregoing paragraphs (a) or (b), such Underwriter or such person
shall promptly notify the Company and/or the Selling Stockholders in writing of
the institution of such Proceeding and the Company and/or the Selling
Stockholders shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses; provided, however,
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that the omission to so notify the Company and/or the Selling Stockholders shall
not relieve the Company and/or the Selling Stockholders from any liability which
the Company and/or the Selling Stockholders may have to any Underwriter or any
such person or otherwise, except to the extent that such failure materially and
irrevocably prejudices the Company. Such Underwriter or such person shall have
the right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such Underwriter or of such
person unless the employment of such counsel shall have been authorized in
writing by the Company and/or the Selling Stockholders in connection with the
defense of such Proceeding or the Company and/or the Selling Stockholders shall
not have, within a reasonable period of time in light of the circumstances,
employed counsel to have charge of the defense of such Proceeding or such
indemnified party or parties shall have reasonably concluded that there may be
defenses available to it or them which are different from, additional to or in
conflict with those available to the Company and/or the Selling Stockholders (in
which case the Company and/or the Selling Stockholders shall not have the right
to direct the defense of such Proceeding on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
Company and/or the Selling Stockholders and paid as incurred (it being
understood, however, that the Company and/or the Selling Stockholders shall not
be liable for the expenses of more than one separate counsel (in addition to any
local counsel) in any one Proceeding or series of related Proceedings in the
same jurisdiction representing the indemnified parties who are parties to such
Proceeding). The Company and/or the Selling Stockholders shall not be liable for
any settlement of any such Proceeding effected without the written consent of
the Company and/or the Selling Stockholders but if settled with the written
consent of the Company and/or the Selling Stockholders, the Company and/or the
Selling Stockholders agree to indemnify and hold harmless any Underwriter and
any such person from and against any loss or liability by reason of such
settlement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
sentence of this paragraph, then the indemnifying party agrees that it shall be
liable for any settlement of any Proceeding effected without its written consent
if (i) such settlement is entered into more than sixty (60) days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement and (iii) such indemnified party
shall have given the indemnifying party at least thirty (30) days' prior notice
of its intention to settle. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened Proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such Proceeding and does not include an admission of fault, culpability or a
failure to act, by or on behalf of such indemnified party, such consent not to
be unreasonably withheld.
(c) Each Underwriter will severally, and not jointly,
indemnify, defend and hold harmless the Company, its directors and officers,
each person who controls the Company within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, and each Selling Stockholder, and the
successors and assigns of each foregoing person from and against any loss,
damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly
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or severally, the Company, the Selling Stockholders or any such person may incur
under the Act, the Exchange Act, the common law or otherwise, insofar as such
loss, damage, expense, liability or claim (or actions in respect thereof) arises
out of or is based upon any untrue statement or alleged untrue statement of a
material fact contained in and in conformity with information furnished in
writing by or on behalf of such Underwriter through you to the Company expressly
for use with reference to such Underwriter in the Registration Statement (or in
the Registration Statement as amended by any post-effective amendment thereof by
the Company) or the Prospectus.
If any Proceeding is brought against the Company, the Selling
Stockholders or any such person in respect of which indemnity may be sought
against any Underwriter pursuant to the foregoing paragraph (c), the Company,
the Selling Stockholders or such person shall promptly notify such Underwriter
in writing of the institution of such Proceeding and such Underwriter shall
assume the defense of such Proceeding, including the employment of counsel
reasonably satisfactory to such indemnified party and payment of all fees and
expenses; provided, however, that the omission to so notify such Underwriter
shall not relieve such Underwriter from any liability which such Underwriter may
have to the Company and/or the Selling Stockholders or any such person or
otherwise, except to the extent that such failure materially and irrevocably
prejudices such Underwriter. The Company, the Selling Stockholders or such
person shall have the right to employ its or their own counsel in any such case,
but the fees and expenses of such counsel shall be at the expense of the
Company, the Selling Stockholders or such person unless the employment of such
counsel shall have been authorized in writing by such Underwriter in connection
with the defense of such Proceeding or such Underwriter shall not have, within a
reasonable period of time in light of the circumstances, employed counsel to
have charge of the defense of such Proceeding or such indemnified party or
parties shall have reasonably concluded that there may be defenses available to
it or them which are different from, additional to or in conflict with those
available to such Underwriter (in which case such Underwriter shall not have the
right to direct the defense of such Proceeding on behalf of the indemnified
party or parties, but such Underwriter may employ counsel and participate in the
defense thereof but the fees and expenses of such counsel shall be at the
expense of such Underwriter), in any of which events such fees and expenses
shall be borne by such Underwriter and paid as incurred (it being understood,
however, that such Underwriter shall not be liable for the expenses of more than
one separate counsel (in addition to any local counsel) in any one Proceeding or
series of related Proceedings in the same jurisdiction representing the
indemnified parties who are parties to such Proceeding). No Underwriter shall be
liable for any settlement of any such Proceeding effected without the written
consent of such Underwriter but if settled with the written consent of such
Underwriter, such Underwriter agrees to indemnify and hold harmless the Company,
the Selling Stockholders and any such person from and against any loss or
liability by reason of such settlement. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second sentence of this paragraph, then the indemnifying
party agrees that it shall be liable for any settlement of any Proceeding
effected without its written consent if (i) such settlement is entered into more
than sixty (60) days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of such settlement and
(iii) such indemnified party shall have given the indemnifying party at least
thirty (30) days' prior notice of its intention to settle. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or
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threatened Proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such Proceeding and does not include an admission of fault, culpability or a
failure to act, by or on behalf of such indemnified party, such consent not to
be unreasonably withheld.
(d) The Company and the Selling Stockholders hereby confirm
that at their request UBS Warburg LLC has without compensation acted as
"qualified independent underwriter" (in such capacity, the "QIU") within the
meaning of Rule 2720 of the Conduct Rules of NASD Regulation, Inc. in connection
with the offering of the Shares. In addition to the indemnification under
Section 12(a) hereof, the Company and the Selling Stockholders agree to
indemnify and hold harmless the QIU (in its capacity as such), the directors,
officers, employees and agents of the QIU and each person who controls the QIU
within the meaning of either the Act or the Exchange Act against any and all
losses, damage, expenses, liabilities or claims, joint or several, to which they
or any of them may become subject under the Act, the Exchange Act or other
federal or state statutory law or regulation, at common law or otherwise,
insofar as such losses, damages, expenses, liabilities or claims (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement for
the registration of the Shares as originally filed or in any amendment thereof,
or in any Preliminary Prospectus or the Prospectus, or in any amendment thereof
or supplement thereto, 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 agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, damage, expense, liability or claim; provided, however, that none of
the Company or the Selling Stockholders will be liable in any such case to the
extent that any such loss, damage, expense, liability or claim arises out of or
is based upon any such untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the QIU (in its capacity
as such) through the representatives of the several Underwriters (in their
capacity as such) specifically for inclusion therein. This indemnity agreement
will be in addition to any liability that the Company and the Selling
Stockholders may otherwise have.
(e) If the indemnification provided for in this Section 12 is
unavailable to an indemnified party under subsections (a), (b), (c) or (d) of
this Section 12 in respect of any losses, damages, expenses, liabilities or
claims referred to therein, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, damages, expenses,
liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Stockholders on the
one hand and the Underwriters on the other hand from the offering of the Shares
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company and the Selling Stockholders on the one hand and of the Underwriters
on the other in connection with the statements or omissions which resulted in
such losses, damages, expenses, liabilities or claims (or actions in respect
thereof), as well as any other relevant equitable considerations. The
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relative benefits received by the Company and the Selling Stockholders on the
one hand and the Underwriters on the other shall be deemed to be in the same
respective proportions as the total proceeds from the offering of the Shares
purchased under this Agreement (net of underwriting discounts and commissions
but before deducting expenses) received by the Company and the Selling
Stockholders bear to the total underwriting discounts and commissions received
by the Underwriters, with respect to the Shares purchased under this Agreement,
in each case as set forth in the table on the cover page of the Prospectus.
Benefits received by the QIU in its capacity as "qualified independent
underwriter" shall be deemed to be equal to the compensation received by the QIU
acting in such capacity. The relative fault of the Company and the Selling
Stockholders on the one hand and of the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue statement or
alleged untrue statement of a material fact or omission or alleged omission
relates to information supplied by the Company and the Selling Stockholders or
by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, damages,
expenses, liabilities and claims referred to in this subsection shall be deemed
to include any legal or other fees or expenses reasonably incurred by such party
in connection with investigating, preparing to defend or defending any
Proceeding.
(f) The Company, the Selling Stockholders and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 12 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation that does not take account of the equitable considerations
referred to in subsection (d) above. Notwithstanding the provisions of this
Section 12, in no case shall (i) any Underwriter be required to contribute any
amount in excess of the amount by which the total price at which the Shares
underwritten by such Underwriter and distributed to the public were offered to
the public exceeds the amount of any damage which such Underwriter has otherwise
been required to pay by reason of such untrue statement or alleged untrue
statement or omission or alleged omission or (ii) the QIU in its capacity as
such be responsible for any amount in excess of the compensation received by the
QIU for acting in such capacity. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 12 are several in proportion to their respective underwriting
obligations and not joint.
(g) The indemnity and contribution agreements contained in
this Section 12 and the covenants, warranties and representations of the Company
and the Selling Stockholders contained in this Agreement shall remain in full
force and effect regardless of any investigation made by or on behalf of any
Underwriter, its partners, directors or officers or any person (including each
partner, officer or director of such person) who controls any Underwriter within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, or by or
on behalf of the Company, its directors or officers, any person who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act or any of the Selling Stockholders and shall survive any
termination of this Agreement or the issuance and delivery of the Shares. The
Company, the Selling Stockholders and each Underwriter agree promptly to notify
each other of the commencement of any Proceeding against it and, in the case of
the Company, against any of
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the Company's officers or directors in connection with the issuance and sale of
the Shares, or in connection with the Registration Statement or Prospectus.
(h) Notwithstanding any other provision of this Section 12,
the total liability of each Selling Stockholder for indemnification or
contribution under this Section 12 and the covenants, representations and
warranties contained in Section 4 and Section 7 shall not exceed an amount equal
to the number of Shares sold by such Selling Stockholder hereunder multiplied by
the purchase price per share set forth in Section 1 hereof, less all
underwriting discounts and commissions paid with respect thereto.
13. Notices. Except as otherwise herein provided, all
statements, requests, notices and agreements shall be in writing or by telegram
and, if to the Underwriters, shall be sufficient in all respects if delivered or
sent to UBS Warburg LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000,
Attention: Syndicate Department, with a copy to Xxxxx Xxxxxxxxxx LLP, 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxxxx X.
Xxxxxx, Esq., and, if to the Company, shall be sufficient in all respects if
delivered or sent to the Company at the offices of the Company at 0000 Xxxx 00xx
Xxxxxx, Xxxxx 0000, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Xx. Xxxxx X.
Xxxxxxxxx, with a copy to Xxxxxx & Whitney LLP, 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Xxxxxxxxx X. Xxxxx, Esq., and, if to
the Selling Stockholders, Xxxxxxxx & Worcester LLP, Xxx Xxxx Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxxxxxxxx Xxxxx, Esq.
14. Governing Law; Construction. This Agreement and any
claim, counterclaim or dispute of any kind or nature whatsoever arising out of
or in any way relating to this Agreement ("Claim"), directly or indirectly,
shall be governed by, and construed in accordance with, the laws of the State of
New York. The section headings in this Agreement have been inserted as a matter
of convenience of reference and are not a part of this Agreement.
15. Submission to Jurisdiction. Except as set forth below, no
Claim may be commenced, prosecuted or continued in any court other than the
courts of the State of New York located in the City and County of New York or in
the United States District Court for the Southern District of New York, which
courts shall have jurisdiction over the adjudication of such matters, and the
Company consents to the jurisdiction of such courts and personal service with
respect thereto. The Company and the Selling Stockholders each hereby consent to
personal jurisdiction, service and venue in any court in which any Claim arising
out of or in any way relating to this Agreement is brought by any third party
against UBS Warburg or any indemnified party. Each of UBS Warburg, the Company
and the Selling Stockholders (on their respective behalfs and, to the extent
permitted by applicable law, on behalf of their respective stockholders and
affiliates) waives all right to trial by jury in any action, proceeding or
counterclaim (whether based upon contract, tort or otherwise) in any way arising
out of or relating to this Agreement. The Company and the Selling Stockholders
agree that a final judgment in any such action, proceeding or counterclaim
brought in any such court shall be conclusive and binding upon the Company and
the Selling Stockholders, as the case may be, and may be enforced in any other
courts in the jurisdiction of which the Company and the Selling Stockholders, as
the case may be, is or may be subject, by suit upon such judgment.
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16. Parties at Interest. The Agreement herein set forth has
been and is made solely for the benefit of the Underwriters, the QIU, the
Company and the Selling Stockholders and to the extent provided in Section 11
hereof the controlling persons, directors and officers referred to in such
section, and their respective successors, assigns, heirs, personal
representatives and executors and administrators. No other person, partnership,
association or corporation (including a purchaser, as such purchaser, from any
of the Underwriters) shall acquire or have any right under or by virtue of this
Agreement.
17. Counterparts. This Agreement may be signed by the parties
in one or more counterparts which together shall constitute one and the same
agreement among the parties.
18. Successors and Assigns. This Agreement shall be binding
upon the Underwriters, the Company, the Selling Stockholders and their
successors and assigns and any successor or assign of any substantial portion of
the Company's, the Selling Stockholders' and any of the Underwriters' respective
businesses and/or assets.
19. Miscellaneous. UBS Warburg, an indirect, wholly owned
subsidiary of UBS AG, is not a bank and is separate from any affiliated bank,
including any U.S. branch or agency of UBS AG. Because UBS Warburg is a
separately incorporated entity, it is solely responsible for its own contractual
obligations and commitments, including obligations with respect to sales and
purchases of securities. Securities sold, offered or recommended by UBS Warburg
are not deposits, are not insured by the Federal Deposit Insurance Corporation,
are not guaranteed by a branch or agency, and are not otherwise an obligation or
responsibility of a branch or agency.
A lending affiliate of UBS Warburg may have lending
relationships with issuers of securities underwritten or privately placed by UBS
Warburg. To the extent required under the securities laws, prospectuses and
other disclosure documents for securities underwritten or privately placed by
UBS Warburg will disclose the existence of any such lending relationships and
whether the proceeds of the issue will be used to repay debts owed to affiliates
of UBS Warburg.
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If the foregoing correctly sets forth the understanding among
the Company, the Selling Stockholders and the Underwriters, please so indicate
in the space provided below for the purpose, whereupon this letter and your
acceptance shall constitute a binding agreement among the Company, the Selling
Stockholders and the Underwriters, severally.
Very truly yours,
UNIVERSAL HOSPITAL SERVICES, INC.
By:
--------------------------------------
Name:
Title:
X.X. CHILDS EQUITY PARTNERS, L.P.
JWC UHS CO-INVEST, LLC
By:
--------------------------------------
Name:
Title: Attorney-in-Fact
Accepted and agreed to as of the
date first above written, on behalf
of themselves and the other several
Underwriters named in Schedule A
UBS WARBURG LLC
U.S. BANCORP XXXXX XXXXXXX INC.
CIBC WORLD MARKETS CORP.
By: UBS WARBURG LLC
By:
---------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
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SCHEDULE A
Number of
Underwriter Firm Shares
----------- -----------
UBS Warburg LLC........................................
U.S. Bancorp Xxxxx Xxxxxxx Inc.........................
CIBC World Markets Corp................................
-----------
Total....................... 5,000,000
===========
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SCHEDULE B
Number of
Selling Stockholder Additional Shares
------------------- -----------------
X.X. Childs Equity Partners, L.P.......................
JWC UHS Co-Invest, LLC.................................
-----------------
Total....................... 750,000
=================
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SCHEDULE C
Selling Stockholder Attorney-in-Fact
------------------- ----------------
X.X. Childs Equity Partners, L.P.......................
JWC UHS Co-Invest, LLC.................................
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