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EXHIBIT 1.1
2,500,000 Shares
ANSYS DIAGNOSTICS, INC.
Common Stock
UNDERWRITING AGREEMENT
__________, 1999
VECTOR SECURITIES INTERNATIONAL, INC.
SUTRO & CO. INCORPORATED
As Representatives of
the Several Underwriters
named in Schedule I hereto
c/o VECTOR SECURITIES INTERNATIONAL, INC.
0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Dear Sirs:
ANSYS Diagnostics, Inc., a Delaware corporation (the
"Company"), proposes to issue and sell an aggregate of 2,500,000 shares of its
stock, par value $0.0001 per share (the "Initial Securities"), to the several
Underwriters named in Schedule I hereto (the "Underwriters") for whom Vector
Securities International, Inc. ("Vector"), and Sutro & Co. Incorporated are
acting as representatives (the "Representatives"). In addition, solely for the
purpose of covering over-allotments, the Company proposes to grant to the
several Underwriters, upon the terms and conditions set forth in Section 2
hereof, an option to purchase up to an additional 375,000 shares of Common Stock
of the Company (the "Option Securities"). The Initial Securities and the Option
Securities are hereinafter collectively referred to as the "Securities." The
Company's Common Stock, par value $0.0001 per share, including the Securities,
is hereinafter referred to as the "Common Stock." The Company wishes to confirm
as follows its agreements with you and the other Underwriters on whose behalf
you are acting in connection with the several purchases by the Underwriters of
the Securities:
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has
prepared and filed with the Securities and Exchange Commission
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(the "Commission") a registration statement on Form S-1 (No. 333-72665) covering
the registration of the Securities under the Securities Act of 1933, as amended
(the "1933 Act"), including the related preliminary prospectus, and either (A)
has prepared and filed, prior to the effective date of such registration
statement, an amendment to such registration statement, including a final
prospectus or (B) if the Company has elected to rely upon Rule 430A ("Rule
430A") of the rules and regulations of the Commission under the 1933 Act (the
"1933 Act Regulations"), will prepare and file a prospectus, in accordance with
the provisions of Rule 430A and Rule 424(b) ("Rule 424(b)") of the 1933 Act
Regulations, promptly after execution and delivery of this Agreement.
Additionally, if the Company has elected to rely upon Rule 434 ("Rule 434") of
the 1933 Act Regulations, the Company will prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b),
promptly after execution and delivery of this Agreement. The information, if
any, included in such prospectus or in such Term Sheet, that was omitted from
such registration statement at the time it became effective but that is deemed
to be part of such registration statement at the time it becomes effective (a)
pursuant to paragraph (b) of Rule 430A, is referred to herein as the "Rule 430A
Information," or (b) pursuant to paragraph (d) of Rule 434, is referred to
herein as the "Rule 434 Information." Each prospectus used before the time such
registration statement became effective, and any prospectus that omitted, as
applicable, the Rule 430A Information or the Rule 434 Information that was used
after effectiveness and prior to the execution and delivery of this Agreement,
is herein called a "preliminary prospectus." Such registration statement,
including the exhibits and schedules thereto, at the time it became effective
and including, if applicable, the Rule 430A Information or the Rule 434
Information, is herein called the "Registration Statement." Any registration
statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein
referred to as the "Rule 462(b) Registration Statement," and after such filing
the term Registration Statement shall include the Rule 462(b) Registration
Statement. The final prospectus in the form first furnished to the Underwriters
for use in connection with the offering of the Securities is herein referred to
as the "Prospectus." If Rule 434 is relied upon, the term "Prospectus" shall
refer to the preliminary prospectus last furnished to the Underwriters in
connection with the offering of the Securities, together with the Term Sheet,
and all references to the date of the Prospectus shall mean the date of the Term
Sheet.
2. AGREEMENTS TO SELL AND PURCHASE. Upon the basis of the
representations, warranties and agreements contained herein, and subject to all
the terms and conditions set forth herein, the
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Company hereby agrees to issue and sell to each Underwriter and each Underwriter
agrees, severally and not jointly, to purchase from the Company, at a purchase
price of $_____ per share (the "purchase price per share"), the number of
Initial Securities set forth in Schedule I opposite the name of such Underwriter
under the column "Number of Initial Securities to be Purchased from the Company"
(or such number of Initial Securities increased as set forth in Section 10
hereof).
Upon the basis of the representations, warranties and
agreements contained herein, and subject to all the terms and conditions set
forth herein, the Company hereby grants an option (the "over-allotment option")
to the Underwriters to purchase from the Company, at the purchase price per
share, up to an aggregate of 375,000 Option Securities. Option Securities may be
purchased solely for the purpose of covering over-allotments made in connection
with the offering of the Securities. Such option shall expire at 5:00 P.M.,
Chicago time, on the 30th day after the date of this Agreement (or, if such 30th
day shall be a Saturday or Sunday or a holiday, on the next business day
thereafter when the New York Stock Exchange is open for trading). Such
over-allotment option may be exercised at any time or from time to time until
its expiration. Upon any exercise of the over-allotment option, each
Underwriter, severally and not jointly, agrees to purchase from the Company that
proportion of the total number of Option Securities as is equal to the
percentage of Initial Securities that such Underwriter is purchasing from the
Company (or such number of Initial Securities increased as set forth in Section
10 hereof), subject to such adjustments as you may determine to avoid fractional
shares.
3. TERMS OF PUBLIC OFFERING. The Company has been advised by
you that the Underwriters propose to make a public offering of the Securities as
soon after the Registration Statement and this Agreement have become effective
as in your judgment is advisable and initially to offer the Securities upon the
terms set forth in the Prospectus.
4. DELIVERY OF THE SECURITIES AND PAYMENT THEREFOR. Delivery
to the Underwriters of and payment for the Initial Securities shall be made at
the office of Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois), 000 Xxxx Xxxxxx
Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, at 9:00 A.M., Chicago time, on the
third (fourth, if the pricing occurs after 4:30 P.M. (Eastern Time) on any given
day) business day after the date hereof (unless postponed in accordance with the
provisions of Section 10 hereof) (the "Closing Date"). The place of closing for
the Initial Securities and the Closing Date may be varied by agreement among you
and the Company.
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Delivery to the Underwriters of and payment for any Option
Securities to be purchased by the Underwriters shall be made at the
aforementioned office of Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois) at such
time on such date (an "Option Closing Date"), which may be the same as the
Closing Date but shall in no event be earlier than the Closing Date nor earlier
than two nor later than ten business days after the giving of the notice
hereinafter referred to, as shall be specified in a written notice from you on
behalf of the Underwriters to the Company of the Underwriters' determination to
purchase a number, specified in such notice, of Option Securities. The place of
closing for any Option Securities and the Option Closing Date for such Option
Securities may be varied by agreement between you and the Company.
Certificates for the Initial Securities and for any Option
Securities to be purchased hereunder shall be registered in such names and in
such denominations as you shall request by written notice (it being understood
that a facsimile transmission shall be deemed written notice) prior to 9:30
A.M., Chicago time, on the second business day preceding the Closing Date or any
Option Closing Date, as the case may be. Such certificates shall be made
available to you in Chicago, Illinois or New York, New York, as requested by you
in the aforesaid notice, for inspection and packaging not later than 9:30 A.M.,
Chicago time, on the business day next preceding the Closing Date or an Option
Closing Date, as the case may be. The certificates evidencing the Initial
Securities and any Option Securities to be purchased hereunder shall be
delivered to you on the Closing Date or the Option Closing Date, as the case may
be, against payment of the purchase price therefor by certified or official bank
check or checks payable in New York Clearing House (next day) funds to the order
of the Company. It is understood that each Underwriter has authorized you, for
its account, to accept delivery of, acknowledge receipt of, and make payment of
the purchase price for, the Initial Securities and the Option Securities, if
any, which it has agreed to purchase. Vector, individually and not as
representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Initial Securities or the Option
Securities, if any, to be purchased by any Underwriter whose check has not been
received by the Closing Date or the Option Closing Date, as the case may be, but
such payment shall not relieve such Underwriter from its obligations hereunder.
5. AGREEMENTS OF THE COMPANY. The Company covenants and agrees
with the several Underwriters as follows:
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a. The Company will notify the Underwriters
immediately, and confirm the notice in writing, (i) of the effectiveness of the
Registration Statement and any amendment thereto, (ii) of the receipt of any
comments from the Commission, (iii) of any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to the
Prospectus or for additional information, (iv) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration Statement or
the suspension of qualification of the Securities for offering or sale in any
jurisdiction or the initiation of any proceedings for such purpose and (v)
during the period when the Prospectus is required to be delivered under the 1933
Act or the Securities Exchange Act of 1934, as amended (the "1934 Act"), of any
change, or any event or occurrence which could result in such a change, in the
Company's condition, financial or otherwise, or the earnings, business affairs
or business prospects of the Company or the happening of any event, including
the filing of any information, documents or reports pursuant to the 1934 Act,
that makes any statement of a material fact made in the Registration Statement
or the Prospectus (as then amended or supplemented) untrue or which requires the
making of any additions to or changes in the Registration Statement or the
Prospectus in order to state a material fact required by the 1933 Act or the
1933 Act Regulations to be stated therein or necessary in order to make the
statements therein not misleading, or of the necessity to amend or supplement
the Prospectus to comply with the 1933 Act, the 1933 Act Regulations or any
other law. The Company shall use its best efforts to prevent the issuance of any
stop order or order suspending the qualification or exemption of the Securities
under any state securities or Blue Sky laws, and, if at any time the Commission
shall issue any stop order suspending the effectiveness of the Registration
Statement, or any state securities commission or other regulatory authority
shall issue an order suspending the qualification or exemption of the Securities
under any state securities or Blue Sky laws, the Company shall use every
reasonable effort to obtain the withdrawal or lifting of such order at the
earliest possible time.
b. The Company will give the Underwriters notice of
its intention to prepare or file any amendment to the Registration Statement
(including any post-effective amendment), any Rule 462(b) Registration
Statement, any Term Sheet or any amendment or supplement to the Prospectus
(including any revised prospectus or Term
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Sheet and preliminary prospectus which the Company proposes for use by the
Underwriters in connection with the offering of the Securities which differs
from the prospectus on file at the Commission at the time the Registration
Statement becomes effective, whether or not such revised prospectus or Term
Sheet and preliminary prospectus is required to be filed pursuant to Rule
424(b)), whether pursuant to the 1933 Act, the 1934 Act or otherwise, will
furnish the Underwriters with copies of any Rule 462(b) Registration Statement,
Term Sheet, amendment or supplement a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file any such Rule
462(b) Registration Statement, Term Sheet, amendment or supplement or use any
such prospectus to which the Underwriters or counsel for the Underwriters shall
object.
c. The Company has furnished or will deliver to the
Underwriters and their counsel, without charge, as many signed and conformed
copies of the Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by reference
therein) as the Underwriters may reasonably request.
d. The Company will furnish to each Underwriter,
without charge, from time to time during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such number of
copies of the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request for the purposes contemplated by the 1933 Act, the 1934 Act,
the 1933 Act Regulations or the rules and regulations of the Commission under
the 1934 Act (the "1934 Act Regulations").
e. The Company will comply with the 1933 Act and the
1933 Act Regulations so as to permit the completion of the distribution of the
Securities as contemplated in this Agreement and in the Prospectus. If at any
time when a prospectus is required by the 1933 Act, the 1934 Act, the 1933 Act
Regulations or the 1934 Act Regulations to be delivered in connection with sales
of the Securities, any event shall occur or condition shall exist as a result of
which it is necessary, in the opinion of counsel for the Underwriters or for the
Company, to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include any untrue statements
of a material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration Statement or
amend or supplement the Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and
file with the Commission, subject to Section 5(b), such amendment or supplement
as may be necessary to correct such statement or omission or to make the
Registration Statement or the Prospectus comply with such requirements and the
Company will
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furnish to the Underwriters such number of copies of such amendment or
supplement as the Underwriters may reasonably request.
f. During the period of five years after the date of
this Agreement, the Company will furnish to you (i) as soon as available, a copy
of each report of the Company mailed to stockholders or filed with the
Commission or the Nasdaq National Market (ANNM@), and (ii) from time to time
such other information concerning the Company as you may reasonably request.
g. The Company will use its best efforts, in
cooperation with counsel to the Underwriters, to qualify the Securities for
offering and sale under the applicable securities or Blue Sky laws of such
states and other jurisdictions of the United States as the Underwriters may
designate and to maintain such qualifications in effect for a period of not less
than one year from the later of the effective date of the Registration Statement
and any Rule 462(b) Registration Statement; provided, however, that the Company
shall not be obligated to qualify as a foreign corporation in any jurisdiction
in which it is not so qualified. In each jurisdiction in which the Securities
have been so qualified, the Company will file such statements and reports as may
be required by the laws of such jurisdiction to continue such qualification in
effect for a period of not less than one year from the later of the effective
date of the Registration Statement and any Rule 462(b) Registration Statement.
h. The Company will make generally available to its
security holders as soon as practicable, but not later than 45 days after the
close of the period covered thereby, an earnings statement (in form complying
with the provisions of Rule 158 of the 1933 Act Regulations) covering a
twelve-month period beginning not later than the first day of the Company's
fiscal quarter next following the "effective date" (as defined in said Rule 158)
of the Registration Statement.
i. The Company will use the net proceeds received by
it from the sale of the Securities in the manner specified in the Prospectus
under "Use of Proceeds."
j. If at the time that the Registration Statement
becomes effective any Rule 430A Information or Rule 434 Information shall have
been omitted therefrom, then immediately following the execution of this
Agreement the Company will prepare and file or transmit for filing with the
Commission in accordance with Rule 430A or Rule 434 and Rule 424(b) copies of a
Prospectus or Term Sheet containing such Rule 430A Information and Rule 434
Information, respectively, or, if required by Rule 430A, a post-
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effective amendment to the Registration Statement (including an amended
Prospectus) containing such Rule 430A Information.
k. If the Company elects to rely upon Rule 462(b),
the Company shall both file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) and pay the applicable fees in
accordance with Rule 111 of the 1933 Act Regulations by the earlier of (i) 10:00
P.M. Eastern Time on the date hereof and (ii) the time confirmations are sent or
given, as specified by Rule 462(b)(2).
l. The Company, during the period when the Prospectus
is required to be delivered under the 1933 Act or the 1934 Act, will file all
documents required to be filed with the Commission pursuant to Section 13, 14 or
15 of the 1934 Act within the time periods required by the 1934 Act and the 1934
Act Regulations.
m. During a period of 180 days from the date of the
Prospectus, the Company will not, without the prior written consent of Vector,
(i) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase or otherwise transfer or dispose of, directly or indirectly,
any shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or file any registration statement under the 1933
Act with respect to any of the foregoing or (ii) enter into any swap or any
other agreement or any transaction that transfers, in whole or in part, directly
or indirectly, the economic consequence of ownership of the Common Stock,
whether any such swap or transaction described in clause (i) or (ii) above is to
be settled by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the Securities to be
sold hereunder, (B) any shares of Common Stock issued by the Company upon the
exercise of an option or warrant or the conversion of security outstanding on
the date hereof and referred to in the Prospectus, (C) any shares of Common
Stock issued or options to purchase Common Stock granted pursuant to existing
employee benefit plans of the Company referred to in the Prospectus or (D) any
shares of Common Stock issued pursuant to any non-employee director stock plan.
n. The Company will furnish to you, concurrently with
the execution of this Agreement, "lock-up" letters, in form and substance
satisfactory to you, executed by (i) each of the officers and directors of the
Company and (ii) each of the Stockholders listed in Schedule II hereto.
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o. The Company will supply the Underwriters with
copies of all correspondence to and from, and all documents issued to and by,
the Commission in connection with the registration of the Securities under the
0000 Xxx.
p. Prior to the Closing Date, the Company shall
furnish to the Underwriters, as soon as they have been prepared, copies of any
unaudited interim consolidated financial statements of the Company and Ansys
International, Inc., a Virgin Islands foreign sales corporation (the
"Subsidiary"), for any periods subsequent to the periods covered by the
financial statements appearing in the Registration Statement and the Prospectus.
q. Prior to the Closing Date, the Company will issue
no press release or other communications directly or indirectly and hold no
press conference with respect to the Company or the Subsidiary, the condition,
financial or otherwise, or the earnings, business affairs or business prospects
of any of them, or the offering of the Securities, without the prior written
consent of Vector unless in the judgment of the Company and its counsel, and
after notification to the Representatives, such press release or communication
is required by law.
r. The Company has not taken, nor will it take,
directly or indirectly, any action designed to, or that might reasonably be
expected to, cause or result in stabilization or manipulation of the price of
the Common Stock to facilitate the sale or resale of the Securities.
s. The Company will use its best efforts to maintain
the inclusion of such Common Stock on the NNM (or on a national securities
exchange) for a period of five years after the effective date of the
Registration Statement.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to each Underwriter that:
a. When the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendment thereto becomes
effective, at the date of the Prospectus, if different, and at the Closing Date
and the Option Closing Date, as the case may be, the Registration Statement, the
Rule 462(b) Registration Statement and any amendments and supplements thereto
complied or will comply in all material respects with the requirements of the
1933 Act and the 1933 Act Regulations and did not and will not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading.
The
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Prospectus and any supplements or amendments thereto will not at the date of the
Prospectus, at the date of any such supplements or amendments, or at the Closing
Date or the Option Closing Date, if any, include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. If Rule 434 is used, the Company will comply with the
requirements of Rule 434 and the Prospectus shall not be "materially different,"
as such term is used in Rule 434, from the Prospectus included in the
Registration Statement at the time it became effective. The representations and
warranties in this subsection shall not apply to statements in or omissions from
the Registration Statement or Prospectus relating to any Underwriter made in
reliance upon and in conformity with information furnished to the Company in
writing by any Underwriter through Vector expressly for use in the Registration
Statement or Prospectus. The Company has not distributed any offering materials
in connection with the offering or sale of the Securities other than the
Registration Statement, the preliminary prospectus, the Prospectus, the Term
Sheet, if applicable, or any other materials, if any, permitted by the 1933 Act
or the 1933 Act Regulations.
b. Each preliminary prospectus and the prospectus
filed as part of the Registration Statement as originally filed or as part of
any amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material respects with the 1933 Act Regulations.
c. McGladrey & Xxxxxx, LLP, the accountants who
certified the financial statements and supporting schedules included in the
Registration Statement, are independent public accountants as required by the
1933 Act and the 1933 Act Regulations.
d. The audited and unaudited financial statements
included or incorporated by reference in the Registration Statement and the
Prospectus present fairly the consolidated financial position of the Company and
its Subsidiary as of the dates indicated and the results of their operations for
the periods specified; except as otherwise stated in the Registration Statement,
said financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis; and the supporting
schedules included in the Registration Statement present fairly the information
required to be stated therein. The financial information and statistical data
set forth in the Prospectus are prepared on an accounting basis consistent with
such financial statements.
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e. Since the respective dates as of which information
is given in the Registration Statement and the Prospectus, except as otherwise
stated therein, (i) there has been no material adverse change or any development
involving a prospective material adverse change in or affecting the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and the Subsidiary considered as one enterprise,
whether or not arising in the ordinary course of business, (ii) there have been
no transactions entered into by the Company or the Subsidiary, other than those
in the ordinary course of business, which are material with respect to the
Company, and (iii) there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock. The
Company has no material contingent obligations which are not disclosed in the
Registration Statement.
f. The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the State
of Delaware with full corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectus and to
enter into and perform its obligations under this Agreement; and the Company is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify would not, singly or in the aggregate,
have a material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and the
Subsidiary considered as one enterprise.
g. The Subsidiary has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure to so qualify would not have a
material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and the
Subsidiary considered as one enterprise; all of the issued and outstanding
capital stock of the Subsidiary has been duly authorized and validly issued, is
fully paid and non-assessable and is owned by the Company, free and clear of any
security interest, mortgage, pledge, lien, charge, encumbrance, claim or equity.
There are no outstanding
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subscriptions, options, warrants, commitments, convertible or exchangeable
securities or other rights granted by the Company or the Subsidiary to acquire
any shares of capital stock of or ownership interests in the Subsidiary and
there are no commitments, plans or arrangements to do so. Except with respect to
the Subsidiary and Molecular Innovations Inc., a Delaware corporation, the
Company does not own, directly or indirectly, any shares of stock or any other
equity or long-term debt securities of any corporation or have any equity
interest in any firm, partnership, joint venture, association or other entity.
h. The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus under "Capitalization"
(except for subsequent issuances, if any, pursuant to this Agreement or pursuant
to reservations, agreements, employee or director benefit plans or the exercise
of convertible securities referred to in the Prospectus); the shares of issued
and outstanding capital stock of the Company have been, or will be prior to the
Closing, duly authorized and validly issued and are fully paid and
non-assessable and have not been issued in violation of or are not otherwise
subject to, any preemptive or other similar rights; the Securities have been
duly authorized for issuance and sale to the Underwriters pursuant to this
Agreement and, when issued and delivered by the Company pursuant to this
Agreement against payment of the consideration set forth herein, will be validly
issued and fully paid and non-assessable; the certificates evidencing the
Securities are in due and proper form under Delaware law; the authorized capital
stock of the Company, including the Securities, conforms to all statements
relating thereto contained in the Prospectus; and the issuance of the Securities
is not subject to preemptive or other similar rights. There are no outstanding
subscriptions, options, warrants, convertible or exchangeable securities or
other rights granted to or by the Company to purchase shares of Common Stock or
other securities of the Company and there are no commitments, plans or
arrangements to issue any shares of Common Stock or any security convertible
into or exchangeable for Common Stock, in each case other than as described in
the Prospectus.
i. Except as disclosed in the Registration Statement
and except as would not, singly or in the aggregate, reasonably be expected to
have a material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and the
Subsidiary considered as one enterprise, (A) the Company and the Subsidiary are
in compliance with all applicable Environmental Laws (as defined below), (B) the
Company and the Subsidiary have all permits, authorizations and approvals
required under any applicable
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Environmental Laws and are each in compliance with the requirements of such
permits authorizations and approvals, (C) there are no pending or, to the best
knowledge of the Company, threatened Environmental Claims against the Company or
the Subsidiary and (D) to the best knowledge of the Company, under applicable
law, there are no circumstances with respect to any property or operations of
the Company or the Subsidiary that are reasonably likely to form the basis of an
Environmental Claim (as defined below) against the Company or the Subsidiary.
For purposes of this Agreement, the following terms shall have
the following meanings: "Environmental Law" means any United States (or other
applicable jurisdiction's) Federal, state, local or municipal statute, law,
rule, regulation, ordinance, code, policy or rule of common law and any judicial
or administrative interpretation thereof, including any judicial or
administrative order, consent decree or judgement, relating to the environment,
health, safety or any chemical, material or substance, exposure to which is
prohibited, limited or regulated by any governmental authority. "Environmental
Claims" means any and all administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or violation,
investigations or proceedings relating in any way to any Environmental Law.
j. Neither the Company nor the Subsidiary is in
violation of its charter or bylaws or in default in the performance or
observance of any material obligation, agreement, covenant or condition
contained in any contract, indenture, mortgage, loan agreement, deed, trust,
note, lease, sublease, voting agreement, voting trust, or other instrument or
agreement to which the Company or the Subsidiary is a party or by which either
of them may be bound, or to which any of the property or assets of the Company
or the Subsidiary is subject. To the best knowledge of the Company, no other
party under any material contract or other agreement to which the Company or the
Subsidiary is a party is in material default in any respect thereunder. The
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated herein and compliance by the Company with its
obligations hereunder will not conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or the Subsidiary
pursuant to, any contract, indenture, mortgage, loan agreement, deed, trust,
note, lease, sublease, voting agreement, voting trust or other instrument or
agreement to which the Company or the Subsidiary is a party or by which either
of them may be bound, or to which any of the property or assets of the Company
or the Subsidiary is subject, nor will
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such action result in any violation of the provisions of the charter or bylaws
of the Company or the Subsidiary or any applicable statute, law, rule,
regulation, ordinance, code, judgment, ruling, decision or order of any court or
other governmental agency or body applicable to the business or properties of
the Company or the Subsidiary.
k. No labor dispute with the employees of the Company
or the Subsidiary exists or, to the best knowledge of the Company, is imminent;
and the Company is not aware of any existing or imminent labor disturbance by
the employees of any of its principal suppliers, manufacturers or contractors
which might, singly or in the aggregate, be expected to result in any material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and the Subsidiary
considered as one enterprise.
l. There is no action, suit or proceeding before or
by any court or governmental agency or body, domestic or foreign, now pending,
or, to the knowledge of the Company, threatened, against or affecting the
Company or the Subsidiary, which is required to be disclosed in the Registration
Statement (other than as disclosed therein), or which, singly or in the
aggregate, might result in any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and the Subsidiary considered as one enterprise, or
which, singly or in the aggregate, might materially and adversely affect the
properties or assets thereof or which might materially and adversely affect the
consummation of this Agreement; all pending legal or governmental proceedings to
which the Company or the Subsidiary is a party or of which any of their
respective property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation incidental to the
business, are, considered in the aggregate, not material; and there are no
contracts or documents of the Company or the Subsidiary which are required to be
filed as exhibits to the Registration Statement by the 1933 Act or by the 1933
Act Regulations which have not been so filed.
m. The Company and the Subsidiary own or are licensed
to use all patents, patent applications, inventions, trademarks, trade names,
applications for registration of trademarks, service marks, service xxxx
applications, copyrights, know-how, manufacturing processes, formulae, trade
secrets, licenses and rights in any thereof and any other intangible property
and assets (herein called the "Proprietary Rights") which are material to the
businesses of the Company and the Subsidiary as
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now conducted and as proposed to be conducted, in each case as described in the
Prospectus. The description of the Proprietary Rights in the Prospectus is
correct in all material respects and fairly and correctly describes the
Company=s and the Subsidiary=s rights with respect thereto. Except as described
in the Prospectus, the Company does not have any knowledge of, and the Company
has not given or received any notice of, any pending conflicts with or
infringement of the rights of others with respect to any Proprietary Rights or
with respect to any license of Proprietary Rights. No action, suit, arbitration,
or legal, administrative or other proceeding, or investigation is pending, or,
to the best knowledge of the Company, threatened, which involves any Proprietary
Rights. Neither the Company nor the Subsidiary is subject to any judgment,
order, writ, injunction or decree of any court or any Federal, state, local,
foreign or other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, or any arbitrator, or has entered into or
is a party to any contract, which restricts or impairs the use of any such
Proprietary Rights in a manner which would have a material adverse effect on the
use of any of the Proprietary Rights. To the best knowledge of the Company, no
Proprietary Rights used by the Company or the Subsidiary, and no services or
products sold by the Company or the Subsidiary, conflict with or infringe upon
any proprietary rights available to any third party. Neither the Company nor the
Subsidiary has received written notice of any pending conflict with or
infringement upon such third-party proprietary rights. Neither the Company nor
the Subsidiary has entered into any consent, indemnification, forbearance to xxx
or settlement agreement with respect to Proprietary Rights other than in the
ordinary course of business. No claims have been asserted by any person with
respect to the validity of the Company's or the Subsidiary=s ownership or right
to use the Proprietary Rights and, to the best knowledge of the Company, there
is no reasonable basis for any such claim to be successful. The Proprietary
Rights are valid and enforceable and no registration relating thereto has
lapsed, expired or been abandoned or cancelled or is the subject of cancellation
or other adversarial proceedings, and all applications therefore are pending and
are in good standing. The Company and the Subsidiary have complied in all
material respects with their respective contractual obligations relating to the
protection of the Proprietary Rights used pursuant to licenses. To the best
knowledge of the Company, no person is infringing on or violating the
Proprietary Rights owned or used by the Company or the Subsidiary.
n. No registration, authorization, approval,
qualification, consent or order of any court or governmental authority or agency
is required in connection with the offering,
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issuance or sale of the Securities hereunder, except such as may be required
under the 1933 Act or the 1933 Act Regulations, state securities or Blue Sky
laws, or the National Association of Securities Dealers, Inc. ("NASD").
o. The Company and the Subsidiary each possess and
are operating in compliance with all licenses, certificates, consents,
authorities, approvals and permits (collectively, "permits") from all state,
Federal, foreign and other regulatory agencies or bodies necessary to conduct
the businesses now operated by them, and neither the Company nor the Subsidiary
has received any notice of proceedings relating to the revocation or
modification of any such permit or any circumstance which would lead it to
believe that such proceedings are reasonably likely which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
materially and adversely affect the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and the
Subsidiary considered as one enterprise.
p. This Agreement has been duly authorized, executed
and delivered by the Company and constitutes a valid and binding obligation of
the Company, enforceable against the Company in accordance with its terms,
except as rights to indemnity and contribution hereunder may be limited by
Federal or state securities laws or the public policy underlying such laws.
q. Except as described in the Prospectus, there are
no persons with registration or other similar rights to have any securities of
the Company registered pursuant to the Registration Statement or otherwise
registered by the Company under the 1933 Act.
r. No order preventing or suspending the use of any
preliminary prospectus has been issued and no proceedings for that purpose are
pending, threatened, or, to the best knowledge of the Company, contemplated by
the Commission; and to the best knowledge of the Company, no order suspending
the offering of the Securities in any jurisdiction designated by the
Underwriters pursuant to Section 5(g) of this Agreement has been issued and, to
the best knowledge of the Company, no proceedings for that purpose have been
instituted or threatened or are contemplated.
s. The Company and the Subsidiary each have good and
marketable title to all properties and assets owned by them, free and clear of
all material security interests, mortgages, pledges, liens, charges,
encumbrances, claims and equities of record. The properties and assets of the
Company and the
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Subsidiary are, in the aggregate, in good repair (reasonable wear and tear
excepted), and suitable for their respective uses. Any real properties held
under lease by the Company or the Subsidiary are held under valid, subsisting
and enforceable leases with such exceptions as are not material and do not
interfere with the conduct of the business of the Company and the Subsidiary
considered as one enterprise.
t. The Company and the Subsidiary maintain 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
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
u. The Company and the Subsidiary have conducted and
are conducting their respective businesses in compliance with all applicable
Federal, state, local and foreign statutes, laws, rules, regulations,
ordinances, codes, decisions, decrees, directives and orders, except where the
failure to do so would not, singly or in the aggregate, have a material adverse
effect on the condition, financial or otherwise, or on the earnings, business
affairs or business prospects of the Company and the Subsidiary considered as
one enterprise.
v. To the best knowledge of the Company, neither the
Company nor the Subsidiary, nor any employee or agent of the Company or the
Subsidiary, has made any payment of funds of the Company or the Subsidiary or
received or retained any funds in violation of any statute, law, rule or
regulation, which payment, receipt or retention of funds is of a character
required to be disclosed in the Prospectus.
w. The Company is not now, and after sale of the
Securities to be sold by it hereunder and application of the net proceeds from
such sale as described in the Prospectus under the caption "Use of Proceeds"
will not be, an "investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
x. All offers and sales of capital stock of the
Company prior to the date hereof were at all relevant times duly
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registered or exempt from the registration requirements of the 1933 Act and were
duly registered or subject to an available exemption from the registration
requirements of the applicable state securities or Blue Sky laws.
y. The Securities have been duly authorized for
quotation on NNM. The Company has taken no action designed to, or likely to have
the effect of delisting the Common Stock from NNM, nor has the Company received
any notification that the NNM is contemplating terminating such listing.
z. The Company has not taken, and at the Closing Date
and at any later Option Closing Date, the Company will not have taken, directly
or indirectly, any action which has constituted, or might reasonably be expected
to constitute, the stabilization or manipulation of the price of sale or resale
of the Securities.
aa. The Company and the Subsidiary maintain insurance
of the types and in amounts adequate for their businesses and consistent with
insurance coverage maintained by similar companies in similar businesses,
including, but not limited to, insurance covering clinical trial liability,
product liability and real and personal property owned or leased against theft,
damage, destruction, acts of vandalism and all other risks customarily insured
against, all of which insurance is in full force and effect. The Company
believes that it will be able to renew its existing insurance coverage as and
when such coverage expires. The Company has not been refused any insurance
coverage sought or applied for by the Company.
bb. The Company and the Subsidiary have filed all
material tax returns required to be filed, which returns are true and correct in
all material respects, and neither the Company nor the Subsidiary is in default
in the payment of any taxes, including penalties and interest, assessments, fees
and other charges, shown thereon due or otherwise assessed, other than those
being contested in good faith and for which adequate reserves have been provided
or those currently payable without interest which were payable pursuant to said
returns or any assessments with respect thereto.
cc. Except as described in the Prospectus, to the
best knowledge of the Company, there are no rulemaking or similar proceedings
before the United States Food and Drug Administration or comparable Federal,
state, local or foreign governmental bodies which involve or affect the Company
or the Subsidiary, which, if the subject of an action unfavorable to the Company
or the Subsidiary, could involve a prospective material adverse change in
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or effect on the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and the Subsidiary considered as
one enterprise.
dd. The Commercial Agreement between the Company and
Roche Diagnostic Systems Inc. (XXxxxx@), dated as of April 13, 1993, as amended
May 1, 1998, and the Development and Manufacturing Agreement between the Company
and Roche, dated September 1, 1996 (collectively the "Partner Agreements"), have
each been duly authorized, executed and delivered by the Company and constitute
valid and binding agreements of the Company, enforceable in accordance with
their respective terms, except as such enforceability may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting the rights of
creditors generally and subject to general principles of equity. No default has
occurred under any of the Partner Agreements and no event has occurred which,
with the passage of time or otherwise, would constitute a default under any of
the Partner Agreements. The Company has not received any communication (whether
written or oral) relating to the termination or threatened termination or
modification or threatened modification of any material, consulting, licensing,
marketing, research and development, cooperative or any similar agreement,
including, without limitation, the Partner Agreements identified under the
section of the Prospectus entitled "BusinessCAgreements with Roche." Each such
Partner Agreement is in effect substantially as described in such section of the
Prospectus.
ee. To the best knowledge of the Company, if any
full-time employee (past or present)has entered into any non-competition,
non-disclosure, confidentiality or other similar agreement with any party other
than the Company or the Subsidiary, such employee is neither in violation
thereof nor is expected to be in violation thereof as a result of the business
conducted or expected to be conducted by the Company or the Subsidiary as
described in the Prospectus or such person's performance of his obligations to
the Company or the Subsidiary; and neither the Company nor the Subsidiary has
received written notice that any consultant or scientific advisor (past or
present)of the Company or the Subsidiary is in violation of any non-competition,
non-disclosure, confidentiality or similar agreement.
7. INDEMNIFICATION AND CONTRIBUTION.
a. The Company agrees to indemnify and hold harmless
(i) each Underwriter, (ii) each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act (any of the persons referred to
in this clause (ii) being
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hereinafter referred to as a "controlling person") and (iii) the respective
directors, officers, partners and employees of any of the Underwriters or any
controlling person (any person referred to in clause (i), (ii) or (iii) may
hereinafter be referred to as an "Indemnified Person") to the fullest extent
lawful, from and against any and all losses, claims, damages, liabilities and
expenses whatsoever (including, without limitation, all reasonable costs of
pursuing, investigating and defending any claim, suit or action or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, including the reasonable fees and expenses of counsel to any
Indemnified Person), directly or indirectly, caused by, related to, based upon
or arising out of or in connection with any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
amendment thereto, including the Rule 430A Information and Rule 434 Information,
if applicable, or any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading or caused by, related to, based upon, arising out of or in
connection with any untrue statement or alleged untrue statement of a material
fact contained in any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto) or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except insofar as such losses, claims, damages, liabilities or
expenses arise out of or are based upon any untrue statement or omission or
alleged untrue statement or omission which has been made therein or omitted
therefrom in reliance upon and in conformity with the information relating to
such Underwriter furnished in writing to the Company by or on behalf of any
Underwriter through you expressly for use in connection therewith; provided,
however, that the indemnification contained in this paragraph (a) with respect
to any preliminary prospectus shall not inure to the benefit of any Underwriter
(or related Indemnified Person) on account of any such loss, claim, damage,
liability or expense arising from the sale of the Securities by such Underwriter
to any person if a copy of the Prospectus shall not have been delivered or sent
to such person within the time required by the 1933 Act or the 1933 Act
Regulations, and the untrue statement or alleged untrue statement or omission or
alleged omission of a material fact contained in such preliminary prospectus was
corrected in the Prospectus (or any amendment or supplement thereto), provided
that the Company has delivered the Prospectus to the several Underwriters in
requisite quantity on a timely basis to permit such delivery or sending.
b. If any action, suit or proceeding shall be brought
against any Indemnified Person in respect of which indemnity
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may be sought against the Company, such Indemnified Person shall promptly notify
the parties against whom indemnification is being sought (the "indemnifying
parties"), and such indemnifying parties shall assume the defense thereof,
including the employment of counsel and payment of all fees and expenses. Such
Indemnified Person shall have the right to employ separate counsel in any such
action, suit or proceeding and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the indemnifying parties have agreed in writing to pay such
fees and expenses, (ii) the indemnifying parties have failed to assume the
defense and employ counsel or (iii) the named parties to any such action, suit,
investigation or proceeding (including any impleaded parties) include both such
Indemnified Person and the indemnifying parties and representation of such
Indemnified Person and any indemnifying party by the same counsel would, in the
reasonable judgment of the Indemnified Person, be inappropriate due to actual or
potential differing interests between them (in which case the indemnifying party
shall not have the right to assume the defense of such action, suit or
proceeding on behalf of such Indemnified Person). It is understood, however,
that the indemnifying parties shall, in connection with any one such action,
suit or proceeding or separate but substantially similar or related actions,
suits or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
only one separate firm of attorneys (in addition to any local counsel) at any
time for all such Indemnified Persons not having actual or potential differing
interests with you or among themselves, which firm shall be designated in
writing by Vector, and that all such fees and expenses shall be reimbursed as
they are incurred. The indemnifying parties shall not be liable for any
settlement of any such action, suit or proceeding effected without their written
consent, which consent shall not be unreasonably withheld, but if settled with
such written consent, or if there be a final judgment for the plaintiff in any
such action, suit or proceeding, the indemnifying parties agree to indemnify and
hold harmless any Indemnified Person, to the extent provided in the preceding
paragraph, from and against any loss, claim, damage, liability or expense by
reason of such settlement or judgment.
c. Each Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, its directors, its officers
who sign the Registration Statement, any person who controls the Company within
the meaning of Section 15 of the 1933 Act, to the same extent as the foregoing
indemnity from the Company to each Indemnified Person, but only with respect to
information relating to such Underwriter furnished in writing by or on behalf of
such Underwriter through Vector expressly for use in the
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Registration Statement, the Prospectus or any preliminary prospectus, or any
amendment or supplement thereto. If any action, suit, investigation or
proceeding shall be brought against the Company, any of its directors, any such
officer or any such controlling person based on the Registration Statement, the
Prospectus or any preliminary prospectus, or any amendment or supplement
thereto, and in respect of which indemnity may be sought against any Underwriter
pursuant to this paragraph (c), such Underwriter shall have the rights and
duties given to the Company by paragraph (b) above, and the Company, its
directors, any such officer and any such controlling person shall have the
rights and duties given to the Indemnified Persons by paragraph (a) above.
d. If the indemnification provided for in this
Section 7 is unavailable to, or insufficient to hold harmless, an indemnified
party under paragraphs (a) or (c) hereof in respect of any losses, claims,
damages, liabilities or expenses referred to therein, then each 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,
claims, damages, liabilities or expenses (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other hand from the offering of the Securities
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law or judicial determination, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Company on the one hand and the Underwriters on
the other hand, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Underwriters
on the other hand shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the Company
bear to the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page of the
Prospectus or, if Rule 434 is used, the corresponding location on the Term
Sheet. The relative fault of the Company on the one hand and the Underwriters on
the other hand shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company on the one hand or by the Underwriters on the other hand and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The indemnity and contribution
obligations of the Company set forth herein shall be in addition to any
liability or obligation the Company may otherwise have to any Indemnified
Person.
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e. The Company and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 7 were
determined by a 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 the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities and expenses referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating any claim or defending
any such action, suit or proceeding. Notwithstanding the provisions of this
Section 7, no Underwriter (or any of its related Indemnified Persons) shall be
required to contribute (whether pursuant to subsection (a) or (c) or otherwise)
any amount in excess of the underwriting discount applicable to the Securities
underwritten by such Underwriter. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 0000 Xxx) 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 7 are several in proportion to the respective numbers of Securities set
forth opposite their names in Schedule I hereto (or such numbers of Securities
increased as set forth in Section 10 hereof) and not joint.
f. No indemnifying party shall, without the prior
written consent of the Indemnified Person, effect any settlement of any pending
or threatened action, suit or proceeding in respect of which any Indemnified
Person is or could have been a party and indemnity could have been sought
hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such action, suit or proceeding.
g. Any losses, claims, damages, liabilities or
expenses for which an indemnified party is entitled to indemnification or
contribution under this Section 7 shall be paid by the indemnifying party to the
indemnified party as such losses, claims, damages, liabilities or expenses are
incurred. The indemnity and contribution agreements contained in this Section 7
and the representations and warranties of the Company set forth in this
Agreement shall remain operative and in full force and effect, regardless of (i)
any investigation made by or on behalf of any Indemnified Person, the Company,
its directors or officers or any person controlling the Company, (ii) acceptance
of any Securities and payment therefor hereunder and (iii) any termination of
this Agreement.
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8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters to purchase the Initial Securities hereunder are
subject to the following conditions:
a. The Registration Statement, including any Rule
462(b) Registration Statement, shall have become effective on the date hereof;
no stop order suspending the effectiveness of the Registration Statement shall
have been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission. If the Company has elected to rely upon Rule 430A,
Rule 430A Information previously omitted from the effective Registration
Statement pursuant to Rule 430A shall have been transmitted to the Commission
for filing pursuant to Rule 424(b) within the prescribed time period and the
Company shall have provided evidence satisfactory to the Underwriters of such
timely filing, or a post-effective amendment providing such information shall
have been promptly filed and declared effective in accordance with the
requirements of Rule 430A. If the Company has elected to rely upon Rule 434, a
Term Sheet shall have been transmitted to the Commission for filing pursuant to
Rule 424(b) within the prescribed time period.
b. The Underwriters shall have received:
(i) The favorable opinion, dated as of the
Closing Date, of Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP, counsel for the
Company, in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
A. The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware. To the best of their knowledge,
the Company is not in violation of its charter or bylaws.
B. The Company has corporate power and authority to
own, lease and operate its properties and to conduct its
business as described in the Registration Statement and the
Prospectus and to enter into and perform its obligations under
this Agreement.
C. To the best of their knowledge and information,
the Company is duly qualified as a foreign corporation to
transact business and is in
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good standing in each jurisdiction in which such qualification
is required.
D. The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus under
"Capitalization" (except for subsequent issuances, if any,
pursuant to reservations, agreements, employee benefit plans
or the exercise of convertible securities referred to in the
Prospectus), and the shares of issued and outstanding capital
stock of the Company have been, or will be prior to the
Closing, duly authorized and validly issued and are fully paid
and non-assessable and, to their knowledge and information,
have not been issued in violation of or are not otherwise
subject to any preemptive rights or other similar rights.
E. The Securities have been duly authorized for
issuance and sale to the Underwriters pursuant to this
Agreement and, when issued and delivered by the Company
pursuant to this Agreement against payment of the
consideration set forth herein, will be validly issued and
fully paid and non-assessable; and the issuance of the
Securities is not subject to preemptive or other similar
rights.
F. The Subsidiary has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has corporate
power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus
and, to the best of their knowledge and information, is duly
qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which such
qualification is required; all of the issued and outstanding
capital stock of the Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and, to the
best of their knowledge and information, is owned by the
Company, free and clear of any security interest, mortgage,
pledge, lien, encumbrance, claim or equity, except as
described in the Prospectus. To the best of their knowledge
and information, except as described in the Prospectus, there
are no outstanding subscriptions, options, warrants,
commitments, convertible or exchangeable securities or other
rights granted by the Company or
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the Subsidiary to acquire any shares of capital stock of or
ownership interests in the Subsidiary and there are no
commitments, plans or arrangements to do so.
G. To the best of their knowledge and information,
except as described in the Prospectus, there are no
outstanding subscriptions, options, warrants, convertible or
exchangeable securities or other rights granted to or by the
Company to purchase shares of Common Stock or other securities
of the Company and there are no commitments, plans or
arrangements to issue any shares of Common Stock or any
security convertible or exchangeable for Common Stock.
H. This Agreement has been duly authorized, executed
and delivered by the Company.
I. At the time the Registration Statement became
effective and at the Closing Date, the Registration Statement
(other than the financial statements and supporting schedules
included therein, as to which no opinion need be rendered)
complied as to form in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations.
J. The form of certificate used to evidence each of
the Securities is in due and proper form and complies with all
applicable statutory requirements.
K. To the best of their knowledge and information,
there are no legal or governmental proceedings pending or
threatened which are required to be disclosed in the
Registration Statement other than those disclosed therein, and
all pending legal or governmental proceedings to which the
Company or the Subsidiary is a party or to which any of their
property is subject which are not described in the
Registration Statement, including ordinary routine litigation
incidental to the business, are, considered in the aggregate,
not material.
L. The information in the Prospectus under "Certain
Transactions," "Business-Government Regulation," "Description
of Capital Stock," Business-Agreements with Roche,"
"Management-Stock
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Option Plans," "Shares Eligible for Future Sale" and Item 15
of Part II of the Registration Statement to the extent that it
constitutes matters of law, summaries of legal matters,
documents or proceedings, or legal conclusions, has been
reviewed by them and is correct in all material respects and
fairly and correctly presents the information called for with
respect thereto.
M. To the best of their knowledge and information,
there are no contracts, indentures, mortgages, loan
agreements, deeds, trusts, notes, leases, subleases, voting
trusts, voting agreements or other instruments or agreements
required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those
described or referred to therein or filed as exhibits thereto,
the descriptions thereof or references thereto are correct;
and to the best of their knowledge and information, no default
exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any
material contract, indenture, mortgage, loan agreement, deed,
trust, note, lease, sublease, voting trust, voting agreement
or other instrument or agreement to which the Company or the
Subsidiary is a party or by which either of them may be bound,
or to which any of the property or assets of the Company or
the Subsidiary is subject.
N. No registration, authorization, approval,
qualification, consent or order of any court or governmental
authority or agency is required in connection with the
offering, issuance or sale of the Securities to the
Underwriters, except such as may be required under the 1933
Act or the 1933 Act Regulations or state securities or Blue
Sky laws or such as may be required by the NASD; and the
execution, delivery and performance of the Underwriting
Agreement, and the consummation of the transactions
contemplated therein and the compliance by the Company with
its obligations thereunder will not conflict with or
constitute a breach of, or default under, or result in the
creation or imposition of any lien, charge or encumbrance upon
any property or assets of the Company or the Subsidiary
pursuant to, any contract, indenture, mortgage, loan
agreement, note, deed, trust, lease,
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sublease, voting trust, voting agreement or other instrument
or agreement to which the Company or the Subsidiary is a party
or by which either of them may be bound, or to which any of
the property or assets of the Company or the Subsidiary is
subject, nor will such action result in any violation of the
provisions of the charter or bylaws of the Company or the
Subsidiary, or any applicable statute, law, rule, regulation,
ordinance, code, judgment, ruling, decision or order of any
court or governmental agency or body applicable to the
business or prospects of the Company.
O. Except as described in the Prospectus, to the best
of their knowledge and information, there are no persons with
registration or other similar rights to have any securities
registered pursuant to the Registration Statement or otherwise
registered by the Company under the 1933 Act.
P. The Company is not an "investment company" or a
company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
Q. All sales of the Company's capital stock during
the three years immediately prior to the date hereof were at
all relevant times duly registered or exempt from the
registration requirements of the 1933 Act.
R. To the best of their knowledge and information,
the Company and the Subsidiary are in compliance with, and
conduct their respective businesses in conformity with, all
applicable laws and regulations relating to the operation of
their businesses as described in the Registration Statement,
except to the extent that any failure so to comply or conform
would not have a material adverse effect upon the business or
condition, financial or otherwise, of the Company and the
Subsidiary considered as one enterprise.
S. The Registration Statement has become effective
under the 1933 Act; any required filing of the Prospectus, and
any supplements thereto or the Term Sheet, pursuant to Rule
424(b) and if applicable, Rule 434, has been made in the
manner
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and within the time period required; and to their best
knowledge and information, no stop order suspending the
effectiveness of the Registration Statement or any part
thereof has been issued and no proceedings therefor have been
instituted or are pending or contemplated under the 1933 Act.
T. Each of the Partner Agreements has been duly
authorized, executed and delivered by the Company and
constitutes a valid and binding agreement of the Company,
enforceable in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights
generally and general principles of equity. To the best of
their knowledge, no default has occurred under such Partner
Agreements and no event has occurred which, with the passage
of time or otherwise, would constitute a default under such
agreements.
(ii) The favorable opinion, dated as of the
Closing Date, of ________________________, patent counsel for the
Company, in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
A. The information in the Prospectus under "Risk
FactorsCWe May Not Be Able To Adequately Protect Or Enforce
Our Intellectual Property Rights" and "BusinessCIntellectual
Property" to the extent that it constitutes matters of patent
law, summaries of legal matters relating to patents, patent
documents, patent proceedings, or legal conclusions relating
to patents, has been reviewed by them and is correct in all
material respects and fairly and correctly presents the
information called for with respect thereto.
B. To the best of their knowledge and information,
there are no pending or threatened legal or governmental
proceedings, nor allegations on the part of any person of
infringement, relating to patent rights, trade secrets,
trademarks, service marks, copyrights or other proprietary
information or know-how of the Company and, to the best of
their knowledge, no such proceedings are threatened or
contemplated.
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C. To the best of their knowledge and information,
the Company is not infringing or otherwise violating any
patents, trade secrets, trademarks, service marks, copyrights
or other proprietary information or know-how of any persons,
and no person is infringing or otherwise violating any of the
Company's patents, trade secrets, trademarks, service marks,
copyrights or other proprietary information or know-how of the
Company in a way which could materially affect the use thereof
by the Company.
D. To the best of their knowledge and information,
the Company owns or possesses sufficient licenses or other
rights to use all patents, trade secrets, trademarks, service
marks or other proprietary information or know-how necessary
to conduct the business now being or proposed to be conducted
by the Company as described in the Prospectus.
E. The Company is listed in the records of the United
States Patent and Trademark Office ("PTO") as the sole
assignee of record of each of the patents listed on Schedule
III hereto (herein called the "Patents") and each of the
applications listed on Schedule IV hereto (herein called the
"Applications"). To the best of their knowledge and
information, there are no asserted or unasserted claims of any
persons relating to the scope or ownership of the Patents or
the Applications, there are no liens which have been filed
against any of the Patents or the Applications, there are no
material defects of form in the preparation or filing of the
Applications, the Applications are being diligently
prosecuted, and none of the Applications has been finally
rejected or abandoned.
F. The Company is listed in the records of the
appropriate foreign patent offices as the sole assignee of
record of each of the foreign patents listed on Schedule V
hereto (herein called the "Foreign Patents") and each of the
foreign applications listed on Schedule VI hereto (herein
called the "Foreign Applications"). To the best of their
knowledge and information, there are no asserted or unasserted
claims of any persons
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relating to the scope or ownership of the Foreign Patents or
the Foreign Applications, there are no liens which have been
filed against any of the Foreign Patents or the Foreign
Applications, there are no material defects of form in the
preparation or filing of the Foreign Applications, the Foreign
Applications are being diligently prosecuted, and none of the
Foreign Applications has been finally rejected or abandoned.
G. Nothing has come to their attention that leads
them to believe that the Applications and Foreign Applications
will not eventuate in issued patents, or that any patents
issued in respect of any such Applications or Foreign
Applications will not be valid or will not afford the Company
reasonable patent protection relative to the subject matter
thereof.
H. The Company is the non-exclusive licensee of the
United States and foreign patents and patent applications
listed on Schedule VII and is the exclusive licensee of the
United States and foreign patents and patent applications
listed on Schedule VIII. To the best of their knowledge and
information, all such licenses are duly executed, validly
binding and enforceable in accordance with their terms and, to
the best of their knowledge and information, the Company is
not in default (declared or undeclared) of any material
provision of any such licenses.
I. To the best of their knowledge and information,
all pertinent prior art references known to the Company or its
counsel during the prosecution of the Patents and the
Applications were disclosed to the PTO and, to the best of
their knowledge and information, neither such counsel nor the
Company made any misrepresentation to, or concealed any
material fact concealed from, the PTO during such prosecution.
J. Nothing has come to their attention that leads
them to believe that, with respect to licenses, patents, trade
secrets, copyrights or other proprietary information or
know-how owned or used by the Company which are the subject of
the foregoing opinions, the Registration Statement, at
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the time it 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, as of its date
(unless the term "Prospectus" refers to a prospectus which has
been provided to the Underwriters by the Company for use in
connection with the offering of the Securities which differs
from the Prospectus on file at the Commission at the time the
Registration Statement becomes effective, in which case at the
time it is first provided to the Underwriters for such use) or
at the Closing Date or the Option Closing Date, as the case
may be, included or includes an untrue statement of a material
fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(iii) The favorable opinion, dated as of the
Closing Date, of Skadden, Arps, Slate, Xxxxxxx & Xxxx (Illinois),
counsel for the Underwriters with respect to the issuance and sale of
the Securities, the Registration Statement and the Prospectus and such
other related matters as the Underwriters shall reasonably request.
(iv) In giving their opinions required by
subsections (b)(i) and (b)(iii), respectively, of this Section 8,
Xxxxxxx, Phleger & Xxxxxxxx, LLP and Skadden, Arps, Slate, Xxxxxxx &
Xxxx (Illinois) shall each additionally state that nothing has come to
their attention that leads them to believe that the Registration
Statement (except for financial statements and schedules and other
financial information included therein, as to which counsel need make
no statement), at the time it 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 (except for financial
statements and schedules and other financial information included
therein, as to which counsel need make no statement), as of its date
(unless the term "Prospectus" refers to a prospectus which has been
provided to the Underwriters by the Company for use in connection with
the offering of the Securities which differs from the Prospectus on
file at the Commission at the time the Registration Statement
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becomes effective, in which case at the time it is first provided to
the Underwriters for such use) or at the Closing Date or the Option
Closing Date, as the case may be, included or includes an untrue
statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
c. (i) There shall not have been, since the date
hereof or since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change or any
development involving a prospective material adverse change in or affecting the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and the Subsidiary considered as one
enterprise, whether or not arising in the ordinary course of business, (ii) the
representations and warranties of the Company in Section 6 hereof shall be true
and correct with the same force and effect as though expressly made at and as of
the Closing Date, except to the extent that any such representation or warranty
relates to a specific date, (iii) the Company shall have complied in all
material respects with all agreements and satisfied all conditions on its part
to be performed or satisfied at or prior to the Closing Date, (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been initiated or threatened by the
Commission and (v) the Representatives shall have received a certificate, dated
the Closing Date and signed by the President or any Vice President and the chief
financial or accounting officer of the Company to the effect set forth in
clauses (i), (ii), (iii) and (iv) above.
d. At the time of the execution of this Agreement,
the Underwriters shall have received from McGladrey & Xxxxxx, LLP a letter dated
such date, in form and substance satisfactory to the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectus.
e. The Underwriters shall have received from
McGladrey & Xxxxxx, LLP, dated as of the Closing Date, to the effect that they
reaffirm the statements made in the letter furnished pursuant to subsection (d)
of this Section, except that the specified date referred to shall be a date not
more than three business days prior to the Closing Date.
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f. The Securities shall have been approved for
quotation on NNM.
g. In the event that the Underwriters exercise their
option provided in Section 2 hereof to purchase all or any portion of the Option
Securities, the representations and warranties of the Company contained herein
and the statements in any certificates furnished by the Company hereunder shall
be true and correct as of the Option Closing Date and, at the relevant Option
Closing Date, the Underwriters shall have received:
(1 A certificate, dated such Option
Closing Date, of the President or any Vice President of the Company and
of the chief financial or accounting officer of the Company confirming
that the certificate delivered at the Closing Date pursuant to Section
8 (c) hereof remains true and correct as of such Option Closing Date.
(2 The favorable opinion of Xxxxxxx,
Phleger & Xxxxxxxx, LLP, counsel for the Company, in form and substance
satisfactory to counsel for the Underwriters, dated such Option Closing
Date, relating to the Option Securities to be purchased on such Option
Closing Date and otherwise to the same effect as the opinion required
by Sections 8 (b)(i) and 8 (b)(iv) hereof.
(3 The favorable opinion of
______________________________, in form and substance satisfactory to
counsel for the Underwriters, dated such Option Closing Date to the
same effect as the opinion required by Section 8(b)(ii) hereof.
(4 The favorable opinion of Skadden,
Arps, Slate, Xxxxxxx & Xxxx (Illinois), counsel for the Underwriters,
dated such Option Closing Date, relating to the Option Securities to be
purchased on such Option Closing Date and otherwise to the same effect
as the opinion required by Sections 8 (b)(iii) and 8 (b)(iv) hereof.
(5 A letter from McGladrey & Xxxxxx,
LLP in form and substance satisfactory to the Underwriters and dated
such Option Closing Date, substantially the same in form and substance
as the letter furnished to the Underwriters pursuant to
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Section 8(e) hereof, except that the "specified date" in the letter
furnished pursuant to this Section 8(g)(5) shall be a date not more
than three business days prior to such Option Closing Date.
h. At the date of this Agreement, the Underwriters
shall have received lock-up agreements in form and substance satisfactory to the
Underwriters from each of the individuals set forth in Schedule II hereto.
i. Counsel for the Underwriters shall have been
furnished with such documents and opinions as they may require for the purpose
of enabling them to pass upon the issuance and sale of the Securities as herein
contemplated and related proceedings, or in order to evidence the accuracy of
any of the representations or warranties or the fulfillment of any of the
conditions herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Securities as herein contemplated
shall be satisfactory in form and substance to the Underwriters and counsel for
the Underwriters.
j. The NASD shall not have raised any objection with
respect to the fairness and reasonableness of the underwriting terms and
arrangements.
k. Any certificate or document signed by any officer
of the Company and delivered to you, as Representatives of the Underwriters, or
to counsel for the Underwriters, shall be deemed a representation and warranty
by the Company to each Underwriter as to the statements made therein.
l. If any condition specified in this Section 8 shall
not have been fulfilled when and as required to be fulfilled, this Agreement,
or, in the case of any condition to the purchase of Option Securities, on an
Option Closing Date which is after the Closing Date, the obligations of the
several Underwriters to purchase the relevant Option Securities, may be
terminated by the Representatives by notice to the Company at any time at or
prior to Closing Date or such an Option Closing Date as the case may be, and
such termination shall be without liability of any party to any other party
except as provided in Section 9 and except that Sections 6 and 7 shall survive
any such termination and remain in full force and effect.
9. EXPENSES. Whether or not the transaction contemplated by
this Agreement is consummated or this Agreement is terminated, the Company
agrees to pay the following costs and expenses and all other costs and expenses
incident to the
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performance by the Company of its obligations under this Agreement including but
not limited to cost and expenses of or relating to: (i) the preparation,
printing or reproduction, and filing with the Commission of the Registration
Statement (including financial statements and exhibits thereto), each
preliminary prospectus, the Prospectus, and each amendment or supplement to any
of them; (ii) the printing (or reproduction) and delivery (including postage,
air freight and charges for counting and packaging) of such copies of the
Registration Statement, each preliminary prospectus, the Prospectus, and all
amendments or supplements to any of them as may be reasonably requested for use
in connection with the offering and sale of the Securities; (iii) the
preparation, printing, authentication, issuance and delivery of certificates for
the Securities, including any stamp taxes in connection with the original
issuance and sale of the Securities; (iv) the printing (or reproduction) and
delivery of this Agreement, the Blue Sky Memoranda and all other agreements or
documents printed (or reproduced) and delivered in connection with the original
issuance and sale of the Securities; (v) the registration of the Common Stock
under the 1934 Act and the quotation of the Securities on NNM; (vi) the
registration or qualification of the Securities for offer and sale under the
securities or Blue Sky laws of the several states as provided in Section 5(g)
hereof (including the fees, expenses and disbursements of one counsel for the
Underwriters relating to the preparation, printing or reproduction, and delivery
of the Blue Sky Memoranda and such registration and qualification); (vii) the
filing fees and the fees and expenses of counsel for the Underwriters incident
to securing any required review by the NASD; (viii) the fees and expenses of the
Company's accountants and the fees and expenses of counsel (including local and
special counsel) for the Company; and (ix) the fees and expenses of the transfer
agent.
If this Agreement shall terminate or shall be terminated after
execution pursuant to any provisions hereof (otherwise than pursuant to the
second paragraph of Section 10 or pursuant to clauses (ii), (iii), (iv) and (v)
of Section 11 hereof) or if this Agreement shall be terminated by the
Underwriters because of any failure or refusal on the part of the Company to
comply, in any material respect, with the terms or fulfill, in any material
respect, any of the conditions of this Agreement, the Company agrees to
reimburse the Representatives for all reasonable out-of-pocket expenses
(including reasonable fees and expenses of counsel for the Underwriters)
incurred by you in connection herewith.
10. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become
effective: (i) upon the execution and delivery hereof by or on behalf of the
parties hereto; or (ii) if, at the time this Agreement is executed and
delivered, it is necessary for the
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Registration Statement or a post-effective amendment thereto to be declared
effective before the offering of the Securities may commence, when notification
of the effectiveness of the Registration Statement or such post-effective
amendment has been released by the Commission. Until such time as this Agreement
shall have become effective, it may be terminated by the Company, by notifying
you, or by you, as Representatives of the several Underwriters, by notifying the
Company.
If one or more of the Underwriters shall fail on the Closing
Date to purchase the Initial Securities which it or they are obligated to
purchase under this Agreement (the "Defaulted Securities"), the Representatives
shall have the right, within 24 hours thereafter, to make arrangements for one
or more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such amounts
as may be agreed upon and upon the terms herein set forth; if, however, the
Representatives shall not have completed such arrangements within such 24-hour
period, then:
a. if the number of Defaulted Securities does not
exceed 10% of the number of Initial Securities, the non-defaulting Underwriters
shall be obligated to purchase the full amount thereof in the proportions that
their respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
b. if the number of Defaulted Securities exceeds 10%
of the number of Initial Securities, this Agreement shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any
defaulting Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement, either the Representatives or the Company shall
have the right to postpone the Closing Date for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Prospectus or in any other documents or arrangements. As used herein, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 10.
Any notice under this Section 10 may be given by telegram,
telecopy or telephone but shall be subsequently confirmed by letter.
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11. TERMINATION OF AGREEMENT. a. The Underwriters may
terminate this Agreement, by notice to the Company, at any time at or prior to
the Closing Date or Option Closing Date, as the case may be, (i) if there has
been, since the date of this Agreement or since the respective dates as of which
information is given in the Registration Statement, any material adverse change
or any development involving a prospective material adverse change in or
affecting the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and the Subsidiary considered as
one enterprise, whether or not arising in the ordinary course of business, (ii)
if there has occurred any change in the financial markets in the United States
or elsewhere or any outbreak of hostilities or escalation thereof or other
calamity or crisis the effect of which is such as to make it, in your judgement,
impracticable or inadvisable to market the Securities or to enforce contracts
for the sale of the Securities, (iii) if trading in the Common Stock has been
suspended by the Commission, or if trading generally on the New York Stock
Exchange, the American Stock Exchange or in the over-the-counter markets has
been suspended, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices for securities have been required, by such exchange or
markets or by order of the Commission or any other governmental authority, or if
a banking moratorium has been declared by either Federal, New York or Illinois
authorities, (iv) the enactment, publication, decree or other promulgation of
any Federal or state statute, regulation, rule or order of any court or other
governmental authority which in your judgement materially and adversely affects
or may materially or adversely affect the business or operations of the Company
and the Subsidiary or (v) the taking of any action by any Federal, state or
local government or agency in respect of its monetary or fiscal affairs which in
your judgement has a material adverse effect on the securities markets in the
United States, and would in your judgement make it impracticable or inadvisable
to market the Securities or to enforce any contract for the sale thereof. Notice
of such termination may be given by telegram, telecopy or telephone and shall be
subsequently confirmed by letter.
b. If this Agreement is terminated pursuant to this
Section 11, such termination shall be without liability of any party to any
other party except as provided in Section 9 and provided further that Sections 6
and 7 shall survive such termination and remain in full force and effect.
12. INFORMATION FURNISHED BY THE UNDERWRITERS. The statements
under the caption "Underwriting" in any preliminary prospectus and in the
Prospectus constitute the only information
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furnished by or on behalf of the Underwriters through you as such information is
referred to in Sections 6(a) and 7 hereof.
13. MISCELLANEOUS. Except as otherwise provided in Sections 5,
10 and 11 hereof, notice given pursuant to any provision of this Agreement shall
be in writing and shall be delivered (i) if to the Company at the office of the
Company at, 00000 Xxxxxxxxxxxx Xxxxx, Xxxx Xxxxxx, Xxxxxxxxxx 00000-0000,
Attention: President and Chief Executive Officer; or (ii) if to you, as
Representatives of the several Underwriters, care of Vector Securities
International, Inc. 0000 Xxxx Xxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx 00000,
Attention: Syndicate Department.
14. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be
governed by and construed in accordance with the laws of the State of Illinois
applicable to contracts made and to be performed within the State of Illinois.
This Agreement may be signed in various counterparts which together constitute
one and the same instrument. If signed in counterparts, this Agreement shall not
become effective unless at least one counterpart hereof shall have been executed
and delivered on behalf of each party hereto.
15. SUCCESSORS. This Agreement has been and is made solely for
the benefit of the several Underwriters, the Company, its directors and
officers, the other persons referred to in Section 7 hereof and their respective
successors and assigns, to the extent provided herein, and no other person shall
acquire or have any right under or by virtue of this Agreement. Neither the term
"successor" nor the term "successors and assigns" as used in this Agreement
shall include a purchaser from any Underwriter of any of the Securities in his
status as such purchaser.
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Please confirm that the foregoing correctly sets forth the
agreement among the Company and the several Underwriters.
Very truly yours,
ANSYS Diagnostics, Inc.
By:
----------------------------------
Xxxxxxx X. Xxxxxxxxxx
President and Chief
Executive Officer
Confirmed as of the date first above
mentioned on behalf of themselves and
the other several Underwriters named in
Schedule I hereto.
Vector Securities International, Inc.
Sutro & Co. Incorporated
As Representatives of the Several Underwriters named on Schedule I hereto.
By Vector Securities International, Inc.
By:
------------------------------------
Xxxxxx Xxxxxxxxx
Managing Director
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SCHEDULE I
ANSYS DIAGNOSTICS, INC.
NUMBER OF INITIAL
SECURITIES PURCHASED
UNDERWRITER TO BE FROM THE COMPANY
----------- ----------------------
Vector Securities International, Inc..................
Sutro & Co. Incorporated..............................
Total
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SCHEDULE II
ANSYS DIAGNOSTICS, INC.
LIST OF STOCKHOLDERS SUBJECT TO LOCK-UP AGREEMENTS
Number of Securities
Name Subject to Lock-Up
---- --------------------
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SCHEDULE III
ANSYS DIAGNOSTICS, INC.
LIST OF UNITED STATES PATENTS
44
SCHEDULE IV
ANSYS DIAGNOSTICS, INC.
LIST OF UNITED STATES PATENT APPLICATIONS
45
SCHEDULE V
ANSYS DIAGNOSTICS, INC.
LIST OF FOREIGN PATENTS
46
SCHEDULE VI
ANSYS DIAGNOSTICS, INC.
LIST OF FOREIGN PATENT APPLICATIONS
47
SCHEDULE VII
ANSYS DIAGNOSTICS, INC.
LIST OF EXCLUSIVE LICENSES TO USE
UNITED STATES AND FOREIGN PATENTS AND PATENT APPLICATIONS
48
SCHEDULE VIII
ANSYS DIAGNOSTICS, INC.
LIST OF EXCLUSIVE LICENSES TO USE
UNITED STATES AND FOREIGN PATENTS AND PATENT APPLICATIONS
