1
[FORM UNDERWRITING AGREEMENT - EQUITY
(PRIMARY AND SECONDARY OFFERING)]
[ Shares]
[Common Stock](1)
($ Par Value)
UNDERWRITING AGREEMENT
, 200
(1) Form contains language to be modified, as appropriate, for different
forms of equity securities.
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UNDERWRITING AGREEMENT
, 200
WARBURG DILLON READ LLC
[Co-Managers],
as Managing Underwriter[s]
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
, a corporation (the "Company"), proposes to issue and sell and
[the persons named in Schedule B annexed hereto (the "Selling Stockholders")
propose](2) [_____________ (the "Selling Stockholder") proposes](3) to sell to
the underwriters named in Schedule A annexed hereto (the Underwriters) an
aggregate of shares (the ["Firm](4) Shares") of [Common Stock], $ par
value (the ["Common Stock"]), of the Company, of which shares are to be
issued and sold by the Company and an aggregate of shares are to be
sold by the Selling Stockholders in the respective amounts set forth under the
caption "Firm Shares" in Schedule B annexed hereto. [In addition, solely for the
purpose of covering over-allotments, the [Company proposes/Selling Stockholders
propose/Company and the Selling Stockholders propose] to grant to the
Underwriters the option to purchase from the [Company/the Selling
Stockholders/Company and the Selling Stockholders](5) up to an additional
shares of [Common Stock] (the "Additional Shares") [in the respective amounts
set forth under the caption "Additional Shares" in Schedule B hereto].(6) The
Firm Shares and the Additional
(2) Insert language if more than one Selling Stockholder. Form assumes more
than one Selling Stockholder.
(3) Insert language if one Selling Stockholder.
(4) Insert language if "green shoe" is utilized.
(5) Insert appropriate person(s) granting the over-allotment option, if any.
(6) Insert if more than one Selling Stockholder is granting a portion of the
over-allotment option.
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Shares are hereinafter collectively sometimes referred to as the "Shares."](7)
The Shares are described in the Prospectus which is referred to below.
The Company has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively called the "Act"), with the Securities and Exchange Commission
(the Commission) a registration statement on Form S- , (File No. ) including
a prospectus, relating to the Shares [, which incorporates by reference
documents which the Company has filed [or will file] in accordance with the
provisions of the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (collectively called the "Exchange Act")].(8) The Company
has furnished to you, for use by the Underwriters and by dealers, copies of one
or more preliminary prospectuses [and the documents incorporated by reference
therein] (each thereof [, including the documents incorporated therein by
reference,] being herein called a "Preliminary Prospectus") relating to the
Shares. Except where the context otherwise requires, the registration statement,
as amended when it becomes effective, including all documents filed as a part
thereof [or incorporated by reference therein], and including any information
contained in a prospectus subsequently filed with the Commission pursuant to
Rule 424(b) under the Act and deemed to be part of the registration statement at
the time of effectiveness pursuant to Rule 430(A) under the Act and also
including any registration statement filed pursuant to Rule 462(b) under the
Act, is herein called the Registration Statement, and the prospectus, [including
all documents incorporated therein by reference,] in the form filed by the
Company with the Commission pursuant to Rule 424(b) under the Act on or before
the second business day after the date hereof (or such earlier time as may be
required under the Act) or, if no such filing is required, the form of final
prospectus included in the Registration Statement at the time it became
effective, is herein called the Prospectus.
The Company, the Selling Stockholders and the Underwriters agree
as follows:
1. Sale and Purchase. Upon the basis of the warranties and
representations and subject to the terms and conditions herein set forth, the
Company and each of the Selling Stockholders, severally and not jointly, agree
to sell to the respective Underwriters and each of the Underwriters, severally
and not jointly, agrees to purchase from the Company and each Selling
Stockholder the respective number of [Firm] Shares (subject to such adjustment
as you may determine to avoid fractional shares) which bears the same proportion
to the number of [Firm] Shares to be sold by the Company or by such Selling
Stockholders, as the case may be, as the number of [Firm] Shares set forth
opposite the name of such Underwriter in Schedule A annexed hereto bears to the
total number of [Firm] Shares to
(7) Insert language if "green shoe" is utilized.
(8) Insert language if form of Registration Statement allows documents to be
incorporated by reference.
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be sold by the Company and the Selling Stockholders, in each case at a purchase
price of $ per Share. The Company and each Selling Stockholder is advised by
you that the Underwriters intend (i) to make a public offering of their
respective portions of the [Firm] Shares as soon after the effective date of the
Registration Statement as in your judgment is advisable and (ii) initially to
offer the [Firm] Shares upon the terms set forth in the Prospectus. You may from
time to time increase or decrease the public offering price after the initial
public offering to such extent as you may determine.
[In addition, the [Company/Selling Stockholders listed on
Schedule B hereto/Company and the Selling Stockholders listed on Schedule B
hereto]9 hereby grant[s] to the several Underwriters the option to purchase, and
upon the basis of the warranties and representations and subject to the terms
and conditions herein set forth, the Underwriters shall have the right to
purchase, severally and not jointly, from the [Company/Selling Stockholders
listed on Schedule B hereto/Company and the Selling Stockholders listed on
Schedule B hereto],(9) ratably in accordance with the number of Firm Shares to
be purchased by each of them (subject to such adjustment as you shall determine
to avoid fractional shares), all or a portion of the Additional Shares as may be
necessary to cover over-allotments made in connection with the offering of the
Firm Shares, at the same purchase price per share to be paid by the Underwriters
to the [Company/Selling Stockholders listed on Schedule B hereto/Company and the
Selling Stockholders listed on Schedule B hereto](9) for the Firm Shares. This
option may be exercised by you on behalf of the several Underwriters at any time
(but not more than once) on or before the thirtieth day following the date
hereof, by written notice to the [Company/Selling Stockholders listed on
Schedule B hereto/Company and the Selling Stockholders listed on Schedule B
hereto].(9) Such notice shall set forth the aggregate number of Additional
Shares as to which the option is being exercised, and the date and time when the
Additional Shares are to be delivered (such date and time being herein referred
to as the additional time of purchase); provided, however, that the additional
time of purchase shall not be earlier than the time of purchase (as defined
below) nor earlier than the second business day(10) after the date on which the
option shall have been exercised nor later than the tenth business day after the
date on which the option shall have been exercised. The number of Additional
Shares to be sold to each Underwriter shall be the number which bears the same
proportion to the aggregate number of Additional Shares being purchased as the
number of Firm Shares set forth opposite the name of such Underwriter on
Schedule A hereto bears to the total number of Firm Shares (subject, in each
case, to such adjustment as you may determine to eliminate fractional shares).]
(9) Insert appropriate person(s) granting the over-allotment option.
(10) As used herein "business day" shall mean a day on which the New York
Stock Exchange is open for trading. [This footnote actually appears in
the Underwriting Agreement.]
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Pursuant to powers of attorney, which shall be satisfactory to
counsel for the Underwriters, granted by each Selling Stockholder, and
will act as representatives of the Selling Stockholders. The foregoing
representatives (the Representatives of the Selling Stockholders) are
authorized, on behalf of each Selling Stockholder, to execute any documents
necessary or desirable in connection with the sale of the Shares to be sold
hereunder by each Selling Stockholder, to make delivery of the certificates of
such Shares, to receive the proceeds of the sale of such Shares, to give
receipts for such proceeds, to pay therefrom the expenses to be borne by each
Selling Stockholder in connection with the sale and public offering of the
Shares, to distribute the balance of such proceeds to each Selling Stockholder
in proportion to the number of Shares sold by each Selling Stockholder, to
receive notices on behalf of each Selling Stockholder and to take such other
action as may be necessary or desirable in connection with the transactions
contemplated by this Agreement.
2. Payment and Delivery. Payment of the purchase price for the
[Firm] Shares shall be made to the Company and each of the Selling Stockholders
by Federal Funds wire transfer, against delivery of the certificates for the
[Firm] Shares to you through the facilities of the Depository Trust Company
(DTC) for the respective accounts of the Underwriters. Such payment and delivery
shall be made at 10:00 A.M., New York City time, on , 200 (unless
another time shall be agreed to by you, the Company and the Representatives of
the Selling Stockholders or unless postponed in accordance with the provisions
of Section 10 hereof). The time at which such payment and delivery are actually
made is hereinafter sometimes called the time of purchase. Certificates for the
[Firm] Shares shall be delivered to you in definitive form in such names and in
such denominations as you shall specify no later than the second business day
preceding the time of purchase. For the purpose of expediting the checking of
the certificates for the [Firm] Shares by you, the Company and the Selling
Stockholders agree to make such certificates available to you for such purpose
at least one full business day preceding the time of purchase.
[Payment of the purchase price for the Additional Shares shall
be made at the additional time of purchase in the same manner and at the same
office as the payment for the Firm Shares. Certificates for the Additional
Shares shall be delivered to you in definitive form in such names and in such
denominations as you shall specify no later than the second business day
preceding the additional time of purchase. For the purpose of expediting the
checking of the certificates for the Additional Shares by you, the
[Company/Selling Stockholders listed on Schedule B hereto/Company and the
Selling Stockholders listed on Schedule B hereto](11) agree[s] to make such
certificates available to you for such purpose at least one full business day
preceding the additional time of purchase.]
(11) Insert appropriate person(s) granting the over-allotment option.
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3. Representations and Warranties of the Company.(12) The
Company represents and warrants to each of the Underwriters that:
(a) the Company has not received, and has no notice of, any order
of the Commission preventing or suspending the use of any Preliminary
Prospectus, or instituting proceedings for that purpose, and each
Preliminary Prospectus, at the time of filing thereof, conformed in all
material respects to the requirements of the Act when the Registration
Statement becomes effective, the Registration Statement and the
Prospectus will fully comply in all material respects with the
provisions of the Act, and the Registration Statement will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, and the Prospectus will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the Prospectus
or to be filed as exhibits to the Registration Statement have been so
described or filed; provided, however, that the Company makes no
warranty or representation with respect to any statement contained in
the Registration Statement or the Prospectus in reliance upon and in
conformity with information concerning the Underwriters and furnished in
writing by or on behalf of any Underwriter through you to the Company
expressly for use in the Registration Statement or the Prospectus; [the
documents incorporated by reference in the Prospectus, at the time they
[became effective] were filed with the Commission, complied in all
material respects with the requirements of [the Act] the Exchange Act,
and do not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they
were made, not misleading] and the Company has not distributed any
offering material in connection with the offering or sale of the Shares
other than the Registration Statement, the Preliminary Prospectus, the
Prospectus or any other materials, if any, permitted by the Act;
(b) as of the date of this Agreement, the Company has an
authorized capitalization as set forth under the heading entitled
["Actual"] in the section of the Registration Statement and the
Prospectus entitled ["Capitalization"] and, as of the time of purchase
[and the additional time of purchase, as the case may be,] the Company
shall have an
(12) If a Selling Stockholder is a "controlling" or "significant"
stockholder, that Selling Stockholder may join the Company in making
these representations and warranties on a joint and several basis.
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authorized capitalization as set forth under the heading entitled ["As
Adjusted"] in the section of the Registration Statement and the
Prospectus entitled ["Capitalization"]; all of the issued and
outstanding shares of capital stock including [Common Stock] of the
Company have been duly and validly authorized and issued and are fully
paid and non-assessable , have been issued in compliance with all
federal and state securities laws and were not issued in violation of
any preemptive right, resale right, right of first refusal or similar
right;
(c) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of , with full power and authority to own, lease and operate
its properties and conduct its business as described in the Registration
Statement;
(d) the Company is duly qualified to do business as a foreign
corporation in good standing in each jurisdiction where the ownership or
leasing of its properties or the conduct of its business requires such
qualification, except where the failure to so qualify would not have a
material adverse effect on the business, properties, financial condition
or results of operation of the Company and its Subsidiaries (as
hereinafter defined) taken as a whole (a "Material Adverse Effect"). The
Company has no subsidiaries (as defined in the Rules and Regulations)
other than ____________ (collectively, the "Subsidiaries"); the Company
owns __% of the outstanding common stock of ____________; other than the
Subsidiaries, the Company does not own, directly or indirectly, any
shares of stock or any other equity or long-term debt securities of any
corporation or have any equity interest in any firm, partnership, joint
venture, association or other entity; complete and correct copies of the
certificates of incorporation and of the bylaws of the Company and the
Subsidiaries and all amendments thereto have been delivered to you, and
except as set forth in the exhibits to the Registration Statement no
changes therein will be made subsequent to the date hereof and prior to
the Closing Date or, if later, the Option Closing Date; each Subsidiary
has been duly incorporated and is validly existing as a corporation in
good standing under the laws of the jurisdiction of its incorporation,
with full corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Registration
Statement; each Subsidiary is duly qualified to do business as a foreign
corporation in good standing in each jurisdiction where the ownership or
leasing of the properties or the conduct of its business requires such
qualification, except where the failure to so qualify would not have a
Material Adverse Effect; all of the outstanding shares of capital stock
of each of the Subsidiaries have been duly authorized and validly
issued, are fully paid and non-assessable and (except as otherwise
described in this Section 3(d)) are owned by the Company subject to no
security interest, other encumbrance or adverse claims; no options,
warrants or other rights to purchase, agreements or other obligations to
issue or other rights to convert any obligation into shares of capital
stock or ownership interests in the Subsidiaries are outstanding.
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(e) the Company and each of its subsidiaries (the Subsidiaries)
are duly qualified or licensed by and are in good standing in each
jurisdiction in which they conduct their respective businesses and in
which the failure, individually or in the aggregate, to be so licensed
or qualified could have a material adverse effect on the operations,
business, condition, prospects or property of the Company and its
Subsidiaries, taken as a whole (a "Material Advisory Effect"); and the
Company and each of its Subsidiaries are in compliance in all material
respects with the laws, orders, rules, regulations and directives issued
or administered by such jurisdictions;
(f) neither the Company nor any of its Subsidiaries is in breach
of, or in default under (nor has any event occurred which with notice,
lapse of time, or both would result in any breach of, or constitute a
default under), its respective charter or by-laws or in the performance
or observance of any obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any lease, Contract or
other agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which any of them or any of their
properties is bound, and the execution, delivery and performance of this
Agreement, the issuance and sale of the Shares and the consummation of
the transactions contemplated hereby will not conflict with, or result
in any breach of or constitute a default under (nor constitute any event
which with notice, lapse of time, or both would result in any breach of,
or constitute a default under), any provisions of the charter or
by-laws, of the Company or any of its Subsidiaries or under any
provision of any license, indenture, mortgage, deed of trust, bank loan
or credit agreement or other evidence of indebtedness, or any lease,
Contract or other agreement or instrument to which the Company or any of
its Subsidiaries is a party or by which any of them or their respective
properties may be bound or affected, or under any federal, state, local
or foreign law, regulation or rule or any decree, judgment or order
applicable to the Company or any of its Subsidiaries;
(g) this Agreement has been duly authorized, executed and
delivered by the Company and is a legal, valid and binding agreement of
the Company enforceable in accordance with its terms;
(h) the capital stock of the Company, including the Shares,
conforms in all material respects to the description thereof contained
in the Registration Statement and Prospectus and the certificates for
the Shares are in due and proper form and the holders of the Shares will
not be subject to personal liability by reason of being such holders;
(i) the Shares have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will
be duly and validly issued and fully paid and non-assessable;
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(j) no approval, authorization, consent or order of or filing
with any national, state or local governmental or regulatory commission,
board, body, authority or agency is required in connection with the
issuance and sale of the Shares or the consummation by the Company of
the transaction as contemplated hereby other than registration of the
Shares under the Act and any necessary qualification under the
securities or blue sky laws of the various jurisdictions in which the
Shares are being offered by the Underwriters or under the rules and
regulations of the National Association of Securities Dealers, Inc.
(NASD);
(k) no person has the right, contractual or otherwise, to cause
the Company to issue to it, or register pursuant to the Act, any shares
of capital stock of the Company upon the issue and sale of the Shares to
the Underwriters hereunder, nor does any person have preemptive rights,
co-sale rights, rights of first refusal or other rights to purchase any
of the Shares other than those that have been expressly waived prior to
the dates hereof;
(l) [insert name of Company's accountants], whose report[s] on
the consolidated financial statements of the Company and its
Subsidiaries [is] are filed with the Commission as part of the
Registration Statement and Prospectus, are [each] independent public
accountants as required by the Act;
(m) each of the Company and its Subsidiaries has all necessary
licenses, authorizations, consents and approvals and has made all
necessary filings required under any federal, state, local or foreign
law, regulation or rule, and has obtained all necessary authorizations,
consents and approvals from other persons, in order to conduct its
respective business; neither the Company nor any of its Subsidiaries is
in violation of, or in default under, any such license, authorization,
consent or approval or any federal, state, local or foreign law,
regulation or rule or any decree, order or judgment applicable to the
Company or any of its Subsidiaries the effect of which could have a
Material Adverse Effect;
(n) all legal or governmental proceedings, contracts, leases or
documents of a character required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement have been so described or filed as required;
(o) there are no actions, suits, claims, investigations or
proceedings pending or threatened to which the Company or any of its
Subsidiaries or any of their respective officers is a party or of which
any of their respective properties is subject at law or in equity, or
before or by any federal, state, local or foreign governmental or
regulatory commission, board, body, authority or agency which could
result in a judgment, decree or order having a Material Adverse Effect
or consummation of the transaction contemplated hereby;
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(p) the audited financial statements included in the Registration
Statement and the Prospectus present fairly the consolidated financial
position of the Company and its Subsidiaries as of the dates indicated
and the consolidated results of operations and cash flows of the Company
and its Subsidiaries for the periods specified; such financial
statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis during the periods
involved;
(q) subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not
been (i) any material adverse change, or any development which, in the
Company's reasonable judgment, is likely to cause a material adverse
change, in the business, properties or assets described or referred to
in the Registration Statement, or the results of operations, condition
(financial or otherwise), business or operations of the Company and its
Subsidiaries taken as a whole, (ii) any transaction which is material to
the Company or its Subsidiaries, except transactions in the ordinary
course of business, (iii) any obligation, direct or contingent, which is
material to the Company and its Subsidiaries taken as a whole, incurred
by the Company or its Subsidiaries, except obligations incurred in the
ordinary course of business, (iv) any change in the capital stock or
outstanding indebtedness of the Company or its Subsidiaries or (v) any
dividend or distribution of any kind declared, paid or made on the
capital stock of the Company. Neither the Company nor its Subsidiaries
has any material contingent obligation which is not disclosed in the
Registration Statement.
(r) the Company has obtained the agreement of each of the Selling
Stockholders and of [each of its directors and officers and certain of
its other stockholders] not to sell, offer to sell, contract to sell,
hypothecate grant any option to sell or otherwise dispose of, directly
or indirectly, any shares of Common Stock or securities convertible into
or exchangeable for Common Stock or warrants or other rights to purchase
Common Stock for a period of [ ] days after the date of the Prospectus;
(s) the Company is not and, after giving effect to the offering
and sale of the Shares, will not be an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in
the Investment Company Act of 1940, as amended (the "Investment Company
Act");
[ADDITIONAL REPRESENTATIONS TO BE ADDED AS APPROPRIATE - Add additional
representations and warranties on particular subsidiaries, franchises, titles to
real properties, intellectual property rights, labor, environmental matters,
absence of brokerage commission or finder's fees, etc., as appropriate in
particular cases].
4. Representations and Warranties of the Selling Stockholders.
Each Selling Stockholder, severally and not jointly, represents and warrants to
each Underwriter that:
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(a) such Selling Stockholder now is and at the time of delivery
of such Shares (whether the time of purchase or additional time of
purchase, as the case may be) will be, the lawful owner of the number of
Shares to be sold by such Selling Stockholder pursuant to this Agreement
and has and, at the time of delivery thereof, will have valid and
marketable title to such Shares, and upon delivery of and payment for
such Shares (whether at the time of purchase or the additional time of
purchase, as the case may be), the Underwriters will acquire valid and
marketable title to such Shares free and clear of any claim, lien,
encumbrance, security interest, community property right, restriction on
transfer or other defect in title;
(b) such Selling Stockholder has and at the time of delivery of
such Shares (whether the time of purchase or additional time of
purchase, as the case may be) will have, full legal right, power and
capacity, and any approval required by law (other than those imposed by
the Act and the securities or blue sky laws of certain jurisdictions),
to sell, assign, transfer and deliver such Shares in the manner provided
in this Agreement;
(c) this Agreement and the Custody Agreement among , as
custodian, and the Selling Stockholders (the Custody Agreement) have
been duly executed and delivered by such Selling Stockholder and each is
a legal, valid and binding agreement of such Selling Stockholder
enforceable in accordance with its terms;
(d) when the Registration Statement becomes effective and at all
times subsequent thereto through the latest of the time of purchase,
additional time of purchase or the termination of the offering of the
Shares, the Registration Statement and Prospectus, and any supplements
or amendments thereto as relate to such Selling Stockholder will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading;
(e) such Selling Stockholder has duly and irrevocably authorized
the Representatives of the Selling Stockholders, on behalf of such
Selling Stockholder, to execute and deliver this Agreement and any other
document necessary or desirable in connection with the transactions
contemplated thereby and to deliver the Shares to be sold by such
Selling Stockholder and receive payment therefor pursuant hereto; and
(f) the sale of such Selling Stockholder's Shares pursuant to
this Agreement is not prompted by any information concerning the Company
which is not set forth in the Prospectus.
5. Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise
to cooperate in qualifying the Shares for offering and sale under the
securities or blue sky laws of
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such states as you may designate and to maintain such qualifications in
effect so long as required for the distribution of the Shares; provided
that the Company shall not be required to qualify as a foreign
corporation or to consent to the service of process under the laws of
any such state (except service of process with respect to the offering
and sale of the Shares); and to promptly advise you of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Shares for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as
soon as practicable after the Registration Statement becomes effective,
and thereafter from time to time to furnish to the Underwriters, as many
copies of the Prospectus (or of the Prospectus as amended or
supplemented if the Company shall have made any amendments or
supplements thereto after the effective date of the Registration
Statement) as the Underwriters may request for the purposes contemplated
by the Act; in case any Underwriter is required to deliver a prospectus
within the nine-month period referred to in Section 10(a)(3) of the Act
in connection with the sale of the Shares, the Company will prepare
promptly upon request, but at the expense of such Underwriter, such
amendment or amendments to the Registration Statement and such
prospectuses as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the Act;
(c) to advise you promptly and (if requested by you) to confirm
such advice in writing, (i) when the Registration Statement has become
effective and when any post-effective amendment thereto becomes
effective and (ii) if Rule 430A under the Act is used, when the
Prospectus is filed with the Commission pursuant to Rule 424(b) under
the Act (which the Company agrees to file in a timely manner under such
Rules);
(d) to advise you promptly, confirming such advice in writing, of
any request by the Commission for amendments or supplements to the
Registration Statement or Prospectus or for additional information with
respect thereto, or of notice of institution of proceedings for, or the
entry of a stop order suspending the effectiveness of the Registration
Statement and, if the Commission should enter a stop order suspending
the effectiveness of the Registration Statement, to make every
reasonable effort to obtain the lifting or removal of such order as soon
as possible; to advise you promptly of any proposal to amend or
supplement the Registration Statement or Prospectus [including by filing
any documents that would be incorporated therein by reference] and to
file no such amendment or supplement to which you shall object in
writing;
(e) to file promptly all reports and any definitive proxy or
information statement required to be filed by the Company with the
Commission in order to comply with the Exchange Act subsequent to the
date of the Prospectus and for so long as the delivery of a prospectus
is required in connection with the offering or sale of the shares, and
to promptly notify you of such filing;
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(f) if necessary or appropriate, to file a registration statement
pursuant to Rule 462(b) under the Act;
(g) to furnish to you and, upon request, to each of the other
Underwriters for a period of five years from the date of this Agreement
(i) copies of any reports or other communications which the Company
shall send to its stockholders or shall from time to time publish or
publicly disseminate, (ii) copies of all annual, quarterly and current
reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such
other similar form as may be designated by the Commission, (iii) copies
of documents or reports filed with any national securities exchange on
which any class of securities of the Company is listed, and (iv) such
other information as you may reasonably request regarding the Company or
its Subsidiaries [, in each case as soon as __________ communications,
documents or information becomes available];
(h) to advise the Underwriters promptly of the happening of any
event known to the Company within the time during which a Prospectus
relating to the Shares is required to be delivered under the Act which,
in the judgment of the Company, would require the making of any change
in the Prospectus then being used [, or in the information incorporated
therein by reference,] so that the Prospectus would not include an
untrue statement of material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading, and, during
such time, to prepare and furnish, at the Company's expense, to the
Underwriters promptly such amendments or supplements to such Prospectus
as may be necessary to reflect any such change and to furnish you a copy
of such proposed amendment or supplement before filing any such
amendment or supplement with the Commission;
(i) to make generally available to its security holders, and to
deliver to you, an earnings statement of the Company (which will satisfy
the provisions of Section 11(a) of the Act) covering a period of twelve
months beginning after the effective date of the Registration Statement
(as defined in Rule 158(c) of the Act) as soon as is reasonably
practicable after the termination of such twelve-month period but not
later than _________, 200__;
(j) to furnish to its shareholders as soon as practicable after
the end of each fiscal year an annual report (including a balance sheet
and statements of income, shareholders' equity and of cash flow of the
Company for such fiscal year, accompanied by a copy of the certificate
or report thereon of nationally recognized independent certified public
accountants;
14
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(k) to furnish to you [ ](13) signed copies of the Registration
Statement, as initially filed with the Commission, and of all amendments
thereto (including all exhibits thereto [and documents incorporated by
reference therein]) and sufficient conformed copies of the foregoing
(other than exhibits) for distribution of a copy to each of the other
Underwriters;
(l) to furnish to you as early as practicable prior to the time
of purchase [and the additional time of purchase, as the case may be],
but not later than two business days prior thereto, a copy of the latest
available unaudited interim consolidated financial statements, if any,
of the Company and its Subsidiaries which have been read by the
Company's independent certified public accountants, as stated in their
letter to be furnished pursuant to Section 8(c) hereof;
(m) to apply the net proceeds from the sale of the Shares in the
manner set forth under the caption "Use of Proceeds" in the Prospectus;
(n) to furnish to you, before filing with the Commission
subsequent to the effective date of the Registration Statement and
during the period referred to in paragraph (f) above, a copy of any
document proposed to be filed pursuant to Section 13, 14 or 15(d) of the
Exchange Act;
(o) not to sell, offer or agree to sell, contract to sell, grant
any option to sell or otherwise dispose of, directly or indirectly, any
shares of Common Stock or securities convertible into or exchangeable or
exercisable for Common Stock or warrants or other rights to purchase
Common Stock [or any other Securities of the Company that are
substantially similar to Common Stock] or permit the registration under
the Act of any shares of Common Stock, except for the registration of
the Shares and the sales to the Underwriters pursuant to this Agreement
and except for issuances of Common Stock upon the exercise of
outstanding options, warrants and debentures, for a period of [ ] days
after the date hereof, without the prior written consent of the WDR; and
(p) [to use its best efforts to cause [the Common Stock] to be
listed on the [ ] Exchange [for quotation on the National Association of
Securities Dealers Automated Quotation National Market System
("NASDAQ")].
6. Certain Covenants of the Company and the Selling
Stockholders. The Company and each of the Selling Stockholders agree with each
Underwriter as follows:
--------------
(13) One copy for each Managing Underwriter and one copy for counsel for the
Underwriters.
15
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(a) the Company and the Selling Stockholders, in such proportions
(aggregating 100%) as the number of Shares to be sold by the Company and
by each such Selling Stockholder bears to the total number of Shares or
as they otherwise may determine among themselves, will pay all expenses,
fees and taxes (other than any transfer taxes and fees and disbursements
of counsel for the Underwriters except as set forth under Section 7
hereof or (iii) or (iv) below) in connection with (i) the preparation
and filing of the Registration Statement, each Preliminary Prospectus,
the Prospectus, and any amendments or supplements thereto, and the
printing and furnishing of copies of each thereof to the Underwriters
and to dealers (including costs of mailing and shipment), (ii) the
issuance, sale and delivery of the Shares by the Company and the Selling
Stockholders, (iii) the word processing and/or printing of this
Agreement, any Agreement Among Underwriters, any dealer agreements, any
Statements of Information, the Custody Agreement and the Powers of
Attorney and the reproduction and/or printing and furnishing of copies
of each thereof to the Underwriters and to dealers (including costs of
mailing and shipment), (iv) the qualification of the Shares for offering
and sale under state laws and the determination of their eligibility for
investment under state law as aforesaid (including the legal fees and
filing fees and other disbursements of counsel to the Underwriters) and
the printing and furnishing of copies of any blue sky surveys or legal
investment surveys to the Underwriters and to dealers, (v) any listing
of the Shares on any securities exchange or qualification of the Shares
for quotation on NASDAQ and any registration thereof under the Exchange
Act, (vi) the filing for review of the public offering of the Shares by
the National Association of Securities Dealers, Inc. (the NASD), and
(vii) the performance of the Company's and the Selling Stockholders'
other obligations hereunder; and
(b) the Company and the Selling Stockholders will not issue,
sell, grant any option to sell or otherwise dispose of, directly or
indirectly, any shares of Common Stock or securities convertible into or
exchangeable for Common Stock or warrants or other rights to purchase
Common Stock or, in the case of the Company, permit the registration
under the Act of any shares of Common Stock, except for the registration
of the Shares and the sales to the Underwriters pursuant to this
Agreement and except for issuances of Common Stock upon the exercise of
outstanding options, warrants and debentures, for a period of [ ] days
after the date of the Prospectus, without the prior written consent of
the Managing Underwriter[s].
7. Reimbursement of Underwriters' Expenses. If the Shares are
not delivered for any reason other than the termination of this Agreement
pursuant to the first two paragraphs of Section 10 hereof or the default by one
or more of the Underwriters in its or their respective obligations hereunder,
the Company shall, in addition to paying the amounts described in Section 6(a)
hereof, reimburse the Underwriters for all of their out-of-pocket expenses,
including the fees and disbursements of their counsel.
16
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8. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters hereunder are subject to the accuracy of the
representations and warranties on the part of the Company and the Selling
Stockholders on the date hereof and at the time of purchase [(and the several
obligations of the Underwriters at the additional time of purchase are subject
to the accuracy of the representations and warranties on the part of the Company
and the Selling Stockholders on the date hereof and at the time of purchase
(unless previously waived) and at the additional time of purchase, as the case
may be)], the performance by the Company and the Selling Stockholders of their
obligations hereunder and to the following additional conditions precedent:
(a) The Company shall furnish to you at the time of purchase [and
at the additional time of purchase, as the case may be,] an opinion of
[insert name of Company counsel],(14) counsel for the Company, addressed
to the Underwriters, and dated the time of purchase [or the additional
time of purchase, as the case may be,] with reproduced copies for each
of the other Underwriters and in form satisfactory to [insert name of
Underwriters' counsel], counsel for the Underwriters, stating that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the
State of , with full corporate power and authority to own, lease
and operate its properties and conduct its business as described
in the Registration Statement and the Prospectus, to execute and
deliver this Agreement and to issue, sell and deliver the Shares
as herein contemplated;
(ii) each of the Subsidiaries has been duly incorporated and
is validly existing as a corporation in good standing under the
laws of its respective jurisdiction of incorporation with full
corporate power and authority to own, lease and operate its
respective properties and to conduct its respective business;
(iii) the Company and its Subsidiaries are duly qualified or
licensed by each jurisdiction in which they conduct their
respective businesses and in which the failure, individually or
in the aggregate, to be so licensed or qualified could have a
Material Adverse Effect and the Company and its Subsidiaries are
duly qualified, and are in good standing, in each jurisdiction in
which they own or lease real property or maintain an office and
in which such qualification is necessary;
--------------
(14) If the Company and the Selling Stockholders have the same counsel, there
will only be one opinion. This form assumes that the Company and the
Selling Stockholders have separate counsel.
17
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(iv) this Agreement has been duly authorized, executed and
delivered by the Company;
(v) the Shares have been duly authorized and, when issued and
delivered to and paid for by the Underwriters, will be duly and
validly and issued and will be fully paid and non-assessable;
(vi) the Company has an authorized capitalization as set
forth in the Registration Statement and the Prospectus; the
outstanding shares of capital stock of the Company have been duly
and validly authorized and issued, and are fully paid,
nonassessable and free of statutory and contractual preemptive
rights; the Shares when issued will be free of statutory and
contractual preemptive rights, resale rights, rights of first
refusal and similar rights; the certificates for the Shares are
in due and proper form and the holders of the Shares will not be
subject to personal liability by reason of being such holders;
(vii) other than the Subsidiaries, the Company does not own
or control, directly or indirectly, any corporation, association
or other entity; each Subsidiary has been duly incorporated and
is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, with full
corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the
Registration Statement; each Subsidiary is duly qualified to do
business as a foreign corporation in good standing in each
jurisdiction where the ownership or leasing of the properties or
the conduct of its business requires such qualification, except
where the failure to so qualify would not have a Material Adverse
Effect; all of the outstanding shares of capital stock of each of
the Subsidiaries have been duly authorized and validly issued,
are fully paid and non-assessable and, except as otherwise stated
in the Registration Statement, are owned by the Company, in each
case subject to no security interest, other encumbrance or
adverse claim; to the best of such counsel's knowledge, no
options, warrants or other rights to purchase, agreements or
other obligations to issue or other rights to convert any
obligation into shares of capital stock or ownership interests in
the Subsidiaries are outstanding;
(viii) the capital stock of the Company, including the
Shares, conforms to the description thereof contained in the
Registration Statement and Prospectus;
(ix) the Registration Statement and the Prospectus (except as
to the financial statements and schedules and other financial and
statistical data contained or incorporated by reference therein,
as to which such counsel need express no opinion) comply as to
form in all material respects with the requirements of the Act;
18
-17-
(x) the Registration Statement has become effective under the
Act and, to the best of such counsel's knowledge, no stop order
proceedings with respect thereto are pending or threatened under
the Act and any required filing of the Prospectus and any
supplement thereto pursuant to Rule 424 under the Act has been
made in the manner and within the time period required by such
Rule 424;
(xi) no approval, authorization, consent or order of or
filing with any national, state or local governmental or
regulatory commission, board, body, authority or agency is
required in connection with the issuance and sale of the Shares
and consummation by the Company of the transaction as
contemplated hereby other than registration of the Shares under
the Act (except such counsel need express no opinion as to any
necessary qualification under the state securities or blue sky
laws of the various jurisdictions in which the Shares are being
offered by the Underwriters);
(xii) the execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of
the transactions contemplated hereby do not and will not conflict
with, or result in any breach of, or constitute a default under
(nor constitute any event which with notice, lapse of time, or
both, would result in any breach of or constitute a default
under), any provisions of the charter or by-laws of the Company
or any of its Subsidiaries or under any provision of any license,
indenture, mortgage, deed of trust, bank loan, credit agreement
or other evidence of indebtedness, or any lease, contract or
other agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which any of them or their
respective properties may be bound or affected, or under any
federal, state, local or foreign law, regulation or rule or any
decree, judgment or order applicable to the Company or any of its
Subsidiaries;
(xiii) to the best of such counsel's knowledge, neither the
Company nor any of its Subsidiaries is in violation of its
charter or by-laws or is in breach of, or in default under (nor
has any event occurred which with notice, lapse of time, or both
would result in any breach of, or constitute a default under),
any license, indenture, mortgage, deed of trust, bank loan or any
other agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which any of them or their
respective properties may be bound or affected or under any
federal, state, local or foreign law, regulation or rule or any
decree, judgment or order applicable to the Company or any of its
Subsidiaries;
(xiv) to the best of such counsel's knowledge, there are no
contracts, licenses, agreements, leases or documents of a
character which are required to be filed as exhibits to the
Registration Statement or to be summarized or described in the
Prospectus which have not been so filed, summarized or described;
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-18-
(xv) to the best of such counsel's knowledge, there are no
actions, suits, claims, investigations or proceedings pending,
threatened or contemplated to which the Company or any of its
Subsidiaries is subject or of which any of their respective
properties, is subject at law or in equity or before or by any
federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency which are required
to be described in the Prospectus but are not so described;
(xvi) [the documents incorporated by reference in the
Registration Statement and Prospectus, when they [became
effective] were filed (or, if an amendment with respect to any
such document was filed when such amendment was filed) with the
Commission, complied as to form in all material respects with the
Exchange Act (except as to the financial statements and schedules
and other financial and statistical data contained or
incorporated by reference therein as to which such counsel need
express no opinion);]
(xvii) the Company will not, upon consummation of the
transactions contemplated by this Agreement, be an "investment
company," or a "promoter" or "principal underwriter" for, a
"registered investment company," as such terms are defined in the
Investment Company Act of 1940, as amended;
(xviii)[such counsel have read the description of the
Company's business in the Prospectus and the statements in the
Prospectus under the captions [Reference Summaries of Applicable
FDA Regulation] (the "FDA Portion") and, to the best of such
counsel's knowledge, (A) the statements included in the FDA
Portion, insofar as such statements summarize provisions of
applicable FDA statutes and regulations, are accurate in all
material respects and (B) the FDA statutes and regulations
summarized in the FDA Portion are the FDA statutes and
regulations that are material to the Company's business as
described in the Prospectus](15);
(xix) such counsel have participated in conferences with
officers and other representatives of the Company,
representatives of the independent public accountants of the
Company and representatives of the Underwriters at which the
contents of the Registration Statement and Prospectus were
discussed and, although such counsel is not passing upon and does
not assume responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration
Statement or Prospectus (except as and to the extent stated in
subparagraphs (vi) and (viii) above), on the basis of the
foregoing nothing has come to the attention of such counsel that
-----------------
(15) Insert if relevant to the Company's business.
20
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causes them to believe that the Registration Statement or any
amendment thereto at the time such Registration Statement or
amendment became effective contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, or that the Prospectus or any supplement thereto at
the date of such Prospectus or such supplement, and at all times
up to and including the time of purchase [or additional time of
purchase, as the case may be,] contained 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, in
light of the circumstances under which they were made, not
misleading (it being understood that such counsel need express no
opinion with respect to the financial statements and schedules
and other financial and statistical data included in the
Registration Statement or Prospectus).
(b) The Selling Stockholders shall furnish to you at the time of
purchase [and at the additional time of purchase, as the case may be,]
an opinion of , counsel for the Selling Stockholders, addressed to
the Underwriters, and dated the time of purchase [or the additional time
of purchase, as the case may be], with reproduced copies for each of the
other Underwriters, and in form and substance satisfactory to [insert
name of Underwriters' counsel], counsel for the Underwriters, stating
that:
(i) this Agreement and the Custody Agreement have been duly
executed and delivered by or on behalf of each of the Selling
Stockholders;
(ii) each Selling Stockholder has full legal right and power,
and has obtained any authorization or approval required by law
(other than those imposed by the Act and the securities or blue
sky laws of certain jurisdictions), to sell, assign, transfer and
deliver the Shares to be sold by such Selling Stockholder in the
manner provided in this Agreement;
(iii) delivery of certificates for the Shares by each Selling
Stockholder pursuant hereto will pass valid and marketable title
thereto to the Underwriters, free and clear of any claim, lien,
encumbrance, security interest, community property right,
restriction on transfer or other defect in title;
(iv) each of the Representatives of the Selling Stockholders
has been duly authorized by each Selling Stockholder to execute
and deliver on behalf of such Selling Stockholder this Agreement
and any other document necessary or desirable in connection with
the transactions contemplated hereby and to deliver the Shares to
be sold by such Selling Stockholder; and
(v) to the best of such counsel's knowledge, the statements
in the Prospectus under the caption ["Principal and Selling
Stockholders"] insofar as such state-
21
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ments constitute a summary of the matters referred to therein
present fairly the information called for with respect to such
matters.
(c) You shall have received from [insert name of auditors],
letters dated, respectively, the date of this Agreement and the time of
purchase [and additional time of purchase], as the case may be, and
addressed to the Underwriters (with reproduced copies for each of the
Underwriters) in the forms heretofore approved by the WDR.
(d) You shall have received at the time of purchase [and at the
additional time of purchase, as the case may be,] the favorable opinion
of [insert name of Underwriters' counsel], counsel for the Underwriters,
dated the time of purchase [or the additional time of purchase, as the
case may be,] as to the matters referred to in subparagraphs (iv), (v),
(viii) (with respect to the Shares only), (ix) and (x) of paragraph (a)
of this Section 8.
In addition, such counsel shall state that such counsel have
participated in conferences with officers and other representatives of
the Company, counsel for the Company, representatives of the independent
public accountants of the Company and representatives of the
Underwriters at which the contents of the Registration Statement and
Prospectus and related matters were discussed and, although such counsel
is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and Prospectus (except as to matters referred to
with respect to the Shares under subparagraph (viii) of paragraph (a) of
this Section 8), on the basis of the foregoing (relying as to
materiality to a large extent upon the opinions of officers and other
representatives of the Company), no facts have come to the attention of
such counsel which lead them to believe that the Registration Statement
or any amendment thereto at the time such Registration Statement or
amendment became effective contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that the
Prospectus as of its date or any supplement thereto as of its date
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, in light of the circumstances under which they were
made, not misleading (it being understood that such counsel need express
no comment with respect to the financial statements and schedules and
other financial and statistical data included in the Registration
Statement or Prospectus).
(e) No amendment or supplement to the Registration Statement or
Prospectus [, including documents deemed to be incorporated by reference
therein,] shall be filed prior to the time the Registration Statement
becomes effective to which you object in writing.
(f) The Registration Statement shall become effective, or if Rule
430A under the Act is used, the Prospectus shall have been filed with
the Commission pursuant to
22
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Rule 424(b) under the Act, at or before 5:00 P.M., New York City time,
on the date of this Agreement, unless a later time (but not later than
5:00 P.M., New York City time, on the second full business day after the
date of this Agreement) shall be agreed to by the Company, the
Representatives of the Selling Stockholders and you in writing or by
telephone, confirmed in writing; provided, however, that the Company,
the Representatives of the Selling Stockholders and you and any group of
Underwriters, including you, who have agreed hereunder to purchase in
the aggregate at least 50% of the [Firm] Shares may from time to time
agree on a later date.
(g) Prior to the time of purchase [or the additional time of
purchase, as the case may be,] (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued under
the Act or proceedings initiated under Section 8(d) or 8(e) of the Act;
(ii) the Registration Statement and all amendments thereto, or
modifications thereof, if any, shall not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and
(iii) the Prospectus and all amendments or supplements thereto, or
modifications thereof, if any, shall not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
(h) Between the time of execution of this Agreement and the time
of purchase [or the additional time of purchase, as the case may be,]
(i) no material and unfavorable change, financial or otherwise (other
than as referred to in the Registration Statement and Prospectus), in
the business, condition or prospects of the Company and its Subsidiaries
taken as a whole shall occur or become known and (ii) no transaction
which is material and unfavorable to the Company shall have been entered
into by the Company or any of its Subsidiaries.
(i) The Company will, at the time of purchase [or additional time
of purchase, as the case may be,] deliver to you a certificate of two of
its executive officers to the effect that the representations and
warranties of the Company as set forth in this Agreement are true and
correct as of [each] such date, that the Company shall perform such of
its obligations under this Agreement as are to be performed at or before
the time of purchase [and at or before the additional time of purchase,
as the case may be] and the conditions set forth in paragraphs (g) and
(h) of this Section 8 have been met.
(j) You shall have received signed letters, dated the date of
this Agreement, from each of the Selling Stockholders [and each of the
directors and officers of the Company and certain of its other
stockholders] to the effect that such persons shall not sell, offer or
agree to sell, contract to sell, grant any option to sell or otherwise
dispose of, directly or indirectly, any shares of Common Stock of the
Company or securities convertible into or
23
-22-
exchangeable or exercisable for Common Stock or warrants or other rights
to purchase Common Stock [or any other securities of the Company that
are substantially similar to the Common Stock] for a period of [ ] days
after the date of the Prospectus without WDR's prior written consent.
(k) The Company and the Selling Stockholders shall have furnished
to you such other documents and certificates as to the accuracy and
completeness of any statement in the Registration Statement and the
Prospectus as of the time of purchase [and the additional time of
purchase, as the case may be,] as you may reasonably request.
(l) The Shares shall have been approved for listing on the
Exchange [or listing for quotation on NASDAQ], subject only to notice of
issuance at or prior to the time of purchase. [or the additional time of
purchase, as the case may be].
(m) The Selling Stockholders will at the time of purchase [and
the additional time of purchase, as the case may be] deliver to you a
certificate of the Representatives of the Selling Stockholders to the
effect that the representations and the warranties of the Selling
Stockholders as set forth in this Agreement are true and correct as of
each such date.
(n) Between the time of execution of this Agreement and the time
of purchase [or additional time of purchase, as the case may be], there
shall not have occurred any downgrading, nor shall any notice or
announcement have been given or made of (i) any intended or potential
downgrading or (ii) any review or possible change that does not indicate
an improvement, in the rating accorded any securities of or guaranteed
by the Company [or any Subsidiary] by any "nationally recognized
statistical rating organization", as that term is defined in Rule
436(g)(2) under the Act.
9. Effective Date of Agreement; Termination. This Agreement
shall become effective (i) if Rule 430A under the Act is not used, when you
shall have received notification of the effectiveness of the Registration
Statement, or (ii) if Rule 430A under the Act is used, when the parties hereto
have executed and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be
subject to termination in the absolute discretion of you or any group of
Underwriters (which may include you) which has agreed to purchase in the
aggregate at least 50% of the [Firm] Shares, if, since the time of execution of
this Agreement or the respective dates as of which information is given in the
Registration Statement and Prospectus, (y) there has been any material adverse
and unfavorable change, financial or otherwise (other than as referred to in the
Registration Statement and Prospectus), in the operations, business, condition
or prospects of the Company and its Subsidiaries taken as a whole, which would,
in your judgment or in the judgment of such group of Underwriters, make it
impracticable to market the Shares, or (z) there shall have occurred any
downgrading, or any notice shall have been given of (i) any in-
24
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tended or potential downgrading or (ii) any review or possible change that
does not indicate an improvement, in the rating accorded any securities of or
guaranteed by the Company [or any Subsidiary] by any "nationally recognized
statistical rating organization", as that term is defined in Rule 436(g)(2)
under the Act or, if, at any time prior to the time of purchase [or, with
respect to the purchase of any Additional Shares, the additional time of
purchase, as the case may be,] trading in securities on the New York Stock
Exchange, the American Stock Exchange or the NASDAQ National Market shall have
been suspended or limitations or minimum prices shall have been established on
the New York Stock Exchange, the American Stock Exchange or the NASDAQ National
Market or if a banking moratorium shall have been declared either by the United
States or New York State authorities, or if the United States shall have
declared war in accordance with its constitutional processes or there shall have
occurred any material outbreak or escalation of hostilities or other national or
international calamity or crisis of such magnitude in its effect on the
financial markets of the United States as, in your judgment or in the judgment
of such group of Underwriters, to make it impracticable to market the Shares.
If you or any group of Underwriters elects to terminate this
Agreement as provided in this Section 9, the Company, the Representatives of the
Selling Stockholders and each other Underwriter shall be notified promptly by
letter or telegram.
If the sale to the Underwriters of the Shares, as contemplated
by this Agreement, is not carried out by the Underwriters for any reason
permitted under this Agreement or if such sale is not carried out because the
Company or the Selling Stockholders, as the case may be, shall be unable to
comply with any of the terms of this Agreement, the Company or the Selling
Stockholders, as the case may be, shall not be under any obligation or liability
under this Agreement (except to the extent provided in Sections 6(a), 7 and 11
hereof), and the Underwriters shall be under no obligation or liability to the
Company and the Selling Stockholders under this Agreement (except to the extent
provided in Section 11 hereof) or to one another hereunder.
10. Increase in Underwriters' Commitments. Subject to Sections 8
and 9, if any Underwriter shall default in its obligation to take up and pay for
the [Firm] Shares to be purchased by it hereunder (otherwise than for reasons
sufficient to justify the termination of this Agreement under the provisions of
Section 9 hereof) and if the number of [Firm] Shares which all Underwriters so
defaulting shall have agreed but failed to take up and pay for does not exceed
10% of the total number of [Firm] Shares, the non-defaulting Underwriters shall
take up and pay for (in addition to the number of [Firm] Shares they are
obligated to purchase pursuant to Section 1 hereof) the number of [Firm] Shares
agreed to be purchased by all such defaulting Underwriters, as hereinafter
provided. Such Shares shall be taken up and paid for by such non-defaulting
Underwriter or Underwriters in such amount or amounts as you may designate with
the consent of each Underwriter so designated or, in the event no such
designation is made, such Shares shall be taken up and paid for by all
non-defaulting Underwriters pro rata in proportion to the aggregate number of
[Firm] Shares set opposite the names of such non-defaulting Underwriters in
Schedule A.
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Without relieving any defaulting Underwriter from its
obligations hereunder, the Company and the Selling Stockholders agree with the
non-defaulting Underwriters that they will not sell any [Firm] Shares hereunder
unless ail of the [Firm] Shares are purchased by the Underwriters (or by
substituted Underwriters selected by you with the approval of the Company or
selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provision, the Company or you shall have the right
to postpone the time of purchase for a period not exceeding five business days
in order that any necessary changes in the Registration Statement and Prospectus
and other documents may be effected.
The term Underwriter as used in this agreement shall refer to
and include any Underwriter substituted under this Section 10 with like effect
as if such substituted Underwriter had originally been named in Schedule A.
If the aggregate number of Shares which the defaulting
Underwriter or Underwriters agreed to purchase exceeds 10% of the total number
of Shares which all Underwriters agreed to purchase hereunder, and if neither
the non-defaulting Underwriters nor the Company shall make arrangements within
the five business day period stated above for the purchase of all the Shares
which the defaulting Underwriter or Underwriters agreed to purchase hereunder,
this Agreement shall be terminated without further act or deed and without any
liability on the part of the Company to any non-defaulting Underwriter and
without any liability on the part of any non-defaulting Underwriter to the
Company. Nothing in this paragraph, and no action taken hereunder, shall relieve
any defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
11. Indemnity and Contribution.
(a) The Company and the Selling Stockholders jointly and
severally agree to partners, indemnify, defend and hold harmless each
Underwriter, its partners, directors and officers, and any person who controls
any Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, and the successors and assigns of all of the foregoing persons
from and against any loss, damage, expense, liability or claim (including the
reasonable cost of investigation) which, jointly or severally, any such
Underwriter or any such person may incur under the Act, the Exchange Act, the
Common Law or otherwise, insofar as such loss, damage, expense, liability or
claim arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment thereof by the
Company) or in a Prospectus (the term Prospectus for the purpose of this Section
11 being deemed to include any Preliminary Prospectus, the Prospectus and the
Prospectus as amended or supplemented by the Company), or arises out of or is
based upon any omission or alleged omission to state a material fact required to
be stated in either such Registration Statement or Prospectus or necessary to
make the statements
26
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made therein not misleading, except insofar as any such loss, damage, expense,
liability or claim arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in and in conformity with
information furnished in writing by or on behalf of any Underwriter through you
to the Company expressly for use with reference to such Underwriter in such
Registration Statement or such Prospectus or arises out of or is based upon any
omission or alleged omission to state a material fact in connection with such
information required to be stated in [either] such Registration Statement or
Prospectus or necessary to make such information not misleading[, provided,
however, that the indemnity agreement contained in this subsection (a) with
respect to any Preliminary Prospectus or amended Preliminary Prospectus shall
not inure to the benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) from whom the person asserting any such loss,
damage, expense, liability or claim purchased the Shares which is the subject
thereof if the Prospectus corrected any such alleged untrue statement or
omission and if such Underwriter failed to send or give a copy of the Prospectus
to such person at or prior to the written confirmation of the sale of such
Shares to such person], unless the failure is the result of non-compliance by
the Company with paragraph (h) of Section 5 hereof].(16) [; provided, further,
that no Selling Stockholder shall be responsible, either pursuant to this
indemnity or as a result of any breach of this Agreement, for losses, expenses,
liability or claims arising out of or based upon such untrue statement or
omission or allegation thereof based upon information furnished by any party
other than such Selling Stockholder and, in any event, no Selling Stockholder
shall be responsible, either pursuant to this indemnity or as a result of any
breach of this Agreement, for losses, expenses, liability or claims for an
amount in excess of the proceeds to be received by such Selling Stockholder
(before deducting expenses) from the sale of Shares hereunder].(17)
If any action, suit or proceeding (together, a "Proceeding") is
brought against an Underwriter or any such person in respect of which indemnity
may be sought against the Company or any Selling Stockholder pursuant to the
foregoing paragraph, such Underwriter or such person shall promptly notify the
Company and the Representatives of the Selling Stockholders in writing of the
institution of such Proceeding and the Company or such Selling Stockholder, as
the case may be, shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses; provided, however, that the omission to so
notify the Company or the Representative of the Selling Stockholders shall not
relieve the Company or any Selling Stockholder from any liability which the
Company may have to any Underwriter or any
---------------------
(16) This language may be inserted if requested by counsel for the Issuer.
(17) If a Selling Stockholder is a "controlling" or "significant"
stockholder, this limitation may not apply.
27
-26-
such person or otherwise. Such Underwriter or such controlling person shall have
the right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such Underwriter or of such
person unless the employment of such counsel shall have been authorized in
writing by the Company or such Selling Stockholder in connection with the
defense of such Proceeding or the Company or such Selling Stockholder shall not
have, within a reasonable period of time in light of the circumstances employed
counsel to have charge of the defense of such Proceeding or such indemnified
party or parties shall have reasonably concluded that there may be defenses
available to it or them which are different from, additional to or in conflict
with those available to the Company or such Selling Stockholder (in which case
the Company or such Selling Stockholder shall not have the right to direct the
defense of such Proceeding on behalf of the indemnified party or parties), in
any of which events such fees and expenses shall be borne by the Company or such
Selling Stockholder, as the case may be, and paid as incurred (it being
understood, however, that the Company or such Selling Stockholder shall not be
liable for the expenses of more than one separate counsel (in addition to any
local counsel) in any one Proceeding or series of related Proceedings in the
same jurisdiction representing the indemnified parties who are parties to such
Proceeding). The Company or such Selling Stockholder shall not be liable for any
settlement of any such Proceeding effected without its written consent but if
settled with the written consent of the Company or such Selling Stockholder, the
Company or such Selling Stockholder agrees to indemnify and hold harmless any
Underwriter and any such person from and against any loss or liability by reason
of such settlement. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
sentence of this paragraph, then the indemnifying party agrees that it shall be
liable for any settlement of any Proceeding effected without its written consent
if (i) such settlement is entered into more than 60 business days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance with such
request prior to the date of such settlement and (iii) such indemnified party
shall have given the indemnifying party at least 30 days' prior notice of its
intention to settle. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened Proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of
such Proceeding and does not include an admission of fault, culpability or a
failure to act, by or on behalf of such indemnified party.
(b) Each Underwriter severally agrees to indemnify, defend and
hold harmless the Company, its directors and officers, each Selling Stockholder
and any person who controls the Company or any Selling Stockholder within the
meaning of Section 15 of the Act, or Section 20 of the Exchange Act from and
against any loss, damage, expense, liability or claim (including the reasonable
cost of investigation) which, jointly or severally, the Company, any Selling
Stockholder or any such person may incur under the Act, the Exchange Act, or
Common Law or otherwise, insofar as such loss, damage, expense, liability or
claim arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in and in conformity
28
-27-
with information furnished in writing by or on behalf of such Underwriter
through you to the Company expressly for use with reference to such Underwriter
in the Registration Statement (or in the Registration Statement as amended by or
on behalf of any post-effective amendment thereof by the Company) or in a
Prospectus, or arises out of or is based upon any omission or alleged omission
to state a material fact in connection with such information required to be
stated in such Registration Statement or Prospectus or necessary to make such
information not misleading.
If any Proceeding is brought against the Company, any Selling
Stockholder or any such person in respect of which indemnity may be sought
against any Underwriter pursuant to the foregoing paragraph, the Company, such
Selling Stockholder or such person shall promptly notify such Underwriter in
writing of the institution of such Proceeding and such Underwriter shall assume
the defense of such Proceeding, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses,
provided, however, that the omission to so notify such Underwriter shall not
relieve such Underwriter, from any liability which such Underwriter may have to
the Company, any Selling Stockholder or any such person or otherwise. The
Company, such Selling Stockholder or such person shall have the right to employ
its own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of the Company, such Selling Stockholder or such person
unless the employment of such counsel shall have been authorized in writing by
such Underwriter in connection with the defense of such Proceeding or such
Underwriter shall not have employed counsel to have charge of the defense of
such Proceeding or such indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them which are different
from or additional to or in conflict with those available to such Underwriter
(in which case such Underwriter shall not have the right to direct the defense
of such Proceeding on behalf of the indemnified party or parties, but such
Underwriter may employ counsel and participate in the defense thereof but the
fees and expenses of such counsel shall be at the expense of such Underwriter),
in any of which events such fees and expenses shall be borne by such Underwriter
and paid as incurred (it being understood, however, that such Underwriter shall
not be liable for the expenses of more than one separate counsel (in addition to
any local counsel) in any one Proceeding or series of related Proceedings in the
same jurisdiction representing the indemnified parties who are parties to such
Proceeding). No Underwriter shall be liable for any settlement of any such
Proceeding effected without the written consent of such Underwriter but if
settled with the written consent of such Underwriter, such Underwriter agrees to
indemnify and hold harmless the Company, any Selling Stockholder and any such
person from and against any loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second sentence of this
paragraph, then the indemnifying party agrees that it shall be liable for any
settlement of any Proceeding effected without its written consent if (i) such
settlement is entered into more than 60 business days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
not have reimbursed the indemnified party in accordance with such request prior
to the date of such settlement and (iii) such indemnified party shall have given
the indemnifying party at least 30 days' prior notice of its intention to
settle. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any
29
-28-
settlement of any pending or threatened Proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such Proceeding.
(c) If the indemnification provided for in this Section 11 is
unavailable to an indemnified party under subsections (a) and (b) of this
Section 11 in respect of any losses, damage, expenses, liabilities or claims
referred to therein, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, damages, expenses,
liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company and the Selling Stockholders on the
one hand and the Underwriters on the other hand from the offering of the Shares
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company and the Selling Stockholders on the one hand and of the Underwriters
on the other in connection with the statements or omissions which resulted in
such losses, damages, expenses, liabilities or claims, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Selling Stockholders on the one hand and the Underwriters on the other
shall be deemed to be in the same respective proportion as the total proceeds
from the offering (net of underwriting discounts and commissions but before
deducting expenses) received by the Company and the Selling Stockholders and the
total underwriting discounts and commissions received by the Underwriters, bear
to the aggregate public offering price is the shares. The relative fault of the
Company and the Selling Stockholders on the one hand and of the Underwriters on
the other shall be determined by reference to, among other things, whether the
untrue statement or alleged untrue statement of a material fact or omission or
alleged omission relates to information supplied by the Company, by the Selling
Stockholders or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses,
damages, expenses, liabilities and claims referred to in this subsection shall
be deemed to include any legal or other fees or expenses reasonably incurred by
such party in connection with investigating, preparing to defend or defending
any claim or Proceeding.
(d) The Company, the Selling Stockholders and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 11 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
that does not take account of the equitable considerations referred to in
subsection (c) above. Notwithstanding the provisions of this Section 11, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Shares underwritten by such Underwriter
and distributed to the public were offered to the public exceeds the amount of
any damage which such Underwriter has otherwise been required to pay by reason
of such untrue statement or alleged untrue statement or omission or alleged
omission.
30
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No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute pursuant to this Section 11 are several in proportion to their
respective underwriting commitments and not joint.
(e) The indemnity and contribution agreements contained in this
Section 11 and the covenants, warranties and representations of the Company and
the Selling Stockholders contained in this Agreement shall remain in full force
and effect regardless of any partners, investigation made by or on behalf of any
Underwriter, its directors and officers or any person (including each partner,
officer or director of such person) who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, or by or on
behalf of the Company, its directors or officers, any Selling Stockholder or any
person who controls the Company within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, and shall survive any termination of this
Agreement or the issuance and delivery of the Shares. The Company, each Selling
Stockholder and each Underwriter agree promptly to notify each other
commencement of any Proceeding against it and, in the case of the Company,
against any of the Company's officers or directors in connection with the
issuance and sale of the Shares, or in connection with the Registration
Statement or Prospectus.
12. Notices. Except as otherwise herein provided, all
statements, requests, notices and agreements shall be in writing or by telegram
and, if to the Underwriters, shall be sufficient in all respects if delivered or
sent to Warburg Dillon Read LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000-0000,
Attention: Syndicate Department, if to the Company, shall be sufficient in all
respects if delivered or sent to the Company at the offices of the Company at ,
Attention: and, if to any of the Selling Stockholders, shall be sufficient in
all respects if delivered or sent to the Representatives of the Selling
Stockholders at __________, Attention: __________.
13. Governing Law; Construction. This Agreement and any claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement ("Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of New
York. The Section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
14. Submission to Jurisdiction. Except as set forth below, no
Claim may be commenced, prosecuted or continued in any court other than the
courts of the State of New York located in the City and County of New York or in
the United States District Court for the Southern District of New York, which
courts shall have jurisdiction over the adjudication of such matters, and the
Company consents to the jurisdiction of such courts and personal service with
respect thereto. The Company hereby consents to personal jurisdiction, service
and venue in any court in which any Claim arising out of or in any way relating
to this Agreement is brought by any third party against Warburg Dillon Read LLC
or any indemnified party. Each of Warburg Dillon Read LLC and the Company (on
its behalf and, to the extent permitted by applicable law, on behalf of its
stockholders and affiliates) waives all right to trial by jury in any action,
proceeding or counterclaim (whether based upon contract, tort or otherwise) in
any
31
-30-
way arising out of or relating to this Agreement. The Company agrees that a
final judgment in any such action, proceeding or counterclaim brought in any
such court shall be conclusive and binding upon the Company and may be enforced
in any other courts in the jurisdiction of which the Company is or may be
subject, by suit upon such judgment. [Add the following if the Company is a
foreign corporation: The Company hereby appoints, without power of revocation,
[specify agent] as its agent to accept and acknowledge on its behalf service of
any and all process which may be served in any action, proceeding or
counterclaim in any way relating to or arising out of this Agreement.]
15. Parties at Interest. The Agreement herein set forth has been
and is made solely for the benefit of the Underwriters, the Company, the Selling
Stockholders and to the extent provided in Section 11 hereof the controlling
persons, directors and officers referred to in Such Section, and their
respective successors, assigns, heirs, pursuant representatives and executors
and administrators. No other person, partnership, association or corporation
(including a purchaser, as such purchaser, from any of the Underwriters) shall
acquire or have any right under or by virtue of this Agreement.
16. Counterparts. This Agreement may be signed by the parties in
one or more counterparts which together shall constitute one and the same
agreement among the parties.
17. Successors and Assigns. This Agreement shall be binding upon
the Underwriters and the Company and their successors and assigns and any
successor or assign of any substantial portion of the Company's and any of the
Underwriters' respective businesses and/or assets.
18. [Miscellaneous. Warburg Dillon Read LLC, an indirect, wholly
owned subsidiary of [ ], is not a bank and is separate from any affiliated bank,
including any U.S. branch or agency of Warburg Dillon Read LLC. Because Warburg
Dillon Read LLC is a separately incorporated entity, it is solely responsible
for its own contractual obligations and commitments, including obligations with
respect to sales and purchases of securities. Securities sold, offered or
recommended by Warburg Dillon Read LLC are not deposits, are not insured by the
Federal Deposit Insurance Corporation, are not guaranteed by a branch or agency,
and are not otherwise an obligation or responsibility of a branch or agency.]
[A lending affiliate of Warburg Dillon Read LLC may have lending
relationships with issuers of securities underwritten or privately placed by
Warburg Dillon Read LLC. To the extent required under the securities laws,
prospectuses and other disclosure documents for securities underwritten or
privately placed by Warburg Dillon Read LLC will disclose the existence of any
such lending relationships and whether the proceeds of the issue will be used to
repay debts owed to affiliates of Warburg Dillon Read LLC.]
If the foregoing correctly sets forth the understanding among
the Company, the Selling Stockholders and the Underwriters, please so indicate
in the space provided below for the purpose, whereupon this letter and your
acceptance shall constitute a binding agreement among the Company, the Selling
Stockholders and the Underwriters, severally.
32
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Very truly yours,
[ ]
By:
--------------------------------------
Title:
THE SELLING STOCKHOLDERS NAMED IN
SCHEDULE B ATTACHED HERETO
By:
--------------------------------------
Attorney-in-Fact
Accepted and agreed to as of the date
first above written, on behalf of
[itself] [themselves] and the other
several Underwriters named in Schedule A
WARBURG DILLON READ LLC
[Co-Managers]
By: WARBURG DILLON READ LLC
By: _________________________
Title:
By: _________________________
Title:
33
SCHEDULE A
Number of
Underwriter [Firm] Shares
WARBURG DILLON READ LLC
[Co-Managers]
----------------
Total.......................
================
34
SCHEDULE B
Number of Number of
Selling Stockholders [Firm] Shares Additional Shares(18)
--------------- -------------------
Total.......................
=============== ===================
(18) Insert column if more than one Selling Stockholder is granting a portion
of the over-allotment option.
35
Opinion of Patent Counsel.(19)
shall state that they served as special counsel to the Company
with respect to patents and proprietary rights, and shall opine that:
1. To the best of such counsel's knowledge and belief, the
statements in the Registration Statement and the Prospectus under the captions
are accurate and complete statements or summaries of the matters therein set
forth. Nothing has come to such counsel's attention that causes them to believe
that the above-described portions of the Registration Statement at the time such
Registration Statement became effective contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or that the
Prospectus or any supplement thereto, at the date of such Prospectus or such
supplement, contained an untrue statement of material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
2. To the best of such counsel's knowledge and belief, (a) there
are no legal or governmental proceedings pending relating to patent rights,
trade secrets, trademarks, service marks or other proprietary information or
materials of the Company, and (b) no such proceedings are threatened or
contemplated by governmental authorities or others.
3. Such counsel does not know of any contracts or other
documents, relating to the Company's patents, trade secrets, trademarks, service
marks or other proprietary information or materials, of a character required to
be filed as an exhibit to the Registration Statement or required to be described
in the Registration Statement or the Prospectus, that are not filed or described
as required.
4. To the best of such counsel's knowledge and belief, (a) the
Company is not infringing or otherwise violating any patents, trade secrets,
trademarks, service marks or other proprietary information or materials of
others, and (b) there are no infringements by others of any of the Company's
patents, trade secrets, trademarks, service marks or other proprietary
information or materials which in such counsel's judgment could affect
materially the use thereof by the Company.
5. Such counsel has no knowledge of any facts which would
preclude the Company from having valid license rights or clear title to the
patents referenced in the Prospectus. Such counsel has no knowledge that the
Company lacks or will be unable to obtain any rights or licenses to use all
patents and other material intangible property and assets necessary to conduct
the business
(19) For use when appropriate.
36
now conducted or proposed to be conducted by the Company as described in the
Prospectus, except as described in the Prospectus. Counsel is unaware of any
facts which form a basis for a finding of unenforceability or invalidity of any
of the Company's patents and other material property and assets.
6. Such counsel is not aware of any material fact with respect
to the patent applications of the Company presently on file that (a) would
preclude the issuance of patents with respect to such applications, or (b) would
lead such counsel to conclude that such patents, when issued, would not be valid
and enforceable in accordance with applicable regulations.
7. (a) Though such counsel has not verified the accuracy or
completeness of the statements contained in the Prospectus, nothing has come to
the attention of such counsel that causes them to believe that, such
Registration Statement, at the time the Registration Statement became effective,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or at the time of purchase, or additional time of purchase, as
the case may be, the Prospectus (a) under the caption , and (b) under the
caption , contained an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
Such counsel may state that, in rendering their opinion, they
have relied on certain factual representations of the Company and that they have
not independently verified the accuracy and completeness of such
representations.
