Exhibit 1.1
Luminex Corporation
_________ Shares
Common Stock
($.001 Par Value)
FORM OF
UNDERWRITING AGREEMENT
________ __, 2000
FORM OF
UNDERWRITING AGREEMENT
________ __, 0000
Xxxxxxx Dillon Read LLC
Xxxxxx Brothers Inc.
Xxxx Xxxxxxxx Incorporated
As representatives of the several Underwriters
named in Schedule A hereto
c/o Warburg Dillon Read LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Luminex Corporation, a Delaware corporation (the Company), proposes to
issue and sell to the Underwriters named in Schedule A annexed hereto (the
Underwriters) an aggregate of _________ shares (the Firm Shares) of Common
Stock, $.001 par value per share (the Common Stock), of the Company. In
addition, solely for the purpose of covering over-allotments, the Company
proposes to grant to the Underwriters the option to purchase from the Company up
to an additional ______ shares of Common Stock (the Additional Shares). The
Firm Shares and the Additional Shares are hereinafter collectively sometimes
referred to as the Shares. The Shares are described in the Prospectus which is
referred to below.
The Company hereby acknowledges that in connection with the proposed
offering of the Shares, it has requested Warburg Dillon Read LLC (WDR) to
administer a directed share program (the Directed Share Program) under which up
to ______ shares of the Firm Shares to be purchased by you (the Reserved Shares)
shall be reserved for sale by you at the initial public offering price to the
Company's officers, directors, employees, and consultants and others having a
relationship with the Company (the Directed Share Participants) as part of the
distribution of the Shares by the Underwriters, subject to the terms of this
Agreement, the applicable rules, regulations and interpretations of the National
Association of Securities Dealers, Inc. and all other applicable laws, rules and
regulations. The number of Shares available for sale to the general public will
be reduced to the extent that
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Directed Share Participants purchase Reserved Shares. You may offer any Reserved
Shares not purchased by Directed Share Participants to the general public on the
same basis as the other Shares being issued and sold hereunder. The Company has
supplied WDR with the names, addresses and telephone numbers of the individuals
or other entities which the Company has designated to be participants in the
Directed Share Program. It is understood that any number of those designated to
participate in the Directed Share Program may decline to do so.
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-1 (File No. 333-96317) including
a prospectus, relating to the Shares. The Company has furnished to you, for use
by the Underwriters and by dealers, copies of one or more preliminary
prospectuses (each thereof being herein called a Preliminary Prospectus)
relating to the Shares. Except where the context otherwise requires, the
registration statement, as amended when it becomes effective, including all
documents filed as a part thereof, and including any information contained in a
prospectus subsequently filed with the Commission pursuant to Rule 424(b) under
the Act and deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430(A) under the Act, and also including any
registration statement filed pursuant to Rule 462(b) under the Act, is herein
called the Registration Statement, and the prospectus, in the form filed by the
Company with the Commission pursuant to Rule 424(b) under the Act on or before
the second business day after the date hereof (or such earlier time as may be
required under the Act) or, if no such filing is required, the form of final
prospectus included in the Registration Statement at the time it became
effective, is herein called the Prospectus.
The Company and the Underwriters agree as follows:
1. Sale and Purchase. Upon the basis of the representations and
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warranties and subject to the terms and conditions herein set forth, the Company
agrees to sell to the respective Underwriters and each of the Underwriters,
severally and not jointly, agrees to purchase from the Company the aggregate
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule A attached hereto in each case at a purchase price of $____ per Share.
The Company is advised by you that the Underwriters intend (i) to make a public
offering of their respective portions of the Firm Shares as soon after the
effective date of the Registration Statement as in your judgment is advisable
and (ii) initially to offer the Firm Shares upon the terms set forth in the
Prospectus. You may from time to time increase or decrease the public offering
price after the initial public offering to such extent as you may determine.
In addition, the Company hereby grants to the several Underwriters the
option to purchase, and upon the basis of the representations and warranties and
subject to the terms and conditions herein set forth, the Underwriters shall
have the right to purchase, severally
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and not jointly, from the Company, ratably in accordance with the number of Firm
Shares to be purchased by each of them, all or a portion of the Additional
Shares as may be necessary to cover over-allotments made in connection with the
offering of the Firm Shares, at the same purchase price per share to be paid by
the Underwriters to the Company for the Firm Shares. This option may be
exercised by you on behalf of the several Underwriters at any time and from time
to time on or before the thirtieth day following the date hereof, by written
notice to the Company. 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
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the additional time of purchase shall not be earlier than the time of purchase
(as defined below) nor earlier than the second business day/1/ after the date on
which the option shall have been exercised nor later than the tenth business day
after the date on which the option shall have been exercised. The number of
Additional Shares to be sold to each Underwriter shall be the number which bears
the same proportion to the aggregate number of Additional Shares being purchased
as the number of Firm Shares set forth opposite the name of such Underwriter on
Schedule A hereto bears to the total number of Firm Shares (subject, in each
case, to such adjustment as you may determine to eliminate fractional shares).
2. Payment and Delivery. Payment of the purchase price for the Firm
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Shares shall be made to the Company 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 _________ __, 2000 (unless another time shall be agreed to by you
and the Company or unless postponed in accordance with the provisions of Section
8 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 on the second business day preceding the time
of purchase. For the purpose of expediting the checking of the certificates for
the Firm Shares by you, the Company agrees to make such certificates available
to you for such purpose at least one full business day preceding the time of
purchase.
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 agrees to make
__________________
/1/ As used herein "business day" shall mean a day on which the New
York Stock Exchange is open for trading.
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such certificates available to you for such purpose at least one full business
day preceding the additional time of purchase.
Deliveries of the documents described in Section 6 below with respect
to the purchase of the Shares shall be made at the offices of Xxxxx Xxxxxxxxxx
LLP, 1301 Avenue of the Americas, New York, New York at 9:00 a.m., New York
time, on the date of the closing of the purchase of the Firm Shares or the
Additional Shares, as the case may be.
3. Representations and Warranties. The Company represents and
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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; and when the Registration
Statement became or becomes effective, the Registration Statement and the
Prospectus complied or will comply fully in all material respects with the
provisions of the Act, and the Registration Statement did not or will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, and the Prospectus did not or will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading
and the Prospectus, any Preliminary Prospectus and any supplement thereto
or prospectus wrapper prepared in connection therewith, at their respective
times of issuance and at the time of closing, complied and will comply in
all material respects with any applicable laws or regulations of
jurisdictions in which the Prospectus and such preliminary prospectus, as
amended or supplemented, if applicable, are distributed in connection with
the offer and sale of Reserved Shares, provided, however, that the Company
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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; and the
Company has not distributed directly or indirectly any offering material in
connection with the offering or sale of the Shares other than the
Registration Statement, the Preliminary Prospectus, the Prospectus or any
other materials, if any, permitted by the Act;
(b) as of the date of this Agreement, the Company has authorized and
outstanding capital stock as set forth under the heading entitled "Actual"
in the section of the Registration Statement and the Prospectus entitled
"Capitalization" and, as of the time of purchase, and assuming the receipt
and application of the net proceeds as described under the section of the
Registration Statement and the Prospectus entitled
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"Use of Proceeds," the Company shall have an authorized and outstanding
capital stock as set forth under the heading entitled "Pro Forma As
Adjusted" in the section of the Registration Statement and the Prospectus
entitled "Capitalization"; all of the shares of capital stock will be duly
and validly authorized and issued, fully paid and non-assessable, will have
been issued in compliance with all federal and state securities laws and
will not have been issued in violation of any preemptive right, resale
right, right of first refusal or similar right;
(c) the Company has been duly organized and is validly existing as a
corporation and is in good standing under the laws of the State of
Delaware, 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 and is in good standing in each jurisdiction in which the
ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to so qualify would
not individually or in the aggregate have a material adverse effect on the
business, prospects, properties, condition (financial or otherwise) or
results of operation of the Company (a "Material Adverse Effect"); the
Company does not have any subsidiaries (as defined in the Act); the Company
does not own, directly or indirectly, any shares of stock or any other
equity or long-term debt securities of any corporation or have any equity
interest in any firm, partnership, limited liability company, joint
venture, association or other entity except as set forth in the
Registration Statement and the Prospectus; complete and correct copies of
the certificate of incorporation and bylaws or other organizational
documents of the Company and all amendments thereto have been delivered to
you, and except as set forth in the exhibits to the Registration Statement
no changes therein will be made subsequent to the date hereof and prior to
the time of purchase or, if later, the additional time of purchase;
(e) the Company is not in breach of, or in default under (and no
event has occurred which with notice, lapse of time, or both would result
in any breach of, or constitute a default under), its charter or by-laws or
other organizational documents or in the performance or observance of any
obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, bank loan or credit agreement or other evidence of
indebtedness, or any lease, contract or other agreement or instrument to
which the Company is a party or by which it or any of its properties is
bound the effect of which would individually or in the aggregate have a
Material Adverse Effect, and the execution, delivery and performance of
this Agreement, the issuance and sale of the Shares contemplated hereby and
by the Registration Statement 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
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default under), any provisions of the charter or by-laws or other
organizational documents of the Company or under any provision of any
license, permit, franchise, indenture, mortgage, deed of trust, bank loan
or credit agreement or other evidence of indebtedness, or any lease,
contract or other agreement or instrument to which the Company is a party
or by which it or its properties may be bound or affected, or under any
federal, state, local or foreign law, regulation or rule or any decree,
judgment or order applicable to the Company the result of which would
individually or in the aggregate have a Material Adverse Effect;
(f) 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;
(g) the capital stock of the Company, including the Shares, conforms
in all material respects to the description thereof contained in the
Registration Statement and Prospectus; the certificates for the Shares are
in due and proper form; and the holders of the Shares will not be subject
to personal liability by reason of being such holders;
(h) the Shares have been duly and validly authorized and, when issued
and delivered against payment therefor as provided herein, will be duly and
validly issued, fully paid and non-assessable;
(i) 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 execution,
delivery and performance by the Company of this Agreement, the issuance and
sale of the Shares contemplated hereby and by the Registration Statement,
other than registration of the Shares under the Act, which has been or will
be effected by the Company, 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);
(j) except as set forth in the Registration Statement and the
Prospectus: (i) no person has the right, contractual or otherwise, to cause
the Company to issue to it, or register pursuant to the Act, any shares of
capital stock or other equity interests; and (ii) no person has any
preemptive rights, co-sale rights, rights of first refusal or other rights
to purchase any shares of Common Stock of the Company;
(k) Ernst & Young LLP, whose report on the financial statements of
the Company are filed with the Commission as part of the Registration
Statement and Prospectus, are independent public accountants as required by
the Act;
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(l) the Company has all necessary licenses, permits, franchises,
authorizations, consents and approvals, and 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 business, except such of the
foregoing of which the failure to obtain or make, either individually or in
the aggregate, would not have a Material Adverse Effect; the Company is not
in violation of, or in default under, any such license, permit, franchise,
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, the effect of which could individually or in the aggregate have a
Material Adverse Effect;
(m) all legal or governmental proceedings, all statutes and
regulations and all contracts, leases or documents of a character required
to be described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement have been so described or
filed as required;
(n) there are no private or governmental actions, suits, claims,
investigations or proceedings pending, threatened or, to the knowledge of
the Company, contemplated, to which the Company or, to the knowledge of the
Company, any of its officers is subject or of which any of its properties
is subject, whether at law, in equity or before or by any federal, state,
local or foreign governmental or regulatory commission, board, body,
authority or agency;
(o) the audited financial statements of the Company included in the
Registration Statement and the Prospectus present fairly the financial
position and results of operations of the Company as of the dates and for
the periods indicated; such financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis during the periods involved; the pro forma financial data
included in the Registration Statement and the Prospectus comply as to form
in all material respects with the applicable accounting requirements of
Regulation S-X of the Securities Act, and the pro forma adjustments have
been properly applied to the historical amounts in the compilation of those
statements; and the other financial and statistical data set forth in the
Registration Statement and the Prospectus are accurately presented and
prepared on a basis consistent with such financial statements and the books
and records of the Company;
(p) subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not been
(i) any material adverse change, or any development involving a prospective
material adverse change, in the business, properties, condition (financial
or otherwise) or results of operations of the Company, (ii) any transaction
which is material to the Company (except transactions in the ordinary
course of business), (iii) the incurrence by the Company of
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any obligation, direct or contingent, and whether or not in the ordinary
course of business, which is material to the Company, (iv) any change in
the capital stock, other than conversion of preferred stock of the Company
as contemplated by the Registration Statement and the Prospectus, or other
equity interest or outstanding indebtedness of the Company or (v) any
dividend or distribution of any kind declared, paid or made on the capital
stock or other equity interest of the Company. The Company does not have
any material contingent obligations which are not disclosed in the
Registration Statement;
(q) the Company has obtained the agreement (each, a "Lock-Up
Agreement") of each of its executive officers, directors and holders of at
least 98.8% of its Common Stock and securities convertible into Common
Stock not to sell, offer to sell, contract to sell, hypothecate, pledge,
grant any option to sell or otherwise dispose of, directly or indirectly,
any shares of Common Stock or securities convertible into or exchangeable
or exercisable for Common Stock or warrants or other rights to purchase
Common Stock for a period of 180 days after the date of the Prospectus
without the prior written consent of WDR;
(r) the Company has good and marketable title to all property (real
and personal) described in the Prospectus as being owned by it, free and
clear of all liens, claims, security interests or other encumbrances except
such as are described in the Registration Statement and the Prospectus and
except as would not individually or in the aggregate have a Material
Adverse Effect. All the property described in the Prospectus as being held
under lease by the Company is held thereby under valid, subsisting and
enforceable leases;
(s) the Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amount as are
customary in the business in which it is engaged; all policies of insurance
insuring the Company or any of its businesses, assets, employees, officers
and directors are in full force and effect, and the Company is in
compliance with the terms of such policies in all material respects; there
are no claims by the Company under any such policy or instrument as to
which any insurance company is denying liability or defending under a
reservation of rights clause;
(t) the Company has not either sent or received any notice of
termination of any of the contracts or agreements referred to or described
in, or filed as an exhibit to, the Registration Statement, and no such
termination has been threatened by the Company or any other party to any
such contract or agreement;
(u) all statistical and market-related data included in the
Prospectus are based on or derived from sources that the Company believes
to be reliable and accurate, and the Company has obtained the written
consent to the use of such data from such sources to the extent required;
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(v) neither the Company nor any of its affiliates has taken, directly
or indirectly, any action designed to or which has constituted or which
might reasonably be expected to cause or result, under the Securities
Exchange Act of 1934, as amended, and the rules and regulations thereunder
(collectively called the Exchange Act) or otherwise, in stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Shares;
(w) other than as set forth in the Prospectus, the Company will own,
possess, license or have other rights to use all patents, trademarks,
servicemarks, trade names, copyrights, trade secrets, information,
proprietary rights and processes ("Intellectual Property") necessary for
its business as described in the Prospectus (including the offer and sale
of those products and services, both currently marketed and under
development, described in the Prospectus), without, to the Company's
knowledge, any conflict with or infringement of the interests of others,
and has taken all reasonable steps necessary to secure interests in such
Intellectual Property; except as disclosed in the Prospectus, the Company
is not aware of outstanding options, licenses or agreements of any kind
relating to the Intellectual Property of the Company which are required to
be disclosed in the Prospectus, and, except as disclosed in the Prospectus
the Company is not a party to or bound by any options, licenses or
agreements with respect to the Intellectual Property of any other person or
entity which are required to be disclosed in the Prospectus; none of the
technology employed by the Company has been obtained or is being used by
the Company in violation of any contractual obligation binding on the
Company or any of its directors or executive officers or, to the Company's
knowledge, any employees of the Company or otherwise in violation of the
rights of any persons; except as disclosed in the Prospectus, the Company
has not received any communications alleging that the Company has violated,
infringed or conflicted with, or, by conducting its business as described
in the Prospectus, would violate, infringe or conflict with any of the
Intellectual Property of any other person or entity other than any such
violation, infringement or conflict which would not individually or in the
aggregate have a Material Adverse Effect;
(x) the Company has not sustained since the date of the latest
audited financial statements included in the Prospectus any loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as disclosed
in the Prospectus or other than any loss or interference which individually
or in the aggregate would not have a Material Adverse Effect;
(y) the Company has not violated any foreign, federal, state or local
law or regulation relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes, pollutants or
contaminants, nor any federal or state law relating to discrimination in
the hiring, promotion or pay of employees nor
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any applicable federal or state wages and hours laws, nor any provisions of
the Employee Retirement Income Security Act or the rules and regulations
promulgated thereunder, which individually or in the aggregate might result
in a Material Adverse Effect;
(z) the Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are
executed in accordance with management's general or specific authorization;
(ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management's general or
specific authorization; and (iv) the recorded accountability for assets is
compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences;
(aa) the Company has filed all federal, state, local and foreign tax
returns and tax forms required to be filed. Such returns and forms are
complete and correct in all material respects, and all taxes shown by such
returns or otherwise assessed that are due or payable have been paid,
except such taxes as are being contested in good faith and as to which
adequate reserves have been provided. All payroll withholdings required to
be made by the Company with respect to employees have been made. The
charges, accruals and reserves on the books of the Company in respect of
any tax liability for any year not finally determined are adequate to meet
any assessments or reassessments for additional taxes. There have been no
tax deficiencies asserted and, to the knowledge of the Company, no tax
deficiency might be reasonably asserted or threatened against the Company
that could individually or in the aggregate have a Material Adverse Effect;
and
(bb) the Company is not, and after the offering and sale of the
Shares, will not be, an "investment company" or a "promoter," "principal
underwriter" for 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").
In addition, any certificate signed by any officer of the Company,
delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the Shares shall be deemed to be a representation and
warranty by the Company, as to matters covered thereby, to each Underwriter.
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4. Certain Covenants. The Company hereby agrees:
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(a) to furnish such information as may be required and otherwise to
cooperate in qualifying the Shares for offering and sale under the
securities or blue sky laws of such states as you may designate and to
maintain such qualifications in effect so long as required for the
distribution of the Shares; provided that the Company shall not be required
to qualify as a foreign corporation or to consent to the service of process
under the laws of any such state (except service of process with respect to
the offering and sale of the Shares); and to promptly advise you of the
receipt of any notification with respect to the suspension of the
qualification of the Shares for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as soon
as practicable after the Registration Statement becomes effective, and
thereafter from time to time to furnish to the Underwriters, as many copies
of the Prospectus (or of the Prospectus as amended or supplemented if the
Company shall have made any amendments or supplements thereto after the
effective date of the Registration Statement) as the Underwriters may
request for the purposes contemplated by the Act; in case any Underwriter
is required to deliver a prospectus beyond the nine-month period referred
to in Section 10(a)(3) of the Act in connection with the sale of the
Shares, the Company will prepare promptly upon request and at its cost 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 use its best efforts to obtain the lifting
or removal of such order as soon as possible; to advise you promptly of any
proposal to amend or supplement the Registration Statement or Prospectus
and to file no such amendment or supplement to which you shall object in
writing;
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(e) subject to Section 4(o) hereof, to file promptly all reports and
any definitive proxy or information statement required to be filed by the
Company with the Commission in order to comply with the Exchange Act
subsequent to the date of the Prospectus and for so long as the delivery of
a prospectus is required in connection with the offering or sale of the
shares, and to promptly notify you of such filing;
(f) if necessary or appropriate, to file in a timely fashion a
registration statement pursuant to Rule 462(b) under the Act;
(g) to furnish to you and, upon request, to each of the other
Underwriters for a period of five 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 as soon as such
communications, documents or information becomes available;
(h) to advise the Underwriters promptly of the occurrence of any
event known to the Company within the time during which a Prospectus
relating to the Shares is required to be delivered under the Act which
would require the making of any change in the Prospectus then being used so
that the Prospectus would not include an untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they are made, not
misleading, and, during such time, to prepare and furnish promptly to the
underwriters, at no expense to the Underwriters, such amendments or
supplements to such Prospectus as may be necessary to reflect any such
change and to furnish you a copy of such proposed amendment or supplement
before filing any such amendment or supplement with the Commission;
(i) to make generally available to its security holders, and to
deliver to you, as soon as practicable an earnings statement of the Company
(which 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) and ending
not later than 15 months thereafter;
(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);
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(k) to furnish to you four conformed copies of the Registration
Statement, as initially filed with the Commission, and of all amendments
thereto including all exhibits thereto) 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
quarterly (if available) or monthly unaudited interim consolidated
financial statements, if any, of the Company, which have been read by the
Company's independent certified public accountants, as stated in their
letter to be furnished pursuant to Section 6(b) 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 pay all costs, expenses, fees and taxes (other than any
transfer taxes and fees and disbursements of counsel for the Underwriters,
except as set forth under Section 5 hereof and clauses (iii), (iv) and (vi)
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 registration, issue, sale and delivery
of the Shares, (iii) the producing, word processing and/or printing of this
Agreement, any Agreement Among Underwriters, any dealer agreements, any
Powers of Attorney and any closing documents (including compilations
thereof) and the reproduction and/or printing and furnishing of copies of
each thereof to the Underwriters and (except closing documents) to dealers
(including costs of mailing and shipment), (iv) the qualification of the
Shares for offering and sale under state laws and the determination of
their eligibility for investment under state law as aforesaid (including
the reasonable legal fees and filing fees and other disbursements of
counsel for the Underwriters) and the printing and furnishing of copies of
any blue sky surveys or legal investment surveys to the Underwriters and to
dealers, (v) any listing of the Shares on any securities exchange or
qualification of the Shares for quotation on NASDAQ and any registration
thereof under the Exchange Act, (vi) any filing for review of the public
offering of the Shares by the NASD, including the associated reasonable
fees and disbursements of counsel for the Underwriters, and (vii) the
performance of the Company's other obligations hereunder;
(o) to furnish to you, before filing with the Commission subsequent
to the effective date of the Registration Statement and during the period
referred to in paragraph (h) above, a copy of any document proposed to be
filed pursuant to Section 13, 14 or 15(d) of the Exchange Act;
-13-
(p) not to sell, offer to sell, contract to sell, hypothecate,
pledge, grant any option to sell or otherwise dispose of, directly or
indirectly, any shares of Common Stock or securities convertible into or
exchangeable or exercisable for Common Stock or warrants or other rights to
purchase Common Stock or any other shares of the Company that are
substantially similar to Common Stock or permit the registration under the
Act of any shares of Common Stock (other than shares of Common Stock issued
or issuable under the stock option plan described in the Registration
Statement and Prospectus) for a period of 180 days after the date hereof
(the "Lock-up Period"), without the prior written consent of WDR, except
for (i) the registration of the Shares and the sales to the Underwriters
pursuant to this Agreement, (ii) issuances of Common Stock upon the
exercise of outstanding options or warrants as disclosed in the
Registration Statement and the Prospectus, such issued Common Stock not to
be disposed of by the recipients thereof prior to the expiration of the
Lock-up Period, (iii) the issuance of employee stock options not
exercisable during the Lock-up Period (or, if so exercisable, to persons
who have executed and delivered a Lock-Up Agreement to WDR) pursuant to
stock option plans described in the Registration Statement and the
Prospectus and (iv) the issuance of warrants to purchase Common Stock in an
amount not to exceed 50,000 shares in the aggregate to strategic or
collaborative partners of the Company which have executed and delivered a
Lock-Up Agreement to WDR covering such warrants; and
(q) to use its best efforts to cause the Common Stock to be listed for
quotation on the National Association of Securities Dealers Automated
Quotation National Market System ("NASDAQ").
-14-
5. Reimbursement of Underwriters' Expenses. The Company agrees that if
---------------------------------------
the Shares are not delivered for any reason other than the termination of this
Agreement pursuant to subsections (ii), (iii) or (iv) of the second paragraph of
Section 7 hereof or the last paragraph of Section 8 hereof or the default by one
or more of the Underwriters in its or their respective obligations hereunder, it
shall, in addition to paying the amounts described in Section 4(n) hereof,
reimburse the Underwriters for all of the out-of-pocket accountable expenses
actually incurred by the Underwriters, including the reasonable fees and
disbursements of their counsel.
6. Conditions of Underwriters' Obligations. The several obligations of
---------------------------------------
the Underwriters hereunder are subject to the accuracy of the representations
and warranties of the Company on the date hereof and at the time of purchase
(and the several obligations of the Underwriters at the additional time of
purchase are subject to the accuracy of the representations and warranties of
the Company on the date hereof and at the time of purchase (unless previously
waived) and at the additional time of purchase, as the case may be), the
performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) The Company shall furnish to you at the time of purchase and at
the additional time of purchase, as the case may be, an opinion of Xxxxxxxx
& Knight LLP, counsel for the Company, addressed to the Underwriters, and
dated the time of purchase or the additional time of purchase, as the case
may be, with reproduced copies for each of the other Underwriters and in
form reasonably satisfactory to Xxxxx Xxxxxxxxxx LLP, counsel for the
Underwriters, stating that:
-15-
(i) the Company has been duly incorporated and is validly existing
as a corporation and is in good standing under the laws of the State of
Delaware, with full 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) the Company is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction in which the
ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to so qualify would
not individually or in the aggregate have a Material Adverse Effect;
(iii) this Agreement has been duly authorized, executed and delivered
by the Company;
(iv) the Shares have been duly authorized and, when issued and
delivered to and paid for by the Underwriters, will be validly issued,
fully paid and non-assessable;
(v) the Company has authorized and outstanding shares of capital
stock 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, to such counsel's knowledge, contractual preemptive rights,
resale rights, rights of first refusal and similar rights, except as set
forth in the Prospectus and the Registration Statement; the Shares when
issued will be free of statutory and, to such counsel's knowledge,
contractual preemptive rights, resale rights, rights of first refusal and
similar rights; the certificates for the Shares are in due and proper form
and the holders of the Shares will not be subject to personal liability by
reason of being such holders;
(vi) the capital stock of the Company, including the Shares,
conforms to the description thereof contained in the Registration Statement
and Prospectus;
(vii) the Registration Statement and the Prospectus (except as to the
financial statements and schedules and other financial and statistical data
contained therein, as to which such counsel need express no opinion) comply
as to form in all material respects with the requirements of the Act;
(viii) the Registration Statement has become effective under the Act
and, to such counsel's knowledge, no stop order proceedings with respect
-16-
thereto are pending or threatened under the Act and any required filing of
the Prospectus, and any supplement thereto pursuant to Rule 424 under the
Act has been made in the manner and within the time period required by such
Rule 424;
(ix) no approval, authorization, consent or order of or filing with
any national, state or local governmental or regulatory commission, board,
body, authority or agency is required in connection with the execution,
delivery and performance of this Agreement, the issuance and sale of the
Shares and the consummation of the transactions contemplated hereby and by
the Registration Statement, other than registration of the Shares under the
Act and other than any necessary qualification under the state securities
or blue sky laws of the various jurisdictions in which the Shares are being
offered by the Underwriters, as to which such qualification such counsel
need express no opinion;
(x) the execution, delivery and performance of this agreement by
the Company and the transactions contemplated hereby and by the
Registration Statement 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 or
other organizational documents of the Company or under any provision of any
license, permit, franchise, indenture, mortgage, deed of trust, bank loan
or credit agreement or other evidence of indebtedness, or any lease,
contract or other agreement or instrument to which the Company is a party
or by which its properties may be bound or affected that is filed as an
exhibit to the Registration Statement or under any federal, state or local
law, regulation or rule (other than applicable state securities and Blue
Sky laws, as to which such counsel need not express an opinion), or any
decree, judgment or order applicable to the Company and known to such
counsel;
(xi) to such counsel's knowledge, [Based on a certificate of an
officer of the company,] the Company is not in violation of its charter or
by-laws, and the Company is not in breach of nor 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, permit,
franchise, indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any lease, contract or
other agreement or instrument to which the Company is or was a party or by
which it or its properties may be bound or affected or in violation of any
federal, state, local or foreign law, regulation or rule or any decree,
judgment or order applicable
-17-
to the Company the effect of which would individually or in the aggregate
have a Material Adverse Effect;
(xii) to 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 described in the
Prospectus which have not been so filed or described;
(xiii) to such counsel's knowledge, there are no private or
governmental actions, suits, claims, investigations or proceedings pending,
threatened or contemplated to which the Company or any of its officers is
subject or of which any of its properties is subject, whether at law, in
equity or before or by any federal, state, local or foreign governmental or
regulatory commission, board, body, authority or agency which are required
to be described in the Registration Statement or Prospectus that are not so
described;
(xiv) the Company is not, and after the offering and sale of the
Shares, will not be, an "investment company," or a "promoter," "principal
underwriter" for or an entity controlled by an "investment company," as
such terms are defined in the Investment Company Act;
(xv) the statements in the Registration Statement and Prospectus,
insofar as they are descriptions of contracts, agreements or other legal
documents, or refer to statements of law or legal conclusions, are accurate
in all material respects and present fairly the information required to be
shown; and
(xvi) to the knowledge of such counsel, except as described in the
Registration Statement and Prospectus, no person is entitled to
registration rights with respect to shares of capital stock or other
securities of the Company.
In addition, such counsel shall state that it has participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants of the Company and
representatives of the Underwriters at which the contents of the Registration
Statement and Prospectus were discussed and, although such counsel is not
passing upon and does not assume responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement or
Prospectus (except as and to the extent stated in subparagraphs (vi), (vii) and
(xv) above), on the basis of the foregoing nothing has come to the attention of
such counsel that causes them to believe that the Registration Statement or any
amendment thereto at the time such Registration Statement or amendment became
effective 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
-18-
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 make no such statement with respect to the financial
statements and schedules and other financial and statistical data included in
the Registration Statement or Prospectus).
(b) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the opinion of Xxxxxx Xxxxxxxx,
LLP, special counsel to the Company with respect to patents and proprietary
rights, dated the time of purchase or the additional time of purchase, as the
case may be, stating that:
(i) To such counsel's knowledge, except as described in the
Prospectus, (A) the Company has valid license rights or clear title to
the Intellectual Property referenced in the Prospectus, and there are
no rights of third parties to any such Intellectual Property; (B)
there is no infringement or other violation by third parties of any of
the Intellectual Property of the Company referenced in the Prospectus;
(C) there is no infringement or other violation by the Company of any
Intellectual Property of others; (D) there is no pending or threatened
action, suit proceeding or claim by governmental authorities or others
that the Company infringes or otherwise violates any Intellectual
Property of others, and such counsel is unaware of any facts which
would form a reasonable basis for any such claim; and (E) there is no
pending or threatened action, suit, proceeding or claim by
governmental authorities or others challenging the rights of the
Company in or to, or challenging the scope of, any Intellectual
Property of the Company referenced in the Prospectus, and such counsel
is unaware of any facts which would form a reasonable basis for any
such claim;
(ii) to such counsel's knowledge, the patent applications of
the Company presently on file disclose patentable subject matter, and
such counsel is not aware of any inventorship challenges, any
interference which has been declared or provoked, or any other
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; and
-19-
(iii) the statements in the Registration Statement and the
Prospectus referencing Intellectual Property matters, insofar as such
statements constitute summaries of legal matters, contracts,
agreements, documents or proceedings referred to therein, or refer to
statements of law or legal conclusions, are in all material respects
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 such 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 such above described
portions of the Prospectus, at the date of the Prospectus 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.
(c) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the opinion of Xxxxx, Xxxxxx &
XxXxxxxx, P.C., regulatory counsel to the Company, dated the time of purchase or
the additional time of purchase, as the case may be, to the effect that the
statements in the Registration Statement and the Prospectus referencing
regulatory matters, insofar as such statements constitute summaries of food and
drug regulatory matters with respect to the Company, as of the date of the
Registration Statement and the Prospectus and as of the date of such opinion,
are in all material respects accurate and complete statements or summaries of
the matters therein set forth; and nothing has come to such counsel's attention
that causes such counsel to believe that the above-described portions of the
Registration Statement and the Prospectus, at the date of the Registration
Statement and the Prospectus or at the date of such opinion, contained or
contains an untrue statement of material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading.
(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 Xxxxx
Xxxxxxxxxx LLP, counsel for the Underwriters, dated the time of purchase or the
additional time of purchase, as the case may be, with respect to the issuance
and sale of the Shares by the Company, the Registration Statement, the
Prospectus (together with any supplement thereto) and such other related matters
as the Underwriters may require.
(e) You shall have received from Ernst & Young LLP, letters dated,
respectively, the date of this Agreement and the time of purchase and additional
time of purchase, as the case may be, and addressed to the Underwriters (with
reproduced
-20-
copies for each of the Underwriters) in the forms heretofore approved
by Xxxxx Xxxxxxxxxx LLP, counsel for the Underwriters.
(f) No amendment or supplement to the Registration Statement or
Prospectus shall be filed prior to the time the Registration Statement becomes
effective to which you object in writing.
(g) The Registration Statement shall become effective, or if Rule
430A under the Act is used, the Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) under the Act, at or before 5:30 P.M., New
York City time, on the date of this Agreement, unless a later time (but not
later than 5:30 P.M., New York City time, on the second full business day after
the date of this Agreement) shall be agreed to by the Company and you in writing
or by telephone, confirmed in writing; provided, however, that the Company and
-------- -------
you and any group of Underwriters, including you, who have agreed hereunder to
purchase in the aggregate at least 50% of the Firm Shares may from time to time
agree on a later date.
(h) 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.
(i) 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, or any development involving a prospective material and
adverse change, financial or otherwise (other than as specifically identified in
the Registration Statement and Prospectus), in the business, properties,
condition or results of operations of the Company shall occur or become known
and (ii) no transaction which is material and unfavorable to the Company shall
have been entered into by the Company.
(j) The Company will, at the time of purchase or additional time of
purchase, as the case may be, deliver to you a certificate of its President and
its Chief Financial Officer to the effect that the representations and
warranties of the Company as set forth in this Agreement are true and correct as
of each such date, that the Company has performed such of their obligations
under this Agreement as are to be
-21-
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), (h) and (i) of this Section 6 have been met.
(k) You shall have received signed letters, dated the date of this
Agreement, from each of the officers and directors of the Company and the
holders of at least 98.8% of the outstanding Common Stock of the Company
agreeing with the Underwriters that such persons will not sell, offer or
agree to sell, contract to sell, hypothecate, pledge, 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 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 180 days after the date of the
Prospectus without WDR's prior written consent.
(l) The Company shall have furnished to you such other documents and
certificates as to the accuracy and completeness of any statement in the
Registration Statement and the Prospectus as of the time of purchase and
the additional time of purchase, as the case may be, as you may reasonably
request.
(m) The Shares shall have been approved for 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.
7. 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, (i) if, since the time of execution of this Agreement or
the respective dates as of which information is given in the Registration
Statement and Prospectus, there has been any material adverse and unfavorable
change, or any development involving a prospective material adverse change,
financial or otherwise (other than as specifically identified in the
Registration Statement and Prospectus), in the business, properties, condition
or results of operations of the Company which would, in your judgment or in the
judgment of such group of Underwriters, make it impracticable to market the
Shares, or, (ii) if, at any time prior to the time of purchase or, with respect
to the purchase of any Additional Shares, the additional time of purchase, as
the case may be, trading in securities on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq National Market shall have been suspended
or limitations or minimum prices shall have been established on the New York
Stock Exchange, the American
-00-
Xxxxx Xxxxxxxx or the Nasdaq National Market, or (iii) if a banking moratorium
shall have been declared either by the United States or New York State
authorities, or (iv) if the United States shall have declared war in accordance
with its constitutional processes or there shall have occurred any material
outbreak or escalation of hostilities or other national or international
calamity or crisis of such magnitude in its effect on the financial markets of
the United States as, in your judgment or in the judgment of such group of
Underwriters, 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 7, the Company and each other Underwriter shall be
notified promptly by letter or telegram.
If the sale to the Underwriters of the Shares, as contemplated by this
Agreement, is not carried out by the Underwriters for any reason permitted under
this Agreement or if such sale is not carried out because the Company shall be
unable to comply with any of the terms of this Agreement, the Company shall not
be under any obligation or liability under this Agreement (except to the extent
provided in Sections 4(n), 5 and 9 hereof), and the Underwriters shall be under
no obligation or liability to the Company under this Agreement (except to the
extent provided in Section 9 hereof) or to one another hereunder.
8. Increase in Underwriters' Commitments. Subject to Sections 6 and
-------------------------------------
7, if any Underwriter shall default in its obligation to take up and pay for the
Firm Shares to be purchased by it hereunder (otherwise than for a reason
sufficient to justify the termination of this Agreement under the provisions of
Section 7 hereof) and if the number of Firm Shares which all Underwriters so
defaulting shall have agreed but failed to take up and pay for does not exceed
10% of the total number of Firm Shares, the non-defaulting Underwriters shall
take up and pay for (in addition to the aggregate number of Firm Shares they are
obligated to purchase pursuant to Section 1 hereof) the number of Firm Shares
agreed to be purchased by all such defaulting Underwriters, as hereinafter
provided. Such Shares shall be taken up and paid for by such non-defaulting
Underwriter or Underwriters in such amount or amounts as you may designate with
the consent of each Underwriter so designated or, in the event no such
designation is made, such Shares shall be taken up and paid for by all non-
defaulting Underwriters pro rata in proportion to the aggregate number of Firm
Shares set opposite the names of such non-defaulting Underwriters in Schedule A.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any Firm Shares hereunder unless all of the Firm Shares are purchased
by the Underwriters (or by substituted Underwriters selected by you with the
approval of the Company or selected by the Company with your approval).
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
-23-
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 8 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.
9. Indemnity and Contribution.
--------------------------
(a) The Company agrees to indemnify, defend and hold harmless each
Underwriter, its partners, directors and officers, and any person who controls
any Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, and the successors and assigns of all of the foregoing persons
from and against any loss, damage, expense, liability or claim (including the
reasonable cost of investigation) which, jointly or severally, any such
Underwriter or any such person may incur under the Act, the Exchange Act, the
common law or otherwise, insofar as such loss, damage, expense, liability or
claim arises out of or is based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment thereof by the
Company) or in a Prospectus (the term Prospectus for the purpose of this Section
9 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 made therein not misleading, except insofar as any such
loss, damage, expense, liability or claim arises out of or is based upon any
untrue statement or alleged untrue statement of a material fact contained in and
in conformity with information furnished in writing by or on behalf of any
Underwriter through you to the Company expressly for use with reference to such
Underwriter in such Registration Statement or such Prospectus or arises out of
or is based upon any omission or alleged omission to state a material fact in
connection with such information required to be stated in such Registration
Statement or such Prospectus or necessary to make such information not
misleading or (ii)
-24-
the Directed Share Program, provided that, the Company shall not be responsible
for any loss, damage, expense, liability, or claim that is finally judicially
determined to have resulted from the bad faith or gross negligence of the
Underwriters in conducting the Directed Share Program.
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 pursuant to the foregoing paragraph, such
Underwriter or such person shall promptly notify the Company in writing of the
institution of such Proceeding and the Company 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 shall not relieve the Company from any
liability which the Company may have to any Underwriter or any such person or
otherwise. Such Underwriter or such person shall have the right to employ its
or their own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of such Underwriter or of such person unless the
employment of such counsel shall have been authorized in writing by the Company
in connection with the defense of such Proceeding or the Company shall not have,
within a reasonable period of time in light of the circumstances, employed
counsel to defend such Proceeding or such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or them
which are different from, additional to or in conflict with those available to
the Company (in which case the Company shall not have the right to direct the
defense of such Proceeding on behalf of the indemnified party or parties), in
any of which events such fees and expenses shall be borne by the Company and
paid as incurred (it being understood, however, that the Company 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 shall not be liable for any settlement of any
Proceeding effected without the written consent of the Company but if settled
with the written consent of the Company, the Company 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 days after receipt by such indemnifying party of the aforesaid request,
(ii) such
-25-
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) In connection with the offer and sale of the Reserved Shares, the
Company agrees to pay WDR, at its request, the full purchase price of all
Reserved Shares which were subject to a properly confirmed agreement to purchase
and for which any Directed Share Participant failed to pay therefor and accept
delivery thereof.
(c) Each Underwriter severally agrees to indemnify, defend and hold
harmless the Company, its directors and officers, and any person who controls
the Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, and the successors and assigns of all of the foregoing persons
from and against any loss, damage, expense, liability or claim (including the
reasonable cost of investigation) which, jointly or severally, the Company or
any such person may incur under the Act, the Exchange Act, the common law or
otherwise, insofar as such loss, damage, expense, liability or claim arises out
of or is based upon any untrue statement or alleged untrue statement of a
material fact contained in and in conformity with information furnished in
writing by or on behalf of such Underwriter through you to the Company expressly
for use with reference to such Underwriter in the Registration Statement (or in
the Registration Statement as amended by any post-effective amendment thereof by
the Company) or in a Prospectus, or arises out of or is based upon any omission
or alleged omission to state a material fact in connection with such information
required to be stated in such Registration Statement or such Prospectus or
necessary to make such information not misleading.
If any Proceeding is brought against the Company or any such person in
respect of which indemnity may be sought against any Underwriter pursuant to the
foregoing paragraph, the Company 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 or any such person or otherwise.
The Company 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 or such person unless the employment of such counsel shall have been
authorized in writing by such Underwriter in
-26-
connection with the defense of such Proceeding or such Underwriter shall not
have, within a reasonable period of time in light of the circumstances, employed
counsel to have charge of the defense of such Proceeding or such indemnified
party or parties shall have reasonably concluded that there may be defenses
available to it or them which are different from 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 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 days
after receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement and (iii) such
indemnified party shall have given the indemnifying party at least 30 days'
prior notice of its intention to settle. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement of any
pending or threatened Proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such Proceeding.
(d) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a), (b) or (c) of this
Section 9 in respect of any losses, damages, expenses, liabilities or claims
referred to therein, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, damages, expenses,
liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company 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 on the one
hand and of the
-27-
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 on the one hand and the Underwriters on the other shall be deemed to
be in the same respective proportions as the total proceeds from the offering
(net of underwriting discounts and commissions but before deducting expenses)
received by the Company and the total underwriting discounts and commissions
received by the Underwriters, bear to the aggregate public offering price of the
Shares. The relative fault of the Company 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 or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses,
damages, expenses, liabilities and claims referred to in this subsection shall
be deemed to include any legal or other fees or expenses reasonably incurred by
such party in connection with investigating, preparing to defend or defending
any Proceeding.
(e) The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 9 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 9, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Shares
underwritten by such Underwriter and distributed to the public were offered to
the public exceeds the amount of any damage which such Underwriter has otherwise
been required to pay by reason of such untrue statement or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 9 are several in proportion to their respective underwriting commitments
and not joint.
(f) The indemnity and contribution agreements contained in this
Section 9 and the covenants, warranties and representations of the Company
contained in this Agreement shall remain in full force and effect regardless of
any investigation made by or on behalf of any Underwriter, its partners,
directors or officers or any person (including each partner, officer or director
of such person) who controls any Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, or by or on behalf of the Company its
directors or officers 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 and each Underwriter agree promptly to notify each other of the
commencement of any
-28-
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.
-29-
10. 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 and, if to the Company, shall be sufficient in all respects
if delivered or sent to the Company at the offices of the Company at 00000
Xxxxxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxx, 00000, Attention: General Counsel.
11. 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.
12. 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 WDR or any indemnified party.
Each of WDR and the Company (on their respective behalfs and, to the extent
permitted by applicable law, on behalf of their respective stockholders and
affiliates) waives all right to trial by jury in any action, proceeding or
counterclaim (whether based upon contract, tort or otherwise) in any way arising
out of or relating to this Agreement. The Company 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.
13. Parties at Interest. The Agreement herein set forth has been and
-------------------
is made solely for the benefit of the Underwriters and the Company and to the
extent provided in Section 9 hereof the controlling persons, directors and
officers referred to in such section, and their respective successors, assigns,
heirs, personal representatives and executors and administrators. No other
person, partnership, association or corporation (including a purchaser, as such
purchaser, from any of the Underwriters) shall acquire or have any right under
or by virtue of this Agreement.
14. 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.
-30-
15. Successors and Assigns. This Agreement shall be binding upon the
----------------------
Underwriters, 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.
16. Miscellaneous. WDR, an indirect, wholly owned subsidiary of UBS
-------------
AG, is not a bank and is separate from any affiliated bank, including any U.S.
branch or agency of UBS AG. Because WDR 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 WDR 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 WDR may have lending relationships with issuers
of securities underwritten or privately placed by WDR. To the extent required
under the securities laws, prospectuses and other disclosure documents for
securities underwritten or privately placed by WDR 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 WDR.
-31-
If the foregoing correctly sets forth the understanding among the
Company 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 and the Underwriters, severally.
Very truly yours,
LUMINEX CORPORATION
By:_______________________________
Name:
Title:
Accepted and agreed to as of the
date first above written, on behalf of
themselves and the other several Underwriters
named in Schedule A
WARBURG DILLON READ LLC
XXXXXX BROTHERS INC.
XXXX XXXXXXXX INCORPORATED
By: WARBURG DILLON READ LLC
By:________________________
Name:
Title: Managing Director
By:________________________
Name:
Title: Director
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SCHEDULE A
Number of
Underwriter Firm Shares
----------------------------------------------------- _____________
WARBURG DILLON READ LLC..............................
XXXXXX BROTHERS INC..................................
XXXX XXXXXXXX INCORPORATED...........................
Total....................... =============
