1
EXHIBIT 1
1,000,000 Shares
CN BIOSCIENCES, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
March , 1997
UBS Securities LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇ Incorporated
As Representatives of the Several Underwriters
c/o UBS Securities LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
CN Biosciences, Inc., a Delaware corporation (the "Company"), proposes to
issue and sell 89,810 shares (the "Company Shares") of its authorized but
unissued Common Stock, $.01 par value per share (the "Common Stock"), to the
several Underwriters listed on SCHEDULE A to this Agreement (collectively, the
"Underwriters"). ABS MB (C-N) Limited Partnership (the "Selling Stockholder")
proposes to sell an aggregate of 910,190 shares of Common Stock (the "Seller
Shares") to the Underwriters. The Company Shares and the Seller Shares are
hereinafter collectively referred to as the "Firm Shares." The Company also
proposes to grant to the Underwriters an option to purchase up to 150,000
additional shares (the "Option Shares") of Common Stock on the terms and for the
purposes set forth in Section 4(c). The Firm Shares and the Option Shares are
hereinafter collectively referred to as the "Shares."
The Company and the Selling Stockholder wish to confirm as follows their
agreements with you (the "Representatives") and the other Underwriters on whose
behalf you are acting in connection with the several purchases by the
Underwriters of the Shares.
1. REGISTRATION STATEMENT. A registration statement on Form S-1 (File No.
333-________ ) including a prospectus relating to the Shares and each amendment
thereto has been prepared by the Company in conformity with the requirements of
the Securities Act of 1933, as amended (the "Act"), and the rules and
regulations (the "Rules and Regulations") of the Securities and Exchange
Commission (the "Commission") thereunder, and has been filed with the
Commission. There have been delivered to you three signed copies of such
registration statement and amendments, together with three copies of each
exhibit filed therewith. Conformed copies of such registration statement and
amendments (but without exhibits) and of the related preliminary prospectus have
been delivered to you in such reasonable quantities as you have requested for
each of the Underwriters. If such registration statement has not become
effective, a further amendment to such registration statement, including a form
of final prospectus, necessary to permit such registration statement to become
effective will be filed promptly by the Company with the Commission. If such
registration statement has become effective, a final prospectus containing all
Rule 430A Information (as hereinafter defined) will be filed by the Company with
the Commission in accordance with Rule 424(b) of the Rules and Regulations on or
before the second business day after the date hereof (or such earlier time as
may be required by the Rules and Regulations).
The term "Registration Statement" as used in this Agreement shall mean
such registration statement at the time such registration statement becomes or
became effective and, in the event any post-effective amendment
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thereto becomes effective prior to the Closing Date (as hereinafter defined),
shall also mean such registration statement as so amended; provided, however,
that such term shall also include all Rule 430A Information deemed to be
included in such registration statement at the time such registration statement
becomes effective as provided by Rule 430A of the Rules and Regulations. The
term "Preliminary Prospectus" shall mean any preliminary prospectus referred to
in the preceding paragraph and any preliminary prospectus included in the
Registration Statement at the time it becomes effective that omits Rule 430A
Information. The term "Prospectus" as used in this Agreement shall mean the
prospectus relating to the Shares in the form in which it is first filed with
the Commission pursuant to Rule 424(b) of the Rules and Regulations or, if no
filing pursuant to Rule 424(b) of the Rules and Regulations is required, shall
mean the form of final prospectus included in the Registration Statement at the
time such registration statement becomes effective. The term "Rule 430A
Information" means information with respect to the Shares and the offering
thereof permitted to be omitted from the Registration Statement when it becomes
effective pursuant to Rule 430A of the Rules and Regulations.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company hereby
represents and warrants as follows:
(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
instituted 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 the Rules and Regulations. When the Registration Statement became
or becomes, as the case may be, effective (the "Effective Date") and at all
times subsequent thereto up to and at the Closing Date (as hereinafter defined),
any later date on which Option Shares are to be purchased (the "Option Closing
Date") and when any post-effective amendment to the Registration Statement
becomes effective or any amendment or supplement to the Prospectus is filed with
the Commission, (i) the Registration Statement and Prospectus, and any
amendments or supplements thereto, will contain all material statements which
are required to be stated therein by, and will comply in all material respects
with the requirements of, the Act and the Rules and Regulations, and (ii)
neither the Registration Statement nor the Prospectus, nor any amendment or
supplement thereto, will include any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to make
the statements therein not misleading. The foregoing representations and
warranties in this section 2(a) do not apply to any statements or omissions made
in reliance on and in conformity with the information in the last paragraph on
the front cover page of the Prospectus, the stabilization and passive market
making language on the inside front cover page of the Prospectus and the
information contained in the first (including the table), third, seventh and
ninth paragraphs of the section of the Prospectus entitled "Underwriting." 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) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with full
corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement. 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 Company and its Subsidiaries (as
hereinafter defined), taken as a whole (a "Material Adverse Effect"). The
Company has no "significant subsidiaries" (as defined in the Rules and
Regulations) other than Calbiochem-Novabiochem Corporation,
Calbiochem-Novabiochem GmbH, Calbiochem-Novabiochem (UK) Limited,
Calbiochem-Novabiochem AG and Clinalfa AG (collectively, the "Subsidiaries").
The Company beneficially owns all of the outstanding common stock (or foreign
equivalents) of the Subsidiaries, except for nominal shareholdings by directors
to meet director qualifying share ownership requirements of foreign
jurisdictions. 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 other than its ownership
of subsidiaries which are not "significant subsidiaries" (as defined above).
Complete and correct copies of the certificates of incorporation and of the
bylaws or equivalent documents of the Company and the Subsidiaries and all
amendments thereto have been delivered to the Representatives, and except as
described in the Prospectus or set forth in the exhibits to the Registration
Statement no material 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 or organized, as applicable, and is
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validly existing as a corporation or limited liability corporation or
partnership (or foreign equivalent) in good standing under the laws of the
jurisdiction of its incorporation or organization, 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
(or foreign equivalents) of each of the Subsidiaries have been duly authorized
and validly issued, are fully paid and nonassessable and are owned beneficially
by the Company subject to no security interest, other encumbrance or adverse
claims except for nominal shareholdings by directors to meet director qualifying
share ownership requirements of foreign jurisdictions.
(c) The Company has full power and authority (corporate and otherwise) to
enter into this Agreement and to perform the transactions contemplated hereby.
This Agreement has been duly authorized, executed and delivered by the Company
and is a valid and binding agreement on the part of the Company, enforceable
against the Company in accordance with its terms, except as rights to indemnity
and contribution hereunder may be limited by applicable laws or equitable
principles and except as enforcement hereof may be limited by applicable
bankruptcy, insolvency, reorganization or other similar laws relating to or
affecting creditors' rights generally or by general equitable principles. The
performance of this Agreement by the Company and the consummation by the Company
of the transactions herein contemplated will not result in a breach or violation
of any of the terms and provisions of, or constitute a default under, (i) any
indenture, mortgage, deed of trust, loan agreement, bond, debenture, note
agreement or other evidence of indebtedness, or any material lease, contract or
other agreement or instrument to which the Company or any Subsidiary is a party
or by which its properties are bound, or (ii) the certificate of incorporation
or bylaws or equivalent documents of the Company or any Subsidiary, or (iii) any
law, order, rule, regulation, writ, injunction or decree of any court or
governmental agency or body to which the Company or any Subsidiary is subject.
The Company is not required to obtain or make (as the case may be) any consent,
approval, authorization, order, designation or filing by or with any court or
regulatory, administrative or other governmental agency or body as a requirement
for the consummation by the Company of the transactions herein contemplated,
except such as may be required under the Act, the Securities Exchange Act of
1934, as amended (the "Exchange Act") or under state securities or blue sky
("Blue Sky") laws or under the rules and regulations of the National Association
of Securities Dealers, Inc. ("NASD").
(d) There is not pending or, to the Company's knowledge, threatened, any
action, suit, claim, proceeding or investigation against the Company or its
Subsidiaries or any of their respective officers (in their capacity as officers
of the Company or its Subsidiaries) or any of the properties, assets or rights
of the Company or the Subsidiaries before any court or governmental agency or
body or otherwise which could reasonably be expected to have a Material Adverse
Effect, or prevent consummation of the transactions contemplated hereby. There
is not pending, or to the Company's knowledge threatened, any action, suit,
claim, proceeding or investigation against the officers of the Company or the
Subsidiaries that would be required to be disclosed by the Act or the Rules and
Regulations. There are no statutes, rules, regulations, agreements, contracts,
leases or documents that are required to be described in the Prospectus, or to
be filed as exhibits to the Registration Statement, by the Act or by the Rules
and Regulations that have not been accurately described in all material respects
in the Prospectus or filed as exhibits to the Registration Statement.
(e) All outstanding shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and nonassessable, 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. The authorized and outstanding capital stock of the
Company at the consummation of the offering conforms in all material respects to
the description thereof contained in the Registration Statement and the
Prospectus (and such description correctly states the substance of the
provisions of the instruments defining the capital stock of the Company). The
Shares to be sold by the Company hereunder have been duly authorized for
issuance and sale to the Underwriters pursuant to this Agreement and, when
issued and delivered by the Company against payment therefor in accordance with
the terms of this Agreement, will be duly and validly issued and fully paid and
nonassessable. No preemptive right, co-sale right, registration right, right of
first refusal or other similar rights of securityholders exists with respect to
any of such Shares or the issue and sale thereof other than those that have been
expressly waived prior to the date hereof. No further approval or authorization
of any security holder, the Board of Directors
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or any duly appointed committee thereof or others is required for the issuance
and sale or transfer of such Shares, except as may be required under the Act,
the Exchange Act or under state securities or Blue Sky laws. Except as disclosed
in or contemplated by the Prospectus and the financial statements of the
Company, and the related notes thereto, included in the Prospectus, the Company
does not have outstanding any options or warrants to purchase, or any preemptive
rights or other rights to subscribe for or to purchase, any securities or
obligations convertible into, or any contracts or commitments to issue or sell,
shares of its capital stock or any such options, rights, convertible securities
or obligations. The description of the Company's stock option and other plans or
arrangements, and the options or other rights granted and exercised thereunder,
set forth in the Prospectus accurately and fairly presents, in all material
respects, the information required to be shown with respect to such plans,
arrangements, options and rights.
(f) Ernst & Young LLP, who have examined the financial statements,
together with the related schedules and notes, of the Company filed with the
Commission as a part of the Registration Statement, which are included in the
Prospectus, are independent public accountants within the meaning of the Act and
the Rules and Regulations. The financial statements of the Company, together
with the related schedules and notes, forming part of the Registration Statement
and Prospectus, fairly present the financial position and the results of
operations of the Company at the respective dates and for the respective periods
to which they apply. All financial statements, together with the related
schedules and notes, filed with the Commission as part of the Registration
Statement have been prepared in accordance with generally accepted accounting
principles as in effect in the United States consistently applied throughout the
periods involved except as may be otherwise stated in the Registration
Statement. The selected and summary consolidated financial and the statistical
data included in the Registration Statement present fairly the information shown
therein and have been compiled on a basis consistent with the financial
statements presented therein. No other financial statements or schedules are
required by the Act or the Rules and Regulations to be included in the
Registration Statement.
(g) Subsequent to the respective dates as of which information is given in
the Registration Statement and 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 and its Subsidiaries, taken as a whole, 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, other than shares
of Common Stock that may be issued upon the exercise of outstanding stock
options and warrants, 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 have any material contingent obligation which is not disclosed in
the Registration Statement.
(h) The Company and each Subsidiary have good and marketable title to all
material properties and assets described in the Prospectus as owned by them,
free and clear of any pledge, lien, security interest, charge, encumbrance,
claim, equitable interest, or restriction, (ii) the agreements to which the
Company or any Subsidiary is a party described in the Prospectus are valid
agreements, enforceable against the Company or such Subsidiary in accordance
with their terms, except as enforcement may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to or
affecting creditors' rights generally or by general equitable principles, and,
to the Company's knowledge, the other contracting party or parties thereto are
not in material breach or default under any of such agreements and (iii) the
Company and each Subsidiary have valid and enforceable leases for the properties
described in the Prospectus as leased by it, and such leases conform in all
material respects to the description thereof, if any, set forth in the
Registration Statement.
(i) The Company and each Subsidiary now hold and at the Closing Date and
any later Option Closing Date, as the case may be, will hold, all licenses,
certificates, approvals and permits from all state, United States, foreign and
other regulatory authorities necessary to the conduct of their businesses (as
such businesses are currently conducted), except for such licenses,
certificates, approvals and permits the failure of which to hold would not have
a Material Adverse Effect, all of which are valid and in full force and effect,
and there is no proceeding pending or, to the knowledge of the Company,
threatened which may cause any such license, certificate, approval or
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permit to be withdrawn, canceled, suspended or not renewed. Neither the Company
nor any Subsidiary is in violation of its certificate of incorporation or other
comparable charter documents, as applicable, and neither the Company nor any
Subsidiary is in violation of its bylaws, except for any violation which would
not have a Material Adverse Effect. Except for defaults or violations which
would not have a Material Adverse Effect, neither the Company nor any Subsidiary
is in default in the performance or observance of any obligation, agreement,
covenant or condition contained in any bond, debenture, note or other evidence
of indebtedness or in any contract, indenture, mortgage, loan agreement, joint
venture or other agreement or instrument to which it is a party or by which it
or any of its properties are bound, or in violation of any law, order, rule,
regulation, writ, injunction or decree of any court or governmental agency or
body.
(j) The Company and each Subsidiary have filed on a timely basis all
necessary federal, state and foreign income, franchise and other tax returns and
have paid all taxes shown thereon as due, and the Company has no knowledge of
any tax deficiency which has been or might be asserted against the Company or
any Subsidiary which might have a Material Adverse Effect. All material tax
liabilities are adequately provided for within the financial statements of the
Company.
(k) The Company and its Subsidiaries maintain insurance of the types and
in the amounts adequate for their business and consistent with insurance
coverage maintained by similar companies in similar businesses, including, but
not limited to, insurance covering product liability and real and personal
property owned or leased against theft, damage, destruction, acts of vandalism
and all other risks customarily insured against, all of which insurance is in
full force and effect.
(l) Neither the Company nor any of its Subsidiaries is involved in any
labor dispute or disturbance nor, to the knowledge of the Company, is any such
dispute or disturbance threatened.
(m) Except as described in the Prospectus, the Company and each Subsidiary
own or possess adequate licenses or other rights to use all patents, patent
applications, trademarks, trademark applications, service marks, service ▇▇▇▇
applications, tradenames, copyrights, manufacturing processes, formulae, trade
secrets, know-how, franchises, and other material intellectual property rights
and assets (collectively, "Intellectual Property") necessary to the conduct of
their businesses substantially as now conducted and as proposed to be conducted
as described in the Prospectus. The Company has no knowledge that it or any
Subsidiary lacks or will be unable to obtain any rights or licenses to use any
of the Intellectual Property necessary to conduct the business substantially as
now conducted or proposed to be conducted by it as described in the Prospectus.
The Prospectus fairly and accurately describes the Company's rights with respect
to the Intellectual Property. Except as would not, individually or in the
aggregate, have a Material Adverse Effect, the Company has not received any
notice of infringement or of conflict with rights or claims of others with
respect to any Intellectual Property. The Company is not aware of any
Intellectual Property of others which are infringed upon by potential products
or processes referred to in the Prospectus in such a manner as to result in a
Material Adverse Effect.
(n) The Company and each Subsidiary are conducting their businesses in
compliance with all of the laws, rules and regulations of the jurisdictions in
which it is conducting business, except where any such failure to be in
compliance would not have a Material Adverse Effect.
(o) The Company is not 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.
(p) Neither the Company nor any of its Subsidiaries has incurred any
liability for a fee, commission, or other compensation on account of the
employment of a broker or finder in connection with the transactions
contemplated by this Agreement other than the underwriting discounts and
commissions contemplated hereby.
(q) The Company and each of its Subsidiaries is (i) in compliance with any
and all applicable federal, foreign, state and local environmental laws, rules,
regulations, treaties, statutes and codes promulgated by any and all
governmental authorities relating to the protection of human health and safety,
the environment or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) has received all permits, licenses or other
approvals required of it under applicable Environmental Laws to conduct its
business as currently conducted,
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and (iii) is in compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with Environmental Laws, or
failure to receive required permits, licenses or other approvals would not,
individually or in the aggregate, have a Material Adverse Effect. No action,
proceeding, revocation proceeding, writ, injunction or claim is pending or
threatened relating to the Environmental Laws or to the Company's or its
Subsidiaries' activities involving Hazardous Materials. "Hazardous Materials"
means any material or substance (i) that is prohibited or regulated by any
environmental law, rule, regulation, order, treaty, statute or code promulgated
by any governmental authority, or any amendment or modification thereto, or (ii)
that has been designated or regulated by any governmental authority as
radioactive, toxic, hazardous or otherwise a danger to health, reproduction or
the environment.
(r) Except as disclosed in the Registration Statement, or except as would
not result in a Material Adverse Effect or would not otherwise be required to be
disclosed in the Registration Statement under the Act or the Rules and
Regulations, (i) neither the Company nor any of its Subsidiaries has engaged in
the generation, use, manufacture, transportation or storage of any Hazardous
Materials on any of the Company's or its Subsidiaries' properties or former
properties, except where such use, manufacture, transportation or storage is in
compliance with Environmental Laws; (ii) no Hazardous Materials have been
treated or disposed of on any of the Company's or its Subsidiaries' properties
or on properties formerly owned or leased by the Company or any Subsidiary
during the time of such ownership or lease, except in compliance with
Environmental Laws; and (iii) no spills, discharges, releases, deposits,
emplacements, leaks or disposal of any Hazardous Materials have occurred on or
under or have emanated from any of the Company's or its Subsidiaries' properties
or former properties.
(s) Neither the Company nor any of its Subsidiaries has at any time during
the last five years (i) made any unlawful contribution to any candidate for
foreign office, or failed to disclose fully any contribution in violation of
law, or (ii) made any payment to any foreign, United States or state
governmental officer or official, or other person charged with similar public of
quasi-public duties, other than payments required or permitted by the laws of
the United States.
(t) The Common Stock is registered pursuant to Section 12(g) of the
Exchange Act. The Shares have been duly authorized for quotation on the National
Association of Securities Dealers, Inc. National Market System ("Nasdaq National
Market"). The Company has taken no action designed to, or likely to have the
effect of, terminating the registration of the Common Stock under the Exchange
Act or delisting the Common Stock from the Nasdaq National Market, nor has the
Company received any notification that the Commission or the Nasdaq National
Market is contemplating terminating such registration or listing.
(u) Neither the Company nor, to its knowledge, any of its officers,
directors or affiliates has taken, and at the Closing Date and at any later
Option Closing Date, neither the Company nor, to its knowledge, any of its
officers, directors or affiliates will have taken, directly or indirectly, any
action which has constituted, or might reasonably be expected to constitute, the
stabilization or manipulation of the price of sale or resale of the Shares.
3. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDER. The Selling
Stockholder, represents and warrants with respect to the Seller Shares that:
(a) This Agreement, the Custody Agreement signed by the Selling
Stockholder and the Company as Custodian, relating to the deposit of the Seller
Shares (the "Custody Agreement"), and the Power of Attorney appointing certain
individuals as the Selling Stockholder's attorneys-in-fact to the extent set
forth therein, relating to the transactions contemplated hereby and by the
Registration Statement (the "Power of Attorney") have been duly authorized,
executed and delivered by or on behalf of the Selling Stockholder and are valid
and binding agreements of the Selling Stockholder enforceable in accordance with
their terms, except as rights to indemnity and contribution hereunder may be
limited by applicable law and except as enforcement hereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditor's rights generally, or by general equitable principles.
(b) The execution and delivery by the Selling Stockholder of, and the
performance by the Selling Stockholder of its obligations under, this Agreement,
the Custody Agreement and the Power of Attorney do not contravene any provision
of applicable law, and will not result in (i) any violation of the Selling
Stockholder's
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limited partnership agreement, (ii) the breach or violation of any of the terms
and provisions, or constitute a material default under, any indenture, mortgage,
deed of trust, loan agreement, bond, debenture, note agreement or other evidence
of indebtedness, or any lease, contract or other agreement or instrument to
which the Selling Stockholder is a party or by which its properties are bound,
(iii) the breach or violation of any statute, rule or regulation, of any
regulatory body or administrative agency or other governmental agency or body
having jurisdiction over the Selling Stockholder or any of its properties or
operations, or (iv) the breach or violation of any judgment, order, writ or
decree of any government, arbitrator, court, regulatory body or administrative
agency, or other governmental agency or body having jurisdiction over the
Selling Stockholder or any of its properties or operations.
(c) No authorization, approval or consent of any regulatory body or
administrative agency or other governmental agency or body is necessary in
connection with the performance of this Agreement and consummation of the
transactions herein contemplated by the Selling Stockholder except such as have
been obtained under the Act or such as may be required under state or other
securities or Blue Sky laws or the by-laws and rules of the NASD in connection
with the purchase and the distribution of the Shares by the Underwriters.
(d) The Selling Stockholder has, and on the Closing Date will have, valid
marketable title to the Seller Shares and the legal right and power, and all
authorization and approval required by law, to enter into this Agreement, the
Custody Agreement and the Power-of-Attorney, and to sell, transfer and deliver
the Seller Shares, except that no representation is made with respect to federal
and state securities laws.
(e) Delivery of the Seller Shares against payment therefor will transfer
to the Underwriters marketable title to such Seller Shares, free and clear of
any security interests, claims, liens, equities and other encumbrances.
(f) All information furnished by or on behalf of the Selling Stockholder
for use in the Registration Statement and Prospectus is, and on the Closing Date
will be, true, correct, and complete, and does not, and on the Closing Date will
not, contain any untrue statement of a material fact or omit to state any
material fact necessary to make such information not misleading.
(g) Neither the Selling Stockholder nor any of its respective partners or
controlling persons has taken, directly or indirectly, any action designed, or
which might reasonably be expected, to cause or result, under the Act or
otherwise, in, or which has constituted, stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Shares.
(h) Without taking any action to verify independently the Company's
representations or warranties made in this Agreement, and without assuming
responsibility for the accuracy, completeness or fairness of such
representations and warranties, nothing has come to the attention of such
Selling Stockholder to cause the Selling Stockholder to believe the Company's
representations and warranties contained in this Agreement are not accurate.
(i) The Selling Stockholder is not aware that any Preliminary Prospectus,
the Registration Statement or the Prospectus includes any untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein not misleading.
4. PURCHASE OF THE SHARES BY THE UNDERWRITERS.
(a) On the basis of the representations and warranties and subject to the
terms and conditions herein set forth, (i) the Company agrees to issue and sell
the Company Shares to the several Underwriters, (ii) the Selling Stockholder
agrees to sell to the Underwriters the Seller Shares, and (iii) each of the
Underwriters agrees to purchase from the Company and the Selling Stockholder the
respective aggregate number of Firm Shares set forth opposite its name on
Schedule A, plus such additional number of Firm Shares which such Underwriter
may become obligated to purchase pursuant to Section 4(b) hereof. The price at
which such Firm Shares shall be sold by the Company and the Selling Stockholder
and purchased by the several Underwriters shall be $_____ per share. In making
this Agreement, each Underwriter is contracting severally and not jointly;
except as provided in paragraphs
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(b) and (c) of this Section 4, the agreement of each Underwriter is to purchase
only the respective number of Firm Shares specified on Schedule A.
(b) If for any reason one or more of the Underwriters shall fail or refuse
(otherwise than for a reason sufficient to justify the termination of this
Agreement under the provisions of Section 12 hereof) to purchase and pay for the
number of Shares agreed to be purchased by such Underwriter or Underwriters, the
non-defaulting Underwriters shall have the right within twenty-four (24) hours
after such default to purchase, or procure one or more other Underwriters to
purchase, in such proportions as may be agreed upon between you and such
purchasing Underwriter or Underwriters and upon the terms herein set forth, all
or any part of the Shares which such defaulting Underwriter or Underwriters
agreed to purchase. If the non-defaulting Underwriters fail so to make such
arrangements with respect to all such Shares and portion, the number of Shares
which each non-defaulting Underwriter is otherwise obligated to purchase under
this Agreement shall be automatically increased on a pro rata basis (as adjusted
by you in such manner as you deem advisable to avoid fractional shares) to
absorb the remaining shares and portion which the defaulting Underwriter or
Underwriters agreed to purchase; provided, however, that the non-defaulting
Underwriters shall not be obligated to purchase the Shares and portion which the
defaulting Underwriter or Underwriters agreed to purchase if the aggregate
number of such Shares exceeds 10% of the total number of Shares which all
Underwriters agreed to purchase hereunder. If the total number of Shares which
the defaulting Underwriter or Underwriters agreed to purchase shall not be
purchased or absorbed in accordance with the two preceding sentences, the
Company shall have the right, within twenty-four (24) hours next succeeding the
24-hour period referred to above, to make arrangements with other underwriters
or purchasers reasonably satisfactory to you for purchase of such Shares and
portion on the terms herein set forth. In any such case, either you or the
Company shall have the right to postpone the Closing Date determined as provided
in Section 6 hereof for not more than seven business days after the date
originally fixed as the Closing Date pursuant to said Section 6 in order that
any necessary changes in the Registration Statement, the Prospectus or any other
documents or arrangements may be made. 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 24-hour periods 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 (b), and no action taken
hereunder, shall relieve any defaulting Underwriter from liability in respect of
any default of such Underwriter under this Agreement.
(c) On the basis of the representations, warranties and covenants herein
contained, and subject to the terms and conditions herein set forth, the Company
grants an option to the several Underwriters to purchase all or any portion of
the Option Shares from the Company at the same price per share as the
Underwriters shall pay for the Firm Shares. Said option may be exercised only to
cover over-allotments in the sale of the Firm Shares by the Underwriters and may
be exercised in whole or in part at any time (but not more than once) on or
before the 30th day after the date of this Agreement upon written or facsimile
notice by you to the Company setting forth the aggregate number of shares of the
Option Shares as to which the several Underwriters are exercising the option.
Delivery of certificates for the shares of Option Shares, and payment therefor,
shall be made as provided in Section 6 hereof. Each Underwriter will purchase
such percentage of the Option Shares as is equal to the percentage of Firm
Shares that such Underwriter is purchasing, the exact number of shares to be
adjusted by you in such manner as you deem advisable to avoid fractional shares.
5. OFFERING BY UNDERWRITERS.
(a) The terms of the public offering by the Underwriters of the Shares to
be purchased by them shall be as set forth in the Prospectus. The Underwriters
may from time to time change the public offering price after the closing of the
public offering and increase or decrease the concessions and discounts to
dealers as they may determine.
(b) You, on behalf of the Underwriters, represent and warrant that (i) the
information set forth in the last paragraph on the front cover page of the
Prospectus, the stabilization and passive market making language on the inside
front cover page of the Prospectus and the information contained in the first
(including the table), third,
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seventh and ninth paragraphs of the section of the Prospectus entitled
"Underwriting" in the Registration Statement, any Preliminary Prospectus and the
Prospectus relating to the Shares (insofar as such information relates to the
Underwriters) constitutes the only information furnished by the Underwriters to
the Company for inclusion in the Registration Statement, any Preliminary
Prospectus, and the Prospectus, and that the statements made therein are correct
and do not omit to state any material fact required to be stated therein or
necessary to make the statements made therein in light of the circumstances
under which they were made not misleading, and (ii) the Underwriters have not
distributed and will not distribute prior to the Closing Date or on any Option
Closing Date, as the case may be, any offering material in connection with the
offering and sale of the shares other than the Preliminary Prospectus, the
Prospectus, the Registration Statement and other materials permitted by the Act.
6. DELIVERY OF AND PAYMENT FOR THE SHARES.
(a) Delivery of certificates for the Firm Shares and the Option Shares (if
the option granted pursuant to Section 4(c) hereof shall have been exercised not
later than 11:00 a.m., California time, on the date at least two business days
preceding the Closing Date), and payment therefor, shall be made at the offices
of ▇▇▇▇▇▇ Godward LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇ at 6:00 a.m., California time, on the fourth business day after the
date of this Agreement (the "Closing Date").
(b) If the option granted pursuant to Section 4(c) hereof shall be
exercised after 11:00 a.m., California time, on the date two business days
preceding the Closing Date, and on or before the 30th day after the date of this
Agreement, delivery of certificates for the Option Shares, and payment therefor,
shall be made at the offices of ▇▇▇▇▇▇ Godward LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ at 6:00 a.m., California time, on the third
business day after the exercise of such option.
(c) Payment for the Shares purchased from the Company shall be made to the
Company or its order, and payment for the Shares purchased from the Selling
Stockholder shall be made to the custodian, for the account of the Selling
Stockholder, in each case by wire transfer of funds or by one or more certified
or official bank check or checks in immediately available (same day) funds. Such
payment shall be made upon delivery of certificates for the Shares to you for
the respective accounts of the several Underwriters against receipt therefor
signed by you. Certificates for the Shares to be delivered to you shall be
registered in such name or names and shall be in such denominations as you may
request at least three business days before the Closing Date, in the case of
Firm Shares, and at least two business days prior to the Option Closing Date, in
the case of the Option Shares. Such certificates will be made available to the
Underwriters for inspection, checking and packaging at a location in New York,
New York, designated by the Underwriters not less than one full business day
prior to the Closing Date or, in the case of the Option Shares, by 3:00 p.m.,
New York time, on the business day preceding the Option Closing Date.
It is understood that you, individually and not on behalf of the
Underwriters, may (but shall not be obligated to) make payment to the Company
and the Selling Stockholder for shares to be purchased by any Underwriter whose
check shall not have been received by you on the Closing Date or any later
Option Closing Date. Any such payment by you shall not relieve such Underwriter
from any of its obligations hereunder.
7. FURTHER AGREEMENTS OF THE COMPANY. The Company covenants and agrees as
follows:
(a) The Company will use its best efforts to cause the Registration
Statement and any amendment thereof, if not effective at the time and date that
this Agreement is executed and delivered by the parties hereto, to become
effective as promptly as possible; it will notify you, promptly after it shall
receive notice thereof, of the time when the Registration Statement or any
subsequent amendment to the Registration Statement has become effective or any
supplement to the Prospectus has been filed. If the Company omitted information
from the Registration Statement at the time it was originally declared effective
in reliance upon Rule 430A(a), the Company will provide evidence satisfactory to
you that the Prospectus contains such information and has been filed, within the
time period prescribed, with the Commission pursuant to subparagraph (1) or (4)
of Rule 424(b) of the Rules and Regulations or as part of a post-effective
amendment to such Registration Statement as originally declared effective which
is declared effective by the Commission. If for any reason the filing of the
final form of Prospectus is required under Rule 424(b)(3) of the Rules and
Regulations, it will provide evidence satisfactory to you that the Prospectus
contains such information and has been filed with the Commission within the time
period prescribed. The Company
9.
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will notify you promptly of any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for additional
information. Promptly upon your request, it will prepare and file with the
Commission any amendments or supplements to the Registration Statement or
Prospectus which, in the reasonable opinion of counsel to the several
Underwriters ("Underwriters' Counsel"), may be necessary or advisable in
connection with the distribution of the Shares by the Underwriters. The Company
will promptly prepare and file with the Commission, and promptly notify you of
the filing of, any amendments or supplements to the Registration Statement or
Prospectus which may be necessary to correct any statements or omissions, if, at
any time when a prospectus relating to the Shares is required to be delivered
under the Act, any event shall have occurred as a result of which the Prospectus
or any other prospectus relating to the Shares as then in effect would include
an untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. In case any Underwriter is required to
deliver a prospectus after 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 prospectus or prospectuses as
may be necessary to permit compliance with the requirements of Section 10(a)(3)
of the Act. The Company will file no amendment or supplement to the Registration
Statement or Prospectus that shall not previously have been submitted to you a
reasonable time prior to the proposed filing thereof or to which you shall
reasonably object in writing or which is not in compliance with the Act and
Rules and Regulations or the provisions of this Agreement.
(b) The Company will advise you, promptly after it shall receive notice or
obtain knowledge thereof, of the issuance of any stop order by the Commission
suspending the effectiveness of the Registration Statement or the use of the
Prospectus or of the initiation or threat of any proceeding for that purpose;
and it will promptly use its best efforts to prevent the issuance of any such
stop order or to obtain its withdrawal at the earliest possible moment if such
stop order should be issued.
(c) The Company will cooperate with you in endeavoring to qualify the
Shares for offering and sale under the securities laws of such jurisdictions as
you may designate and to continue such qualifications in effect for so long as
may be required for purposes of the distribution of the Shares, except that the
Company shall not be required in connection therewith or as a condition thereof
to qualify as a foreign corporation, or to execute a general consent to service
of process in any jurisdiction, or to make any undertaking with respect to the
conduct of its business. In each jurisdiction in which the Shares shall have
been qualified, the Company will make and file such statements, reports and
other documents in each year as are or may be reasonably required by the laws of
such jurisdictions so as to continue such qualifications in effect for so long a
period as you may reasonably request for distribution of the Shares, or as
otherwise may be required by law.
(d) The Company will furnish to you, as soon as available, copies of the
Registration Statement (three of which will be signed and which will include all
exhibits), each Preliminary Prospectus, the Prospectus and any amendments or
supplements to such documents, including any prospectus prepared to permit
compliance with Section 10(a)(3) of the Act, all in such quantities as you may
from time to time reasonably request.
(e) The Company will make generally available to its stockholders as soon
as practicable, but in any event not later than the 45th day following the end
of the fiscal quarter first occurring after the first anniversary of the
effective date of the Registration Statement, an earnings statement (which will
be in reasonable detail but need not be audited) complying with the provisions
of Section 11(a) of the Act and Rule 158 of the Rules and Regulations and
covering a twelve-month period beginning after the effective date of the
Registration Statement, and will advise you in writing when such statement has
been made available.
(f) During a period of five years after the date hereof, the Company, as
soon as practicable after the end of each respective period, will furnish to its
stockholders annual reports (including financial statements audited by
independent certified public accountants) and will furnish to its stockholders
unaudited quarterly reports of operations for each of the first three quarters
of the fiscal year, and will, upon request, furnish to you and the other several
Underwriters hereunder (i) concurrently with making such reports available to
its stockholders, statements of operations of the Company for each of the first
three quarters in the form made available to the Company's stockholders; (ii)
concurrently with the furnishing thereof to its stockholders, a balance sheet of
the Company as of the end of such fiscal year, together with statements of
operations, of stockholders' equity and of cash flows of the
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Company for such fiscal year, accompanied by a copy of the report thereon of
nationally recognized independent certified public accountants; (iii)
concurrently with the furnishing of such reports to its stockholders, copies of
all reports (financial or other) mailed to stockholders; (iv) as soon as they
are available, copies of all reports and financial statements furnished to or
filed with the Commission, any securities exchange or the Nasdaq National Market
by the Company (except for documents for which confidential treatment is
requested); and (v) every material press release and every material news item or
article in respect of the Company or its affairs which was generally released to
stockholders or prepared for general release by the Company. During such
five-year period, if the Company shall have any active subsidiaries, the
foregoing financial statements shall be on a consolidated basis to the extent
that the accounts of the Company are consolidated with any subsidiaries, and
shall be accompanied by similar financial statements for any significant
subsidiary that is not so consolidated.
(g) Prior to or simultaneously with the execution and delivery of this
Agreement, the Company will obtain an agreement from each beneficial owner of
the Company's Common Stock listed on SCHEDULE B to this Agreement providing that
such person will not, commencing on the effective date of the Registration
Statement and continuing until the expiration of 180 days following the
effective date of the Registration Statement, without the prior written consent
of UBS Securities LLC: (i) offer, sell, contract to sell, pledge, grant any
option to sell or otherwise dispose of, directly or indirectly, any shares of
Common Stock or securities convertible into, or exchangeable for shares of
Common Stock, or warrants or other rights to purchase shares of Common Stock of
which such person is, or may in the future become, the beneficial owner (within
the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as
amended); or (ii) exercise any registration rights, whether held by such person
as of the date hereof or hereafter acquired, with respect to any shares of
Common Stock.
(h) The Company shall not, during the 180 days following the effective
date of the Registration Statement, except with the prior written consent of UBS
Securities LLC, file a registration statement covering any of its shares of
capital stock, except that one or more registration statements on Form S-8 may
be filed at any time following the effective date of the Registration Statement.
(i) The Company shall not, during the 180 days following the effective
date of the Registration Statement, except with the prior written consent of UBS
Securities LLC, issue, sell, offer or agree to sell, grant, distribute or
otherwise dispose of, directly or indirectly, any shares of Common Stock, or any
options, rights or warrants with respect to shares of Common Stock, or any
securities convertible into or exchangeable for Common Stock, other than (i) the
sale of Shares hereunder, (ii) the grant of options or the issuance of shares of
Common Stock under the Company's stock option plans or stock purchase plan, as
the case may be, existing on the date hereof, (iii) the issuance of shares of
Common Stock upon exercise of the currently outstanding options or warrants
described in the Registration Statement.
(j) The Company will apply the net proceeds from the sale of the Shares
being sold by it in the manner set forth under the caption "Use of Proceeds" in
the Prospectus.
(k) The Company will maintain a Transfer Agent and, if necessary under the
jurisdiction of incorporation of the Company, a Registrar (which may be the same
entity as the Transfer Agent) for its Common Stock.
(l) The Company will use its best efforts to maintain listing of its
shares of Common Stock on the Nasdaq National Market until such time as the
Company's Board of Directors authorizes (i) the listing of the Common Stock on
the New York Stock Exchange or another national securities exchange or (ii) the
delisting of the Common Stock in connection with an acquisition of the Company.
(m) The Company will in the future conduct its affairs in such a manner so
as to ensure that the Company will not be an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, and the rules and
regulations thereunder.
(n) If at any time during the 180-day period after the Registration
Statement becomes effective, any rumor, publication or event relating to or
affecting the Company shall occur as a result of which in your reasonable
opinion the market price of the Common Stock has been or is likely to be
materially affected (regardless of whether
11.
12
such rumor, publication or event necessitates a supplement to or amendment of
the Prospectus), the Company will, after written notice from you advising the
Company to the effect set forth above, consult with you in good faith regarding
the necessity of disseminating a press release or other public statement
responding to or commenting on such rumor, publication or event and, if the
Company in its reasonable judgment determines that such a press release or other
public statement is appropriate, the substance of any press release or other
public statement.
8. AGREEMENTS OF THE SELLING STOCKHOLDER AND THE COMPANY. The Selling
Stockholder agrees to pay or cause to be paid all taxes, including the cost of
tax stamps, if any, on the transfer and sale of the Seller Shares and the fees
and expenses of counsel and accountants, if any, retained by the Selling
Stockholder, except such fees and expenses that are paid by the Company, if any.
The Selling Stockholder will pay and hold each Underwriter and any subsequent
holder of the Seller Shares harmless from any and all liabilities with respect
to or resulting from any failure or delay in paying Federal and state stamp and
other transfer taxes, if any, which may be payable or determined to be payable
in connection with the sale to such Underwriter of the Seller Shares. The
Selling Stockholder will take all reasonable actions in cooperation with the
Company and the Underwriters to cause the Registration Statement to become
effective at the earliest possible time, to do and perform all things to be done
and performed under this Agreement prior to the Closing Date and to satisfy all
conditions precedent to the delivery of the Shares pursuant to this Agreement.
The Company agrees to pay all costs and expenses incident to the performance of
the obligations of the Selling Stockholder under this Agreement (except as set
forth above), including, but not limited to, all expenses incident to the
delivery of the certificates for the Seller Shares, the costs and expenses
incident to the preparation, printing and filing of the Registration Statement
(including all exhibits thereto) and the Prospectus and any amendments or
supplements thereto, the expenses of qualifying the Seller Shares under the
securities or blue sky laws of various jurisdictions, all filing fees payable in
connection with the review of the offering of the Shares by the NASD, and the
cost of furnishing to the Underwriters the required copies of the Registration
Statement and Prospectus and any amendments or supplements thereto; provided
that the Selling Stockholder agrees to pay or cause to be paid its pro rata
share (based on the percentage which the number of Seller Shares sold bears to
the total number of Shares sold) of all underwriting discounts and commissions.
9. EXPENSES.
The Company agrees with each Underwriter that:
(a) The Company will pay and bear all costs, fees and expenses in
connection with the preparation, printing and filing of the Registration
Statement (including financial statements, schedules and exhibits), Preliminary
Prospectuses and the Prospectus and any amendments or supplements thereto; the
reproduction of this Agreement, the Agreement Among Underwriters, the Selected
Dealer Agreement, the Custody Agreement, the Power-of-Attorney, the Preliminary
Blue Sky Memorandum and any Supplemental Blue Sky Memoranda and any instruments
related to any of the foregoing; the issuance and delivery of the Shares
hereunder to the several Underwriters, including transfer taxes, if any; the
cost of all stock certificates representing the Shares and Transfer Agents' and
Registrars' fees; the fees and disbursements of corporate and regulatory counsel
for the Company; all fees and other charges of the Company's independent public
accountants; the cost of furnishing to the several Underwriters copies of the
Registration Statement (including appropriate exhibits), Preliminary
Prospectuses and the Prospectus, and any amendments or supplements to any of the
foregoing; NASD filing fees and expenses incident to securing any required
review; the cost of qualifying the Shares under the laws of such jurisdictions
within the United States as you may designate (including filing fees and fees
and disbursements of Underwriters' Counsel in connection with such filings and
Blue Sky qualifications) which shall not exceed $5,000; listing application fees
of the Nasdaq National Market; and all other expenses directly incurred by the
Company in connection with the performance of its obligations hereunder.
(b) If the transactions contemplated hereby are not consummated by reason
of any failure, refusal or inability on the part of the Company to perform any
agreement on its part to be performed hereunder or to fulfill any condition of
the Underwriters' obligations hereunder, the Company will, in addition to paying
the expenses described in clause (a) above, reimburse the several Underwriters
for all out-of-pocket expenses (including reasonable fees and disbursements of
Underwriters' counsel) incurred by the Underwriters in reviewing the
Registration Statement and the Prospectus and in otherwise investigating,
preparing to market or marketing the
12.
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Shares. The Company will in no event be liable to any of the several
Underwriters for any loss of anticipated profits from the sale by them of the
Shares.
10. CONDITIONS OF UNDERWRITERS' OBLIGATIONS.
The obligations of the several Underwriters to purchase and pay for
the Shares, as provided herein, shall be subject to the accuracy, as of the date
hereof and the Closing Date and any later Option Closing Date, as the case may
be, of the representations and warranties of the Company and the Selling
Stockholder herein, to the performance by the Company and the Selling
Stockholder of their respective obligations hereunder and to the following
additional conditions:
(a) The Registration Statement shall have become effective not later than
7:00 a.m., California time, on the date following the date of this Agreement, or
such later time or date as shall be consented to in writing by you. If the
filing of the Prospectus, or any supplement thereto, is required pursuant to
Rule 424(b) and Rule 430A of the Rules and Regulations, the Prospectus shall
have been filed in the manner and within the time period required by Rule 424(b)
and Rule 430A of the Rules and Regulations. No stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceeding for that purpose shall have been initiated or, to the knowledge of
the Company, the Selling Stockholder or any Underwriter, threatened by the
Commission, and any request of the Commission for additional information (to be
included in the Registration Statement or the Prospectus or otherwise) shall
have been complied with to the reasonable satisfaction of Underwriters' Counsel.
(b) All corporate proceedings and other legal matters in connection with
this Agreement, the form of Registration Statement and the Prospectus, and the
registration, authorization, issue, sale and delivery of the Shares shall have
been reasonably satisfactory to Underwriters' Counsel, and such counsel shall
have been furnished with such papers and information as they may reasonably have
requested to enable them to pass upon the matters referred to in this
subsection.
(c) You shall have received, at no cost to you, on the Closing Date and on
any later Option Closing Date, as the case may be, the opinions of (i) ▇▇▇▇▇▇▇
▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, corporate counsel to the Company (ii) ▇▇▇▇▇▇▇ Phleger &
▇▇▇▇▇▇▇▇, LLP, California counsel to the Company, (iii) Pestalozzi ▇▇▇▇▇ &
▇▇▇▇▇, Swiss counsel to the Company, (iv) ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, German counsel to
the Company, (v) Freeth ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, United Kingdom counsel to the
Company, and (vi) ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ LLP, regulatory counsel to the Company,
dated the Closing Date or such later Option Closing Date, in the forms attached
hereto on APPENDIX A, addressed to the Underwriters and with original signed
copies thereof for each of the Representatives. You shall have received, at no
cost to you, on the Closing Date, the opinion of ___________________________, as
counsel to the Selling Stockholder, dated the Closing Date, in the form attached
hereto as Appendix B, addressed to the Underwriters and with original signed
copies thereof for each of the Representatives.
(d) You shall have received from ▇▇▇▇▇▇ Godward LLP, Underwriters'
Counsel, an opinion or opinions, dated the Closing Date or on any later Option
Closing Date, as the case may be, in form and substance reasonably satisfactory
to you, with respect to the sufficiency of all corporate proceedings undertaken
by the Company and other legal matters relating to this Agreement and the
transactions contemplated hereby as you may reasonably require, and the Company
shall have furnished to such counsel such documents as it may have reasonably
requested for the purpose of enabling it to pass upon such matters.
(e) You shall have received on the Closing Date and on any later Option
Closing Date, as the case may be, a letter from Ernst & Young LLP addressed to
the Company and the Underwriters, dated the Closing Date or such later Option
Closing Date, as the case may be, confirming that it is an independent certified
public accountant with respect to the Company within the meaning of the Act and
the Rules and Regulations thereunder and based upon the procedures described in
its letter delivered to you concurrently with the execution of this Agreement
(herein called the "Original Letter"), but carried out to a date not more than
five days prior to the Closing Date or any such later Option Closing Date, as
the case may be, (i) confirming that the statements and conclusions set forth in
the Original Letter are accurate as of the Closing Date or such later Option
Closing Date, as the case may be; and (ii) setting forth any revisions and
additions to the statements and conclusions set forth in the Original Letter
that are necessary to reflect any changes in the facts described in the Original
Letter since the date of
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such letter, or to reflect the availability of more recent financial statements,
data or information. The letter shall not disclose any change, or any
development involving a prospective change, in or affecting the business or
properties of the Company which, in your reasonable judgment, makes it
impracticable or inadvisable to proceed with the public offering of the Shares
as contemplated by the Prospectus. In addition, you shall have received from
Ernst & Young LLP a letter addressed to the Company and made available to you
for the use of the Underwriters stating that its review of the Company's system
of internal accounting controls, to the extent it deemed necessary in
establishing the scope of its latest examination of the Company's financial
statements, did not disclose any weaknesses in internal controls that it
considered to be material weaknesses. All such letters shall be in a form
reasonably satisfactory to the Representatives and their counsel.
(f) You shall have received on the Closing Date and on any later Option
Closing Date, as the case may be, a certificate of the President and the Chief
Financial Officer of the Company, dated the Closing Date or such later date, to
the effect that as of such date (and you shall be satisfied that as of such
date):
(i) The representations and warranties of the Company in this
Agreement are true and correct, as if made on and as of the Closing Date or any
later Option Closing Date, as the case may be; and the Company has complied with
all of the agreements and satisfied all of the conditions on its part to be
performed or satisfied at or prior to the Closing Date or any later Option
Closing Date, as the case may be;
(ii) The Registration Statement has become effective under the Act
and no stop order suspending the effectiveness of the Registration Statement or
preventing or suspending the use of the Prospectus has been issued, and no
proceedings for that purpose have been instituted or are pending or, to the best
of their knowledge, threatened under the Act;
(iii) They have carefully reviewed the Registration Statement and
the Prospectus and, when the Registration Statement became effective and at all
times subsequent thereto up to the delivery of such certificate, the
Registration Statement and the Prospectus and any amendments or supplements
thereto contained all statements and information required to be included therein
or necessary to make the statements therein not misleading and neither the
Registration Statement nor the Prospectus nor any amendment or supplement
thereto included any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading and, since the effective date of the Registration
Statement, there has occurred no event required to be set forth in an amended or
supplemented Prospectus that has not been so set forth; and
(iv) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not been (A)
any material adverse change in the properties or assets described or referred to
in the Registration Statement and the Prospectus or in the condition (financial
or otherwise), operations, business or prospects of the Company and its
Subsidiaries, (B) any transaction which is material to the Company and its
Subsidiaries, except transactions entered into in the ordinary course of
business, (C) any obligation, direct or contingent, incurred by the Company or
its Subsidiaries, which is material to the Company and its Subsidiaries taken as
a whole, (D) any change in the capital stock or outstanding indebtedness of the
Company or its Subsidiaries which is material to the Company and its
Subsidiaries taken as a whole, other than as contemplated by the Prospectus, or
(E) any dividend or distribution of any kind declared, paid or made on the
capital stock of the Company.
(g) You shall have received on the Closing Date a certificate signed by
the Selling Stockholder (or its attorney-in-fact on its behalf), dated the
Closing Date, to the effect that, as of such date, the representations and
warranties of the Selling Stockholder contained in this Agreement are true and
correct as if made on and as of the Closing Date.
(h) The Company shall have furnished to you such further certificates and
documents as you shall reasonably request as to the accuracy of the
representations and warranties of the Company herein, as to the performance by
the Company of its obligations hereunder and as to the other conditions
concurrent and precedent to the obligations of the Underwriters hereunder.
14.
15
(i) The Firm Shares and the Option Shares, if any, shall have been
approved for designation upon notice of issuance on the Nasdaq National Market.
All such opinions, certificates, letters and documents will be in
compliance with the provisions hereof only if they are reasonably satisfactory
to Underwriters' Counsel. The Company will furnish you with such number of
conformed copies of such opinions, certificates, letters and documents as you
shall reasonably request.
11. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company and the Selling Stockholder, jointly and severally, agree
to indemnify and hold harmless each Underwriter and each person (including each
partner or officer thereof) who controls any Underwriter within the meaning of
Section 15 of the Act from and against any and all losses, claims, damages or
liabilities, joint or several, to which such indemnified parties or any of them
may become subject under the Act, the Exchange Act, or the common law or
otherwise, and the Company and the Selling Stockholder, jointly and severally,
agree to reimburse each such Underwriter and controlling person for any legal or
other out-of-pocket expenses (including, except as otherwise hereinafter
provided, reasonable fees and disbursements of counsel) incurred by the
respective indemnified parties in connection with defending against any such
losses, claims, damages or liabilities or in connection with any investigation
or inquiry of, or other proceeding which may be brought against, the respective
indemnified parties, in each case arising out of or based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement (including the Prospectus as part thereof) or any
post-effective amendment thereto, or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, or (ii) any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus or
the Prospectus (as amended or as supplemented if the Company shall have filed
with the Commission any amendment thereof or supplement thereto) or the omission
or alleged omission to state therein a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that (1) the indemnity agreements of
the Company and the Selling Stockholder contained in this paragraph (a) shall
not apply to any such losses, claims, damages, liabilities or expenses if such
statement or omission is contained in the last paragraph on the front cover page
of the Prospectus, the stabilization and passive market making language on the
inside front cover page of the Prospectus or the information contained in the
first (including the table), third, seventh and ninth paragraphs of the section
of the Prospectus entitled "Underwriting", (2) the indemnity agreement contained
in this paragraph (a) with respect to any Preliminary Prospectus shall not inure
to the benefit of any Underwriter from whom the person asserting any such
losses, claims, damages, liabilities or expenses purchased the Shares which is
the subject thereof (or to the benefit of any person controlling such
Underwriter) if at or prior to the written confirmation of the sale of such
Shares a copy of the Prospectus (or the Prospectus as amended or supplemented)
was not sent or delivered to such person and the untrue statement or omission of
a material fact contained in such Preliminary Prospectus was corrected in the
Prospectus (or the Prospectus as amended or supplemented) unless the failure to
deliver such Prospectus is the result of noncompliance by the Company with
paragraph (a) of Section 7 hereof, and (3) the Selling Stockholder shall only be
liable under this paragraph with respect to (A) information pertaining to the
Selling Stockholder furnished by or on behalf of the Selling Stockholder
expressly for use in any Preliminary Prospectus or the Registration Statement or
the Prospectus or any such amendment thereof or supplement thereto or (B) facts
that would constitute a breach of any representation or warranty of the Selling
Stockholder set forth in Section 3 hereof. The indemnity agreement of the
Company contained in this paragraph (a) and the representations and warranties
of the Company and the Selling Stockholder contained in Section 2 and Section 3,
respectively, hereof shall remain operative and in full force and effect
regardless of any investigation made by or on behalf of any indemnified party
and shall survive the delivery of any payment for the Shares.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company and the Selling Stockholder, each of their respective executive
officers, each of their respective directors, each other Underwriter and each
person (including each partner or officer thereof) who controls the Company or
the Selling Stockholder or any such other Underwriter within the meaning of
Section 15 of the Act, from and against any and all losses, claims, damages or
liabilities, joint or several, to which such indemnified parties or any of them
may become subject under the Act, the Exchange Act, or the common law or
otherwise and to reimburse each of them for any legal or other expenses
including, except as otherwise hereinafter provided, reasonable fees and
disbursements of counsel)
15.
16
incurred by the respective indemnified parties in connection with defending
against any such losses, claims, damages or liabilities or in connection with
any investigation or inquiry of, or other proceeding which may be brought
against, the respective indemnified parties, in each case arising out of or
based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (including the Prospectus as part
thereof) or any post-effective amendment thereto or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading or (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus or the Prospectus (as amended or as supplemented if the
Company shall have filed with the Commission any amendment thereof or supplement
thereto) or the omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, if such statement or
omission is contained in the last paragraph on the front cover page of the
Prospectus, the stabilization and passive market making language on the inside
front cover page of the Prospectus or the information contained in the first
(including the table), third, seventh and ninth paragraphs of the section of the
Prospectus entitled "Underwriting." The indemnity agreement of each Underwriter
contained in this paragraph (b) shall remain operative and in full force and
effect regardless of any investigation made by or on behalf of any indemnified
party and shall survive the delivery of and payment for the Shares.
(c) Each party indemnified under the provision of paragraphs (a) and (b)
of this Section 11 agrees that, upon the service of a summons or other initial
legal process upon it in any action or suit instituted against it or upon its
receipt of written notification of the commencement of any investigation or
inquiry of, or proceeding against it, in respect of which indemnity may be
sought on account of any indemnity agreement contained in such paragraphs, it
will promptly give written notice (a "Notice") of such service or notification
to the party or parties from whom indemnification may be sought hereunder. No
indemnification provided for in such paragraphs shall be available to any party
who shall fail so to give the Notice if the party to whom such Notice was not
given was unaware of the action, suit, investigation, inquiry or proceeding to
which the Notice would have related and was prejudiced by the failure to give
the Notice, but the omission so to notify such indemnifying party or parties of
any such service or notification shall not relieve such indemnifying party or
parties from any liability which it or they may have to the indemnified party
for contribution or otherwise than on account of such indemnity agreement. Any
indemnifying party shall be entitled at its own expense to participate in the
defense of any action, suit or proceeding against, or investigation or inquiry
of, an indemnified party. Any indemnifying party shall be entitled, if it so
elects within a reasonable time after receipt of the Notice by giving written
notice (the "Notice of Defense") to the indemnified party, to assume (alone or
in conjunction with any other indemnifying party or parties) the entire defense
of such action, suit, investigation, inquiry or proceeding, in which event such
defense shall be conducted, at the expense of the indemnifying party or parties,
by counsel chosen by such indemnifying party or parties and reasonably
satisfactory to the indemnified party or parties; provided, however, that (i) if
the indemnified party or parties reasonably determine that there may be a
conflict between the positions of the indemnifying party or parties and of the
indemnified party or parties in conducting the defense of such action, suit,
investigation, inquiry or proceeding or that there may be legal defenses
available to such indemnified party or parties different from or in addition to
those available to the indemnifying party or parties, then counsel for the
indemnified party or parties shall be entitled to conduct the defense to the
extent reasonably determined by such counsel to be necessary to protect the
interests of the indemnified party or parties and (ii) in any event, the
indemnified party or parties shall be entitled, at its or their own expense, to
have counsel chosen by such indemnified party or parties participate in, but not
conduct, the defense. It is understood that the indemnifying parties shall not,
in respect of the legal defenses of any indemnified party in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for (a)
the fees and expenses of more than one separate firm (in addition to any local
counsel) for all of the Underwriters and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act, and (b) the fees and
expenses of more than one separate firm (in addition to any local counsel) for
the Company, its directors, its officers who sign the Registration Statement and
each person, if any, who controls the Company within the meaning of Section 15
of the Act. If, within a reasonable time after receipt of the Notice, an
indemnifying party gives a Notice of Defense and the counsel chosen by the
indemnifying party or parties is reasonably satisfactory to the indemnified
party or parties, the indemnifying party or parties will not be liable under
paragraphs (a) through (c) of this Section 11 for any legal or other expenses
subsequently incurred by the indemnified party or parties in connection with the
defense of the action, suit, investigation, inquiry or proceeding, except that
(A) the indemnifying party or parties shall bear the legal and other expenses
incurred in connection with the conduct of the defense as referred to in clause
(i) of the proviso to the preceding sentence and (B) the indemnifying party or
parties
16.
17
shall bear such other expenses as it or they have authorized to be incurred by
the indemnified party or parties. If, within a reasonable time after receipt of
the Notice, no Notice of Defense has been given, the indemnifying party or
parties shall be responsible for any legal or other expenses incurred by the
indemnified party or parties in connection with the defense of the action, suit,
investigation, inquiry or proceeding. The indemnifying party or parties shall
not be liable for any settlement, compromise or consent to the entry of any
judgment in any proceeding effected without its or their written consent,
provided such consent has not been unreasonably withheld, unless such
settlement, compromise or consent includes an unconditional release of such
indemnifying party or parties from all liability arising out of such claim,
action, suit or proceeding.
(d) If the indemnification provided for in this Section 11 is unavailable
or insufficient to hold harmless an indemnified party under paragraph (a) or (b)
of this Section 11, then each indemnifying party shall, in lieu of indemnifying
such indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or liabilities
referred to in paragraph (a) or (b) of this Section 11 (i) in such proportion as
is appropriate to reflect the relative benefits received by each indemnifying
party 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 each indemnifying party in connection with
the statements or omissions that resulted in such losses, claims, damages or
liabilities, or actions in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company and/or
the Selling Stockholder, on the one hand, and the Underwriters, on the other,
shall be deemed to be in the same respective proportions as the total net
proceeds from the offering of the Shares received by the Company or the Selling
Stockholder, as the case may be, and the total underwriting discount received by
the Underwriters, as set forth in the table on the cover page of the Prospectus,
bear to the aggregate public offering price of the Shares. Relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by each indemnifying party and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such untrue statement or omission.
The parties agree that it would not be just and equitable if
contributions pursuant to this paragraph (d) were to be determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to in the first sentence of this paragraph
(d). The amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities, or actions in respect thereof, referred to in the first
sentence of this paragraph (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigation, preparation to defend or defense against any action or claim
which is the subject of this paragraph (d). Notwithstanding the provisions of
this paragraph (d), no Underwriter shall be required to contribute any amount in
excess of the underwriting discount applicable to the Shares purchased by such
Underwriter. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations in this paragraph (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
Each party entitled to contribution agrees that upon the service of
a summons or other initial legal process upon it in any action instituted
against it in respect of which contribution may be sought, it will promptly give
written notice of such service to the party or parties from whom contribution
may be sought, but the omission so to notify such party or parties of any such
service shall not relieve the party from whom contribution may be sought from
any obligation it may have hereunder or otherwise (except as specifically
provided in paragraph (c) of this Section 11).
(e) The Company will not, without the prior written consent of each
Underwriter, which consent shall not be unreasonably withheld, settle or
compromise or consent to the entry of any judgment in any pending or threatened
claim, action, suit or proceeding in respect of which indemnification may be
sought hereunder (whether or not such Underwriter or any person who controls
such Underwriter within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act is a party to such claim, action, suit or proceeding) unless
such settlement, compromise or consent includes an unconditional release of such
Underwriter and each such controlling person from all liability arising out of
such claim, action, suit or proceeding.
17.
18
(f) The parties to this Agreement hereby acknowledge that they are
sophisticated business persons who were represented by counsel during the
negotiations regarding the provisions hereof, including without limitation the
provisions of this Section 11, and are fully informed regarding said provisions.
They further acknowledge that the provisions of this Section 11 fairly allocate
the risks in light of the ability of the parties to investigate the Company and
its business in order to assure that adequate disclosure is made in the
Registration Statement and Prospectus as required by the Act and the Exchange
Act.
12. TERMINATION. This Agreement may be terminated by you at any time on or
prior to the Closing Date or on or prior to any later Option Closing Date, as
the case may be, without any liability on the part of the Underwriters to the
Company or the Selling Stockholder (i) if the Company or the Selling Stockholder
shall have failed, refused or been unable, at or prior to the Closing Date, or
on or prior to any later Option Closing Date, as the case may be, to perform any
agreement on its part to be performed, or because any other condition of the
Underwriters' obligations hereunder required to be fulfilled by the Company or
the Selling Stockholder is not fulfilled, or (ii) if trading on the New York
Stock Exchange, the American Stock Exchange or the Nasdaq National Market shall
have been suspended, or minimum or maximum prices for trading shall have been
fixed, or maximum ranges for prices for securities shall have been required on
the New York Stock Exchange, the American Stock Exchange or the Nasdaq National
Market, by such trading exchanges or by order of the Commission or any other
governmental authority having jurisdiction, or if a banking moratorium shall
have been declared by federal or New York authorities, or (iii) if the Company
shall have sustained a loss by strike, fire, flood, accident or other calamity
of such character as to have a Material Adverse Effect regardless of whether or
not such loss shall have been insured, or (iv) if there shall have been a
material adverse change in the general political or economic conditions or
financial markets in the United States as in the reasonable judgment of the
Representatives makes it inadvisable or impracticable to proceed with the
offering, sale and delivery of the Shares, or (v) if there shall have occurred
an outbreak or escalation of hostilities between the United States and any
foreign power or of any other insurrection or armed conflict involving the
United States or other national or international calamity, hostilities or crisis
or the declaration by the United States of a national emergency which, in the
reasonable judgment of the Representatives, adversely affects the marketability
of the Shares, or (vi) if since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there shall have
occurred any material adverse change or any development involving a prospective
material adverse change in or affecting the condition, financial or otherwise,
of the Company or the business affairs, management, or business prospects of the
Company, whether or not arising in the ordinary course of business, or (vii) if
any foreign, federal or state statute, regulation, rule or order of any court or
other governmental authority shall have been enacted, published, decreed or
otherwise promulgated which in the reasonable judgment of the Representatives
materially and adversely affects or will materially and adversely affect the
business or operations of the Company, or trading in the Common Stock shall have
been suspended, or (viii) there shall have occurred a material adverse decline
in the value of securities generally on the New York Stock Exchange, the
American Stock Exchange or the Nasdaq National Market or (ix) action shall be
taken by any foreign, federal, state or local government or agency in respect of
its monetary or fiscal affairs which, in the reasonable judgment of the
Representatives, has a material adverse effect on the securities markets in the
United States. If this Agreement shall be terminated in accordance with this
Section 12, there shall be no liability of the Company or the Selling
Stockholder to the Underwriters and no liability of the Underwriters to the
Company or the Selling Stockholder; provided, however, that in the event of any
such termination the Company agrees to indemnify and hold harmless the
Underwriters from all costs or expenses incident to the performance of the
obligations of the Company under this Agreement, including all costs and
expenses referred to in Section 9.
If you elect to terminate this Agreement as provided in this Section 12,
the Company shall be notified promptly by you by telephone, facsimile or
telegram, confirmed by letter.
13. REIMBURSEMENT OF CERTAIN EXPENSES.
(a) In addition to their other respective obligations under Section 11 of
this Agreement, the Company and the Selling Stockholder jointly and severally,
hereby agree to reimburse on a quarterly basis the Underwriters for all
reasonable legal and other expenses incurred in connection with investigating or
defending any claim, action, investigation, inquiry or other proceeding arising
out of or based upon any statement or omission, or any alleged statement or
omission, described in paragraph (a) of Section 11 of this Agreement,
notwithstanding the absence of a judicial determination as to the propriety and
enforceability of the obligations under this Section 13 and the
18.
19
possibility that such payments might later be held to be improper; provided,
however, that (i) to the extent any such payment is ultimately held to be
improper, the persons receiving such payments shall promptly refund them and
(ii) such persons shall provide to the Company and the Selling Stockholder, as
the case may be, upon request, reasonable assurances of their ability to effect
any refund, when and if due.
(b) In addition to their other obligations under Section 11 of this
Agreement, the Underwriters hereby agree to reimburse on a quarterly basis the
Company (and each of its executive officers and directors, as applicable) and
the Selling Stockholder for all reasonable legal and other expenses incurred in
connection with investigating or defending any claim, action, investigation,
inquiry or other proceeding arising out of or based upon any statement or
omission, or any alleged statement or omission, described in paragraph (b) of
Section 11 of this Agreement, notwithstanding the absence of a judicial
determination as to the propriety and enforceability of the obligations under
this Section 13 and the possibility that such payments might later be held to be
improper; provided, however, that (i) to the extent any such payment is
ultimately held to be improper, the Company or the Selling Stockholder, as the
case may be, shall promptly refund it and (ii) the Company, its officers and
directors and the Selling Stockholder shall provide to the Underwriters, upon
request, reasonable assurances of its ability to effect any refund, when and if
due.
14. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall inure to
the benefit of the Company, the Selling Stockholder and the several Underwriters
and, with respect to the provisions of Section 11 hereof, the several parties
(in addition to the Company, the Selling Stockholder and the several
Underwriters) indemnified under the provisions of said Section 11, and their
respective personal representatives, successors and assigns. Nothing in this
Agreement is intended or shall be construed to give to any other person, firm or
corporation any legal or equitable remedy or claim under or in respect of this
Agreement or any provision herein contained. The term "successors and assigns"
as herein used shall not include any purchaser, as such purchaser, of any of the
Shares from any of the several Underwriters.
15. NOTICES. Except as otherwise provided herein, all communications
hereunder shall be in writing or by telegraph and, if to the Underwriters,
shall be mailed, telegraphed or delivered to UBS Securities LLC, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇; if to the Company,
shall be mailed, telegraphed or delivered to it at its office, ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇; and
if to the Selling Stockholder, shall be mailed, telegraphed or delivered to
it at its office, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇.
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇. All notices given by telegraph shall be promptly
confirmed by letter.
16. MISCELLANEOUS. The reimbursement, indemnification and contribution
agreements contained in this Agreement and the representations, warranties and
covenants in this Agreement shall remain in full force and effect regardless of
(i) any investigation made by or on behalf of any Underwriter or controlling
person thereof, or by or on behalf of the Company or its respective directors of
officers, and (ii) delivery of and payment for the Shares under this Agreement.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
You will act as Representatives of the several Underwriters in all
dealings with the Company under this Agreement, and any action under or in
respect of this Agreement taken by you jointly or by UBS Securities LLC, as
Representatives, will be binding upon all of the Underwriters.
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of New York.
19.
20
Please sign and return to the Company the enclosed duplicates of this
letter, whereupon this letter will become a binding agreement among the Company
and the several Underwriters in accordance with its terms.
Very truly yours,
CN BIOSCIENCES, INC.
By:______________________________
Name:______________________________
Title:______________________________
ABS MB (C-N) LIMITED PARTNERSHIP
By: ABS MB Ltd., its General Partner
By:______________________________
Name:______________________________
Title:______________________________
The foregoing Agreement
is hereby confirmed and
accepted as of the date
first above written.
UBS SECURITIES LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇ INCORPORATED
By: UBS SECURITIES LLC
By: ______________________________
Title: ______________________________
Acting on behalf of the several
Underwriters, including themselves,
named on SCHEDULE A hereto.
20.
21
SCHEDULE A
UNDERWRITERS
NUMBER OF SHARES
UNDERWRITERS TO BE PURCHASED
UBS Securities LLC
▇▇▇▇ ▇▇▇▇▇▇▇▇ Incorporated
------------------
1,000,000
22
SCHEDULE B
LOCK-UP AGREEMENTS
Warburg, ▇▇▇▇▇▇ Investors, L.P.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
S. ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, III
23
APPENDIX A
1. OPINION OF ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
(As to questions of law not involving the laws of the United States or the
General Corporation Law of the State of Delaware, conforming opinions may, in
lieu of the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, be provided by ▇▇▇▇▇▇▇, Phleger
& ▇▇▇▇▇▇▇▇, LLP, California counsel to the Company, Pestalozzi ▇▇▇▇▇ & ▇▇▇▇▇,
Swiss counsel to the Company, ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, German counsel to the Company,
and Freeth ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, United Kingdom counsel to the Company.)
▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ shall opine to the effect that :
(a) 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,
and each of the Company's Subsidiaries has been duly organized, is validly
existing and is in good standing under the laws of the jurisdiction in which it
operates;
(b) The Company and each of its Subsidiaries has the corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Prospectus; the Company and each of its Subsidiaries is duly
qualified to do business as a foreign corporation and is in good standing in all
jurisdictions 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 have a Material Adverse Effect;
(c) To such counsel's knowledge, except for Calbiochem-Novabiochem
Corporation, Calbiochem-Novabiochem AG, Clinalfa AG, Calbiochem-Novabiochem GmbH
and Calbiochem-Novabiochem (UK) Limited, the Company does not own or control,
directly or indirectly, any "significant subsidiary" (as defined in the Rules
and Regulations). All of the outstanding shares of capital stock (or foreign
equivalents) of each of the Company's Subsidiaries have been duly authorized and
validly issued, are fully paid and nonassessable and, except for nominal
shareholdings by directors to meet director qualifying share ownership
requirements of foreign jurisdictions, are owned directly or indirectly by the
Company, in each case, to such counsel's knowledge, subject to no security
interest, other encumbrance or adverse claim;
(d) As of the date hereof, after giving effect to the issuance of the Firm
Shares, the Company's authorized, issued and outstanding capital stock consists
of the following: 5,000,000 shares of Preferred Stock, par value $.01 per share,
authorized, no shares of which are issued and outstanding; 800,000 shares of
Class A Common Stock, no shares of which are issued and outstanding; and
30,000,000 shares of Common Stock, par value $.01 per share, authorized,
[5,242,397] shares of which are issued and outstanding. The authorized shares of
the Company's Common Stock have been duly authorized; the issued and outstanding
shares of the Company's capital stock have been duly authorized and validly
issued and are fully paid and nonassessable, and to our knowledge have not been
issued in violation of any preemptive right, co-sale right, registration right,
right of first refusal or other similar right;
(e) The Shares to be issued by the Company pursuant to this Agreement have
been duly authorized and will be, upon issuance and delivery against payment
therefor in accordance with the terms hereof, validly issued, fully paid and
nonassessable, and, to our knowledge, the stockholders of the Company do not
have any preemptive right, co-sale right, registration right, right of first
refusal or other similar right, which rights have not previously been waived, in
connection with the purchase or sale of any of the Shares;
(f) The Company has full corporate power and authority to enter into this
Agreement and to issue, sell and deliver to the Underwriters the Company Shares
or the Option Shares, as the case may be, to be issued and sold by it hereunder;
(g) This Agreement has been duly authorized by all necessary corporate
action on the part of the Company and has been duly executed and delivered by
the Company;
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24
(h) The Registration Statement has become effective under the Act and, to
such counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement or suspending or preventing the use of the Prospectus has
been issued and no proceedings for that purpose have been instituted or are
pending or threatened under the Act; any required filing of the Prospectus and
any supplement thereto pursuant to Rule 424(b) of the Rules and Regulations has
been made in the manner and within the time period required by such Rule 424(b);
(i) The Registration Statement, all Preliminary Prospectuses, the
Prospectus, and each amendment or supplement thereto (other than the financial
statements, and other financial and statistical data derived therefrom, as to
which such counsel need express no opinion), comply as to form in all material
respects with the requirements of the Act and the applicable Rules and
Regulations, and, to our knowledge, there are no agreements, contracts, leases
or documents of a character required to be described in, or filed as an exhibit
to, the Registration Statement which are not described or filed as required by
the Act and the applicable Rules and Regulations;
(j) The terms and provisions of the authorized and outstanding capital
stock of the Company as of the date hereof conform to the description thereof
contained in the Registration Statement and the Prospectus, and the information
in the Prospectus under the caption "Description of Capital Stock," to the
extent that it constitutes matters of law or legal conclusions, has been
reviewed by such counsel and is correct in all material respects, and the form
of certificate evidencing the Common Stock complies with the applicable
provisions of Delaware law;
(k) The statements in the Registration Statement and the Prospectus
summarizing statutes, rules and regulations relating to federal securities laws
and the Delaware General Corporation Law and the description of the certificate
of incorporation and bylaws, are accurate and fairly and correctly present the
information required to be presented by the Act or the Rules and Regulations in
all material respects; and such counsel does not know of any statutes, rules or
regulations required to be described in the Registration Statement or the
Prospectus that are not described or referred to therein as required;
(l) The statements under the captions "Risk Factors - Shares Eligible for
Future Sale", "Management - Employment Agreements," "Management - Stock Option
Plans," "Management - Compensation Committee Interlocks and Insider
Participation" and "Certain Transactions" in the Prospectus, to the extent such
statements constitute a summary of documents referred to therein or matters of
law, are accurate summaries and fairly and correctly present, in all material
respects, the information called for with respect to such documents and matters;
provided that such counsel shall be entitled to rely on representations of the
Company with respect to certain factual matters contained in such statements,
and provided further that such counsel shall state that nothing has come to the
attention of such counsel which leads them to believe that such representations
are not true and correct in all material respects;
(m) The execution, delivery and performance of this Agreement and the
consummation of the transactions therein contemplated do not and will not (a)
conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, the certificate of incorporation or bylaws of the
Company or any of its Subsidiaries, any agreement or document filed as an
exhibit to the Registration Statement, or, to such counsel's knowledge, any
statute, rule or regulation applicable to the Company or any of its Subsidiaries
(except that no opinion need to be expressed with respect to compliance with
state securities or Blue Sky laws) or (b) to the knowledge of such counsel,
result in the creation or imposition of any lien or encumbrance upon any of the
assets of the Company or any of its Subsidiaries pursuant to the terms or
provisions of, or result in a breach or violation of any of the terms or
provisions of, or constitute a default or result in the acceleration of any
obligation under, any indenture, mortgage, deed of trust, loan agreement, bond,
debenture, note agreement, other evidence of indebtedness, lease, contract or
other agreement or instrument to which the Company or any of its Subsidiaries is
a party or by which its property or any of its Subsidiaries' property is bound
or (c) to the knowledge of such counsel, conflict with or result in a violation
or breach of, or constitute a default under, any applicable license,
authorization, approval, permit, judgment, franchise, order, writ or decree of
any court or governmental agency or body;
(n) The Company and each of its Subsidiaries has the corporate or other
power and authority to own or lease all of the assets owned or leased by it and
to conduct its business, in each case as described in the
▇-▇
▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and the Prospectus, except where failure to have such
power and authority would not have a Material Adverse Effect;
(o) No authorization, approval, consent, order, designation or declaration
of or filing by or with any governmental authority or agency is necessary in
connection with the execution and delivery of this Agreement by the Company and
the consummation of the transactions therein contemplated, except such as may
have been obtained under the Act and the Rules and Regulations or such as may be
required under state securities or Blue Sky laws or the securities laws of any
foreign jurisdiction, or by the bylaws and rules of the NASD in connection with
the purchase and distribution of the Shares by the Underwriters;
(p) Neither the Company nor any of its Subsidiaries is in violation of its
certificate of incorporation, bylaws or other charter documents, as applicable,
and to such counsel's knowledge, neither the Company nor any of its Subsidiaries
is in breach of or default with respect to any provision of any agreement, that
was filed as an exhibit to the Registration Statement and, to such counsel's
knowledge, the Company and each of its Subsidiaries is in compliance with all
laws, rules, regulations, judgments, decrees, orders and statutes of any court
or jurisdiction to which it is subject, except where breach, default or
noncompliance would not have a Material Adverse Effect;
(q) To such counsel's knowledge, there are no pending or threatened
actions, suits, claims, proceedings or investigations that, if successful, would
have a Material Adverse Effect or would limit, revoke, cancel, suspend, or cause
not to be renewed any existing license, certificate, registration, approval or
permit from any state, federal or regulatory authority that is material to the
conduct of the business of the Company and its Subsidiaries as presently
conducted, or that is of a character otherwise required to be disclosed in the
Registration Statement or the Prospectus under the Act or the applicable Rules
and Regulations;
(r) To such counsel's knowledge, except for Warburg, ▇▇▇▇▇▇ Investors,
L.P., ABS MB (C-N) Limited Partnership, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ and Silicon Valley Bank, no holders of shares of Common Stock or
other securities of the Company have registration rights with respect to
securities of the Company and, except as set forth in the Registration Statement
and Prospectus, all holders of securities of the Company having registration
rights with respect to shares of Common Stock or other securities have, with
respect to the offering contemplated hereby, waived such rights or such rights
have otherwise been waived.
(s) No transfer taxes are required to be paid in connection with the sale
or delivery to the Underwriters of the Firm Shares or the Option Shares;
(t) 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;
In addition, such counsel shall include a statement to the effect that
such counsel has participated in conferences with officials and other
representatives of the Company, the Representatives, Underwriters' Counsel and
the independent public accountants of the Company, at which conferences the
contents of the Registration Statement and the Prospectus and related matters
were discussed, and although they have not verified the accuracy or completeness
of the statements contained in the Registration Statement or the Prospectus,
nothing has come to the attention of such counsel which caused them to believe
that, at the time the Registration Statement became effective, the Registration
Statement (other than the financial statements, and other financial and
statistical data derived therefrom, as to which such counsel need express no
belief) contained any 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 Closing Date or any later Option Closing Date,
as the case may be, the Prospectus (except as aforesaid) contained any 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.
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26
Such counsel need express no opinion relating to the statements in the
Registration Statement and Prospectus as to the regulatory requirements of the
United States Food and Drug Administration and any similar foreign regulatory
agencies.
Counsel rendering the foregoing may rely (i) as to questions of law not
involving the laws of the United States or the General Corporation Law of the
State of Delaware upon opinions of local counsel, (ii) as to the regulatory
requirements of the United States Food and Drug Administration and any similar
foreign regulatory agencies, upon the opinion of ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, LLP, and
(iii) as to questions of fact upon representations or certificates of officers
of the Company and of governmental officials, as the case may be, in which case
its opinion is to state that it is so doing and that it has no actual knowledge
of any material misstatement or inaccuracy in such opinions, representations or
certificates, and that they believe that they and the Underwriters are justified
in relying on such opinions or certificates. Copies of any opinion,
representation or certificate so relied upon shall be delivered to you, as
Representatives of the Underwriters, and to Underwriters' Counsel.
2. OPINION OF ▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇, LLP, FDA COUNSEL.
(a) Such counsel has read the description of the Company's business in the
Prospectus and the statements in the Prospectus under the caption "Business -
Government Regulation" (the "FDA Portion") and (i) the statements included in
the FDA Portion, insofar as such statements summarize the effect on the Company
of provisions of applicable FDA statutes and regulations, are accurate in all
material respects and (ii) neither the Company nor any of its Subsidiaries is
subject to regulation by or approval of the United States Food and Drug
Administration or any similar foreign governmental agency.
In addition, such counsel shall include a statement to the effect that
such counsel has participated in conferences with officials and other
representatives of the Company, the Representatives, Underwriters' Counsel and
the independent public accountants of the Company, at which conferences the
contents of the Registration Statement and the Prospectus and related matters
were discussed, and although they have not verified the accuracy or completeness
of the statements contained in the Registration Statement or the Prospectus,
nothing has come to the attention of such counsel which caused them to believe
that, at the time the Registration Statement became effective, the Registration
Statement (except as to financial statements, financial and statistical data and
supporting schedules contained therein, as to which such counsel need express no
opinion) contained any 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 Closing Date or any later Option Closing Date,
as the case may be, the Registration Statement or the Prospectus (except as
aforesaid) contained any 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.
▇-▇
▇▇
▇▇▇▇▇▇▇▇ ▇
1. Opinion of ____________________
____________________ shall opine to the effect that:
(a) This Agreement has been duly authorized, executed and delivered
by or on behalf of the Selling Stockholder;
(b) The execution and delivery by the Selling Stockholder of, and the
performance by the Selling Stockholder of its obligations under, this Agreement,
the Custody Agreement and the Power of Attorney will not result in (i) any
violation of the Company's charter or bylaws, (ii) the breach or violation of
any of the terms and provisions, or constitute a default under, any material
indenture, mortgage, deed of trust, loan agreement, bond, debenture, note
agreement or other evidence of indebtedness, or any material lease, contract or
other agreement or instrument to which the Selling Stockholder is a party or by
which its properties are bound, (iii) the breach or violation of any federal,
California or, to the best of our knowledge, local statute, rule or regulation;
provided however, that no opinion need be rendered concerning state securities
or Blue Sky laws, or (d) to the best of our knowledge, the breach or violation
of any judgment, order, writ or decree of any government, arbitrator, court,
regulatory body or administrative agency, or other governmental agency or body
having jurisdiction over the Selling Stockholder or any of its properties or
operations;
(c) No authorization, approval or consent, order, designation or
declaration of or filing by or with any governmental authority or agency is
necessary in connection with the performance of this Agreement and consummation
of the transactions herein contemplated by the Selling Stockholders, except such
as have been obtained under the Act and the Rules and Regulations or such as may
be required under state securities or Blue Sky laws or the securities laws of
any foreign jurisdiction, or by the bylaws and rules of the NASD in connection
with the purchase and distribution of the Shares by the Underwriters;
(d) Each of the Underwriters who has purchased Seller Shares in good faith
and without notice of any adverse claim within the meaning of the applicable
Uniform Commercial Code, upon payment for such Seller Shares, has received good
and valid title to such Seller Shares, free and clear of any security interests,
claims, liens, and encumbrances, except for security interests, claims, liens,
and encumbrances created or imposed by, or in favor of, the Underwriters; and
(e) Each of the Custody Agreement and the Power of Attorney has been duly
authorized, executed and delivered by or on behalf of the Selling Stockholder
and is a valid and binding agreement of the Selling Stockholder, enforceable in
accordance with its terms except as to (i) rights to indemnity and contribution
hereunder which may be limited by applicable law, (ii) bankruptcy and laws
relating to the rights and remedies of creditors generally, and (iii) the
availability of equitable remedies.
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