Exhibit 1.1
Conceptus, Inc.
4,000,000 Shares
Common Stock
($0.003 Par Value)
UNDERWRITING AGREEMENT
________ __, 2002
UNDERWRITING AGREEMENT
________ __, 2002
UBS Warburg LLC
CIBC World Markets Corp.
Xxxxx, Xxxxxxxx & Xxxx, Inc.
XX Xxxxx Securities Corporation
As Representatives of the several Underwriters
c/o UBS Warburg LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Conceptus, Inc. a Delaware corporation (the "Company"), proposes to
issue and sell to the Underwriters named in Schedule A annexed hereto (the
"Underwriters") an aggregate of 4,000,000 shares of Common Stock, $0.003 par
value per share (the "Common Stock"), of the Company (the "Firm Shares"). In
addition, solely for the purpose of covering over-allotments, the Company
proposes to grant to the Underwriters the option to purchase from the Company up
to an additional 600,000 shares of Common Stock (the "Additional Shares"). The
Firm Shares and the Additional Shares are hereinafter collectively sometimes
referred to as the Shares. The Shares are described in the Prospectus which is
referred to below.
The Company has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the "Act"), with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (File No. 333-89266)
including a prospectus, relating to the Shares. The Company has furnished to
you, for use by the Underwriters and by dealers, copies of one or more
preliminary prospectuses (each thereof being herein called a "Preliminary
Prospectus") relating to the Shares. Except where the context otherwise
requires, the registration statement, as amended when it becomes effective,
including all documents filed as a part thereof, and including any information
contained in a prospectus subsequently filed with the Commission pursuant to
Rule 424(b) under the Act and deemed to be part of the registration statement at
the time of effectiveness pursuant to Rule 430(A) under the Act, and also
including any registration statement filed pursuant to Rule 462(b) under the
Act, is herein called the "Registration Statement," and the prospectus, in the
form filed by the Company with the Commission pursuant to Rule 424(b) under the
Act on or before the second business
day after the date hereof (or such earlier time as may be required under the
Act) or, if no such filing is required, the form of final prospectus included in
the Registration Statement at the time it became effective, is herein called the
"Prospectus." Any reference herein to the Registration Statement, a Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include (i) the
documents incorporated by reference therein pursuant to Form S-3 (the
"Incorporated Documents") and (ii) the copy of the Registration Statement,
Preliminary Prospectus or Prospectus or Incorporated Documents filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval
system ("XXXXX"). Any reference herein to the terms "amend", "amendment" or
"supplement" with respect to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the filing
of any document under the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder (collectively, the "Exchange Act") after the
effective date of the Registration Statement, or the Prospectus, as the case may
be, deemed to be incorporated therein by reference.
The Company and the Underwriters agree as follows:
1. Sale and Purchase. Upon the basis of the representations and
warranties and subject to the terms and conditions herein set forth, the Company
agrees to sell to the respective Underwriters and each of the Underwriters,
severally and not jointly, agrees to purchase from the Company the respective
number of Firm Shares set forth opposite the name of such Underwriter in
Schedule A annexed hereto, in each case at a purchase price of $____ per Share.
The Company is advised by you that the Underwriters intend (i) to make a public
offering of their respective portions of the Firm Shares as soon after the
effective date of the Registration Statement as in your judgment is advisable
and (ii) initially to offer the Firm Shares upon the terms set forth in the
Prospectus. You may from time to time increase or decrease the public offering
price after the initial public offering to such extent as you may determine.
In addition, the Company hereby grants to the several Underwriters
the option to purchase, and upon the basis of the representations and warranties
and subject to the terms and conditions herein set forth, the Underwriters shall
have the right to purchase, severally and not jointly, from the Company all or a
portion of the Additional Shares as may be necessary to cover over-allotments
made in connection with the offering of the Firm Shares, at the same purchase
price per share to be paid by the Underwriters for the Firm Shares. This option
may be exercised by you on behalf of the several Underwriters at any time and
from time to time on or before the 30th day following the date hereof by written
notice to the Company. Such notice shall set forth the aggregate number of
Additional Shares as to which the option is being exercised and the date and
time when the Additional Shares are to be delivered (such date and time being
herein referred to as the "additional time of purchase");
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provided, however, that the additional time of purchase shall not be earlier
than the time of purchase (as defined below) nor earlier than the second
business day/1/ after the date on which the option shall have been exercised nor
later than the tenth business day after the date on which the option shall have
been exercised. The number of Additional Shares to be sold to each Underwriter
shall be the number which bears the same proportion to the aggregate number of
Additional Shares being purchased as the number of Firm Shares set forth
opposite the name of such Underwriter on Schedule A hereto bears to the total
number of Firm Shares (subject, in each case, to such adjustment as you may
determine solely to eliminate fractional shares).
2. Payment and Delivery. Payment of the purchase price for the Firm
Shares shall be made to the Company by Federal Funds wire transfer, against
delivery of the certificates for the Firm Shares to you through the facilities
of the Depository Trust Company ("DTC") for the respective accounts of the
Underwriters. Such payment and delivery shall be made at 10:00 A.M., New York
City time, on _________ __, 2002 (unless another time shall be agreed to by you
and the Company or unless postponed in accordance with the provisions of Section
8 hereof). The time at which such payment and delivery are actually made is
hereinafter called the "time of purchase." Electronic transfer of the Firm
Shares shall be made to you at the time of purchase in such names and in such
denominations as you shall specify.
Payment of the purchase price for the Additional Shares shall be
made at the additional time of purchase in the same manner and at the same
office as the payment for the Firm Shares. Electronic transfer of the Additional
Shares shall be made to you at the additional time of purchase in such names and
in such denominations as you shall specify.
Deliveries of the documents described in Section 6 below with
respect to the purchase of the Shares shall be made at the offices of Xxxxxx &
Xxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at 9:00 A.M., New York City time,
on the date of the closing of the purchase of the Firm Shares or the Additional
Shares, as the case may be.
3. Representations and Warranties of the Company. The Company
represents and warrants to each of the Underwriters that:
(a) The Company has not received notice of any order of the
Commission preventing or suspending the use of any Preliminary Prospectus,
or instituting proceedings for that purpose, and each Preliminary
Prospectus, at the time of filing thereof, conformed in all material
respects to the provisions of the Act; and when the
----------------------
/1/ As used herein "business day" shall mean a day on which the New York Stock
Exchange is open for trading.
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Registration Statement becomes effective, the Registration Statement
and the Prospectus will conform in all material respects with the
provisions of the Act, and the Registration Statement will not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading, and the Prospectus will not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, provided,
however, that the Company makes no representation or warranty with respect
to any statement contained in the Registration Statement or the Prospectus
in reliance upon and in conformity with information concerning the
Underwriters and furnished in writing by or on behalf of any Underwriter
through you to the Company expressly for use in the Registration Statement
or the Prospectus; and neither the Company nor any of its affiliates has
distributed any offering material in connection with the offer or sale of
the Shares other than the Registration Statement, the Preliminary
Prospectus, the Prospectus or any other materials, if any, permitted by
the Act;
(b) as of the date of this Agreement, the Company's capitalization
is as set forth under the heading entitled "Actual" in the section of the
Registration Statement and the Prospectus entitled "Capitalization" and,
as of the time of purchase and the additional time of purchase, as the
case may be, the Company's capitalization shall be as set forth under the
heading entitled "As Adjusted" in the section of the Registration
Statement and the Prospectus entitled "Capitalization" (subject, in each
case, to the issuance of shares of Common Stock upon exercise of stock
options disclosed as outstanding in the Registration Statement and the
Prospectus); all of the issued and outstanding shares of capital stock of
the Company have been duly and validly authorized and issued and are fully
paid and non-assessable, have been issued in compliance with all federal
and state securities laws and were not issued in violation of any
preemptive right, resale right, right of first refusal or similar right;
(c) the Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
with the requisite corporate power and authority to own, lease and operate
its properties and conduct its business as described in the Registration
Statement and the Prospectus;
(d) the Company is duly qualified to do business as a foreign
corporation and is 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 could
not reasonably be expected to have a material adverse effect on the
business, operations, prospects, properties, condition (financial or
otherwise) or results of operation of the Company and the Subsidiaries (as
hereinafter defined) taken as a whole (a "Material Adverse Effect"). The
Company has no subsidiaries (as
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defined in the Act) other than those listed in Schedule B annexed hereto
(the "Subsidiaries"); except as described in the Registration Statement
and the Prospectus, the Company owns 100% of the outstanding capital stock
of the Subsidiaries. Except for the Subsidiaries or as described in the
Registration Statement and the Prospectus, the Company does not own,
directly or indirectly, any long-term debt or any equity interest in any
firm, corporation, partnership, joint venture, association or other
entity;
(e) neither the Company nor any of the Subsidiaries is in breach or
violation of, or in default under (nor has any event occurred which with
notice, lapse of time, or both would result in any breach or violation of,
or constitute a default under) (each such breach, violation, default or
event, a "Default Event"), (i) its charter, bylaws or other organizational
documents, (ii) any obligation, agreement, covenant or condition contained
in any license, permit, indenture, mortgage, deed of trust, bank loan or
credit agreement or other evidence of indebtedness, or any lease, contract
or other agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which it or any of its properties is bound
or affected, (iii) any federal, state, local or foreign law, regulation or
rule or (iv) any decree, judgment or order applicable to the Company, or
any of its properties, other than, in the case of clauses (ii) and (iii),
such Default Events as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect; and the
execution, delivery and performance of this Agreement, including the
issuance and sale of the Shares and the consummation of the other
transactions contemplated hereby, does not constitute and will not result
in a Default Event under (w) any provisions of the charter, bylaws or
other organizational documents of the Company or any of the Subsidiaries,
(x) under any provision of any license, permit, indenture, mortgage, deed
of trust, bank loan or credit agreement or other evidence of indebtedness,
or any lease, contract or other agreement or instrument to which the
Company, any of the Subsidiaries or their respective properties may be
bound or affected, (y) under any federal, state, local or foreign law, its
regulation or rule or (z) under any decree, judgment or order applicable
to the Company, or any of the Subsidiaries or any of their respective
properties, except, in the case of clauses (x) and (y) for such Default
Events as could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect;
(f) this Agreement has been duly authorized, executed and delivered
by the Company and is a legal, valid and binding agreement of the Company;
(g) the capital stock of the Company, including the Shares, conforms
in all material respects to the description thereof contained in the
Registration Statement and the Prospectus;
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(h) the issuance of the Shares has been duly and validly authorized
by the Company and, when issued and delivered by the Company against
payment therefor as provided herein, will be validly issued, fully paid
and non-assessable;
(i) no approval, authorization, consent or order of or filing with
any national, state, local or other governmental or regulatory commission,
board, body, authority or agency having jurisdiction over the Company or
any of the Subsidiaries is required to be obtained or made by the Company
in connection with the issuance and sale of the Shares or the consummation
by the Company of the other transactions contemplated hereby, other than
registration of the offer and sale of the Shares under the Act, the
listing of the Shares on a securities exchange or qualification of the
Shares for quotation on the Nasdaq National Market ("NASDAQ"), each of
which has been or will be effected, and any necessary qualification under
the securities or blue sky laws of the various jurisdictions in which the
Shares are being offered by the Underwriters;
(j) except as set forth in the Registration Statement and the
Prospectus (i) no person has the right, contractual or otherwise, to cause
the Company to issue or sell to it any shares of Common Stock or shares of
any other capital stock or other equity interests of the Company, (ii) no
person has any preemptive rights, resale rights, rights of first refusal
or other rights to purchase any shares of Common Stock or shares of any
other capital stock or other equity interests of the Company, and (iii) no
person has the right to act as an underwriter, or as a financial advisor
to the Company, in connection with the offer and sale of the Shares, in
the case of each of the foregoing clauses (i), (ii) and (iii), whether as
a result of the filing or effectiveness of the Registration Statement or
the sale of the Shares as contemplated thereby or otherwise; no person has
the right, contractual or otherwise, to cause the Company to register
under the Act any shares of Common Stock or shares of any other capital
stock or other equity interests of the Company, or to include any such
shares or interests in the Registration Statement or the offering
contemplated thereby whether as a result of the filing or effectiveness of
the Registration Statement or the sale of the Shares as contemplated
thereby or otherwise, except for such rights as have been complied with or
waived;
(k) PricewaterhouseCoopers LLP and Ernst & Young LLP, whose reports
on the consolidated financial statements of the Company and the
Subsidiaries are filed with the Commission as part of the Registration
Statement and the Prospectus, are independent public accountants with
respect to the Company as required by the Act;
(l) the Company and each of the Subsidiaries has all necessary
licenses, permits, authorizations, consents and approvals and has made all
necessary filings required under any federal, state, local or foreign law,
regulation or rule (collectively, "Permits"), and has obtained all
necessary authorizations, consents and approvals from
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other persons (collectively, "Approvals"), in order to conduct its
business as described in the Registration Statement and the Prospectus,
other than such Permits and Approvals the failure of which to obtain could
not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect; neither the Company nor any of the Subsidiaries
is in violation of, or in default under, any such Permit or Approval the
effect of which could, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect;
(m) all legal or governmental proceedings, contracts, leases or
documents of a character required to be described in the Registration
Statement or the Prospectus or any document incorporated by reference
therein or to be filed as an exhibit to the Registration Statement or any
document incorporated by reference therein have been so described or filed
as required;
(n) except as disclosed in the Registration Statement and the
Prospectus, there are no actions, suits, claims or proceedings pending or,
to the Company's knowledge, threatened, or, to the Company's knowledge,
investigations, pending or threatened, to which the Company or any of its
directors or officers is a party or of which any of its properties is
subject at law or in equity, or before or by any federal, state, local or
foreign governmental or regulatory commission, board, body, authority or
agency which, if adversely decided, could reasonably be expected to result
in a judgment, decree or order having a Material Adverse Effect or prevent
consummation of the transactions contemplated hereby;
(o) the financial statements, together with the related schedules
and notes, included in the Registration Statement and the Prospectus
present fairly the consolidated financial position of the Company and the
Subsidiaries as of the dates indicated and the consolidated results of
operations and cash flows of the Company and the Subsidiaries for the
periods specified, subject, in the case of any interim financial
statements, to normal year-end adjustments, and have been prepared in
compliance with the requirements of the Act and in conformity with
generally accepted accounting principles applied on a consistent basis
during the periods involved; the other financial and statistical data set
forth in the Registration Statement and the Prospectus are accurately
presented and prepared on a basis consistent with such financial
statements and books and records of the Company; and there are no
financial statements (historical or pro forma) that are required to be
included in the Registration Statement and the Prospectus that are not
included as required;
(p) subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not been
(i) any material adverse change, or any development involving a
prospective material adverse change, in the business, operations,
properties, condition (financial or otherwise) or results of operations of
the Company and the Subsidiaries taken as a whole, (ii) any transaction
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which is material to the Company and the Subsidiaries taken as a whole,
(iii) any obligation, direct or contingent, which is material to the
Company and the Subsidiaries taken as a whole, incurred by the Company or
any of the Subsidiaries, (iv) any change in the capital stock or
outstanding indebtedness of the Company or any of the Subsidiaries (other
than pursuant to the exercise of stock options described in the
Registration Statement and the Prospectus as outstanding or the grant of
stock options under stock option plans described in the Registration
Statement and the Prospectus) or (v) any dividend or distribution of any
kind declared, paid or made on the capital stock of the Company; the
Company and the Subsidiaries, taken as a whole, do not have any material
contingent obligation which is not disclosed in the Registration Statement
and the Prospectus;
(q) the Company has obtained for the benefit of the Underwriters the
agreement (a "Lock-Up Agreement"), in the form set forth as Exhibit A
hereto, of each of its officers and directors; the Company will not
release or purport to release any person from any Lock-Up Agreement
without the prior written consent of UBS Warburg;
(r) the Company is not and, after giving effect to the offering and
sale of the Shares, will not be an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment Company Act");
(s) any statistical and market-related data included in the
Prospectus are based on or derived from sources that the Company believes
to be reliable and accurate, and the Company has obtained the written
consent to the use of such data from such sources to the extent required;
(t) neither the Company nor any of its affiliates has taken,
directly or indirectly, any action designed to or which has constituted or
which might reasonably be expected to cause or result, under the Exchange
Act or otherwise, in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares;
(u) the Incorporated Documents, when they were filed with the
Commission, conformed in all material respects to the requirements of the
Exchange Act, and none of such documents, when they were filed with the
Commission, contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in light
of the circumstances in which they were made, not misleading; and any
further documents so filed and incorporated by reference in the
Registration Statement and/or the Prospectus, when such documents are
filed with the Commission, will conform in all material respects to the
requirements of the Exchange Act, as applicable, and will not contain an
untrue
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statement of a material fact or omit to state a material fact necessary to
make the statements therein, in light of the circumstances in which they
were made, not misleading;
(v) the Company and each of the Subsidiaries maintains insurance of
the types and in amounts reasonably adequate for its business, including,
but not limited to, insurance covering real and personal property owned or
leased by the Company and each of the Subsidiaries against theft, damage,
destruction, acts of vandalism and other risks customarily insured
against, all of which insurance is in full force and effect, except where
the lack of insurance could not reasonably be expected to have a Material
Adverse Effect;
(w) the Company has not sustained since the date of the latest
financial statements included in the Prospectus any losses or
interferences with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute
or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Registration Statement and the Prospectus or
other than any losses or interferences which would not, individually or in
the aggregate, have a Material Adverse Effect;
(x) the Company and each of the Subsidiaries have good title to all
real and personal property owned by them as described in the Registration
Statement and the Prospectus, free and clear of all liens, encumbrances
and defects except such as are described in the Registration Statement and
the Prospectus or such as could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect; except as
described in the Registration Statement and the Prospectus, any real
property and buildings held under lease by the Company or any of the
Subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as do not interfere with the use made and
proposed to be made of such property and buildings by the Company or the
Subsidiaries, as the case may be, except as could not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect;
(y) neither the Company nor any of the Subsidiaries has violated any
foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants, nor any federal or
state law relating to discrimination in the hiring, promotion or pay of
employees nor any applicable federal or state wages and hours laws, nor
any provisions of the Employee Retirement Income Security Act or the rules
and regulations promulgated thereunder, which could, individually or in
the aggregate, reasonably be expected to result in a Material Adverse
Effect;
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(z) the Company and each of the Subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; (iii)
access to assets is permitted only in accordance with management's general
or specific authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences;
(aa) all material tax returns required to be filed by the Company
have been filed, other than those filings being contested in good faith,
and all taxes, including withholding taxes, penalties and interest,
assessments, fees and other charges due pursuant to such returns or
pursuant to any assessment received by the Company or any of the
Subsidiaries have been paid, other than those being contested in good
faith and for which adequate reserves have been provided;
(bb) other than as set forth in the Registration Statement and the
Prospectus, or as could not individually or in the aggregate reasonably be
expected to have a Material Adverse Effect, the Company and each of the
Subsidiaries owns, possesses, licenses or has other rights to use, all
patents, trademarks, servicemarks, trade names, copyrights, trade secrets,
information, proprietary rights and processes ("Intellectual Property")
necessary for their business as described in the Registration Statement
and the Prospectus and necessary in connection with the commercialization
of Essure, without any conflict with or infringement of the rights of
others, and the Company and each of the Subsidiaries has taken all
reasonable steps necessary to secure interests in such Intellectual
Property; except as described in the Registration Statement and the
Prospectus, the Company is not aware of any options, licenses or
agreements of any kind relating to the Intellectual Property of the
Company are outstanding and which are required to be described in the
Registration Statement and the Prospectus, and, except as described in the
Registration Statement and the Prospectus, the Company is not a party to
or bound by any options, licenses or agreements with respect to the
Intellectual Property of any other person or entity which are required to
be described in the Registration Statement and the Prospectus; none of the
technology employed by the Company has been obtained or is used or
proposed to be used by the Company in violation of any contractual
obligation binding on the Company or any of its directors or executive
officers or, to the Company's knowledge, any employees of the Company or
otherwise in violation of the rights of any persons, other than any
violation which would not individually or in the aggregate have a Material
Adverse Effect; except as described in the Registration Statement and the
Prospectus, to the Company's knowledge the Company has not violated,
infringed or conflicted with, or, by conducting its business as described
in the Registration Statement and the Prospectus
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and commercializing Essure, would violate, infringe or conflict with any
of the Intellectual Property of any other person or entity other than any
such violation, infringement or conflict which could not individually or
in the aggregate reasonably be expected to have a Material Adverse Effect;
(cc) to the knowledge of the Company and the Subsidiaries after due
inquiry and their reasonable best efforts of investigation, the clinical
studies and tests conducted by or on behalf of or sponsored by the Company
or any Subsidiary or in which the Company, any Subsidiary or its products
or product candidates have participated that are described in the
Prospectus or the results of which are referred to in the Prospectus were
and, if still pending, are being conducted in accordance with standard
medical and scientific research procedures; the descriptions in the
Prospectus of the results of such studies and tests are accurate and
complete in all material respects and fairly present the data derived from
such studies and tests, and the Company and each Subsidiary has no
knowledge of any other studies or tests the results of which are
inconsistent with or otherwise call into question the results described or
referred to in the Prospectus; except to the extent disclosed in the
Registration Statement and the Prospectus, the Company and each Subsidiary
has operated and currently is in compliance in all material respects with
all applicable rules and regulations of the U.S. Food and Drug
Administration and comparable regulatory agencies outside of the United
States (collectively, the "Regulatory Authorities"); and except to the
extent disclosed in the Registration Statement and the Prospectus, the
Company has not received any notices or other correspondence from the
Regulatory Authorities or any other governmental agency requiring the
termination or suspension of any clinical or pre-clinical studies or tests
that are described in the Prospectus or the results of which are referred
to in the Prospectus; and
(dd) neither the Company nor any of the Subsidiaries has sent or
received any notice of termination of any of the contracts or agreements
referred to or described in, or filed as an exhibit to, the Registration
Statement, and no such termination has been threatened by the Company or
any of the Subsidiaries or any other party to any such contract or
agreement;
(ee) the certificate signed by the executive officers of the Company
and delivered to the Underwriters or counsel for the Underwriters pursuant
to Section 6(i) of this Agreement at the time of purchase or the
additional time of purchase shall be deemed to be a representation and
warranty by the Company to the Underwriters as to the matters covered by
such certificate. The Company acknowledges that the Underwriters and, for
purposes of the opinions to be delivered to the Underwriters pursuant to
Section 6 of this Agreement, counsel to the Company and counsel to the
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Underwriters will rely upon the accuracy and truth of the foregoing
representations, and the Company hereby consents to such reliance; and
(ff) to the extent required, the Company has obtained from other
persons and entities their written consent to include the pictures,
photographs, drawings, diagrams and other images as well as the related
captions and quotations contained in the Registration Statement and
Prospectus.
4. Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to
cooperate in qualifying the Shares for offering and sale under the
securities or blue sky laws of such states as you may designate and to
maintain such qualifications in effect so long as required for the
distribution of the Shares; provided that the Company shall not be
required to qualify as a foreign corporation or to consent to the service
of process under the laws of any such state (except service of process
with respect to the offering and sale of the Shares); and to promptly
advise you of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation or threat of any proceeding for such
purpose;
(b) to make available to the Underwriters in New York City, as soon
as practicable after the Registration Statement becomes effective, and
thereafter from time to time to furnish to the Underwriters, as many
copies of the Prospectus (or of the Prospectus as amended or supplemented
if the Company shall have made any amendments or supplements thereto after
the effective date of the Registration Statement) as the Underwriters may
reasonably request for the purposes contemplated by the Act; 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 such
amendment or amendments to the Registration Statement and such
prospectuses as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the Act;
(c) to advise you promptly and (if requested by you) to confirm such
advice in writing, (i) when the Registration Statement has become
effective and when any post-effective amendment thereto becomes effective
and (ii) if Rule 430A under the Act is used, when the Prospectus is filed
with the Commission pursuant to Rule 424(b) under the Act (which the
Company agrees to file in a timely manner under such Rules);
(d) to advise you promptly, confirming such advice in writing (if
requested by you), of any request by the Commission for amendments or
supplements to the Registration Statement or the Prospectus or for
additional information with respect
12
thereto, or of notice of institution of proceedings for, or the entry of a
stop order suspending the effectiveness of the Registration Statement and,
if the Commission should enter a stop order suspending the effectiveness
of the Registration Statement, to make every reasonable effort to obtain
the lifting or removal of such order as soon as possible; to advise you
promptly of any proposal to amend or supplement the Registration Statement
or Prospectus and to file no such amendment or supplement to which you
shall reasonably object in writing;
(e) if necessary or appropriate, to file a registration statement
pursuant to Rule 462(b) under the Act;
(f) to furnish to you and, upon request, to each of the other
Underwriters for a period of five years from the date of this Agreement
(i) copies of any reports or other communications which the Company shall
send to its stockholders or shall from time to time publish or publicly
disseminate, (ii) copies of all annual, quarterly and current reports
filed with the Commission on Forms 10-K, 10-Q and 8-K, or such other
similar forms, as may be designated by the Commission, (iii) copies of
documents or reports filed with any national securities exchange on which
any class of securities of the Company is listed, and (iv) such other
information as you may reasonably request regarding the Company or any of
the Subsidiaries as soon as reasonably practicable after such reports,
communications, documents or information become available, provided,
however, that in no case shall the Company be required to furnish
materials pursuant to this provision (f) which are filed and publicly
accessible via XXXXX;
(g) to advise the Underwriters promptly of the happening of any
event known to the Company within the time during which a Prospectus
relating to the Shares is required to be delivered under the Act which
would require the making of any change in the Prospectus then being used
so that the Prospectus would not include an untrue statement of material
fact or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they are made, not
misleading, and, during such time, to prepare and furnish, at the
Company's expense, to the Underwriters promptly such amendments or
supplements to such Prospectus as may be necessary to reflect any such
change and to furnish you a copy of such proposed amendment or supplement
before filing any such amendment or supplement with the Commission;
(h) to make generally available to its security holders, and to
deliver to you, an earnings statement of the Company (which will satisfy
the provisions of Section 11(a) of the Act) covering a period of twelve
months beginning after the effective date of the Registration Statement
(as defined in Rule 158(c) of the Act) and ending not later than 15 months
thereafter;
13
(i) to furnish to you five (5) conformed copies of the Registration
Statement, as initially filed with the Commission, and of all amendments
thereto (including all exhibits thereto) and sufficient additional
conformed copies (other than exhibits) for distribution of a copy to each
of the other Underwriters;
(j) to furnish to you as early as reasonably practicable prior to
the time of purchase and the additional time of purchase, as the case may
be, but not later than two business days prior thereto, a copy of the
latest available unaudited interim consolidated financial statements, if
any, of the Company which have been read by the Company's independent
certified public accountants, as stated in their letter to be furnished
pursuant to Section 6(e) hereof;
(k) to apply the net proceeds from the sale of the Shares in the
manner set forth under the caption "Use of proceeds" in the Prospectus;
(l) to pay all costs, expenses, fees and taxes in connection with
(i) the preparation and filing of the Registration Statement, each
Preliminary Prospectus, the Prospectus, and any amendments or supplements
thereto, and the printing and furnishing of copies of each thereof to the
Underwriters and to dealers (including costs of mailing and shipment),
(ii) the registration, issue, sale and delivery of the Shares, (iii) the
qualification of the Shares for offering and sale under state laws and the
determination of their eligibility for investment under state law as
aforesaid (including associated filing fees and the reasonable legal fees
and disbursements of counsel for the Underwriters) and the printing and
furnishing of copies of any blue sky surveys or legal investment surveys
to the Underwriters and to dealers, (iv) any listing of the Shares on any
securities exchange or qualification of the Shares for quotation on the
NASDAQ and any registration thereof under the Exchange Act, (v) review of
the public offering of the Shares by NASD Regulation, Inc. (including
associated filing fees and the reasonable legal fees and disbursements of
counsel for the Underwriters), (vi) the costs and expenses of the Company
relating to presentations or meetings undertaken in connection with the
marketing of the offer and sale of the Shares to prospective investors and
the Representatives' sales forces, including, without limitation, expenses
associated with the production of road show slides and graphics, fees and
expenses of any consultants engaged in connection with the road show
presentations, travel, lodging and other expenses incurred by the officers
of the Company and any such consultants, and the cost of any aircraft
chartered in connection with the road show and (vii) the performance of
the other obligations of the Company hereunder;
(m) for so long as the delivery of the Prospectus is required in
connection with the offer or sale of the Shares, to furnish to you a
reasonable period of time before filing with the Commission, a copy of any
document proposed to be filed
14
pursuant to Section 13, 14 or 15(d) of the Exchange Act and to not make
any filing to which you reasonably object;
(n) to not take, directly or indirectly, any action designed to or
which may constitute or which might reasonably be expected to cause or
result, under the Exchange Act or otherwise, in the stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Shares;
(o) not to sell, offer or agree to sell, contract to sell,
hypothecate, pledge, grant any option to sell or otherwise dispose of,
directly or indirectly, any shares of Common Stock or securities
convertible into or exchangeable or exercisable for Common Stock or
warrants or other rights to purchase Common Stock or any such securities
or any other securities of the Company that are substantially similar to
Common Stock, or file or cause to be declared effective a registration
statement under the Act relating to the offer and sale of any shares of
Common Stock or securities convertible into or exercisable or exchangeable
for Common Stock or other rights to purchase Common Stock or any other
securities of the Company that are substantially similar to Common Stock,
for a period of ninety (90) days after the date hereof (the "Lock-up
Period"), without the prior written consent of UBS Warburg, except for (i)
the registration of the Shares and the sales to the Underwriters pursuant
to this Agreement, (ii) issuances of Common Stock upon the exercise of
options or warrants disclosed as outstanding in the Registration Statement
and the Prospectus and (iii) the issuance of employee stock options not
exercisable during the Lock-up Period pursuant to stock option plans
described in the Registration Statement and the Prospectus; and
(p) subject to Section 4(m) hereof, to file promptly all reports and
any definitive proxy or information statement required to be filed by the
Company with the Commission in order to comply with the Exchange Act
subsequent to the date of the Prospectus and for so long as the delivery
of a prospectus is required in connection with the offering or sale of the
Shares, and to promptly notify you of such filing.
5. Reimbursement of Underwriters' Expenses. If the Shares are not
delivered for any reason other than the termination of this Agreement pursuant
to the last paragraph of Section 8 hereof or the default by one or more of the
Underwriters in its or their respective obligations hereunder, the Company
agrees, in addition to paying the amounts described in Section 4(l) hereof, to
reimburse the Underwriters for all of their out-of-pocket expenses, including
the reasonable fees and disbursements of their counsel.
6. Conditions of Underwriters' Obligations. The several obligations
of the Underwriters hereunder are subject to the accuracy of the representations
and warranties on the part of the Company on the date hereof and at the time of
purchase as if made at the time of purchase, and the several obligations of the
Underwriters at the additional time of purchase
15
are subject to the accuracy of the representations and warranties on the part of
the Company on the date hereof and at the time of purchase (unless previously
waived) and at the additional time of purchase as if made at the time of
purchase and the additional time of purchase, as the case may be, the
performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
(a) You shall have received, at the time of purchase and at the
additional time of purchase, as the case may be, an opinion of Xxxxxx &
Xxxxxxx, counsel for the Company, addressed to the Underwriters, and dated
the time of purchase or the additional time of purchase, as the case may
be, with reproduced copies for each of the other Underwriters and in form
set forth in Exhibit B hereto.
(b) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the opinion of Xxxxxxxx
and Xxxxxxxx and Crew LLP, patent counsel to the Company, dated the time
of purchase or the additional time of purchase, as the case may be, with
reproduced copies for each of the other Underwriters and in form
reasonably satisfactory to Xxxxx Xxxxxxxxxx LLP, counsel for the
Underwriters, stating that:
(i) to the best of such counsel's knowledge, except as
described in the Prospectus, (A) the Company (either directly or
through any Subsidiary) has valid license rights or clear title to
the Intellectual Property referenced in the Prospectus, and there
are no rights of third parties to any such Intellectual Property;
(B) there is no infringement or other violation by third parties of
any of the Intellectual Property of the Company referenced in the
Prospectus; (C) there is no infringement or other violation by the
Company or any Subsidiary of any Intellectual Property of others nor
would there be any such infringement upon commercialization of the
Company's products described as under development in the
Registration Statement and the Prospectus; (D) there is no pending
or threatened action, suit proceeding or claim by governmental
authorities or others that the Company or any Subsidiary infringes
or otherwise violates any Intellectual Property of others, and such
counsel is unaware of any facts which would form a reasonable basis
for any such claim; (E) there is no pending or threatened action,
suit, proceeding or claim by governmental authorities or others
challenging the rights of the Company or any Subsidiary in or to, or
challenging the scope of, any Intellectual Property of the Company
referenced in the Prospectus, and such counsel is unaware of any
facts which would form a reasonable basis for any such claim; and
(F) there is no prior art or other facts that may render any patent
held by the Company or unenforceable;
(ii) to the best of such counsel's knowledge, the patent
applications of the Company and each Subsidiary presently on file
disclose patentable
16
subject matter, and such counsel is not aware of any inventorship
challenges, any interference which has been declared or provoked, or
any other material fact with respect to the patent applications of
the Company presently on file that (A) would preclude the issuance
of patents with respect to such applications, or (B) would lead such
counsel to conclude that such patents, when issued, would not be
valid and enforceable in accordance with applicable regulations;
(iii) to the best of such counsel's knowledge, the statements
in the Registration Statement and the Prospectus and the
Incorporated Documents referencing Intellectual Property matters,
insofar as such statements constitute summaries of legal matters,
contracts, agreements, documents or proceedings referred to therein,
or refer to statements of law or legal conclusions, are in all
material respects accurate and complete statements or summaries of
the matters therein set forth; and
(iv) nothing has come to such counsel's attention that causes
them to believe that such above described portions of the
Registration Statement, at the time such Registration Statement
became effective, contained an untrue statement of a material fact
or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or that
such above described portions of the Prospectus and at the date of
the Prospectus and at all times leading up to and including the time
of purchase and the additional time of purchase, as the case may be,
contained an untrue statement of material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading.
(c) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the opinion of Xxxxx
Xxxxxxxxxx LLP, counsel for the Underwriters, dated the time of purchase
or the additional time of purchase, as the case may be, with respect to
the issuance and sale of the Shares by the Company, the Registration
Statement, the Prospectus (together with any supplement thereto) and other
related matters as the Underwriters may require.
(d) You shall have received from PricewaterhouseCoopers LLP and
Ernst & Young LLP letters dated the date of this Agreement and from
PriceWaterhouse Coopers LLP letters dated, respectively, at the time of
purchase and additional time of purchase, as the case may be, and
addressed to the Underwriters (with reproduced copies for each of the
Underwriters) in the forms heretofore approved by Xxxxx Xxxxxxxxxx LLP,
counsel for the Underwriters.
17
(e) No amendment or supplement to the Registration Statement or
Prospectus, or document which upon filing with the Commission would be
incorporated by reference therein, shall at any time have been filed to
which you have reasonably objected in writing.
(f) The Registration Statement shall have become effective not later
than 5:30 PM New York City time on the date of this Agreement and, if Rule
430A under the Act is used, the Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) under the Act at or before 5:30 PM New
York City time on the second full business day after the date of this
Agreement.
(g) Prior to the time of purchase or the additional time of
purchase, as the case may be, (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued under
the Act or proceedings initiated under Section 8(d) or 8(e) of the Act;
(ii) the Registration Statement and all amendments thereto, or
modifications thereof, if any, shall not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and
(iii) the Prospectus and all amendments or supplements thereto, or
modifications thereof, if any, shall not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
(h) Between the time of execution of this Agreement and the time of
purchase or the additional time of purchase, as the case may be, (i) no
material and adverse change or any development involving a prospective
material and adverse change (other than as specifically described in the
Registration Statement and Prospectus), in the business, properties,
condition (financial or otherwise) or results of operations of the Company
and the Subsidiaries, taken as a whole, shall occur or become known and
(ii) no transaction which is material to the Company shall have been
entered into by the Company or any of the Subsidiaries.
(i) The Company will, at the time of purchase or additional time of
purchase, as the case may be, deliver to you a certificate signed by two
of the Company's executive officers to the effect that the representations
and warranties of the Company as set forth in this Agreement are true and
correct as of each such date as if made on each such date, that the
Company has performed such of its obligations under this Agreement as are
to be performed at or before the time of purchase and at or before the
additional time of purchase, as the case may be, and the conditions set
forth in paragraphs (g) and (h) of this Section 6 have been met.
(j) You shall have received the letters referred to in Section 3(q).
18
(k) The Company shall have furnished to you such other documents and
certificates as to the accuracy and completeness of any statement in the
Registration Statement and the Prospectus as of the time of purchase and
the additional time of purchase, as the case may be, as you may reasonably
request.
(l) The Shares shall have been approved for listing for quotation on
NASDAQ, subject only to notice of issuance at or prior to the time of
purchase or the additional time of purchase, as the case may be.
7. Effective Date of Agreement; Termination. This Agreement shall
become effective (i) if Rule 430A under the Act is not used, when you shall have
received notification of the effectiveness of the Registration Statement, or
(ii) if Rule 430A under the Act is used, when the parties hereto have executed
and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be
subject to termination in the absolute discretion of UBS Warburg LLC, on behalf
of the Underwriters, if (x) since the time of execution of this Agreement or the
earlier respective dates as of which information is given in the Registration
Statement and Prospectus, there has been any material adverse change, or any
development involving a prospective material adverse change in the properties,
management, financial condition, stockholders' equity or results of operations
of the Company and the Subsidiaries, taken as whole, which would, in the
judgement of UBS Warburg LLC, make it impracticable or inadvisable to proceed
with the offering or delivery of the Shares on the terms and in the manner
contemplated by the Prospectus, or (y) at any time prior to the time of purchase
or, with respect to the purchase of any Additional Shares, the additional time
of purchase (i) trading in securities on the New York Stock Exchange, the
American Stock Exchange or NASDAQ shall have been suspended or limitations or
minimum prices shall have been established on the New York Stock Exchange, the
American Stock Exchange or NASDAQ, (ii) a general moratorium on commercial
banking activities shall have been declared by either the Federal or New York
State authorities or there shall have occurred a material disruption in
commercial banking or securities settlement or clearance services in the United
States or (iii) if the United States shall have declared war in accordance with
its constitutional processes or there shall have occurred any material outbreak
or escalation of hostilities or other national or international calamity or
crisis of such magnitude in its effect on the financial markets of the United
States as, in the judgment of UBS Warburg LLC, makes it impracticable or
inadvisable to proceed with the offering or the delivery of the Shares on the
terms and in the manner contemplated by the Prospectus.
If UBS Warburg LLC elects to terminate this Agreement as provided in
this Section 7, the Company and each other Underwriter shall be notified
promptly by letter or telegram from UBS Warburg LLC.
If the sale to the Underwriters of the Shares, as contemplated by
this Agreement, is not carried out by the Underwriters for any reason permitted
under this
19
Agreement or if such sale is not carried out because the Company shall be unable
to comply with any of the terms of this Agreement, the Company shall not be
under any obligation or liability under this Agreement (except to the extent
provided in Sections 4(1), 5 and 9 hereof), and the Underwriters shall be under
no obligation or liability to the Company under this Agreement (except to the
extent provided in Section 9 hereof) or to one another hereunder.
8. Increase in Underwriters' Commitments. Subject to Sections 6 and
7, if any Underwriter shall default in its obligation to purchase and pay for
the Firm Shares to be purchased by it hereunder (otherwise than for a reason
sufficient to justify the termination of this Agreement under the provisions of
Section 7 hereof) and if the number of Firm Shares which all Underwriters so
defaulting shall have agreed but failed to purchase and pay for does not exceed
10% of the total number of Firm Shares, the non-defaulting Underwriters shall
purchase and pay for (in addition to the aggregate number of Firm Shares they
are obligated to purchase pursuant to Section 1 hereof) the number of Firm
Shares agreed to be purchased by all such defaulting Underwriters, as
hereinafter provided. Such Shares shall be purchased and paid for by such
non-defaulting Underwriter or Underwriters in such amount or amounts as you may
designate with the consent of each Underwriter so designated or, in the event no
such designation is made, such Shares shall be purchased and paid for by all
non-defaulting Underwriters pro rata in proportion to the aggregate number of
Firm Shares set opposite the names of such non-defaulting Underwriters in
Schedule A.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any Firm Shares hereunder unless all of the Firm Shares are purchased
by the Underwriters (or by substituted Underwriters selected by you with the
approval of the Company or selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provision, the Company or you shall have the right
to postpone the time of purchase for a period not exceeding five business days
in order that any necessary changes in the Registration Statement and Prospectus
and other documents may be effected.
The term Underwriter as used in this Agreement shall refer to and
include any Underwriter substituted under this Section 8 with like effect as if
such substituted Underwriter had originally been named in Schedule A.
If the aggregate number of Shares which the defaulting Underwriter
or Underwriters agreed to purchase exceeds 10% of the total number of Shares
which all Underwriters agreed to purchase hereunder, and if neither the
non-defaulting Underwriters nor the Company shall make arrangements within the
five business day period stated above for the purchase of all the Shares which
the defaulting Underwriter or Underwriters agreed to purchase hereunder, this
Agreement shall terminate without further act or deed and without
20
any liability on the part of the Company to any non-defaulting Underwriter and
without any liability on the part of any non-defaulting Underwriter to the
Company. Nothing in this paragraph, and no action taken hereunder, shall relieve
any defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
9. Indemnity and Contribution.
(a) The Company agrees to indemnify, defend and hold harmless each
Underwriter, its partners, directors and officers, and any person who controls
any Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, and the successors and assigns of all of the foregoing persons
from and against any loss, damage, expense, liability or claim (including the
reasonable cost of investigation) which, jointly or severally, any such
Underwriter or any such person may incur under the Act, the Exchange Act, the
common law or otherwise, insofar as such loss, damage, expense, liability or
claim arises out of or is based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment thereof by the
Company) or in a Prospectus (the term Prospectus for the purpose of this Section
9 being deemed to include any Preliminary Prospectus, the Prospectus and the
Prospectus as amended or supplemented by the Company), or arises out of or is
based upon any omission or alleged omission to state a material fact required to
be stated in either such Registration Statement or Prospectus or necessary to
make the statements made therein not misleading, except insofar as any such
loss, damage, expense, liability or claim arises out of or is based upon any
untrue statement or alleged untrue statement of a material fact contained in and
in conformity with information furnished in writing by or on behalf of any
Underwriter through you to the Company expressly for use with reference to such
Underwriter in such Registration Statement or such Prospectus or arises out of
or is based upon any omission or alleged omission to state a material fact in
connection with such information required to be stated in such Registration
Statement or such Prospectus or necessary to make such information not
misleading or (ii) any untrue statement or alleged untrue statement of any
material fact contained in any audio or visual materials provided by the Company
or based upon written information furnished by or on behalf of the Company
including, without limitation, slides, videos, films, tape recordings, used in
connection with the marketing of the Shares; provided, however, that the
indemnity agreement contained in clause (i) of this subsection (a) with respect
to any Preliminary Prospectus or amended Preliminary Prospectus shall not inure
to the benefit of any Underwriter (or to the benefit of any partner, director or
officer of any Underwriter or person controlling such Underwriter) from whom the
person asserting any such loss, damage, expense, liability or claim purchased
the Shares which are the subject thereof if the Prospectus corrected any such
alleged untrue statement or omission and if such Underwriter failed to give a
copy of the Prospectus to such person at or prior to the written confirmation of
the sale of such Shares to such person, unless the failure is the result of
noncompliance by the Company with Section 4(b) hereof.
21
If any action, suit or proceeding (together, a "Proceeding") is
brought against an Underwriter or any such person in respect of which indemnity
may be sought against the Company pursuant to the foregoing paragraph, such
Underwriter or such person shall promptly notify the Company in writing of the
institution of such Proceeding and the Company shall assume the defense of such
Proceeding, including the employment of counsel reasonably satisfactory to such
indemnified party and payment of all fees and expenses; provided, however, that
the omission to so notify the Company shall not relieve the Company from any
liability which the Company may have to any Underwriter or any such person or
otherwise. Such Underwriter or such person shall have the right to employ its or
their own counsel in any such case, but the fees and expenses of such counsel
shall be at the expense of such Underwriter or of such person unless the
employment of such counsel shall have been authorized in writing by the Company
in connection with the defense of such Proceeding or the Company shall not have,
within a reasonable period of time in light of the circumstances, employed
counsel to have charge of the defense of such Proceeding or such indemnified
party or parties shall have reasonably concluded that there may be defenses
available to it or them which are different from, additional to or in conflict
with those available to the Company (in which case the Company shall not have
the right to direct the defense of such Proceeding on behalf of the indemnified
party or parties, but the Company may employ counsel and participate in the
defense thereof but the fees and expenses of such counsel shall be at the
expense of the Company), in any of which events such fees and expenses shall be
borne by the Company and paid as incurred (it being understood, however, that
the Company shall not be liable for the expenses of more than one separate
counsel (in addition to any local counsel) in any one Proceeding or series of
related Proceedings in the same jurisdiction representing the indemnified
parties who are parties to such Proceeding). The Company shall not be liable for
any settlement of any Proceeding effected without the written consent of the
Company, but if settled with the written consent of the Company, the Company
agrees to indemnify and hold harmless any Underwriter and any such person from
and against any loss or liability by reason of such settlement. Notwithstanding
the foregoing sentence, if at any time an indemnified party shall have requested
an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel as contemplated by the second sentence of this paragraph, then the
indemnifying party agrees that it shall be liable for any settlement of any
Proceeding effected without the Company's written consent if (i) such settlement
is entered into more than 60 business days after receipt by the indemnifying
party of the aforesaid request, (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement and (iii) such indemnified party shall have given the
indemnifying party at least 30 days' prior notice of its intention to settle. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened Proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such
22
Proceeding and does not include an admission of fault, culpability or a failure
to act, by or on behalf of such indemnified party.
(b) Each Underwriter severally agrees to indemnify, defend and hold
harmless the Company, its directors and officers, and any person who controls
the Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act and the successors and assigns of all of the foregoing persons from
and against any loss, damage, expense, liability or claim (including the
reasonable cost of investigation) which the Company or any such person may incur
under the Act, the Exchange Act, the common law or otherwise, insofar as such
loss, damage, expense, liability or claim arises out of or is based upon any
untrue statement or alleged untrue statement of a material fact contained in and
in conformity with information furnished in writing by or on behalf of such
Underwriter through you to the Company expressly for use with reference to such
Underwriter in the Registration Statement (or in the Registration Statement as
amended by any post-effective amendment thereof by the Company) or in a
Prospectus, or arises out of or is based upon any omission or alleged omission
to state a material fact in connection with such information required to be
stated in such Registration Statement or such Prospectus or necessary to make
such information not misleading.
If any Proceeding is brought against the Company or any such person
in respect of which indemnity may be sought against any Underwriter pursuant to
the foregoing paragraph, the Company or such person shall promptly notify such
Underwriter in writing of the institution of such Proceeding and such
Underwriter shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses; provided, however, that the omission to so
notify such Underwriter shall not relieve such Underwriter from any liability
which such Underwriter may have to the Company or any such person or otherwise.
The Company or such person shall have the right to employ their or its own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of the Company or such person unless the employment of such counsel
shall have been authorized in writing by such Underwriter in connection with the
defense of such Proceeding or such Underwriter shall not have, within a
reasonable period of time in light of the circumstances, employed counsel to
have charge of the defense of such Proceeding or such indemnified party or
parties shall have reasonably concluded that there may be defenses available to
it or them which are different from or additional to or in conflict with those
available to such Underwriter (in which case such Underwriter shall not have the
right to direct the defense of such Proceeding on behalf of the indemnified
party or parties, but such Underwriter may employ counsel and participate in the
defense thereof but the fees and expenses of such counsel shall be at the
expense of such Underwriter), in any of which events such fees and expenses
shall be borne by such Underwriter and paid as incurred (it being understood,
however, that such Underwriter shall not be liable for the expenses of more than
one separate counsel (in addition to any local counsel) in any one Proceeding or
series of related Proceedings in the same jurisdiction
23
representing the indemnified parties who are parties to such Proceeding). No
Underwriter shall be liable for any settlement of any such Proceeding effected
without the written consent of such Underwriter but if settled with the written
consent of such Underwriter, such Underwriter agrees to indemnify and hold
harmless the Company and any such person from and against any loss or liability
by reason of such settlement. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second sentence of this paragraph, then the indemnifying party agrees
that it shall be liable for any settlement of any Proceeding effected without
its written consent if (i) such settlement is entered into more than 60 business
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement and (iii) such
indemnified party shall have given the indemnifying party at least 30 days'
prior notice of its intention to settle. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement of any
pending or threatened Proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such Proceeding and does not include an admission of fault, culpability or a
failure to act, by or on behalf of such indemnified party.
(c) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a) and (b) of this
Section 9 in respect of any losses, damages, expenses, liabilities or claims
referred to therein, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, damages, expenses,
liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, damages, expenses, liabilities or
claims, as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same respective proportions as the total
proceeds from the offering (net of underwriting discounts and commissions but
before deducting expenses) received by the Company and the total underwriting
discounts and commissions received by the Underwriters, bear to the aggregate
public offering price of the Shares. The relative fault of the Company on the
one hand and of the Underwriters on the other shall be determined by reference
to, among other things, whether the untrue statement or alleged untrue statement
of a material fact or omission or alleged omission relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
24
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, damages, expenses, liabilities and claims referred to in this subsection
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating, preparing to defend or
defending any Proceeding.
(d) The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 9 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in subsection (c) above. Notwithstanding
the provisions of this Section 9, in no case shall any Underwriter be required
to contribute any amount in excess of the amount by which the total price at
which the Shares underwritten by such Underwriter and distributed to the public
were offered to the public exceeds the amount of any damage which such
Underwriter has otherwise been required to pay by reason of such untrue
statement or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations to contribute
pursuant to this Section 9 are several in proportion to their respective
underwriting commitments and not joint.
(e) The indemnity and contribution agreements contained in this
Section 9 and the covenants, warranties and representations of the Company
contained in this Agreement shall remain in full force and effect regardless of
any investigation made by or on behalf of any Underwriter, its partners,
directors or officers or any person (including each partner, officer or director
of such person) who controls any Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, or by or on behalf of the Company,
its directors or officers or any person who controls any of the foregoing within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, and
shall survive any termination of this Agreement or the issuance and delivery of
the Shares. The Company and each Underwriter agree promptly to notify each other
of the commencement of any Proceeding against it and against any of the officers
or directors of the Company in connection with the issuance and sale of the
Shares, or in connection with the Registration Statement or Prospectus.
10. Notices. Except as otherwise herein provided, all statements,
requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or sent to
UBS Warburg LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000-0000, Attention:
Syndicate Department; and if to the Company, shall be sufficient in all respects
if delivered or sent to the Company at the offices of the Company at 0000 Xxxxxx
Xxxxxx, Xxx Xxxxxx, Xxxxxxxxxx, 00000, Attention: Xxxx Xxxxxx, Chief Financial
25
Officer and Vice President of Finance and Administration, with a copy to Xxxxxxx
X. Xxxx, Esq., Xxxxxx & Xxxxxxx, 000 Xxxxxxxxxxxx Xxxxx, Xxxxx Xxxx, Xxxxxxxxxx
00000.
11. Information Furnished by the Underwriters. The statements set
forth in the last paragraph on the cover page of the Prospectus and the
statements set forth in the fifth, seventh, eighth, ninth, and tenth paragraphs
under the caption "Underwriting" in the Prospectus constitute the only
information furnished by or on behalf of the Underwriters as such information is
referred to in Sections 3 and 9 hereof.
12. Governing Law; Construction. This Agreement and any claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement ("Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of New
York. The Section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
13. Submission to Jurisdiction. Except as set forth below, no Claim
may be commenced, prosecuted or continued in any court other than the courts of
the State of New York located in the City and County of New York or in the
United States District Court for the Southern District of New York, which courts
shall have jurisdiction over the adjudication of such matters, and you and the
Company consent to the jurisdiction of such courts and personal service with
respect thereto. The Company hereby consents to personal jurisdiction, service
and venue in any court in which any Claim arising out of or in any way relating
to this Agreement is brought by any third party against an Underwriter or any
indemnified party. Each Underwriter and the Company (on its behalf and, to the
extent permitted by applicable law, on behalf of its stockholders and
affiliates) waives all right to trial by jury in any action, proceeding or
counterclaim (whether based upon contract, tort or otherwise) in any way arising
out of or relating to this Agreement. The Company agrees that a final judgment
in any such action, proceeding or counterclaim brought in any such court shall
be conclusive and binding thereupon, and may be enforced in any other courts in
the jurisdiction to which the Company is or may be subject, by suit upon such
judgment.
14. Parties at Interest. The Agreement herein set forth has been and
is made solely for the benefit of the Underwriters, the Company and, to the
extent provided in Section 9 hereof, the controlling persons, directors and
officers referred to in such section, and their respective successors, assigns,
heirs, personal representatives and executors and administrators. No other
person, partnership, association or corporation (including a purchaser, as such
purchaser, from any of the Underwriters) shall acquire or have any right under
or by virtue of this Agreement.
15. Counterparts. This Agreement may be signed by the parties in one
or more counterparts which together shall constitute one and the same agreement
among the parties.
26
16. Successors and Assigns. This Agreement shall be binding upon the
Underwriters and the Company and their successors and assigns and any successor
or assign of any substantial portion of the Company's and any of the
Underwriters' respective businesses and/or assets.
17. Miscellaneous. UBS Warburg LLC, an indirect, wholly owned
subsidiary of UBS AG, is not a bank and is separate from any affiliated bank,
including any U.S. branch or agency of UBS AG. Because UBS Warburg LLC is a
separately incorporated entity, it is solely responsible for its own contractual
obligations and commitments, including obligations with respect to sales and
purchases of securities. Securities sold, offered or recommended by UBS Warburg
LLC are not deposits, are not insured by the Federal Deposit Insurance
Corporation, are not guaranteed by a branch or agency, and are not otherwise an
obligation or responsibility of a branch or agency.
A lending affiliate of UBS Warburg LLC may have lending
relationships with issuers of securities underwritten or privately placed by UBS
Warburg LLC. To the extent required under the securities laws, prospectuses and
other disclosure documents for securities underwritten or privately placed by
UBS Warburg LLC will disclose the existence of any such lending relationships
and whether the proceeds of the issue will be used to repay debts owed to
affiliates of UBS Warburg LLC.
27
If the foregoing correctly sets forth the understanding among the
Company and the Underwriters, please so indicate in the space provided below for
the purpose, whereupon this letter and your acceptance shall constitute a
binding agreement among the Company and the several Underwriters.
Very truly yours,
CONCEPTUS, INC.
By:
-----------------------------------------
Name:
Title:
Accepted and agreed to as of the date
first above written:
UBS WARBURG LLC
CIBC World Markets Corp.
Xxxxx, Xxxxxxxx & Xxxx, Inc.
XX Xxxxx Securities Corporation
As Representatives of the several Underwriters
By: UBS WARBURG LLC
By:
--------------------------------
Name:
Title:
By:
---------------------------------
Name:
Title:
28
SCHEDULE A
Underwriter Number of Firm Shares
----------- ---------------------
UBS Warburg LLC ........................................
CIBC World Markets Corp. ...............................
Xxxxx, Xxxxxxxx & Xxxx, Inc. ...........................
XX Xxxxx Securities Corporation ........................
----------
Total ........................................... 4,000,000
==========
1
SCHEDULE B
Subsidiaries
------------
Conceptus SAS ("Conceptus France")
Conceptus (Australia) Pty Limited ("Conceptus Australia")
2
EXHIBIT A
______, 2002
UBS Warburg LLC
CIBC World Markets Corp.
Xxxxx, Xxxxxxxx & Xxxx, Inc.
XX Xxxxx Securities Corp.
As Representatives of the several Underwriters
c/o UBS Warburg LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This Lock-Up Letter Agreement is being delivered to you in
connection with the proposed Underwriting Agreement (the "Underwriting
Agreement") to be entered into by Conceptus, Inc. (the "Company") and you, as
Representatives of the several Underwriters named therein, with respect to the
public offering (the "Offering") of common stock, par value $0.003 per share, of
the Company (the "Common Stock").
In order to induce you to enter into the Underwriting Agreement, the
undersigned agrees that for a period of ninety (90) days after the date of the
final prospectus relating to the Offering the undersigned will not, without the
prior written consent of UBS Warburg LLC (i) sell, offer to sell, contract to
sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of,
directly or indirectly, contract to dispose of, or file (or participate in the
filing of) a registration statement with the Securities and Exchange Commission
(the "Commission") in respect of, or establish or increase a put equivalent
position or liquidate or decrease a call equivalent position within the meaning
of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission promulgated thereunder with respect to, any
Common Stock of the Company or any securities convertible into or exercisable or
exchangeable for Common Stock, or warrants or other rights to purchase Common
Stock, (ii) enter into any swap or other arrangement that transfers to another,
in whole or in part, any of the economic consequences of ownership of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock, or warrants or other rights to purchase Common Stock, whether any
such transaction is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise, or (iii) publicly announce an intention to
effect any transaction specified in clause (i) or (ii). The foregoing sentence
shall not apply to (a) the registration of or sale to the Underwriters of any
Common Stock pursuant to the Offering and the Underwriting Agreement, (b) bona
fide gifts, provided that the recipient or recipients thereof agree in writing
to be bound by the terms of
this Lock-Up Letter Agreement and confirm that he, she or it has been in
compliance with the terms of this Lock-Up Letter Agreement since the date
hereof, (c) dispositions to any trust for the direct or indirect benefit of the
undersigned and/or the immediate family of the undersigned, provided that such
trust agrees in writing to be bound by the terms of this Lock-Up Letter
Agreement and confirms that it has been in compliance with the terms of this
Lock-Up Letter Agreement since the date hereof, or (d) sales made pursuant to an
arrangement or a plan entered into prior to the date hereof that is intended to
satisfy the affirmative defense conditions of the Securities Exchange Act Rule
10b5-1(c).
In addition, the undersigned hereby waives any rights the
undersigned may have to require registration of Common Stock in connection with
the filing of a registration statement relating to the Offering. The undersigned
further agrees that, for a period of ninety (90) days after the date of the
final prospectus relating to the Offering, the undersigned will not, without the
prior written consent of UBS Warburg LLC, make any demand for, or exercise any
right with respect to, the registration of Common Stock of the Company or any
securities convertible into or exercisable or exchangeable for Common Stock.
If (i) the Company notifies you in writing that it does not intend
to proceed with the Offering, (ii) the registration statement filed with the
Securities and Exchange Commission with respect to the Offering is withdrawn or
(iii) for any reason the Underwriting Agreement shall be terminated prior to the
time of purchase (as defined in the Underwriting Agreement), this Lock-Up Letter
Agreement shall be terminated and the undersigned shall be released from its
obligations hereunder.
Yours very truly,
-------------------------------
Name:
2