Exhibit 1
3,000,000 Shares
KOPIN CORPORATION
Common Stock
UNDERWRITING AGREEMENT
----------------------
November 14, 2001
Credit Suisse First Boston Corporation,
Eleven Madison Avenue,
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Kopin Corporation, a Delaware corporation ("COMPANY"),
proposes to issue and sell 3,000,000 shares ("FIRM SECURITIES") of its Common
Stock ("SECURITIES") to Credit Suisse First Boston Corporation (the
"UNDERWRITER"). The Firm Securities are herein called the "OFFERED SECURITIES".
The Company hereby agrees with the Underwriter as follows:
2. Representations and Warranties of the Company. The Company represents and
warrants to, and agrees with, the Underwriter that:
(a) A registration statement (No. 333-72956), including a prospectus,
relating to the Offered Securities has been filed with the Securities and
Exchange Commission ("COMMISSION") and has become effective. Such
registration statement, as amended at the time of this Agreement, is
hereinafter referred to as the "REGISTRATION STATEMENT", and the prospectus
included in such Registration Statement, as supplemented to reflect the
terms of offering of the Offered Securities, as first filed with the
Commission pursuant to and in accordance with Rule 424(b) ("RULE 424(B)")
under the Securities Act of 1933 ("ACT"), including all material
incorporated by reference therein, is hereinafter referred to as the
"PROSPECTUS". No document has been or will be prepared or distributed in
reliance on Rule 434 under the Act.
(b) On the effective date of the Registration Statement, such
Registration Statement conformed in all respects to the requirements of the
Act and the rules and regulations of the Commission ("RULES AND
REGULATIONS") and did not 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, and on the date of
this Agreement, the Registration Statement and the Prospectus conform in
all respects to the requirements of the Act and the Rules and Regulations,
and neither of such documents 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, except that the
foregoing does not apply to statements in or omissions from any of such
documents based upon written information furnished to the Company by the
Underwriter, if any, specifically for use therein.
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(c) The Company has been duly incorporated and is an existing corporation
in good standing under the laws of the State of Delaware, with power and
authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus; and the Company is duly qualified
to do business as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or the conduct of
its business requires such qualification, except where the failure to be so
qualified, individually or in the aggregate, does not have a material
adverse effect on the condition (financial or other), business, prospects,
properties, net worth or results of operations of the Company and its
Subsidiaries (as defined below) taken as a whole ("MATERIAL ADVERSE
EFFECT").
(d) Each majority owned subsidiary of the Company (each a "SUBSIDIARY"
and collectively the "SUBSIDIARIES") has been duly incorporated and is an
existing corporation in good standing under the laws of the jurisdiction of
its incorporation, with power and authority (corporate and other) to own
its properties and conduct its business as described in the Prospectus; and
each Subsidiary is duly qualified to do business as a foreign corporation
in good standing in all other jurisdictions in which its ownership or lease
of property or the conduct of its business requires such qualification
except where the failure to be so qualified, individually or in the
aggregate, would not reasonably be expected to have a Material Adverse
Effect; the jurisdictions set forth as an exhibit to the opinion of Xxxxxxx
Xxxx LLP pursuant to Section 6(d)(i) hereof are the only jurisdictions in
which the Company and the U.S. Subsidiaries (as defined herein) maintain an
office or lease property; all of the issued and outstanding capital stock
of each Subsidiary has been duly authorized and validly issued and is fully
paid and nonassessable; and the capital stock of each Subsidiary owned by
the Company, directly or through Subsidiaries, is owned free from liens,
encumbrances and defects.
(e) The Offered Securities and all other outstanding shares of capital
stock of the Company have been duly authorized; all outstanding shares of
capital stock of the Company are and, when the Offered Securities have been
delivered and paid for in accordance with this Agreement on the Closing
Date (as defined below), such Offered Securities will have been, validly
issued, fully paid and nonassessable and will conform to the description
thereof contained in the Prospectus; and the stockholders of the Company
have no preemptive rights with respect to the Securities.
(f) Except as described in the Prospectus, there are no outstanding
(i) securities or obligations of the Company or any Subsidiary convertible
into or exchangeable for any capital stock of the Company or any such
Subsidiary, (ii) warrants, rights or options to subscribe for or purchase
from the Company or any such Subsidiary any such capital stock or any such
convertible or exchangeable securities or obligations, other than pursuant
to stock option plans in effect on the date hereof, or (iii) obligations of
the Company or any such Subsidiary to issue any shares of capital stock,
any such convertible or exchangeable securities or obligations, or any such
warrants, rights or options.
(g) Neither the Company nor any such Subsidiary owns any material amount
of shares of stock or any other equity securities of any corporation or
has any equity interest in any firm, partnership, association or other
entity, except as described in or contemplated by the Prospectus.
(h) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person that would
give rise to a valid claim against the Company or the Underwriter for a
brokerage commission, finder's fee or other like payment in connection with
this offering.
(i) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person (other
than as have been waived with respect to the transactions contemplated by
this Agreement) granting such person the right to require the Company to
file a registration statement under the Act with respect to any securities
of the Company owned or to be owned by such person
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or to require the Company to include such securities in the securities
registered pursuant to the Registration Statement or in any securities
being registered pursuant to any other registration statement filed by the
Company under the Act.
(j) The Offered Securities have been approved for listing on The Nasdaq
Stock Market's National Market subject to notice of issuance.
(k) No consent, approval, authorization, or order of, or filing with, any
governmental agency or body or any court is required for the consummation
of the transactions contemplated by this Agreement in connection with the
issuance and sale of the Offered Securities by the Company, except such as
have been obtained and made under the Act and such as may be required by
the Nasdaq National Market or under state securities laws.
(l) The execution, delivery and performance of this Agreement, and the
issuance and sale of the Offered Securities will not result in a breach or
violation of any of the terms and provisions of, or constitute a default
under, any statute, any rule, regulation or order of any governmental
agency or body or any court, domestic or foreign, having jurisdiction over
the Company or any Subsidiary or any of their properties, or any agreement
or instrument to which the Company or any such Subsidiary is a party or by
which the Company or any such Subsidiary is bound or to which any of the
properties of the Company or any such Subsidiary is subject, or the charter
or by-laws of the Company or any such Subsidiary.
(m) This Agreement has been duly authorized, executed and delivered by
the Company.
(n) Except as disclosed in the Prospectus, the Company and its
Subsidiaries have good and marketable title to all real properties and all
other properties and assets owned by them, in each case free from liens,
encumbrances and defects that would materially affect the value thereof or
materially interfere with the use made or to be made thereof by them; and
except as disclosed in Prospectus, the Company and its Subsidiaries hold
any leased real or personal property under valid and enforceable leases
with no exceptions that would materially interfere with the use made or to
be made thereof by them.
(o) The Company and its Subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental agencies or
bodies necessary to conduct the business now operated by them and have not
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if
determined adversely to the Company or any of its Subsidiaries, would
reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
(p) No labor dispute with the employees of the Company or any Subsidiary
exists or, to the knowledge of the Company, is imminent that would
reasonably be expected to have a Material Adverse Effect.
(q) Except as disclosed in the Prospectus, the Company and each of its
Subsidiaries have the right to use, or can acquire on reasonable terms, all
trademarks, trade names, trade secrets, servicemarks, inventions, patent
rights, mask works, copyrights, licenses, software code, audiovisual works,
formats, algorithms, and underlying data, approvals and governmental
authorizations now used in, or which are necessary for fulfillment of,
their respective obligations or the conduct of their respective businesses
as now conducted or proposed to be conducted as described in the
Prospectus; except as discussed in the Prospectus, the expiration of any
trademarks, trade names, trade secrets, servicemarks, inventions, patent
rights, mask works, copyrights or licenses would not have a Material
Adverse Effect; and neither the Company nor any of its Subsidiaries is
infringing any trademark, trade
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name rights, patent rights relating to patents that have issued, mask
works, copyrights, licenses, trade secrets, servicemarks or other similar
rights of others, and there is no claim being made against the Company or
any of its Subsidiaries regarding trademark, trade name, patent, mask work,
copyright, license, trade secret or other infringement or assertion of
intellectual property rights which, if decided adversely to the Company,
would reasonably be expected to have a Material Adverse Effect. With
respect to the Company's patent portfolio (including those under license
from the Massachusetts Institute of Technology ("MIT")), all requisite
maintenance fees have been paid in the United States and foreign
jurisdictions and no patent or patent application has lapsed for failure to
pay such fees. The licenses received by the Company from MIT, including but
not limited to those licenses granted in 1985 and 1995, are in full force
and effect and the Company is not in breach, violation or default of any of
the terms and provisions thereof. The Company has agreements in place with
such employees, consultants or other persons or parties engaged by the
Company or any Subsidiary sufficient to enable the Company and any
Subsidiary to fulfill their contractual obligations and to conduct their
respective businesses as now conducted as described in the Prospectus and
providing for the assignment to the Company of all intellectual property
rights in the work performed and the protection of the trade secrets and
confidential information of the Company, each of its Subsidiaries and of
third parties.
(r) Except as disclosed in the Prospectus, neither the Company nor any of
its Subsidiaries is in violation of any statute, any rule, regulation,
decision or order of any governmental agency or body or any court, domestic
or foreign, relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the environment
or human exposure to hazardous or toxic substances (collectively,
"ENVIRONMENTAL LAWS"), and the Company and each of its Subsidiaries have
received all permits, licenses or other approvals required of them under
applicable environmental laws and the Company and each Subsidiary is in
compliance with all terms and conditions of any such permits, licenses or
other approvals except where failure to receive such permits, licenses or
approvals or failure to comply therewith would not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect; and
the Company is not aware of any pending investigation which might lead to
such a claim.
(s) Neither the Company nor any of its Subsidiaries is in violation of
any statute, any rule, regulation, decision or order of any governmental
agency or body of any court, domestic or foreign, relating to occupational
safety and health and the Company and its Subsidiaries have received all
permits, licenses or other approvals required of them under applicable
federal and state occupational safety and health laws and regulations to
conduct their respective businesses except for any such violations that,
individually or in the aggregate, would not reasonably be expected to have
a Material Adverse Effect, and the Company and each such Subsidiary is in
compliance with all terms and conditions of any such permit, license or
approval, except any such violation of law or regulation, failure to
receive required permits, licenses or other approvals or failure to comply
with the terms and conditions of such permits, licenses or approvals which
would not, individually or in the aggregate, reasonably be expected to have
a Material Adverse Effect.
(t) Except as disclosed in the Prospectus, there are no pending actions,
suits or proceedings against or affecting the Company, any of its
Subsidiaries or any of their respective properties that, if determined
adversely to the Company or any of its Subsidiaries, would, individually or
in the aggregate, reasonably be expected to have a Material Adverse Effect,
or would materially and adversely affect the ability of the Company to
perform its obligations under this Agreement or which are otherwise
material in the context of the sale of the Offered Securities; and no such
actions, suits or proceedings are threatened or, to the Company's
knowledge, contemplated.
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(u) The financial statements included in the Registration Statement and
the Prospectus present fairly the financial position of the Company and its
consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and such financial
statements have been prepared in conformity with the generally accepted
accounting principles in the United States ("GAAP") applied on a consistent
basis.
(v) Except as disclosed in the Prospectus, since the date of the latest
audited financial statements included in the Prospectus, there has been no
material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or other),
business, prospects, properties, net worth or results of operations of the
Company and its Subsidiaries taken as a whole, and, except as disclosed in
or contemplated by the Prospectus, there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class
of its capital stock.
(w) The Company and each of its Subsidiaries maintain 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 GAAP 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.
(x) No Subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, making any other
distribution on such Subsidiary's capital stock, repaying to the Company
any loans or advances to such Subsidiary from the Company or transferring
any of such Subsidiary's property or assets to the Company or any other
Subsidiary of the Company, and the Company is not currently prohibited,
directly or indirectly, from paying any dividends or making any other
distribution on its capital stock, in each case except as described in or
contemplated by the Prospectus or prohibited by applicable law.
(y) The Company has filed all foreign, federal, state and local tax
returns that are required to be filed or has requested extensions thereof
(except in any case in which the failure so to file would not reasonably be
expected to have a Material Adverse Effect) and has paid all taxes required
to be paid by it and any other assessment, fine or penalty levied against
it, to the extent that any of the foregoing is due and payable, except for
any such assessment, fine or penalty that is currently being contested in
good faith or as described in or contemplated by the Prospectus.
(z) The Company and each of its Subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which they
are engaged; neither the Company nor any such Subsidiary has been refused
any insurance coverage sought or applied for; and neither the Company nor
any such Subsidiary has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires or
to obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a Material Adverse
Effect.
(aa) The Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income Security
Act of 1974, as amended, including the regulations and published
interpretations thereunder ("ERISA"); no "reportable event" (as defined in
ERISA) has occurred with respect to any "pension plan" (as defined in
ERISA) for which the Company would have any liability; the Company has not
incurred and does not expect to incur liability under (i) Title IV of ERISA
with respect to termination of, or withdrawal from, any "pension plan" or
(ii) Sections 412 or 4971 of the Internal Revenue Code of 1986, as amended,
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including the regulations and published interpretations thereunder (the
"CODE"); and each "pension plan" for which the Company would have any
liability that is intended to be qualified under Section 401(a) of the Code
is so qualified in all material respects and nothing has occurred, whether
by action or by failure to act, which would cause the loss of such
qualification.
(bb) No default exists, and no event has occurred which, with notice or
lapse of time or both, would constitute a default in the due performance
and observance of any term, covenant or condition of any indenture,
mortgage, deed of trust, lease or other agreement or instrument to which
the Company or any of its Subsidiaries is a party or by which the Company
or any of its Subsidiaries or any of their respective properties is bound.
(cc) Subsequent to the date as of which information is given in the
Prospectus, neither the Company nor any of its Subsidiaries has sustained
any material loss or interference with their respective businesses or
properties from fire, flood, hurricane, accident or other calamity, whether
or not covered by insurance, or from any labor dispute or any legal or
governmental proceeding, and there has been no materially adverse change
(including, without limitation, a change in management or control), or
development involving a prospective materially adverse change, in the
condition (financial or otherwise), management, earnings, property,
business affairs or business prospects, stockholders' equity, net worth or
results of operations of the Company or any of its Subsidiaries, taken as a
whole, other than as described in or contemplated by the Prospectus.
(dd) Except as disclosed in the Prospectus, no receiver or liquidator
(or similar person) has been appointed in respect of the Company or any
Subsidiary of the Company or in respect of any part of the assets of the
Company or any Subsidiary of the Company; no resolution, order of any
court, regulatory body, governmental body or otherwise, or petition or
application for an order, has been passed, made or to the Company's
knowledge presented for the winding up of the Company or any Subsidiary of
the Company or for the protection of the Company or any such Subsidiary
from its creditors; and the Company has not, and no Subsidiary of the
Company has, stopped or suspended payments of its debts, become unable to
pay its debts or otherwise become insolvent.
(ee) The Company is not an open-end investment company, unit investment
trust or face-amount certificate company that is or is required to be
registered under Section 8 of the United States Investment Company Act of
1940 (the "Investment Company Act"); and the Company is not and, after
giving effect to the offering and sale of the Offered Securities and the
application of the proceeds thereof as described in the Prospectus, will
not be an "investment company" as defined in the Investment Company Act.
(ff) The Company is subject to Section 13 or 15(d) under the Exchange
Act.
(gg) Deloitte & Touche LLP, who have certified certain financial
statements of the Company and its consolidated Subsidiaries included in the
Prospectus, are independent public accountants as required by the Act and
the applicable rules and regulations thereunder.
(hh) The Company's Common Stock is registered pursuant to Section 12(g)
of the Exchange Act and is listed on the Nasdaq National Market, and 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 NASD is
contemplating terminating such registration or listing. The Company has
filed in a timely manner all reports and other information required to be
filed with the Commission pursuant to the Exchange Act during the twelve
calendar months and any portion of a month immediately preceding the date
of the Registration Statement (or during such
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shorter period of time that the Company has been subject to the reporting
requirements of the Exchange Act).
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Underwriter, and the Underwriter agrees to purchase from the Company, at a
purchase price of $13.20 per share, 3,000,000 shares of Firm Securities.
The Company will deliver the Firm Securities to the Underwriter for its
account at the office of Xxxxxxx Xxxx LLP, against payment of the purchase price
in Federal (same day) funds by official bank check or checks or wire transfer to
an account at a bank acceptable to the Underwriter at the office of Xxxxxxx Xxxx
LLP, at 10:00A.M., New York time, on November 19, 2001, or at such other time
not later than seven full business days thereafter as the Underwriter and the
Company determine, such time being herein referred to as the "CLOSING DATE". For
purposes of Rule 15c6-1 under the Securities Exchange Act of 1934, the Closing
Date (if later than the otherwise applicable settlement date) shall be the
settlement date for payment of funds and delivery of securities for all the
Offered Securities sold pursuant to the offering. The certificates for the Firm
Securities so to be delivered will be in definitive form, in such denominations
and registered in such names as the Underwriter requests and will be made
available for checking and packaging at the office of Boston Equiserve, L.P. at
least 24 hours prior to the Closing Date.
4. Offering by Underwriter. It is understood that the Underwriter
proposes to offer the Offered Securities for sale to the public as set forth in
the Prospectus.
5. Certain Agreements of the Company. The Company agrees with the
Underwriter that:
(a) The Company will file the Prospectus with the Commission pursuant to
and in accordance with Rule 424(b)(2) (or, if applicable and if consented
to by the Underwriter, subparagraph (5)) not later than the second business
day following the execution and delivery of this Agreement.
(b) The Company will advise the Underwriter promptly of any proposal to
amend or supplement the Registration Statement or the Prospectus and will
afford the Underwriter a reasonable opportunity to comment on any such
proposed amendment or supplement; and the Company will also advise the
Underwriter promptly of the filing of any such amendment or supplement and
of the institution by the Commission of any stop order proceedings in
respect of the Registration Statement or of any part thereof and will use
its best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered Securities
is required to be delivered under the Act in connection with sales by the
Underwriter or any dealer, any event occurs as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Act, the Company promptly will
notify the Underwriter of such event and will promptly prepare and file
with the Commission, at its own expense, an amendment or supplement which
will correct such statement or omission or an amendment which will effect
such compliance. Neither the Underwriter's consent to, nor the
Underwriter's delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6 hereof.
(d) As soon as practicable, but not later than 16 months, after the date
of this Agreement, the Company will make generally available to its
securityholders an earnings statement covering a period of at least
12 months beginning after the later of (i) the effective date of the
Registration Statement,
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(ii) the effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of this
Agreement and (iii) the date of the Company's most recent Annual Report on
Form 10-K filed with the Commission prior to the date of this Agreement,
which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Underwriter copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the Prospectus
and all amendments and supplements to such documents, in each case as soon
as available and in such quantities as the Underwriter reasonably requests.
The Company will pay the expenses of printing and distributing to the
Underwriter all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as the Underwriter
designates and will continue such qualifications in effect so long as
required for the distribution.
(g) During the period of five years hereafter, the Company will furnish
to the Underwriter, as soon as practicable after the end of each fiscal
year, a copy of its annual report to stockholders for such year; and the
Company will furnish to the Underwriter (i) as soon as available, a copy of
each report and any definitive proxy statement of the Company filed with
the Commission under the Securities Exchange Act of 1934 or mailed to
stockholders, and (ii) from time to time, such other information concerning
the Company as the Underwriter may reasonably request.
(h) The Company will pay all expenses incident to the performance of its
obligations under this Agreement, for any filing fees and other expenses
(including fees and disbursements of counsel) incurred in connection with
qualification of the Offered Securities for sale under the laws of such
jurisdictions as the Underwriter designates and the printing of memoranda
relating thereto, for any travel expenses of the Company's officers and
employees and any other expenses of the Company in connection with
attending or hosting meetings with prospective purchasers of the Offered
Securities and for expenses incurred in distributing preliminary
prospectuses and the Prospectus (including any amendments and supplements
thereto) to the Underwriter.
(i) For a period of 90 days after the date of the initial public
offering of the Offered Securities, the Company will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly,
or file with the Commission a registration statement under the Act relating
to, any additional shares of its securities or securities convertible into
or exchangeable or exercisable for any shares of its securities, or
publicly disclose the intention to make any such offer, sale, pledge,
disposition or filing, without the prior written consent of the
Underwriter, except (i) issuances of securities pursuant to the conversion
or exchange of convertible or exchangeable securities or the exercise of
warrants or options, in each case outstanding on the date hereof, (ii)
grants of employee stock options pursuant to the terms of a plan in effect
on the date hereof, or issuances of securities pursuant to the exercise of
such options or issuances described in or contemplated by the Company's
public filings made in accordance with the Securities Exchange Act of 1934,
or (iii) issuances of common stock pursuant to any current agreement,
arrangement or understanding of which the Underwriter is aware with respect
to the issuance of no more than an aggregate of 888,888 shares of common
stock.
6. Conditions of the Obligations of the Underwriters. The obligations of
the Underwriter to purchase and pay for the Firm Securities on the Closing Date
will be subject to the accuracy of the representations and warranties on the
part of the Company herein, to the accuracy of the statements of Company
officers made pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder and to the following additional conditions
precedent:
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(a) On or prior to the date of this Agreement, the Underwriter shall
have received a letter, dated the date of delivery thereof, of Deloitte &
Touche LLP confirming that they are independent public accountants within
the meaning of the Act and the applicable published Rules and Regulations
thereunder and stating to the effect that:
(i) In their opinion the financial statements and any schedules and
any summary of earnings examined by them included in the Prospectus
comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published Rules and
Regulations;
(ii) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement of Auditing Standards
No. 71, Interim Financial Information, included in the Registration
Statement;
(iii) on the basis of the review referred to in clause (ii) above, a
reading of the latest available interim financial statements of the
Company, inquiries of officials of the Company who have responsibility
for financial and accounting matters and other specified procedures,
nothing came to their attention that caused them to believe that:
(A) the unaudited financial statements, if any, and any summary
of earnings included in the Prospectus do not comply as to form in
all material respects with the applicable accounting requirements of
the Act and the related published Rules and Regulations or any
material modifications should be made to such unaudited financial
statements and summary of earnings for them to be in conformity with
generally accepted accounting principles;
(B) if any unaudited "capsule" information is contained in the
Prospectus, the unaudited consolidated net sales, net operating
income, net income and net income per share amounts or other amounts
constituting such "capsule" information and described in such letter
do not agree with the corresponding amounts set forth in the
unaudited consolidated financial statements or were not determined
on a basis substantially consistent with that of the corresponding
amounts in the audited statements of income;
(C) at the date of the latest available balance sheet read by
such accountants, or at a subsequent specified date not more than
three business days prior to the date of such letter, there was any
change in the capital stock or any increase in short-term
indebtedness or long-term debt of the Company and its consolidated
subsidiaries or, at the date of the latest available balance sheet
read by such accountants, there was any decrease in consolidated net
current assets or net assets, as compared with amounts shown on the
latest balance sheet included in the Prospectus; or
(D) for the period from the closing date of the latest income
statement included in the Prospectus to the closing date of the
latest available income statement read by such accountants there
were any decreases, as compared with the corresponding period of the
previous year and with the period of corresponding length ended the
date of the latest income statement included in the Prospectus, in
consolidated net sales, net operating income in the total or per
share amounts of consolidated income before extraordinary items or
net income;
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except in all cases set forth in clauses (C) and (D) above for
changes, increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
included in the Prospectus (in each case to the extent that such
dollar amounts, percentages and other financial information are
derived from the general accounting records of the Company and its
Subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
All financial statements and schedules included in material incorporated by
reference into the Prospectus shall be deemed included in the Prospectus
for purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a) of this
Agreement. No stop order suspending the effectiveness of the Registration
Statement or of any part thereof shall have been issued and no proceedings
for that purpose shall have been instituted or, to the knowledge of the
Company or the Underwriter, shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company and its
Subsidiaries taken as one enterprise which, in the judgment of the
Underwriter, is material and adverse and makes it impractical or
inadvisable to proceed with completion of the public offering or the sale
of and payment for the Offered Securities; (ii) any downgrading in the
rating of any debt securities of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule 436(g)
under the Act), or any public announcement that any such organization has
under surveillance or review its rating of any debt securities of the
Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); (iii) any change in U.S. or international financial, political or
economic conditions or currency exchange rates or exchange controls as
would, in the judgment of the Underwriter, be likely to prejudice
materially the success of the proposed issue, sale or distribution of the
Offered Securities, whether in the primary market or in respect of dealings
in the secondary market; (iv) any material suspension or material
limitation of trading in securities generally on the Nasdaq National Market
or the New York Stock Exchange, or any setting of minimum prices for
trading on such exchange, or any suspension of trading of any securities of
the Company on any exchange or in the over-the-counter market; (v) any
banking moratorium declared by U.S. Federal or New York authorities; (vi)
any major disruption of settlements of securities or clearance services in
the United States or (vii) any attack on, outbreak or escalation of
hostilities or act of terrorism involving the United States, any
declaration of war by Congress or any other national or international
calamity or emergency if, in the judgment of the Underwriter, the effect of
any such attack, outbreak, escalation, act, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with completion of
the public offering or the sale of and payment for the Offered Securities.
(d) The Underwriter shall have received an opinion, dated such Closing
Date, of Xxxxxxx Xxxx LLP, counsel for the Company, to the effect that:
10
(i) Each of the Company and each of VS Corporation, a Delaware
corporation, Kopin Optical, a Maryland corporation, Koptron U.S.A.
Corporation, a Delaware corporation, Kopin Display Corporation, a
Delaware corporation, Kopin Trust Securities Corp., a Delaware
corporation, and Kopin Securities Corporation, a Massachusetts
corporation (each of the foregoing, other than the Company, being all
of the Subsidiaries incorporated within the United States and being
referred to herein as the "U.S. SUBSIDIARIES") (A) has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation, (B) is duly
qualified and in good standing as a foreign corporation in those
jurisdictions set forth as an exhibit to the opinion, and (C) with
respect to the Company and each U.S. Subsidiary that is incorporated
in Massachusetts or Delaware, has all requisite corporate power and
authority to own its properties and conduct its business as described
in the Prospectus;
(ii) The Company owns of record one hundred percent (100%) of the
outstanding shares of capital stock of the U.S. Subsidiaries, all such
shares have been duly authorized and validly issued, and, assuming
payment therefor in accordance with the resolutions authorizing such
issuances, are fully paid and non-assessable; to the best of such
counsel's knowledge, such shares were not issued in violation of any
statutory preemptive or similar right under the charter or by-laws of
any of the U.S. Subsidiaries;
(iii) The Offered Securities delivered on such Closing Date have
been duly authorized and validly issued, are fully paid and
nonassessable and conform to the description thereof contained in the
Prospectus; the outstanding shares of the Common Stock of the Company
have been duly authorized and validly issued and, assuming payment
therefor in accordance with the resolutions authorizing such issuances
and in accordance with the terms of any applicable option or warrant,
are fully paid and nonassessable, conform to the description thereof
contained in the Prospectus and none of such shares were issued in
violation of any statutory preemptive or, to the best of such
counsel's knowledge, other similar rights; the Offered Securities will
not be subject to any preemptive or similar rights under applicable
law, the Company's charter or by-laws or, to the best of such
counsel's knowledge, any other agreement or instrument to which the
Company is a party or by which the Company is bound;
(iv) The Company is not and, immediately after giving effect to the
offering and sale of the Offered Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of 1940;
(v) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement in
connection with the issuance or sale of the Offered Securities by the
Company, except (i) such as have been obtained and made under the Act,
(ii) such as may be required under state securities laws, and (iii)
such as may be required by the Nasdaq National Market or the by-laws
and rules of the National Association of Securities Dealers in
connection with the purchase and distribution of the Offered
Securities;
(vi) To such counsel's knowledge, except as set forth in the
Prospectus and the Registration Statement, there are no pending or
threatened actions, suits or proceedings to which the Company or its
U.S. Subsidiaries is a party that would be required to be disclosed by
the Company therein;
11
(vii) The execution, delivery and performance of this Agreement and
the issuance and sale of the Offered Securities will not (A) violate
the charter or by-laws of the Company or any of the U.S. Subsidiaries,
or (B) result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, lease or other agreement or instrument to which the
Company or any of the U.S. Subsidiaries is a party or by which the
Company or any of the U.S. Subsidiaries is bound and which is filed as
an exhibit to any of the Exchange Act reports filed by the Company
pursuant to the Securities Exchange Act of 1934, or (C) result in a
breach or violation of any of the terms or constitute a default under
any statute or any judgment, decree, order, rule or regulation of any
court or other governmental authority or any arbitrator known to such
counsel and applicable to the Company or any of the U.S. Subsidiaries;
(viii) This Agreement has been duly authorized, executed and
delivered by the Company;
(ix) Except as disclosed in the Prospectus, to the best of such
counsel's knowledge, no person, corporation, trust, partnership,
association or other entity has the right to include and/or register
any securities of the Company in the Registration Statement (other
than such rights which have been waived, assuming the due authority
and execution of the person or entity granting such waiver, or such
rights that have expired by reason of lapse of time following
notification of the Company's intent to file the Registration
Statement);
(x) To such counsel's knowledge, each of the documents incorporated
by reference into the Registration Statement as of its effective date,
and the Prospectus as of its date (in each case as of the filing with
the Commission of such document, and as such document has been
amended, and in each case other than the financial statements, the
notes thereto and the related schedules and accounting information and
other financial and statistical data included therein as to which such
counsel need not express an opinion) complied as to form in all
material respects with the requirements of the Exchange Act and the
rules and regulations thereunder, provided, however, that such opinion
as to compliance with form is based solely on the statements contained
in the applicable document so incorporated and, for the purpose of
clarification, no opinion is given as to the accuracy, completeness or
fairness of such statements;
(xi) The Registration Statement has become effective under the Act,
the Prospectus was filed with the Commission pursuant to the Rule
424(b) and within the time period required by Rule 424(b), and, to the
best of the knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any part thereof has
been issued and no proceedings for that purpose have been instituted
or are pending or contemplated under the Act; and
(xii) The Registration Statement, as of its effective date, and the
Prospectus, as of the date of this Agreement (in each case other than
financial statements, the notes thereto and the related schedules and
accounting information and other financial and related statistical
data included therein as to which such counsel need not express an
opinion), and any amendment or supplement thereto, as of its date,
excluding in each case the documents incorporated by reference
therein, complied as to form in all material respects with the
requirements of the Act and the Rules and Regulations.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of
the Company, representatives of the Underwriter
12
and representatives of the independent certified public accountants of
the Company, at which conferences the contents of the Registration
Statement and the Prospectus and related matters were discussed and,
although such counsel is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus
and such counsel has not made any independent investigation thereof,
considered in the light of such counsel's understanding of applicable
law and the experience such counsel has gained through its practice
thereunder, such counsel shall advise you that no facts have come to
its attention which have caused such counsel to believe that the
Registration Statement at the time it became effective (except for
financial statements, schedules and other financial information or
related statistical data included or incorporated by reference
therein, as to which such counsel need not express any 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 that the Prospectus as amended
or supplemented (except with respect to the financial statements,
schedules thereto and other financial information or related
statistical data included or incorporated by reference therein, as to
which such counsel need make no statement) on the date thereof
contained any untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading.
(e) The Underwriter shall have received an opinion, dated such
Closing Date, of Xxxxxxxx Xxxxx Xxxxx & Xxxxxxxx, PC, patent counsel for
the Company, that:
(i) The statements in the Registration Statement and the
Prospectus under the captions "Risk Factors - We may not be
successful in protecting our intellectual property and proprietary
rights" and "Risk Factors - Our products could infringe on the
intellectual property rights of others", and in the Company's Annual
Report on Form 10-K for the year ended December 31, 2000 under the
caption "Business - Patents, Proprietary Rights and Licenses,"
insofar as such statements constitute summaries of matters of law,
are accurate and complete statements or summaries of the matters set
forth therein;
(ii) To such counsel's knowledge, the Prospectus does not
contain any untrue statements of a material fact with respect to the
patent position of the Company, or omit to state any material fact
relating to the patent position of the Company required to be stated
therein or which is necessary to make the statements therein not
misleading;
(iii) The Company has clear title to the United States patents
and patent applications mentioned in the Prospectus as being owned
by the Company (collectively, the "PATENTS"). Such counsel has no
knowledge of any facts that the Company lacks, or will be unable to
obtain, any rights or licenses to use all Intellectual Property
necessary to the conduct of its business as now or proposed to be
conducted by the Company as described in the Prospectus. To such
counsel's knowledge, there are no facts which would form a basis for
any patents within the Patents being held invalid or non-
enforceable;
(iv) The Company has obtained licenses from the Massachusetts
Institute of Technology under certain United States Patents and
patent applications mentioned in the Prospectus (the "LICENSED
PATENTS"). To such counsel's knowledge, there are no facts which
would form a basis for any of the patents within the Licensed
Patents being held invalid or non-enforceable or for any patents or
patent applications necessary to the
13
conduct of the Company's business as now proposed to be conducted by
the Company as described in the Prospectus having lapsed for failure
to pay required fees;
(v) To such counsel's knowledge, the contractual obligations
of the Company described in the Prospectus have not and will not
adversely affect the proprietary rights of the Company, except under
circumstances of misappropriation by third parties. To such
counsel's knowledge, except as disclosed in the Prospectus, the
Company has obtained all material licenses required for the conduct
of its business, and such licenses are in full force and effect and
the Company in all respects is complying therewith. To such
counsel's knowledge, except as and to the extent set forth in the
Prospectus, neither the Company nor any of its Subsidiaries is under
any obligation to pay to any third party, royalties or fees of any
kind by the terms of contracts with respect to any patents, patent
applications, patent rights, inventions, trade secrets, know-how,
trademarks, trademark applications, service marks, service xxxx
applications, trade names, copyrights or other information
(collectively, "INTELLECTUAL PROPERTY");
(vi) There are no legal or governmental proceedings pending
(other than regarding patent and trademark applications pending)
relating to Intellectual Property owned or used by the Company; and,
to such counsel's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or others. There are no
legal or governmental proceedings pending or, to such counsel's
knowledge, any accusation, threat or suggestion by a third party of
infringement by the Company of any Intellectual Property of such
third party, except as described in the Prospectus. There are no
pending or, to such counsel's knowledge, threatened governmental
proceedings, in the United States or any other jurisdiction,
including but not limited to reexaminations and oppositions, which
could affect the validity or enforceability of any Intellectual
Property of the Company;
(vii) Such counsel has paid maintenance and other fees
required to maintain the enforceability of U.S. patents owned by the
Company which are licensed or sublicensed to any third party; and
(viii) Such counsel has paid maintenance and other fees
required to maintain the enforceability of U.S. and foreign patents
owned by the Company as described in the Offering Circular; and,
such counsel has paid maintenance and other fees required to
maintain the pendency of U.S. and foreign applications owned by the
Company as described in the Prospectus.
(f) The Underwriter shall have received from Xxxxx, Xxxxxxx & Xxxxxxxxx,
LLP, counsel for the Underwriter, such opinion or opinions, dated such
Closing Date, with respect to the incorporation of the Company, the
validity of the Offered Securities delivered on such Closing Date, the
Registration Statement, the Prospectus and other related matters as the
Underwriter may require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them to
pass upon such matters.
(g) The Underwriter shall have received a certificate, dated the Closing
Date, of the President or any Vice President and a principal financial or
accounting officer of the Company in which such officers, to the best of
their knowledge after reasonable investigation, shall state that the
representations and warranties of the Company in this Agreement are true
and correct, that the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder
at or prior to the Closing Date, that no stop order suspending the
effectiveness of the Registration Statement or of any part thereof has been
issued and no proceedings for that purpose
14
have been instituted or are contemplated by the Commission and that,
subsequent to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change, nor any development
or event involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole except as set forth in or
contemplated by the Prospectus or as described in such certificate.
(h) The Underwriter shall have received a letter, dated such Closing
Date, of Deloitte & Touche LLP which meets the requirements of subsection
(a) of this Section, except that the specified date referred to in such
subsection will be a date not more than three days prior to such Closing
Date for the purposes of this subsection.
(i) On or prior to the date of this Agreement, the Underwriter shall
have received lockup letters from each of the executive officers and
directors of the Company.
The Company will furnish the Underwriter with such conformed copies of such
opinions, certificates, letters and documents as the Underwriter reasonably
requests. The Underwriter may in its sole discretion waive compliance with any
conditions to the obligations of the Underwriter hereunder, whether in respect
of an Optional Closing Date or otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless the Underwriter, its partners, directors and officers and each
person, if any, who controls the Underwriter within the meaning of Section 15 of
the Act, against any losses, claims, damages or liabilities, joint or several,
to which the Underwriter may become subject, under the Act or otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, the Prospectus, or
any amendment or supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon 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, and will reimburse the Underwriter for any
legal or other expenses reasonably incurred by the Underwriter in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred; provided, however, that the Company will
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement in or omission or alleged omission from any of such documents
in reliance upon and in conformity with written information furnished to the
Company by the Underwriter specifically for use therein, it being understood and
agreed that the only such information furnished by the Underwriter consists of
the information described as such in subsection (b) below; and provided,
further, that with respect to any untrue statement or alleged untrue statement
in or omission or alleged omission from any preliminary prospectus the indemnity
agreement contained in this subsection (a) shall not inure to the benefit of the
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased the Offered Securities concerned, to the extent that a
prospectus relating to such Offered Securities was required to be delivered by
the Underwriter under the Act in connection with such purchase and any such
loss, claim, damage or liability of the Underwriter results from the fact that
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Offered Securities to such person, a copy of
the Prospectus (exclusive of material incorporated by reference) if the Company
had previously furnished copies thereof to the Underwriter.
(b) The Underwriter will indemnify and hold harmless the Company, its
directors and officers and each person, if any who controls the Company within
the meaning of Section 15 of the Act, against any losses, claims, damages or
liabilities to which the Company may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related preliminary
prospectus, or arise out of or are based upon the omission or the alleged
omission to state therein a material
15
fact required to be stated therein or necessary to make the statements therein
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company by the Underwriter specifically for use therein, and will reimburse
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed that the
only such information furnished by the Underwriter consists of the following
information in the Prospectus furnished on behalf of the Underwriter: the
concession and reallowance figures appearing under the caption "Underwriting"
and the information contained in the last two paragraphs under the caption
"Underwriting."
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above, except to the extent it has been materially
prejudiced by such omission. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel reasonably satisfactory to
such indemnified party (who shall not, except with the consent of the
indemnified party (which consent shall not be unreasonably withheld, delayed or
conditioned), be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action 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 (i) includes an unconditional release
of such indemnified party from all liability on any claims that are the subject
matter of such action and (ii) does not include a statement as to, or an
admission of, fault, culpability or a failure to act by or on behalf of an
indemnified party.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriter on the other from the offering of the Securities 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 the Underwriter on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriter on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Underwriter.
The 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 the Company or the Underwriter and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), the
Underwriter shall not be required to contribute any amount in
16
excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue 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.
(e) The obligations of the Company under this Section shall be in addition to
any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls the Underwriter
within the meaning of the Act; and the obligations of the Underwriter under this
Section shall be in addition to any liability which the Underwriter may
otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company, to each officer of the Company who has signed the
Registration Statement and to each person, if any, who controls the Company
within the meaning of the Act.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the Underwriter set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation, or statement as to the results thereof, made by or on behalf of
the Underwriter, the Company or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery of
and payment for the Offered Securities. If for any reason the purchase of the
Offered Securities by the Underwriter is not consummated, the Company shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 5 and the respective obligations of the Company and the Underwriter
pursuant to Section 7 shall remain in effect, and if any Offered Securities have
been purchased hereunder the representations and warranties in Section 2 and all
obligations under Section 5 shall also remain in effect. If the purchase of the
Offered Securities by the Underwriter is not consummated for any reason other
than the occurrence of any event specified in clause (iii), (iv), (v), (vi) or
(vii) of Section 6(c), the Company will reimburse the Underwriter for all out-
of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by it in connection with the offering of the Offered Securities.
9. Notices. All communications hereunder will be in writing and, if sent to
the Underwriter, will be mailed, delivered or telegraphed and confirmed to
Credit Suisse First Boston Corporation, Eleven Madison Avenue, New York, N.Y.
10010-3629, Attention: Transactions Advisory Group, or, if sent to the Company,
will be mailed, delivered or telegraphed and confirmed to it at Kopin
Corporation, 000 Xxxxx Xxxxxxxx Xxxx., Xxxxxxx, XX 00000, Attention: President;
provided, however, that any notice to the Underwriter pursuant to Section 7 will
be mailed, delivered or telegraphed and confirmed to such Underwriter.
10. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7, and no other person
will have any right or obligation hereunder.
11. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
12. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
The Company hereby submits to the non-exclusive jurisdiction of the Federal
and state courts in the Borough of Manhattan in The City of New York in any suit
or proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby.
17
If the foregoing is in accordance with the Underwriter's understanding of our
agreement, kindly sign and return to the Company one of the counterparts hereof,
whereupon it will become a binding agreement between the Company and the
Underwriter in accordance with its terms.
Very truly yours,
Kopin corporation
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
Credit Suisse First Boston Corporation
By: /s/ Xxxxxxx X. Xxxxx
--------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
18