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EXHIBIT 1.1
Draft - 12/18/96
2,850,000 Shares of Common Stock
VENTANA MEDICAL SYSTEMS, INC.
UNDERWRITING AGREEMENT
----------------------
February __, 1997
XXXXXX, READ & CO. INC.
BEAR, XXXXXXX & CO. INC.
XXXXX & COMPANY
as Representatives of the
several Underwriters named in
Schedule I attached hereto
c/x Xxxxxx, Read & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Ventana Medical Systems, Inc., a corporation organized and
existing under the laws of Delaware (the "Company"), and certain stockholders
of the Company named in Schedule II hereto (the "Selling Stockholders")
propose, subject to the terms and conditions stated herein, to sell to the
several underwriters named in Schedule I hereto (the "Underwriters") an
aggregate of 2,850,000 shares (the "Firm Shares") of the Company's common
stock, par value $0.001 per share (the "Common Stock"). Of the 2,850,000 Firm
Shares, 1,850,000 Firm Shares are being sold by the Company and 1,000,000 Firm
Shares are being sold by the Selling Stockholders. In addition, certain of the
Selling Stockholders propose to grant, for the sole purpose of covering
over-allotments in connection with the sale of the Firm Shares, at the option
of the Underwriters, options to purchase an aggregate of up to an additional
427,500 shares (the "Additional Shares") of Common Stock. The Firm Shares and
any Additional Shares purchased by the Underwriters are referred to herein as
the "Shares". The Shares are more fully described in the Registration
Statement referred to below.
1. Representations and Warranties of the Company. The
Company represents and warrants to, and agrees with, the Underwriters that:
(a) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration statement, and
may have filed an amendment or amendments
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thereto, on Form S-1 (No. ________), for the registration of the
Shares under the Securities Act of 1933, as amended (the "Act"). Such
registration statement, including the prospectus, financial statements
and schedules, exhibits and all other documents filed as a part
thereof, as amended at the time of effectiveness of the registration
statement, including any information deemed to be a part thereof as of
the time of effectiveness pursuant to paragraph (b) of Rule 430A or
Rule 434 of the Rules and Regulations of the Commission under the Act
(the "Regulations"), is herein called the "Registration Statement" and
the prospectus, in the form first filed with the Commission pursuant
to Rule 424(b) of the Regulations or filed as part of the Registration
Statement at the time of effectiveness if no Rule 424(b) or Rule 434
filing is required, is herein called the "Prospectus". The term
"preliminary prospectus" as used herein means a preliminary prospectus
as described in Rule 430 of the Regulations.
(b) At the time of the effectiveness of the Registration
Statement or the effectiveness of any post-effective amendment to the
Registration Statement, when the Prospectus is first filed with the
Commission pursuant to Rule 424(b) or Rule 434 of the Regulations,
when any supplement to or amendment of the Prospectus is filed with
the Commission and at the Closing Date and the Additional Closing
Date, if any, (as hereinafter respectively defined), the Registration
Statement and the Prospectus and any amendments thereof and
supplements thereto complied or will comply in all material respects
with the applicable provisions of the Act and the Regulations and do
not or will not contain an untrue statement of a material fact and do
not or will not omit to state any material fact required to be stated
therein or necessary in order to make the statements therein (i) in
the case of the Registration Statement, not misleading and (ii) in the
case of the Prospectus, in light of the circumstances under which they
were made, not misleading. When any related preliminary prospectus
was first filed with the Commission (whether filed as part of the
registration statement for the registration of the Shares or any
amendment thereto or pursuant to Rule 424(a) of the Regulations) and
when any amendment thereof or supplement thereto was first filed with
the Commission, such preliminary prospectus and any amendments thereof
and supplements thereto complied in all material respects with the
applicable provisions of the Act and the Regulations and did not
contain an untrue statement of a material fact and did not omit to
state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances
under which they were made, not misleading. No representation and
warranty is made in this subsection (b), however, with respect to any
information contained in or omitted from the Registration Statement or
the Prospectus or
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any related preliminary prospectus or any amendment thereof or
supplement thereto in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of any Underwriter
through you as herein stated expressly for use in connection with the
preparation thereof. If Rule 434 is used, the Company will comply
with the requirements of Rule 434.
(c) Ernst & Young LLP, who have certified certain
financial statements and supporting schedules included in the
Registration Statement, are independent public accountants as required
by the Act and the Regulations; and Xxxxxx Xxxxxxxx LLP, who have
certified certain financial statements and supporting schedules
included in the Registration Statement, were independent public
accountants as required by the Act and the Regulations during the
periods covered by the financial statements on which they reported
contained in the Registration Statement.
(d) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
except as set forth in the Registration Statement and the Prospectus,
there has been no material adverse change or any development involving
a prospective material adverse change in the business, prospects,
properties, operations, condition (financial or other) or results of
operations of the Company and its subsidiaries taken as a whole,
whether or not arising from transactions in the ordinary course of
business, and since the date of the latest balance sheet presented in
the Registration Statement and the Prospectus, neither the Company nor
any of its subsidiaries has incurred or undertaken any liabilities or
obligations, direct or contingent, which are material to the Company
and its subsidiaries, taken as a whole, except for liabilities or
obligations which are reflected in the Registration Statement and the
Prospectus.
(e) This Agreement and the transactions contemplated
herein have been duly and validly authorized by the Company and this
Agreement has been duly and validly executed and delivered by the
Company.
(f) The execution, delivery, and performance of this
Agreement and the consummation of the transactions contemplated hereby
do not and will not (i) conflict with or result in a breach of any of
the terms and provisions of, or constitute a default (or an event
which with notice or lapse of time, or both, would constitute a
default) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to, any agreement, instrument,
franchise, license or permit to which the Company or any of its
subsidiaries is a party or by which any of such corporations or their
respective properties or
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assets may be bound or (ii) violate or conflict with any provision of
the certificate of incorporation or by-laws of the Company or any of
its subsidiaries or any judgment, decree, order, statute, rule or
regulation of any court or any public, governmental or regulatory
agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties or assets. No
consent, approval, authorization, order, registration, filing,
qualification, license or permit of or with any court or any public,
governmental or regulatory agency or body having jurisdiction over the
Company or any of its subsidiaries or any of their respective
properties or assets is required for the execution, delivery and
performance of this Agreement or the consummation of the transactions
contemplated hereby, including the issuance, sale and delivery of the
Shares to be issued, sold and delivered by the Company hereunder,
except the registration under the Act of the Shares and such consents,
approvals, authorizations, orders, registrations, filings,
qualifications, licenses and permits as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters.
(g) All of the outstanding shares of Common Stock are
duly and validly authorized and issued, fully paid and nonassessable
and were not issued and are not now in violation of or subject to any
preemptive rights. The Shares, when issued, delivered and sold in
accordance with this Agreement, will be duly and validly issued and
outstanding, fully paid and nonassessable, and will not have been
issued in violation of or be subject to any preemptive rights. The
Company had, at December 31, 1996, an authorized and outstanding
capitalization as set forth in the Registration Statement and the
Prospectus. The Common Stock, the Firm Shares and the Additional
Shares conform to the descriptions thereof contained in the
Registration Statement and the Prospectus.
(h) Each of the Company and its subsidiaries has been
duly organized and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation. Each of
the Company and its subsidiaries is duly qualified and in good
standing as a foreign corporation in each jurisdiction in which the
character or location of its properties (owned, leased or licensed) or
the nature or conduct of its business makes such qualification
necessary, except for those failures to be so qualified or in good
standing which will not in the aggregate have a material adverse
effect on the Company and its subsidiaries taken as a whole. Each of
the Company and its subsidiaries has all requisite power and
authority, and all necessary consents, approvals, authorizations,
orders, registrations, qualifications, licenses and permits of and
from all public, regulatory or governmental agencies and bodies, to
own,
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lease and operate its properties and conduct its business as now being
conducted and as described in the Registration Statement and the
Prospectus, and no such consent, approval, authorization, order,
registration, qualification, license or permit contains a materially
burdensome restriction not adequately disclosed in the Registration
Statement and the Prospectus.
(i) Except as described in the Prospectus, there is no
litigation or governmental proceeding to which the Company or any of
its subsidiaries is a party or to which any property of the Company or
any of its subsidiaries is subject or which is pending or, to the
knowledge of the Company, contemplated against the Company or any of
its subsidiaries which might result in any material adverse change or
development involving a prospective material adverse change in the
business, prospects, properties, operations, condition (financial or
other) or results of operations of the Company and its subsidiaries
taken as a whole or which is required to be disclosed in the
Registration Statement and the Prospectus.
(j) The Company has not taken and will not take, directly
or indirectly, any action designed to cause or result in, or which
constitutes or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the shares of Common
Stock to facilitate the sale or resale of the Shares.
(k) The financial statements, including the notes
thereto, and supporting schedules included in the Registration
Statement and the Prospectus, present fairly the financial position of
the Company as of the dates indicated and the results of its
operations for the periods specified; except as otherwise stated in
the Registration Statement, said financial statements have been
prepared in conformity with generally accepted accounting principles
applied on a consistent basis; and the supporting schedules included
in the Registration Statement present fairly the information required
to be stated therein.
(l) Except as described in the Prospectus, no holder of
securities of the Company has any rights to the registration of
securities of the Company because of the filing of the Registration
Statement or otherwise in connection with the sale of the Shares
contemplated hereby, other than such rights which have been exercised
in connection with the offering of the Shares.
(m) The Company is not, and upon consummation of the
transactions contemplated hereby will not be, subject to registration
as an "investment company" under the Investment Company Act of 1940,
as amended.
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(n) Except as described in the Prospectus, the Company and
each of its subsidiaries own or possess adequate rights to use all
material patents, patent applications, patent rights, inventions,
trade secrets, know-how, proprietary techniques, including processes
and substances, trademarks, service marks, trademark registrations,
service xxxx registrations, trade names, copyrights and licenses
described or referred to in the Prospectus or owned or used by it or
which are necessary for the conduct of its business as described in
the Prospectus. Except as described in the Prospectus, neither the
Company nor any of its subsidiaries has received any notice of, or is
aware of, any infringement of or conflict with asserted rights of
others with respect to any patents, patent applications, patent
rights, inventions, trade secrets, know-how, proprietary techniques,
including processes and substances, trademarks, service marks,
trademark registrations, service xxxx registrations, trade names,
copyrights or licenses which individually or in the aggregate, if the
subject of an unfavorable decision, ruling or finding might result in
a material adverse change or development involving a prospective
material adverse change in the business, prospects, properties,
operations, condition (financial or other) or results of operations of
the Company and its subsidiaries, taken as a whole.
(o) The Company and each of its subsidiaries, and all of
their respective business operations, are in compliance in all
material respects with all applicable statutes, rules and regulations
and orders administered or issued by any governmental or regulatory
authority in the jurisdictions in which it is conducting business and
by any governmental or regulatory authority having jurisdiction over
the Company or any of its subsidiaries, including, without limitation,
the United States Food and Drug Administration. All of the
descriptions in the Registration Statement and the Prospectus of
applicable statutes, rules and regulations and orders administered or
issued by any governmental or regulatory authority under the captions
"Risk Factors -- FDA and Other Government Regulation" and "Business --
Government Regulation" and other references therein to regulatory
matters are true and accurate in all material respects.
(p) There are no contracts or other documents which are
required to be described in the Prospectus or filed as exhibits to the
Registration Statement by the Act or by the Regulations which have not
been described in the Prospectus or filed as exhibits to the
Registration Statement.
(q) There has been no storage, disposal, generation,
manufacture, refinement, transportation, handling or treatment of
toxic wastes, medical wastes, hazardous wastes or hazardous substances
by the Company or any of its subsidiaries (or, to the knowledge of the
Company, any of their predecessors in interest) at, upon or from any
of the
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property now or previously owned or leased by the Company or its
subsidiaries in violation of any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit or which would require
remedial action under any applicable law, ordinance, rule, regulation,
order, judgment, decree or permit, except for any violation or
remedial action which would not, singularly or in the aggregate with
all such violations and remedial actions, result in any material
adverse change or a development involving a prospective material
adverse change in the business, prospects, properties, operations,
condition (financial or other) or results of operations of the Company
and its subsidiaries taken as a whole; there has been no spill,
discharge, leak, emission, injection, escape, dumping or release of
any kind onto such property or into the environment surrounding such
property of any toxic wastes, medical wastes, solid wastes, hazardous
wastes or hazardous substances due to or caused by the Company or any
of its subsidiaries or with respect to which the Company or any of its
subsidiaries have knowledge, except for any such spill, discharge,
leak, emission, injection, escape, dumping or release which would not,
singularly or in the aggregate with all such spills, discharges,
leaks, emissions, injections, escapes, dumpings and releases, result
in a material adverse change or development involving a prospective
material adverse change in the business, prospects, properties,
operations, condition (financial or otherwise), or results of
operations of the Company and its subsidiaries taken as a whole; and
the terms "hazardous wastes", "toxic wastes", "hazardous substances"
and "medical wastes" shall have the meanings specified in any
applicable local, state, federal and foreign laws or regulations with
respect to environmental protection.
(r) 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, 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.
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(s) No relationship, direct or indirect, exists between or
among the Company on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company on the other hand,
which is required to be described in the Prospectus which is not so
described.
(t) Since the date as of which information is given in the
Prospectus through the date hereof, and except as may otherwise be
disclosed in the Prospectus, the Company has not (i) issued or granted
any securities, (ii) entered into any transaction not in the ordinary
course of business or (iii) declared or paid any dividend on its
capital stock.
(u) Except as disclosed in Schedule III hereto, each
stockholder of the Company has entered into or is subject to a lock-up
agreement (the "Lock-Up Agreements") under which such stockholder has
agreed not to offer, sell, agree to sell, grant any option for the
sale of or otherwise dispose of, or agree to dispose of, directly or
indirectly, any shares of Common Stock, options or warrants to acquire
shares of Common Stock (or securities exchangeable for, exercisable
for or convertible into Common Stock) owned by them for a period of
120 days after the date of the Prospectus, without the prior written
consent of Xxxxxx, Read & Co. Inc.; each Lock-Up Agreement constitutes
the legal, valid and binding obligations of the stockholder or
stockholders party thereto enforceable against each such stockholder
in accordance with its terms.
(v) The Shares are authorized for inclusion in the National
Association of Securities Dealers Automated Quotation (National
Market) System.
(w) The Company has filed with the Commission such
reports on Form SR as are required pursuant to Rule 463 of the
Regulations.
2. Representations and Warranties of the Selling
Stockholders. Each Selling Stockholder severally and not jointly represents
and warrants to, and agrees that:
(a) Such Selling Stockholder has, and immediately prior to
the Closing Date and the Additional Closing Date, if any, will have
good and valid title to the Shares to be sold by such Selling
Stockholder hereunder on such date, free and clear of all liens,
encumbrances, equities or claims; and upon delivery of such Shares and
payment therefor pursuant hereto, good and valid title to such Shares,
free and clear of all liens, encumbrances, equities or claims, will
pass to the several Underwriters.
(b) Such Selling Stockholder has placed in custody under a
custody agreement (the "Custody Agreement" and, together with all
other similar agreements executed by the
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other Selling Stockholders, the "Custody Agreements") with Norwest
Bank Minnesota, N.A., as custodian (the "Custodian"), for delivery
under this Agreement, certificates in negotiable form (with signature
guaranteed by a commercial bank or trust company having an office or
correspondent in the United States or a member firm of the New York or
American Stock Exchanges) representing the Shares to be sold by such
Selling Stockholder hereunder.
(c) Such Selling Stockholder has duly and irrevocably
executed and delivered a power of attorney (the "Power of Attorney"
and, together with all other similar agreements executed by the other
Selling Stockholders, the "Powers of Attorney") appointing the
Custodian and one or more other persons, as attorneys-in-fact, with
full power of substitution, and with full authority on the terms set
forth therein (exercisable by any one or more of them) to execute and
deliver this Agreement and to take such other action as may be
necessary or desirable to carry out the provisions hereof on behalf of
such Selling Stockholder.
(d) Such Selling Stockholder has full right, power and
authority to enter into this Agreement, the Power of Attorney and the
Custody Agreement; the execution, delivery and performance of this
Agreement, the Power of Attorney and the Custody Agreement by such
Selling Stockholder and the consummation by such Selling Stockholder
of the transactions contemplated hereby will not conflict with or
result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which such Selling
Stockholder is a party or by which such Selling Stockholder is bound
or to which any of the property or assets of such Selling Stockholder
is subject, nor will such actions result in any violation of the
provisions of the constituent documents of such Selling Stockholder,
if any, or any statute or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over such Selling
Stockholder or the property or assets of such Selling Stockholder;
and, except for the registration of the Shares under the Act and such
consents, approvals, authorizations, registrations or qualifications
as may be required under applicable state securities laws in
connection with the purchase and distribution of the Shares by the
Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any such court or governmental agency or
body is required for the execution, delivery and performance of this
Agreement, the Power of Attorney or the Custody Agreement by such
Selling Stockholder and the consummation by such Selling Stockholder
of the transactions contemplated hereby.
(e) To the extent that any statements or omissions made in
the Registration Statement, the Prospectus or any
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amendment or supplement thereto are made in reliance upon and in
conformity with written information furnished to the Company by such
Selling Stockholder specifically for use therein, the Registration
Statement and the Prospectus and any amendments or supplements thereto
will not, when they become effective or are filed with the Commission,
as the case may be, contain 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 such
Selling Stockholder has no actual knowledge of facts which lead such
Selling Stockholder to believe that the Registration Statement or the
Prospectus or any amendments or supplements thereto will, when they
become effective or are filed with the Commission, as the case may be,
contain any untrue statement of any other material fact or omit to
state any other material fact required to be stated therein or
necessary to make the statements therein not misleading.
(f) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result
in the stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Shares.
3. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties,
covenants and agreements herein contained, but subject to the terms and
conditions herein set forth, the Company agrees to sell 1,850,000 Firm Shares
and each Selling Stockholder hereby agrees to sell the number of Firm Shares
set opposite its name in Schedule II hereto, severally and not jointly, to the
Underwriters and the Underwriters, severally and not jointly, agree to purchase
from the Company and the Selling Stockholders, at a purchase price per share of
$____, the number of Firm Shares set forth opposite the respective names of the
Underwriters in Schedule I hereto plus any additional number of Shares which
such Underwriter may become obligated to purchase pursuant to the provisions of
Section 11 hereof.
(b) Payment of the purchase price for, and delivery of
certificates for, the Firm Shares shall be made at the office of Xxxxxx, Read &
Co. Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or at such other place
as shall be agreed upon by you and the Company, at 10:00 A.M. on the third or
fourth business day (as permitted under Rule 15c6-1 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act") (unless postponed in
accordance with the provisions of Section 11 hereof) following the date of the
effectiveness of the Registration Statement (or, if the Company has elected to
rely upon Rule 430A of the
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Regulations, the third or fourth business day (as permitted under Rule 15c6-1
under the Exchange Act) after the determination of the initial public offering
price of the Firm Shares), or such other time not later than ten business days
after such date as shall be agreed upon by you and the Company (such time and
date of payment and delivery being herein called the "Closing Date"). Payment
shall be made to the Company and the Selling Stockholders by certified or
official bank check or checks drawn in, or by wire transfer for settlement in,
New York Clearing House funds or similar next day funds payable to the order of
the Company and the Selling Stockholders, against delivery to you for the
respective accounts of the Underwriters of certificates for the Shares to be
purchased by them. Certificates for the Shares shall be registered in such
name or names and in such authorized denominations as you may request in
writing at least two full business days prior to the Closing Date. The Company
and the Selling Stockholders will permit you to examine and package such
certificates for delivery at least one full business day prior to the Closing
Date.
(c) In addition, the Selling Stockholders so designated
in Schedule II hereto (the "Option Stockholders") hereby grant to the
Underwriters the option to purchase up to an aggregate of 427,500 Additional
Shares at the same purchase price per share to be paid by the Underwriters to
the Company and the Selling Stockholders for the Firm Shares as set forth in
this Section 3, for the sole purpose of covering over-allotments in the sale of
Firm Shares by the Underwriters. This option may be exercised at any time, in
whole or in part, on or before the thirtieth day following the date of the
Prospectus, by written notice by you to the Option Stockholders. Such notice
shall set forth the aggregate number of Additional Shares as to which the
option is being exercised and the date and time, as reasonably determined by
you, when the Additional Shares are to be delivered (such date and time being
herein sometimes referred to as the "Additional Closing Date"); provided,
however, that the Additional Closing Date shall not be earlier than the Closing
Date or earlier than the second full business day after the date on which the
option shall have been exercised nor later than the eighth full business day
after the date on which the option shall have been exercised (unless such time
and date are postponed in accordance with the provisions of Section 11 hereof).
Certificates for the Additional Shares shall be registered in such name or
names and in such authorized denominations as you may request in writing at
least two full business days prior to the Additional Closing Date. The Option
Stockholders shall permit you to examine and package such certificates for
delivery at least one full business day prior to the Additional Closing Date.
The number of Additional Shares to be sold to each Underwriter
shall be the number which bears the same ratio to the aggregate number of
Additional Shares being purchased as the number of Firm Shares set forth
opposite the name of such
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Underwriter in Schedule I hereto (or such number increased as set forth in
Section 11 hereof) bears to 2,850,000 subject, however, to such adjustments to
eliminate any fractional shares as you in your sole discretion shall make. The
number of Additional Shares to be sold by each Option Stockholder shall be the
number which bears the same ratio to the aggregate number of Additional Shares
being sold as the number of Firm Shares set forth opposite the name of such
Option Stockholder on Schedule II bears to the total number of Firm Shares
being sold by all Option Stockholders subject, however, to such adjustments to
eliminate any fractional shares as the Custodian in its sole discretion shall
make.
Payment for the Additional Shares shall be made by certified
or official bank check or checks in, or by wire transfer for settlement in, New
York Clearing House or similar next day funds, each payable to the order of the
Option Stockholders at the offices of Xxxxxx, Read & Co. Inc., 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other location as may be mutually
acceptable, upon delivery of the certificates for the Additional Shares to you
for the respective accounts of the Underwriters.
4. Offering. Upon your authorization of the release of
the Firm Shares, the Underwriters propose to offer the Shares for sale to the
public upon the terms set forth in the Prospectus.
5. Covenants of the Company. The Company covenants and
agrees with the Underwriters that:
(a) If the Registration Statement has not yet been
declared effective, the Company will use its best efforts to cause the
Registration Statement and any amendments thereto to become effective
as promptly as possible, and if Rule 430A is used or the filing of the
Prospectus is otherwise required under Rule 424(b) or Rule 434, the
Company will file the Prospectus (properly completed if Rule 430A has
been used) pursuant to Rule 424(b) or Rule 434 within the prescribed
time period and will provide evidence satisfactory to you of such
timely filing. If the Company elects to rely on Rule 434, the Company
will prepare and file a term sheet that complies with the requirements
of Rule 434.
The Company will notify you immediately (and, if requested by
you, will confirm such notice in writing) (i) when the Registration
Statement and any amendments thereto become effective, (ii) of any
request by the Commission for any amendment of or supplement to the
Registration Statement or the Prospectus or for any additional
information, (iii) of the mailing or the delivery to the Commission
for filing of any amendment of or supplement to the Registration
Statement or the Prospectus, (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of
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the Registration Statement or any post-effective amendment thereto or
of the initiation, or the threatening, of any proceedings therefor,
(v) of the receipt of any comments from the Commission, and (vi) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for
that purpose. If the Commission shall propose or enter a stop order
at any time, the Company shall make every reasonable effort to prevent
the issuance of any such stop order and, if issued, to obtain the
lifting of such order as soon as possible. The Company will not file
any amendment to the Registration Statement or any amendment of or
supplement to the Prospectus (including the prospectus required to be
filed pursuant to Rule 424(b) or Rule 434) that differs from the
prospectus on file at the time of the effectiveness of the
Registration Statement before or after the effective date of the
Registration Statement to which you shall reasonably object in writing
after being timely furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to the
Shares is required to be delivered under the Act any event shall have
occurred as a result of which the Prospectus as then amended or
supplemented would, in the judgment of the Underwriters or the Company
include an 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, in the light of the circumstances under which they
were made, not misleading, or if it shall be necessary at any time to
amend or supplement the Prospectus or Registration Statement to comply
with the Act or the Regulations, the Company will notify you promptly
and prepare and file with the Commission an appropriate amendment or
supplement (in form and substance satisfactory to you) which will
correct such statement or omission and will use its best efforts to
have any amendment to the Registration Statement declared effective as
soon as possible.
(c) The Company will promptly deliver to you signed
copies of the Registration Statement, including exhibits and all
amendments thereto, and the Company will promptly deliver to each of
the Underwriters such number of copies of any preliminary prospectus,
the Prospectus, the Registration Statement, and all amendments of and
supplements to such documents, if any, as you may reasonably request.
(d) The Company will endeavor in good faith, in
cooperation with you, at or prior to the time of effectiveness of the
Registration Statement, to qualify the Shares for offering and sale
under the securities laws relating to the offering or sale of the
Shares of such jurisdictions as you may designate and to maintain such
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qualification in effect for so long as required for the distribution
thereof; except that in no event shall the Company be obligated in
connection therewith to qualify as a foreign corporation or to execute
a general consent to service of process.
(e) The Company will make generally available (within the
meaning of Section 11(a) of the Act) to its security holders and to
you as soon as practicable, but not later than 45 days after the end
of its fiscal quarter in which the first anniversary date of the
effective date of the Registration Statement occurs, an earning
statement (in form complying with the provisions of Rule 158 of the
Regulations) covering a period of at least twelve consecutive months
beginning after the effective date of the Registration Statement.
(f) During the period of 120 days from the date of the
Prospectus, the Company will not, without the prior written consent of
Xxxxxx, Read & Co. Inc., issue, sell, offer or agree to sell, grant
any option for the sale of, or otherwise dispose of, directly or
indirectly, any Common Stock (or any securities convertible into,
exercisable for or exchangeable for Common Stock), and the Company
will obtain the undertaking of each of its officers and directors not
to engage in any of the aforementioned transactions on their own
behalf, other than the sale of Shares hereunder and the Company's
issuance of Common Stock and options to purchase Common Stock under
the Company's 1996 Employee Stock Purchase Plan, 1996 Director Option
Plan and 1996 Stock Option Plan as described in the Prospectus.
(g) During a period of three years from the effective
date of the Registration Statement, the Company will furnish to you
copies of (i) all reports to its shareholders, and (ii) all reports,
financial statements and proxy or information statements filed by the
Company with the Commission or the National Association of Securities
Dealers, Inc.
(h) The Company will apply the proceeds from the sale of
the Shares as set forth under the caption "Use of Proceeds" in the
Prospectus.
(i) During the period of 120 days from the date of the
Prospectus, the Company will, unless otherwise consented to in writing
by Xxxxxx, Read & Co. Inc., strictly enforce each Lock-Up Agreement.
6. Covenants of the Selling Stockholders. Each Selling
Stockholder covenants and agrees that:
(a) For a period of 120 days from the date of the Prospectus,
it will not, directly or indirectly, sell, offer
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or agree to sell, grant any option for the sale of, or otherwise
dispose of, directly or indirectly, any Common Stock (or any
securities convertible into, exercisable for or exchangeable for
Common Stock), without the prior written consent of Xxxxxx, Read & Co.
Inc.
(b) The Shares to be sold by such Selling Stockholder
hereunder, which are represented by the certificates held in custody
for such Selling Stockholder, are subject to the interest of the
Underwriters and the other Selling Stockholders thereunder, the
arrangements made by such Selling Stockholder for such custody are to
that extent irrevocable, and the obligations of such Selling
Stockholder hereunder will not be terminated by any act of such
Selling Stockholder, by operation of law, by the death or incapacity
of any individual Selling Stockholder or, in the case of a trust, by
the death or incapacity of any executor or trustee or the termination
of such trust, or the occurrence of any other event.
(c) If at any time when a prospectus relating to the Shares
is required to be delivered under the Act any information which such
Selling Stockholder has provided to the Company or the Underwriters
becomes incorrect, or if it shall be necessary at any time to amend or
supplement any information provided by such Selling Stockholder to the
Company for inclusion in the Prospectus or Registration Statement to
comply with the Act or the Regulations, such Selling Stockholder will
notify the Company and the Underwriters promptly so that the Company
may prepare and file with the Commission an appropriate amendment or
supplement (in form and substance satisfactory to the Underwriters)
which will correct such statement or omission.
(d) Such Selling Stockholder will deliver to the
Representatives prior to the Closing Date a properly completed and
executed United States Treasury Department Form W-8 (if such Selling
Stockholder is a non-United States person) or Form W-9 (if such
Selling Stockholder is a United States person).
7. Payment of Expenses. Whether or not the transactions
contemplated in this Agreement are consummated or this Agreement is terminated,
the Company hereby agrees to pay all costs and expenses incident to the
performance of the obligations of the Company and the Selling Stockholders
hereunder, including those in connection with (i) preparing, printing,
duplicating, filing and distributing the Registration Statement, as originally
filed and all amendments thereto (including all exhibits thereto), any
preliminary prospectus, the Prospectus and any amendments or supplements
thereto (including, without limitation, fees and expenses of the Company's
accountants and counsel for the Company and the Selling Stockholders), the
underwriting documents (including, without
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limitation, this Agreement, the Agreement Among Underwriters and the Selling
Agreement) and all other documents related to the public offering of the Shares
(including those supplied to the Underwriters in quantities as hereinabove
stated), (ii) the issuance, transfer and delivery of the Shares to the
Underwriters, including any transfer or other taxes payable thereon, (iii) the
costs of delivering and distributing the Custody Agreements and the Powers of
Attorney, (iv) the qualification of the Shares under state securities or Blue
Sky laws, including the costs of printing and mailing a preliminary and final
"Blue Sky Survey" and the fees of counsel for the Underwriters and such
counsel's disbursements in relation thereto, (v) quotation of the Shares on the
National Association of Securities Dealers Automated Quotation (National
Market) System, (vi) filing fees of the Commission and the National Association
of Securities Dealers, Inc., (vii) the cost of printing certificates
representing the Shares and (viii) the cost and charges of the Custodian (and
any other attorney-in-fact for the Selling Stockholders) and any transfer agent
or registrar.
8. Conditions of Underwriters' Obligations. The
obligations of the Underwriters to purchase and pay for the Firm Shares and the
Additional Shares, as provided herein, shall be subject to the accuracy of the
representations and warranties of the Company and the Selling Stockholders
herein contained, as of the date hereof and as of the Closing Date (for
purposes of this Section 8, "Closing Date" shall refer to the Closing Date for
the Firm Shares and any Additional Closing Date, if different, for the
Additional Shares), to the absence from any certificates, opinions, written
statements or letters furnished to you or to Xxxxxxx Xxxxxxx & Xxxxxxxx
("Underwriters' Counsel") pursuant to this Section 8 of any misstatement or
omission, to the performance by the Company and the Selling Stockholders of
their respective obligations hereunder, and to the following additional
conditions:
(a) The Registration Statement shall have become
effective not later than 5:30 P.M., New York time, on the date of this
Agreement, or at such later time and date as shall have been consented
to in writing by you; if the Company shall have elected to rely upon
Rule 430A or Rule 434 of the Regulations, the Prospectus shall have
been filed with the Commission in a timely fashion in accordance with
Section 5(a) hereof; and, at or prior to the Closing Date no stop
order suspending the effectiveness of the Registration Statement or
any post-effective amendment thereof shall have been issued and no
proceedings therefor shall have been initiated or threatened by the
Commission.
(b) At the Closing Date you shall have received the
opinion of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation,
counsel for the Company, dated the Closing Date addressed to the
Underwriters and in form and substance satisfactory to Underwriters'
Counsel, to the effect that:
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(i) Each of the Company and its U.S.
subsidiaries has been duly organized and is validly existing
as a corporation in good standing under the laws of its
jurisdiction of incorporation. Each of the Company and its
subsidiaries is duly qualified and in good standing as a
foreign corporation in each U.S. jurisdiction in which the
character or location of its properties (owned, leased or
licensed) or the nature or conduct of its business makes such
qualification necessary, except for those failures to be so
qualified or in good standing which will not in the aggregate
have a material adverse effect on the Company and its
subsidiaries taken as a whole. Each of the Company and its
U.S. subsidiaries has all requisite corporate authority to
own, lease and operate its respective properties and conduct
its business as now being conducted and as described in the
Registration Statement and the Prospectus. All of the issued
and outstanding capital stock of each subsidiary of the
Company has been duly and validly issued and is fully paid and
nonassessable and was not issued in violation of preemptive
rights and, is owned directly or indirectly by the Company,
free and clear of any lien, encumbrance, claim, security
interest, restriction on transfer, shareholders' agreement,
voting trust or other defect of title whatsoever.
(ii) The Company has an authorized capital stock
as set forth in the Registration Statement and the Prospectus.
All of the outstanding shares of Common Stock are duly and
validly authorized and issued, are fully paid and
nonassessable and were not issued in violation of or subject
to any preemptive rights. The Shares to be delivered by the
Company on the Closing Date have been duly and validly
authorized and, when delivered by the Company in accordance
with this Agreement, will be duly and validly issued, fully
paid and nonassessable and will not have been issued in
violation of or subject to any preemptive rights. The Common
Stock, the Firm Shares and the Additional Shares conform to
the descriptions thereof contained in the Registration
Statement and the Prospectus.
(iii) The Shares to be sold under this Agreement
to the Underwriters are duly authorized for quotation on the
National Association of Securities Dealers Automated Quotation
(National Market) System.
(iv) This Agreement has been duly and validly
authorized, executed and delivered by the Company.
(v) There is no litigation or governmental or
other action, suit, proceeding or investigation before any
court or before or by any public, regulatory or
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governmental agency or body pending or to such counsel's
knowledge, threatened against, or involving the properties or
business of, the Company or any of its subsidiaries, which is
of a character required to be disclosed in the Registration
Statement and the Prospectus which has not been properly
disclosed therein.
(vi) The execution, delivery, and performance of
this Agreement and the consummation of the transactions
contemplated hereby by the Company do not and will not (A)
conflict with or result in a breach of any of the terms and
provisions of, or constitute a default (or an event which with
notice or lapse of time, or both, would constitute a default)
under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the
Company or any of its U.S. subsidiaries pursuant to, any
agreement, instrument, franchise, license or permit known to
such counsel to which the Company or any of its U.S.
subsidiaries is a party or by which any of such corporations
or their respective properties or assets may be bound or (B)
violate or conflict with any provision of the certificate of
incorporation or by-laws of the Company or any of its U.S.
subsidiaries, or, to the knowledge of such counsel, any
judgment, decree, order, statute, rule or regulation of any
court or any public, governmental or regulatory agency or body
having jurisdiction over the Company or any of its U.S.
subsidiaries or any of their respective properties or assets.
No consent, approval, authorization, order, registration,
filing, qualification, license or permit of or with any court
or any public, governmental, or regulatory agency or body
having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties or assets
is required for the execution, delivery and performance of
this Agreement or the consummation of the transactions
contemplated hereby, except for (1) such as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the Underwriters
(as to which such counsel need express no opinion) and (2)
such as have been made or obtained under the Act.
(vii) The Registration Statement and the
Prospectus and any amendments thereof or supplements thereto
(other than the financial statements and schedules and other
financial data included therein, as to which no opinion need
be rendered) comply as to form in all material respects with
the requirements of the Act and the Regulations.
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(viii) The Registration Statement is effective
under the Act, and, to the knowledge of such counsel, no stop
order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereof has been
issued and no proceedings therefor have been initiated or
threatened by the Commission and all filings required by Rule
424(b) of the Regulations have been made.
(ix) The statements contained in the Prospectus
under the caption "Risk Factors -- FDA and Other Government
Regulation" and "Business -- Government Regulation" and other
references therein to food and drug regulatory matters are
complete and accurate in all material respects.
(x) Except as disclosed in Schedule III hereto,
each stockholder of the Company has entered into or is subject
to a Lock-Up Agreement under which such stockholder has agreed
not to offer, sell, agree to sell, grant any option for the
sale of or otherwise dispose of, or agree to dispose of,
directly or indirectly, any shares of Common Stock, options or
warrants to acquire shares of Common Stock (or securities
exchangeable for, exercisable for or convertible into Common
Stock) owned by them for a period of 120 days after the date
of the Prospectus, without the prior written consent of
Xxxxxx, Read & Co. Inc.; each Lock-Up Agreement constitutes
the legal, valid and binding obligations of the stockholder or
stockholders party thereto enforceable against each such
stockholder in accordance with its terms.
(xi) In addition, such opinion shall also
contain a statement that such counsel has participated in
conferences with officers and representatives of the Company,
representatives of the independent public accountants for the
Company and the Underwriters at which the contents of the
Prospectus and related matters were discussed and, no facts
have come to the attention of such counsel which would cause
such counsel to believe that either the Registration Statement
at the time it became effective (including the information
deemed to be part of the Registration Statement at the time of
effectiveness pursuant to Rule 430A(b) or Rule 434, if
applicable), or any amendment thereof made prior to the
Closing Date as of the date of such amendment, contained an
untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading or that the
Prospectus as of its date (or any amendment thereof or
supplement thereto made prior to the Closing Date as of the
date of such amendment or supplement) and as of the
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Closing Date contained or contains an untrue statement of a
material fact or omitted or omits to state any material fact
required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading (it being understood that such
counsel need express no belief or opinion with respect to the
financial statements and schedules and other financial data
included or incorporated by reference therein).
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws other than the laws of the
United States and jurisdictions in which they are admitted, to the
extent such counsel deems proper and to the extent specified in such
opinion, if at all, upon an opinion or opinions (in form and substance
reasonably satisfactory to Underwriters' Counsel) of other counsel
reasonably acceptable to Underwriters' Counsel, familiar with the
applicable laws; (B) as to matters of fact, to the extent they deem
proper, on certificates of responsible officers of the Company and
certificates or other written statements of officers of departments of
various jurisdictions having custody of documents respecting the
corporate existence or good standing of the Company and its
subsidiaries, provided that copies of any such statements or
certificates shall be delivered to Underwriters' Counsel. The opinion
of such counsel for the Company shall state that the opinion of any
such other counsel is in form satisfactory to such counsel and, in
their opinion, you and they are justified in relying thereon.
(c) At the Closing Date, you shall have received the
opinion of Xxxx & Associes, French counsel for the Company, dated the
Closing Date addressed to the Underwriters and in form and substance
satisfactory to Underwriters' Counsel to the effect that:
(i) Ventana Medical Systems, S.A. is a
corporation duly organized and validly existing and in good
standing under the laws of France, and has all requisite
corporate authority to own, lease and operate its properties
and conduct its business as now being conducted and as
described in the Registration Statement and the Prospectus.
(ii) There is no litigation or governmental or
other action, suit, proceeding or investigation before any
court or before or by any public, regulatory or governmental
body pending or to such counsel's knowledge, threatened
against, or involving the properties or business of, Ventana
Medical Systems, S.A.
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(iii) The execution, delivery and performance of
this Agreement and the consummation of the transactions
contemplated hereby by the Company do not and will not
conflict with or result in a breach of any of the terms and
provisions of, or constitute a default (or an event which with
notice or lapse of time, or both, would constitute a default)
under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of Ventana
Medical Systems, S.A. pursuant to any agreement, instrument,
franchise, license or permit known to such counsel to which
Ventana Medical Systems, S.A. is a party or by which Ventana
Medical Systems, S.A. or its properties or assets may be bound
or violate or conflict with any provision of the certificate
of incorporation or by-laws of Ventana Medical Systems, S.A.,
or, to such counsel's knowledge, any judgment, decree, order,
statute, rule or regulation of any court or any public,
governmental or regulatory agency or body having jurisdiction
over Ventana Medical Systems, S.A. or any of its properties or
assets.
(iv) No consent, approval, authorization, order,
registration, filing, qualification, license or permit of or
with any court or any public, governmental, or regulatory
agency or body having jurisdiction over such corporation or
any of its properties or assets is required for the execution,
delivery and performance of this Agreement or the consummation
of the transactions contemplated hereby.
(v) All of the issued and outstanding capital
stock of Ventana Medical Systems, S.A. has been duly and
validly issued and is fully paid and nonassessable and was not
issued in violation of preemptive rights and is owned directly
by the Company, free and clear of any lien, encumbrance,
claim, security interest, restriction on transfer,
shareholders' agreement, voting trust or other defect of title
whatsoever.
(d) At the Closing Date, you shall have received the opinion
of _________________________, German counsel for the Company, dated
the Closing Date addressed to the Underwriters and in form and
substance satisfactory to Underwriters' Counsel to the effect that:
(i) Ventana Medical Systems GmbH is a corporation
duly organized and validly existing and in good standing under
the laws of Germany, and has all requisite corporate authority
to own, lease and operate its properties and conduct its
business as now being conducted and as described in the
Registration Statement and the Prospectus.
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(ii) There is no litigation or governmental or
other action, suit, proceeding or investigation before any
court or before or by any public, regulatory or governmental
body pending or to such counsel's knowledge, threatened
against, or involving the properties or business of, Ventana
Medical Systems GmbH.
(iii) The execution, delivery and performance of
this Agreement and the consummation of the transactions
contemplated hereby by the Company do not and will not
conflict with or result in a breach of any of the terms and
provisions of, or constitute a default (or an event which with
notice or lapse of time, or both, would constitute a default)
under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of Ventana
Medical Systems GmbH pursuant to any agreement, instrument,
franchise, license or permit known to such counsel to which
Ventana Medical Systems GmbH is a party or by which Ventana
Medical Systems GmbH or its properties or assets may be bound
or violate or conflict with any provision of the certificate
of incorporation or by-laws of Ventana Medical Systems GmbH,
or, to such counsel's knowledge, any judgment, decree, order,
statute, rule or regulation of any court or any public,
governmental or regulatory agency or body having jurisdiction
over Ventana Medical Systems GmbH or any of its properties or
assets.
(iv) No consent, approval, authorization, order,
registration, filing, qualification, license or permit of or
with any court or any public, governmental, or regulatory
agency or body having jurisdiction over such corporation or
any of its properties or assets is required for the execution,
delivery and performance of this Agreement or the consummation
of the transactions contemplated hereby.
(v) All of the issued and outstanding capital
stock of Ventana Medical Systems GmbH has been duly and
validly issued and is fully paid and nonassessable and was not
issued in violation of preemptive rights and is owned directly
by the Company, free and clear of any lien, encumbrance,
claim, security interest, restriction on transfer,
shareholders' agreement, voting trust or other defect of title
whatsoever.
(e) At the Closing Date, you shall have received an
opinion of McDonnell, Boehnen, Hobart & Bergoff, patent counsel to the
Company, dated the Closing Date addressed to the Underwriters and in
form and substance satisfactory to Underwriters' Counsel to the effect
that the statements in the Registration Statement and the Prospectus
under the
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captions "Risk Factors -- Risks Relating to Patents and Proprietary
Rights", "Business -- Patents and Proprietary Rights" and "Business --
Legal Proceedings" and other references therein to patent matters have
been reviewed by such counsel and fairly summarize the legal matters,
documents and proceedings described therein and are complete in all
material respects.
(f) Xxxxxxxx & Xxxxx, counsel for (1) the entities
affiliated with Marquette Venture Partners, (each a "Marquette Entity"
and collectively the "Marquette Entities"), (2) The CIT Group/Venture
Capital, Inc. ("CIT") and (3) Interwest Partners IV, L.P.
("Interwest" and, together with the Marquette Entities and CIT, the
"Institutional Entities") shall have furnished to the Underwriters
their written opinion, as counsel to the Institutional Entities,
addressed to the Underwriters and dated the Closing Date, in form and
substance satisfactory to the Underwriters, to the effect that:
(i) Each Institutional Entity has full right,
power and authority to enter into this Agreement, the Power of
Attorney and the Custody Agreement; the execution, delivery
and performance of this Agreement, the Power of Attorney and
the Custody Agreement by each Institutional Entity and the
consummation by each Institutional Entity of the transactions
contemplated hereby and thereby will not conflict with or
result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which such Institutional
Entity is a party or by which it is bound or to which any of
its property or assets is subject, nor will such actions
result in any violation of the provisions of the constituent
documents of such Institutional Entity or any statute, order,
decree, judgment, rule or regulation known to such counsel of
any court or governmental agency or body having jurisdiction
over such Institutional Entity or the property or assets of
such Institutional Entity (but excluding federal and state
securities laws); and, except for the registration of the
Shares under the Act and such consents, approvals,
authorizations, registrations or qualifications as may be
required under applicable state securities laws in connection
with the purchase and distribution of the Shares by the
Underwriters, no consent, approval, authorization or order of,
or filing or registration with, any such court or governmental
agency or body is required for the execution, delivery and
performance of this Agreement, the Power of Attorney or the
Custody Agreement by each Institutional Entity and the
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consummation by each Institutional Entity of the transactions
contemplated hereby and thereby;
(ii) This Agreement has been duly authorized,
executed and delivered by or on behalf of each Institutional
Entity;
(iii) A Power-of-Attorney and a Custody Agreement
have been duly authorized, executed and delivered by each
Institutional Entity and constitute valid and binding
agreements of each Institutional Entity; and
(iv) Upon payment for, and delivery of, the Shares
to be sold by each Institutional Entity under this Agreement
in accordance with the terms hereof, valid title to the
Shares, free and clear of any adverse claims (within the
meaning of the New York Uniform Commercial Code), will be
transferred to the Underwriters, assuming that the
Underwriters purchase the Shares in good faith without notice
of any such adverse claim.
In rendering such opinions, such counsel may rely as
to matters of fact, to the extent they deem proper, on certificates of
each Institutional Entity, provided that such counsel shall provide
copies of any such certificates to Underwriters' Counsel and shall
state that you and they are justified in relying thereon.
(g) Xxxxxx Xxxxxxx Xxxxxxxx and Xxxxxx, Professional
Corporation, counsel for the Selling Stockholders other than the
Institutional Entities, shall have furnished to the Underwriters their
written opinion, as counsel to each such Selling Stockholder,
addressed to the Underwriters and dated the Closing Date, in form and
substance satisfactory to the Underwriters, to the effect that:
(i) Each such Selling Stockholder has full right,
power and authority to enter into this Agreement, the Power of
Attorney and the Custody Agreement; the execution, delivery
and performance of this Agreement, the Power of Attorney and
the Custody Agreement by each such Selling Stockholder and the
consummation by each such Selling Stockholder of the
transactions contemplated hereby and thereby will not conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any statute,
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which such
Selling Stockholder is a party or by which such Selling
Stockholder is bound or to which any of the property or assets
of such Selling Stockholder is subject, nor will such actions
result in any violation of the provisions of the constituent
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documents of each such Selling Stockholder, if any, or any
statute or any order, decree, judgment, rule or regulation
known to such counsel of any court or governmental agency or
body having jurisdiction over such Selling Stockholder or the
property or assets of such Selling Stockholder; and, except
for the registration of the Shares under the Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under applicable state
securities laws in connection with the purchase and
distribution of the Shares by the Underwriters, no consent,
approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body is
required for the execution, delivery and performance of this
Agreement, the Power of Attorney or the Custody Agreement by
each such Selling Stockholder and the consummation by each
such Selling Stockholder of the transactions contemplated
hereby and thereby;
(ii) This Agreement has been duly executed and
delivered by or on behalf of each such Selling Stockholder;
(iii) A Power-of-Attorney and a Custody Agreement
have been duly executed and delivered by each such Selling
Stockholder and constitute valid and binding agreements of
each such Selling Stockholder; and
(iv) Upon payment for, and delivery of, the
Shares to be sold by each such Selling Stockholder under this
Agreement in accordance with the terms hereof, the
Underwriters will acquire all of the rights of such Selling
Stockholder in such Shares and will also acquire the interest
of such Selling Stockholder in such Shares free of any adverse
claim (within the meaning of the Uniform Commercial Code).
In rendering such opinion, such counsel may rely as
to matters of fact, to the extent they deem proper, on certificates of
the Selling Stockholders, provided that such counsel shall provide
copies of any such certificates to Underwriters' Counsel and shall
state that you and they are justified in relying thereon.
(h) All proceedings taken in connection with the sale of
the Firm Shares and the Additional Shares as herein contemplated shall
be satisfactory in form and substance to you and to Underwriters'
Counsel, and the Underwriters shall have received from said
Underwriters' Counsel a favorable opinion, dated as of the Closing
Date with respect to the issuance and sale of the Shares, the
Registration Statement and the Prospectus and such other related
matters as you may reasonably require, and the Company and the Selling
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Stockholders shall have furnished to Underwriters' Counsel such
documents as they request for the purpose of enabling them to pass
upon such matters.
(i) At the Closing Date, you shall have received a
certificate of the Chief Executive Officer and Chief Financial Officer
of the Company, dated the Closing Date to the effect that (i) the
condition set forth in subsection (a) of this Section 8 has been
satisfied, (ii) as of the date hereof and as of the Closing Date the
representations and warranties of the Company set forth in Section 1
hereof are accurate, (iii) as of the Closing Date the obligations of
the Company to be performed hereunder on or prior thereto have been
duly performed and (iv) subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
the Company and its subsidiaries have not 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 not been any material adverse
change, or any development involving a prospective material adverse
change, in the business, prospects, properties, operations, condition
(financial or otherwise), or results of operations of the Company and
its subsidiaries taken as a whole, except in each case as described in
or contemplated by the Prospectus.
(j) At the Closing Date, you shall have received a
Certificate of each Selling Stockholder (or the Custodian or one or
more attorneys-in-fact on behalf of the Selling Stockholders), dated
the Closing Date, signed by, or on behalf of, the Selling Stockholder
(or the Custodian or one or more attorneys-in-fact) stating that (i)
as of the date hereof and as of the Closing Date, the representations
and warranties of the Selling Stockholders set forth in Section 2
hereof are accurate and (ii) each Selling Stockholder has complied
with all agreements contained herein to be performed by each Selling
Stockholder at or prior to the Closing Date.
(k) At the time this Agreement is executed and at the
Closing Date, you shall have received a letter, from Ernst & Young
LLP, independent public accountants for the Company, dated,
respectively, as of the date of this Agreement and as of the Closing
Date addressed to the Underwriters and in form and substance
satisfactory to you, to the effect that: (i) they are independent
certified public accountants with respect to the Company within the
meaning of the Act and the Regulations and stating that the answer to
Item 10 of the Registration Statement is correct insofar as it relates
to them; (ii) stating that, in their opinion, the financial statements
and schedules of the Company included in the Registration Statement
and the Prospectus and covered by
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their opinion therein comply as to form in all material respects with
the applicable accounting requirements of the Act and the applicable
published rules and regulations of the Commission thereunder; (iii) on
the basis of procedures consisting of a reading of the latest
available unaudited interim consolidated financial statements of the
Company, and its subsidiaries, a reading of the minutes of meetings
and consents of the stockholders and boards of directors of the
Company and its subsidiaries and the committees of such boards
subsequent to December 31, 1996, inquiries of officers and other
employees of the Company and its subsidiaries who have responsibility
for financial and accounting matters of the Company and its
subsidiaries with respect to transactions and events subsequent to
December 31, 1996 and other specified procedures and inquiries to a
date not more than five days prior to the date of such letter, nothing
has come to their attention that would cause them to believe that:
(A) the Unaudited Consolidated Financial Statements and the Unaudited
Pro Forma Condensed Consolidated Financial Statements and related
schedules of the Company presented in the Registration Statement and
the Prospectus do not comply as to form in all material respects with
the applicable accounting requirements of the Act and, if applicable,
the Exchange Act and the applicable published rules and regulations of
the Commission thereunder or that such financial statements are not
fairly presented in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of
the audited consolidated financial statements included in the
Registration Statement and the Prospectus; (B) the pro forma
adjustments in the Unaudited Pro Forma Condensed Consolidated
Financial Statements have not been properly applied to the historical
amounts in the compilation of those statements; (C) with respect to
the period subsequent to December 31, 1996 there were, as of the date
of the most recent available monthly consolidated financial statements
of the Company and its subsidiaries, if any, and as of a specified
date not more than five days prior to the date of such letter, any
changes in the capital stock or long-term indebtedness of the Company
or any decrease in the net current assets or stockholders' equity of
the Company, in each case as compared with the amounts shown in the
most recent audited balance sheet presented in the Registration
Statement and the Prospectus, except for changes or decreases which
the Registration Statement and the Prospectus disclose have occurred
or may occur or which are set forth in such letter or (D) that during
the period from December 31, 1996 to the date of the most recent
available monthly consolidated financial statements of the Company and
its subsidiaries, if any, and to a specified date not more than five
days prior to the date of such letter, there was any decrease, as
compared with the corresponding period in the prior fiscal year, in
total revenues, or increase in
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total or per share net loss, except for changes which the Registration
Statement and the Prospectus disclose have occurred or may occur or
which are set forth in such letter; and (iv) stating that they have
compared specific dollar amounts, numbers of shares, percentages of
revenues and gross margins, and other financial information pertaining
to the Company and its subsidiaries set forth in the Registration
Statement and the Prospectus, which have been specified by you prior
to the date of this Agreement, to the extent that such amounts,
numbers, percentages, and information may be derived from the general
accounting and financial records of the Company and its subsidiaries
or from schedules furnished by the Company, and excluding any
questions requiring an interpretation by legal counsel, with the
results obtained from the application of specified readings,
inquiries, and other appropriate procedures specified by you set forth
in such letter, and found them to be in agreement.
(l) At the Closing Date, you shall have received a
letter, from Xxxxxx Xxxxxxxx LLP, independent public accountants,
dated, respectively, as of the date of this Agreement and as of the
Closing Date addressed to the Underwriters and in form and substance
satisfactory to you, to the effect that: (i) they are independent
certified public accountants within the meaning of the Act and the
Regulations and stating that the answer to Item 10 of the Registration
Statement is correct insofar as it relates to them; and (ii) stating
that, in their opinion, the financial statements and schedules of
BioTek Solutions, Inc. included in the Registration Statement and the
Prospectus and covered by their opinion therein comply as to form in
all material respects with the applicable accounting requirements of
the Act and the applicable published rules and regulations of the
Commission thereunder.
(m) Prior to the Closing Date the Company and the Selling
Stockholders shall have furnished to you such further information,
certificates and documents as you may reasonably request.
(n) You shall have received from each person who is a
director or officer of the Company and each stockholder (except those
named in Schedule III hereto) an agreement, or each such person shall
be subject to an agreement, to the effect that such person will not,
directly or indirectly, without your prior written consent, offer,
sell, offer or agree to sell, grant any option to purchase or
otherwise dispose (or announce any offer, sale, grant of an option to
purchase or other disposition) of any shares of Common Stock (or any
securities convertible into, exercisable for or exchangeable or
exercisable for shares of Common Stock) for a period of 120 days after
the date of the Prospectus.
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(o) At the Closing Date, the Shares shall have been
approved for quotation on the National Association of Securities
Dealers Automated Quotation (National Market) System.
If any of the conditions specified in this Section 8 shall not
have been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to you or to
Underwriters' Counsel pursuant to this Section 8 shall not be in all material
respects reasonably satisfactory in form and substance to you and to
Underwriters' Counsel, all obligations of the Underwriters hereunder may be
cancelled by you at, or at any time prior to, the Closing Date and the
obligations of the Underwriters to purchase the Additional Shares may be
cancelled by you at, or at any time prior to, the Additional Closing Date.
Notice of such cancellation shall be given to the Company and the Selling
Stockholders in writing, or by telephone, telex or telegraph, confirmed in
writing.
9. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, against
any and all losses, liabilities, claims, damages and expenses whatsoever as
incurred (including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement of any claim or litigation), joint or several, to
which they or any of them may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the registration
statement for the registration of the Shares, as originally filed or any
amendment thereof, or any related preliminary prospectus or the Prospectus, or
in any supplement thereto or amendment thereof, 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; provided, however, that the Company will not be liable in any such
case to the extent but only to the extent that any such loss, liability, claim,
damage or expense arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company
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by or on behalf of any Underwriter through you expressly for use therein. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have, including under this Agreement.
(b) Each Selling Stockholder severally, and not jointly,
agrees to indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act, against any and all losses, liabilities,
claims, damages and expenses whatsoever as incurred (including but not limited
to attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation), joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or otherwise, insofar as such
losses, liabilities, claims, damages or expenses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for the
registration of the Shares, as originally filed or any amendment thereof, or
any related preliminary prospectus or the Prospectus, or in any supplement
thereto or amendment thereof, 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, but in each case
only to the extent that the 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 or on behalf of such Selling
Stockholder specifically for inclusion therein. Notwithstanding the provisions
of this Section 9(b), the aggregate liability of any Selling Stockholder under
this Section 9(b) shall not exceed the proceeds received by such Selling
Stockholder from the sale of Shares under this Agreement. The Underwriters and
the Company acknowledge that the statements specifically relating to each
Selling Stockholder under the caption "Principal and Selling Stockholders" in
the Prospectus constitute the only information furnished in writing by or on
behalf of such Selling Stockholder expressly for use in the registration
statement relating to the Shares as originally filed or in any amendment
thereof, any related preliminary prospectus or the Prospectus or in any
amendment thereof or supplement thereto, as the case may be. This indemnity
agreement will be in addition to any liability which the Selling Stockholders
may otherwise have, including under this Agreement; provided, however, that in
no event shall the aggregate liability of any Selling Stockholder for any
breach of the representations and warranties contained in Section 2(e) (when
combined with any liability under the indemnity above) exceed the proceeds
received by such Selling Stockholder from the sale of Shares under this
Agreement.
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(c) Each Underwriter severally, and not jointly, agrees
to indemnify and hold harmless the Company, the Selling Stockholders, each of
the directors of the Company, each of the officers of the Company who shall
have signed the Registration Statement, each other person, if any, who controls
the Company or the Selling Stockholders within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act, against any losses, liabilities,
claims, damages and expenses whatsoever as incurred (including but not limited
to attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation, jointly or severally, to which they or any of them
may become subject under the Act, the Exchange Act or otherwise, insofar as
such losses, liabilities, claims, damages or expenses (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for the
registration of the Shares, as originally filed or any amendment thereof, or
any related preliminary prospectus or the Prospectus, or in any amendment
thereof or supplement thereto, 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, in each
case to the extent, but only to the extent, that any such loss, liability,
claim, damage or expense arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished
to the Company by or on behalf of such Underwriter through you expressly for
use therein; provided, however, that in no case shall any Underwriter be liable
or responsible for any amount in excess of the underwriting discount applicable
to the Shares purchased by such Underwriter hereunder. This indemnity will be
in addition to any liability which any Underwriter may otherwise have,
including under this Agreement. The Company acknowledges that the statements
set forth in the last paragraph of the cover page and in the first through
sixth and the ninth and tenth paragraphs under the caption "Underwriting" in
the Prospectus constitute the only information furnished in writing by or on
behalf of any Underwriter expressly for use in the registration statement
relating to the Shares as originally filed or in any amendment thereof, any
related preliminary prospectus or the Prospectus or in any amendment thereof or
supplement thereto, as the case may be.
(d) Promptly after receipt by an indemnified party under
subsection (a), (b) or (c) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify each party against
whom indemnification is to be sought in writing of the commencement thereof
(but the failure so to notify an indemnifying party shall not relieve it from
any liability which it may have under this
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Section 9). In case any such action is brought against any indemnified party,
and it notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent
it may elect by written notice delivered to the indemnified party promptly
after receiving the aforesaid notice from such indemnified party, to assume the
defense thereof with counsel satisfactory to such indemnified party.
Notwithstanding the foregoing, the indemnified party or parties 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 indemnified party or
parties unless (i) the employment of such counsel shall have been authorized in
writing by one of the indemnifying parties in connection with the defense of
such action, (ii) the indemnifying parties shall not have employed counsel to
have charge of the defense of such action within a reasonable time after notice
of commencement of the action, or (iii) 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 those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party
or parties), in any of which events such fees and expenses shall be borne by
the indemnifying parties. Anything in this subsection to the contrary
notwithstanding, an indemnifying party shall not be liable for any settlement
of any claim or action effected without its written consent; provided, however,
that such consent was not unreasonably withheld.
10. Contribution. In order to provide for contribution
in circumstances in which the indemnification provided for in Section 9 hereof
is for any reason held to be unavailable from any indemnifying party or is
insufficient to hold harmless a party indemnified thereunder, the Company, the
Selling Stockholders and the Underwriters shall contribute to the aggregate
losses, claims, damages, liabilities and expenses of the nature contemplated by
such indemnification provision (including any investigation, legal and other
expenses incurred in connection with, and any amount paid in settlement of, any
action, suit or proceeding or any claims asserted, but after deducting in the
case of losses, claims, damages, liabilities and expenses suffered by the
Company or the Selling Stockholders any contribution received by the Company or
the Selling Stockholders, as the case may be, from persons, other than the
Underwriters, who may also be liable for contribution, including persons who
control the Company or the Selling Stockholders within the meaning of Section
15 of the Act or Section 20(a) of the Exchange Act, officers of the Company who
signed the Registration Statement and directors of the Company) as incurred to
which the Company, the Selling Stockholders, and one or more of the
Underwriters may be subject, in such proportions as is appropriate to reflect
the relative benefits received by the Company and the Selling Stockholders on
the one hand and the Underwriters on the other from the offering of the Shares
or, if
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such allocation is not permitted by applicable law or indemnification is not
available as a result of the indemnifying party not having received notice as
provided in Section 9 hereof, in such proportion as is appropriate to reflect
not only the relative benefits referred to above but also the relative fault of
the Company and the Selling Stockholders on the one hand and the Underwriters
on the other in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by the
Company and the Selling Stockholders on the one hand and the Underwriters on
the other shall be deemed to be in the same proportion as (x) the total
proceeds from the offering (net of underwriting discounts and commissions but
before deducting expenses) received by the Company and the Selling Stockholders
and (y) the underwriting discounts and commissions received by the
Underwriters, respectively, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault of the Company, the Selling
Stockholders and the Underwriters 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, the Selling Stockholders or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company,
the Selling Stockholders and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 10 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 which does not take account
of the equitable considerations referred to above. Notwithstanding the
provisions of this Section 10 and the preceding sentence, (i) in no case shall
any Underwriter be liable or responsible for any amount in excess of the
underwriting discount applicable to the Shares purchased by such Underwriter
hereunder, (ii) in no case shall any Selling Stockholder be liable or
responsible for any amount in excess of the proceeds received by such Selling
Stockholder from the sale of Shares under this Agreement and (iii) 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. Notwithstanding the provisions of this
Section 10, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Shares underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages that such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission.
For purposes of this Section 10, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act shall have the same rights to contribution as such Underwriter,
each person, if any, who controls a Selling Stockholder within the meaning of
Section 15
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of the Act or Section 20(a) of the Exchange Act shall have the same rights to
contribution as such Selling Stockholder and each person, if any, who controls
the Company within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to clauses (i) and
(ii) of this Section 10. Any party entitled to contribution will, promptly
after receipt of notice of commencement of any action, suit or proceeding
against such party in respect of which a claim for contribution may be made
against another party or parties, notify each party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought
from any obligation it or they may have under this Section 10 or otherwise. No
party shall be liable for contribution with respect to any action or claim
settled without its consent; provided, however, that such consent was not
unreasonably withheld.
11. Default by an Underwriter.
(a) If any Underwriter or Underwriters shall default in its
or their obligation to purchase Firm Shares or Additional Shares hereunder, and
if the Firm Shares or Additional Shares with respect to which such default
relates do not (after giving effect to arrangements, if any, made by you
pursuant to subsection (b) below) exceed in the aggregate 10% of the number of
Firm Shares or Additional Shares, the Firm Shares or Additional Shares to which
the default relates shall be purchased by the non-defaulting Underwriters in
proportion to the respective proportions which the numbers of Firm Shares set
forth opposite their respective names in Schedule I hereto bear to the
aggregate number of Firm Shares set forth opposite the names of the
non-defaulting Underwriters.
(b) In the event that such default relates to more than
10% of the Firm Shares or Additional Shares, as the case may be, you may in
your discretion arrange for yourself or for another party or parties (including
any non-defaulting Underwriter or Underwriters who so agree) to purchase such
Firm Shares or Additional Shares, as the case may be, to which such default
relates on the terms contained herein. In the event that within five calendar
days after such a default you do not arrange for the purchase of the Firm
Shares or Additional Shares, as the case may be, to which such default relates
as provided in this Section 11, this Agreement or, in the case of a default
with respect to the Additional Shares, the obligations of the Underwriters to
purchase and of the Option Stockholders to sell the Additional Shares shall
thereupon terminate, without liability on the part of the Company or such
Option Stockholders with respect thereto (except in each case as provided in
Section 7, 9(a) and 10 hereof) or the Underwriters, but nothing in this
Agreement shall relieve a defaulting Underwriter or Underwriters
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of its or their liability, if any, to the other Underwriters, the Company and
the Selling Stockholders for damages occasioned by its or their default
hereunder.
(c) In the event that the Firm Shares or Additional
Shares to which the default relates are to be purchased by the non-defaulting
Underwriters, or are to be purchased by another party or parties as aforesaid,
you, the Company or the Selling Stockholders shall have the right to postpone
the Closing Date or Additional Closing Date, as the case may be for a period,
not exceeding five business days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus or in
any other documents and arrangements, and the Company agrees to file promptly
any amendment or supplement to the Registration Statement or the Prospectus
which, in the opinion of Underwriters' Counsel, may thereby be made necessary
or advisable. The term "Underwriter" as used in this Agreement shall include
any party substituted under this Section 11 with like effect as if it had
originally been a party to this Agreement with respect to such Firm Shares and
Additional Shares.
12. Survival of Representations and Agreements. All
representations and warranties, covenants and agreements of the Underwriters,
the Company and the Selling Stockholders contained in this Agreement, including
the agreements contained in Section 7, the indemnity agreements contained in
Section 9 and the contribution agreements contained in Section 10, shall remain
operative and in full force and effect regardless of any investigation made by
or on behalf of any Underwriter or any controlling person thereof or by or on
behalf of the Company, any of its officers and directors or any controlling
person thereof, or by or on behalf of any Selling Stockholder or controlling
person thereof and shall survive delivery of and payment for the Shares to and
by the Underwriters. The representations contained in Sections 1 and 2 and the
agreements contained in Sections 7, 9, 10 and 13(d) hereof shall survive the
termination of this Agreement, including termination pursuant to Section 11 or
13 hereof.
13. Effective Date of Agreement; Termination. (a)
This Agreement shall become effective, upon the later of (i) when you, the
Company and the Selling Stockholders shall have received notification of the
effectiveness of the Registration Statement or (ii) the execution of this
Agreement. If either the initial public offering price or the purchase price
per Share has not been agreed upon prior to 5:00 P.M., New York time, on the
fifth full business day after the Registration Statement shall have become
effective, this Agreement shall thereupon terminate without liability to the
Company, the Selling Stockholders or the Underwriters except as herein
expressly provided. Until this Agreement becomes effective as aforesaid, it
may be terminated by the Company by notifying you and the Selling Stockholders
or by you notifying the Company and the Selling Stockholders. Notwithstanding
the foregoing, the provisions of this Section 13
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and of Sections 1, 2, 7, 9 and 10 hereof shall at all times be in full force
and effect.
(b) You shall have the right to terminate this Agreement
at any time prior to the Closing Date or the obligations of the Underwriters to
purchase the Additional Shares at any time prior to the Additional Closing
Date, as the case may be, if (i) any domestic or international event or act or
occurrence has materially disrupted, or in your opinion will in the immediate
future materially disrupt, the market for the Company's securities or
securities in general, (ii) if trading on the National Association of
Securities Dealers Automated Quotation (National Market) System, New York or
American Stock Exchanges shall have been suspended, or minimum or maximum
prices for trading shall have been fixed, or maximum ranges for prices for
securities shall have been required, on the National Association of Securities
Dealers Automated Quotation (National Market) System, the New York or American
Stock Exchanges or by order of the Commission or any other governmental
authority having jurisdiction, (iii) if a banking moratorium has been declared
by a state or federal authority or if any new restriction materially adversely
affecting the distribution of the Firm Shares or the Additional Shares, as the
case may be, shall have become effective, or (iv) (A) if the United States
becomes engaged in hostilities or there is an escalation of hostilities
involving the United States or there is a declaration of a national emergency
or war by the United States or (B) if there shall have been such change in
political, financial or economic conditions if the effect of any such event in
(A) or (B) as in your judgment makes it impracticable or inadvisable to proceed
with the offering, sale and delivery of the Firm Shares or the Additional
Shares, as the case may be, on the terms contemplated by the Prospectus.
(c) Any notice of termination pursuant to this Section 13
shall be by telephone, telex, or telegraph, confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to any
of the provisions hereof (otherwise than pursuant to (i) notification by you as
provided in Section 13(a) hereof or (ii) Section 11(b) or 13(b) hereof), or if
the sale of the Shares provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth herein is not
satisfied or because of any refusal, inability or failure on the part of the
Company or the Selling Stockholders to perform any agreement herein or comply
with any provision hereof, the Company will, subject to demand by you,
reimburse the Underwriters for all out-of-pocket expenses (including the fees
and expenses of their counsel), incurred by the Underwriters in connection
herewith.
14. Notice. All communications hereunder, except as may
be otherwise specifically provided herein, shall be in
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writing and, if sent to any Underwriter, shall be mailed, delivered, or telexed
or telegraphed and confirmed in writing, to such Underwriter c/x Xxxxxx, Read &
Co. Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxx X.
Xxxxxxx, Managing Director; if sent to the Company, shall be mailed,
delivered, or telegraphed and confirmed in writing to the Company, 0000 Xxxxx
Xxxxxxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxx 00000, Attention: R. Xxxxx Xxxxxx,
President and Chief Executive Officer and R. Xxxxxxx Xxxxxxx, Chief Financial
Officer, with a copy to Xxxxxxxxxxx X. Xxxxxxxx, Esq., Xxxxxx Xxxxxxx Xxxxxxxx
& Xxxxxx, Professional Corporation, 650 Page Mill Road, Palo Alto, California
94304- 4050; and if sent to any Selling Stockholder, shall be mailed, delivered
or telegraphed and confirmed in writing to such Selling Stockholder c/o Xxxxxx
Xxxxxxx Xxxxxxxx and Xxxxxx, Professional Corporation, 000 Xxxx Xxxx Xxxx, Xxxx
Xxxx, Xxxxxxxxxx 00000-0000, Attention: Xxxxxxxxxxx X. Xxxxxxxx, Esq.
15. Parties. This Agreement shall insure solely to the
benefit of, and shall be binding upon, the Underwriters, the Selling
Stockholders, the Company and the controlling persons, directors, officers,
employees and agents referred to in Section 9 and 10, and their respective
successors and assigns, and no other person shall have or be construed to have
any legal or equitable right, remedy or claim under or in respect of or by
virtue of this Agreement or any provision herein contained. The term
"successors and assigns" shall not include a purchaser, in its capacity as
such, of Shares from any of the Underwriters.
16. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAW.
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If the foregoing correctly sets forth the understanding among
you, the Company and the Selling Stockholders, please so indicate in the space
provided below for that purpose, whereupon this letter shall constitute a
binding agreement among us.
Very truly yours,
VENTANA MEDICAL SYSTEMS, INC.
By:
--------------------------------
Title:
The Selling Stockholders named
in Schedule II to this Agreement
By:
--------------------------------
Attorney-in-fact
Accepted as of the date first above written
XXXXXX, READ & CO. INC.
BEAR, XXXXXXX & CO. INC.
XXXXX & COMPANY
By: XXXXXX, READ & CO. INC.
By:
----------------------------------
Title:
On behalf of themselves and the other
Underwriters named in Schedule I hereto.
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SCHEDULE I
Number of Firm
Name of Underwriter Shares to be Purchased
------------------- ----------------------
Xxxxxx, Read & Co. Inc. . . . . . . . . . . . . . . . . . . . . . . . .
Bear, Xxxxxxx & Co. Inc. . . . . . . . . . . . . . . . . . . . . . . .
Xxxxx & Company . . . . . . . . . . . . . . . . . . . . . . . . . . . .
=========
TOTAL UNDERWRITERS . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,850,000
40
40
SCHEDULE II
Number of
Number of Additional
Firm Shares Shares to
Name of Selling Stockholder to be Sold be Sold
--------------------------- ----------- -----------
_________ _______
Total . . . . . . . . . . . . . . 1,000,000 427,500
41
41
SCHEDULE III
Stockholders not subject to the 120 day lock-up provisions
