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4,030,000 Shares
OCULAR SCIENCES, INC.
COMMON STOCK (PAR VALUE $0.001 PER SHARE)
UNDERWRITING AGREEMENT
_____________, 1998
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__________ __, 1998
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
BT Alex. ▇▇▇▇▇ Incorporated
▇▇▇▇▇ & Company
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Ocular Sciences, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to the several Underwriters named in Schedule II
hereto (the "Underwriters"), and certain stockholders of the Company (the
"Selling Stockholders") named in Schedule I hereto severally propose to sell to
the several Underwriters, an aggregate of 4,030,000 shares of the Common Stock
(par value $0.001 per share) of the Company (the "Firm Shares"), of which 30,000
shares are to be issued and sold by the Company and 4,000,000 shares are to be
sold by the Selling Stockholders, each Selling Stockholder selling the amount
set forth opposite such Selling Stockholder's name in Schedule I hereto. The
Company is successor by merger to O.S.I. Corporation, a California corporation
(the "Predecessor"), as a result of a reincorporation transaction that became
effective on July 30, 1997 (the "Reincorporation"). For the purposes of Section
1 hereof, all references to "Company" shall also refer to the Predecessor prior
to the Reincorporation.
A Selling Stockholder also proposes to sell to the several
Underwriters not more than an additional 604,500 shares of its Common Stock (par
value $0.001 per share) (the "Additional Shares") if and to the extent that you,
as Managers of the offering, shall have determined to exercise, on behalf of the
Underwriters, the right to purchase such shares of Common Stock granted to the
Underwriters in Section 3 hereof. The Firm Shares and the Additional Shares are
hereinafter collectively referred to as the "Shares." The shares of Common Stock
(par value $0.001 per share) of the Company to be outstanding after giving
effect to the sales contemplated hereby are hereinafter referred to as the
"Common Stock." The Company and the Selling Stockholders are hereinafter
sometimes collectively referred to as the "Sellers."
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement, including a prospectus,
relating to the Shares. The registration statement as amended at the time it
becomes effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act of 1933, as amended (the "Securities Act"), is hereinafter
referred to as the "Registration Statement;" the prospectus in the form first
used to confirm sales of Shares is hereinafter referred to as the "Prospectus."
If the Company has filed an abbreviated registration statement to register
additional shares of Common Stock pursuant to Rule 462(b) under the Securities
Act (the "Rule 462 Registration Statement"), then any reference herein to the
term "Registration Statement" shall be deemed to include such Rule 462
Registration Statement.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents and warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) The Registration Statement, when it became effective,
did not contain and, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not
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misleading, (ii) the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and, (iii) the Prospectus does
not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except
that the representations and warranties set forth in this Section l(b)
do not apply to statements or omissions in the Registration Statement
or the Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you
expressly for use therein.
(c) The Company has been duly incorporated, is validly
existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power and
authority to own its property and to conduct its business as described
in the Prospectus and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its business
or its ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its Subsidiaries (as defined below), taken as a whole.
(d) Other than Ocular Sciences Puerto Rico Inc., a Delaware
corporation ("OSI Puerto Rico"), Ocular Sciences Canada Corporation, a
New Brunswick corporation ("OSI Canada"), Ocular Sciences Limited, a
company organized in the United Kingdom ("OSL"), and Ocular Sciences
Hungary, a Hungarian corporation ("OSH") (each of OSH, OSI Puerto Rico,
OSI Canada and OSL being referred to herein as a "Subsidiary" and
collectively as the "Subsidiaries"), the Company has no subsidiaries.
Each Subsidiary of the Company has been duly incorporated or organized,
as the case may be, is validly existing and in good standing under the
laws of the jurisdiction of its incorporation or organization, as the
case may be, has the corporate power and authority to own its property
and to conduct its business as described in the Prospectus and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its Subsidiaries,
taken as a whole. All of the issued shares of capital stock of each
Subsidiary have been duly and validly authorized and issued, are fully
paid and non-assessable, and are beneficially owned directly by the
Company, free and clear of all liens, encumbrances, equities or claims
other than liens and encumbrances described in the Prospectus.
(e) The Company and each of its Subsidiaries have good and
marketable title to all personal and real property owned by them that
is material to the business of the Company and its Subsidiaries, taken
as a whole, in each case free and clear of all liens, encumbrances and
defects except such as are described in the Prospectus or such as do
not materially affect the value of such property and do not interfere
with the use made and proposed to be made of such property by the
Company and each of its Subsidiaries; and any real property and
buildings held under lease by the Company and each of its Subsidiaries
are held by them under valid, subsisting and enforceable leases except
with such exceptions as are not material to the Company and do not
interfere with the current and proposed use of such property and
buildings by the Company and each of its Subsidiaries, in each case
except as described in or contemplated by the Prospectus.
(f) This Agreement has been duly authorized, executed and
delivered by the Company.
(g) The authorized capital stock of the Company conforms as to
legal matters in all material respects to the description thereof
contained in the Prospectus.
(h) The shares of Common Stock (including the Shares to be
sold by the Selling Stockholders) outstanding prior to the issuance of
the Shares to be sold by the Company have been duly authorized and are
validly issued, fully paid and non-assessable. Except as set forth in
the Prospectus and other than options to purchase __________ shares of
the Company's Common Stock granted to employees
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pursuant to the Company's 1989 Stock Option Plan (the "1989 Plan"), the
Company's 1997 Directors Stock Option Plan (the "Directors Plan") and
the Company's 1997 Share Equity Plan (the "1997 Plan") as described in
the Prospectus, neither the Company nor any of its Subsidiaries has
outstanding any options to purchase, or any preemptive rights or other
rights to subscribe for or to purchase, any securities or obligations
convertible into, or any contracts or commitments to issue or sell,
shares of its capital stock or any such options, rights, convertible
securities or obligations. All outstanding shares of capital stock and
options and other rights to acquire capital stock have been issued in
compliance with the registration and qualification provisions of all
applicable securities laws (or applicable exemptions thereof) and were
not issued in violation of any preemptive rights, rights of first
refusal and other similar rights.
(i) The Shares to be sold by the Company have been duly
authorized, and when issued and delivered in accordance with the terms
of this Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be subject to
any preemptive or similar rights.
(j) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
will not contravene any provision of applicable law or the certificate
of incorporation or bylaws of the Company or any of its Subsidiaries
or any agreement or other instrument binding upon the Company or any
of its Subsidiaries that is material to the Company and its
Subsidiaries, taken as a whole, or any judgment, order or decree of
any governmental body, agency or court having jurisdiction over the
Company or any of its Subsidiaries, and no consent, approval,
authorization or order of, or qualification with, any governmental body
or governmental agency is required for the performance by the Company
of its obligations under this Agreement, except such as may be required
by the securities or Blue Sky laws of the various states or
international jurisdictions in connection with the offer and sale of
the Shares.
(k) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and Subsidiaries, taken as a whole, from that
set forth in the Prospectus.
(l) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, (i) the
Company and its Subsidiaries have not incurred any material liability
or obligation, direct or contingent, nor entered into any material
transaction not in the ordinary course of business; (ii) the Company
has not purchased any of its outstanding capital stock, nor declared,
paid or otherwise made any dividend or distribution of any kind on its
capital stock; and (iii) there has not been any material change in the
capital stock, short-term debt or long-term debt of the Company and its
consolidated Subsidiaries, taken as a whole, except in each case as
described or specifically contemplated in the Prospectus.
(m) There are no legal or governmental proceedings pending or,
to the best of the Company's knowledge, threatened to which the Company
or any of its Subsidiaries is a party or to which any of the properties
of the Company or any of its Subsidiaries is subject that are required
to be described in the Registration Statement or the Prospectus and are
not so described or any statutes, regulations, contracts or other
documents that are required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as required.
(n) Each preliminary prospectus filed as part of the
registration statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 or Rule 462 under the Securities
Act, complied when so filed in all material respects with the
Securities Act and the applicable rules and regulations of the
Commission thereunder.
(o) The Company is not and, after giving effect to the
offering and sale of the Shares and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" or an entity "controlled" by an "investment company" as such
terms are defined in the Investment Company Act of 1940, as amended.
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(p) There is no owner of any securities of the Company who has
any right, not effectively satisfied or waived, to require registration
of any shares of capital stock of the Company in connection with the
filing of the Registration Statement or the sale of any shares
thereunder. There are no contracts, agreements or understandings
between the Company and any person granting such person the right to
require the Company to file a registration statement under the
Securities Act with respect to any securities of the Company or to
require the Company to include such securities with the Shares
registered pursuant to the Registration Statement, except in each case
as described in the Prospectus.
(q) The Company and each of its Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and
risks and in such amounts as are prudent and customary in the
businesses in which they are engaged; neither the Company nor any of
its Subsidiaries has been refused any material insurance coverage
sought or applied for since May 1, 1994; and neither the Company nor
any of its Subsidiaries has any reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not materially
and adversely affect the condition, financial or otherwise, or the
earnings, business or operations of the Company and its Subsidiaries,
taken as a whole, except as described in or contemplated by the
Prospectus.
(r) The Company and each of its Subsidiaries (i) are in
compliance with any and all applicable foreign, federal, state and
local laws and regulations relating to the protection of human health
and safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), (ii) have received
all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses
and (iii) are in compliance with all terms and conditions of any such
permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or
other approvals or failure to comply with the terms and conditions of
such permits, licenses or approvals would not, singly or in the
aggregate, have a material adverse effect on the Company and its
Subsidiaries, taken as a whole.
(s) The Company has complied with all provisions of Section
517.075, Florida Statutes Chapter 92-198, Laws of Florida relating to
doing business with the Government of Cuba or with any person or
affiliate located in Cuba.
(t) Except as specifically disclosed in the Prospectus, (i)
the Company and its Subsidiaries own or possess adequate licenses or
other rights to use all patents, copyrights, trademarks, service marks,
trade names, technology and know-how necessary to conduct their
respective businesses in the manner described in the Prospectus , (ii)
neither the Company nor any of its Subsidiaries has received any notice
of infringement or conflict with asserted rights of others with respect
to any patents, copyrights, trademarks, service marks, trade names,
technology or know-how that could reasonably be expected to result in
any material adverse effect upon the Company and its Subsidiaries,
taken as a whole, and (iii) the discoveries, inventions, products or
processes of the Company and its Subsidiaries referred to in the
Prospectus do not, to the best knowledge of the Company, infringe or
conflict with any right or patent of any third party, or any discovery,
invention, product or process that could reasonably be expected to have
a material adverse effect on the Company and its Subsidiaries, taken as
a whole.
(u) The Company and its Subsidiaries possess all consents,
approvals, orders, certificates, authorizations and permits issued by,
and has made all declarations and filings with, all appropriate
federal, state or foreign governmental and self-regulatory authorities
and all courts and other tribunals necessary to conduct their
respective businesses and to own, lease, license and use their
properties in the manner described in the Prospectus, except to the
extent that the failure to obtain or file would not have a material
adverse effect on the Company and its Subsidiaries, taken as a whole,
and neither the Company nor its Subsidiaries has received any notice of
proceedings related to the revocation or modification of any such
consent, approval, order, certificate, authorization or permit that,
singly or in the aggregate, could reasonably be expected to result in a
material adverse change in the condition, financial or otherwise, or in
the earnings, business or operations of the Company and its
Subsidiaries, taken as a whole.
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(v) The Company and its Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's
general or specific authorizations; (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity
with generally accepted accounting principals of the United States and
to maintain asset accountability; (iii) access to assets is permitted
only in accordance with management's general or specific authorization;
and (iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(w) No material labor dispute with employees of the Company or
any of its Subsidiaries exists or to the knowledge of the Company is
imminent, and, without conducting any independent investigation, the
Company is not aware of any written communication of any existing,
threatened or imminent labor disturbance by the employees of any of its
principal suppliers, manufacturers or contractors that could result in
any material adverse change in the condition, financial or otherwise,
the earnings, the business or operations of the Company and its
Subsidiaries, taken as a whole.
(x) __________ and __________ outstanding shares of the Common
Stock and securities convertible into or exercisable or exchangeable
for Common Stock, respectively, are subject to valid, binding and
enforceable agreements (collectively, the "Lock-Up Agreements") that
restrict the holders thereof from selling, making any short sale of,
granting any option for the purchase of, or otherwise transferring or
disposing of, any of such shares of Common Stock, or any such
securities convertible or exercisable or exchangeable for Common Stock,
for a period of 90 days after the date of the Prospectus without the
prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
(y) As of the date the Registration Statement became
effective, the Common Stock was authorized for quotation on The Nasdaq
National Market upon official notice of issuance.
(z) 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.
(aa) The financial statements, including the notes thereto,
included in the Registration Statement and the Prospectus fairly
present, in all material respects, the financial position of the
Company as of the dates indicated and the results of its operations for
the periods specified; said financial statements have been prepared in
conformity with generally accepted accounting principles applied on a
consistent basis.
(bb) The Shares to be sold by the Selling Stockholders
pursuant to this Agreement have been duly authorized and are validly
issued, fully paid and non-assessable.
(ee) The Company does not own any equity or capital interests
in any corporation, partnership, joint venture, association or other
entity, other than the Subsidiaries.
2. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS.
Each of the Selling Stockholders, severally and not jointly, represents and
warrants to and agrees with each of the Underwriters that:
(a) This Agreement has been duly authorized, executed and
delivered by or on behalf of such Selling Stockholder and constitutes a
valid and binding obligation upon such Selling Stockholder.
(b) The execution and delivery by such Selling Stockholder of,
and the performance by such Selling Stockholder of its obligations
under, this Agreement, the Custody Agreement signed by such Selling
Stockholder and the Company, as Custodian, relating to the deposit of
the Shares to be sold by such Selling Stockholder (the "Custody
Agreement") and the Power of Attorney appointing certain individuals
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as such Selling Stockholder's attorneys-in-fact to the extent set forth
therein (the "Power of Attorney") does not contravene any provision of
applicable law, or the certificate of incorporation or bylaws of such
Selling Stockholder (if such Selling Stockholder is a corporation), or
any material agreement or other material instrument binding upon such
Selling Stockholder or any judgment, order or decree of any
governmental body, agency or court having jurisdiction over such
Selling Stockholder, and no consent, approval, authorization or order
of, or qualification with, any governmental body or agency is required
for the performance by such Selling Stockholder of its obligations
under this Agreement or the Custody Agreement or Power of Attorney of
such Selling Stockholder, except such as may be required under the
Securities Act or by the state securities or Blue Sky laws of the
various states in connection with the offer and sale of the Shares.
(c) Such Selling Stockholder has, and on the Closing Date will
have, valid title to the Shares to be sold by such Selling Stockholder
and the legal right and power, and all authorization and approval
required by law, to enter into this Agreement, the Custody Agreement
and the Power of Attorney and to sell, transfer and deliver the Shares
to be sold by such Selling Stockholder.
(d) The Custody Agreement and the Power of Attorney have been
duly authorized, executed and delivered by such Selling Stockholder and
are valid and binding agreements of such Selling Stockholder.
(e) Upon delivery of and payment for the stock to be sold by
such Selling Stockholder as provided in this Agreement and upon
registration of the Shares in the names of the Underwriters (or their
nominees) in the stock records of the Company, the Underwriters will be
the owners of the Shares, free and clear of any adverse claim, security
interests, liens, equities and other encumbrances, provided that the
Underwriters are purchasing the Shares in good faith and without notice
of any adverse claim.
(f) All information furnished in writing by or on behalf of
such Selling Stockholder for use in the Registration Statement is, and
on the Closing Date will be, true, correct and complete, and does not,
and on the Closing Date will not, contain any untrue statement of a
material fact or omit to state any material fact necessary to make such
information not misleading, and all information furnished in writing by
or on behalf of such Selling Stockholder for use in the Prospectus is,
and on the Closing Date will be, true, correct and complete, and does
not, and on the Closing Date will not, contain any untrue statement of
a material fact or omit to state any material fact necessary to make
such information not misleading in the light of the circumstances under
which they were made.
3. AGREEMENTS TO SELL AND PURCHASE. Each Seller, severally and
not jointly, hereby agrees to sell to the several Underwriters, and each
Underwriter, upon the basis of the representations and warranties herein
contained, but subject to the conditions hereinafter stated, agrees, severally
and not jointly, to purchase from such Seller at $_____ a share (the "Purchase
Price") the number of Firm Shares (subject to such adjustments to eliminate
fractional shares as you may determine) that bears the same proportion to the
number of Firm Shares to be sold by such Seller as the number of Firm Shares set
forth in Schedule II hereto opposite the name of such Underwriter bears to the
total number of Firm Shares.
On the basis of the representations and warranties contained
in this Agreement, and subject to its terms and conditions, ▇▇▇▇ ▇. ▇▇▇▇▇
("▇▇▇▇▇"), a Selling Stockholder agrees to sell to the Underwriters the
Additional Shares, and the Underwriters shall have a one-time right to purchase,
severally and not jointly, up to 604,500 Additional Shares at the Purchase
Price. If you, on behalf of the Underwriters, elect to exercise such option, you
shall so notify the ▇▇▇▇▇ in writing not later than 30 days after the date of
this Agreement, which notice shall specify the number of Additional Shares to be
purchased by the Underwriters and the date on which such shares are to be
purchased. Such date may be the same as the Closing Date (as defined below) but
not earlier than the Closing Date nor later than ten business days after the
date of such notice. Additional Shares may be purchased as provided in Section 5
hereof solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. If any Additional Shares are to be
purchased, each Underwriter agrees, severally and not jointly, to purchase the
number of Additional Shares (subject to such adjustments to eliminate fractional
shares as you may
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determine) that bears the same proportion to the total number of Additional
Shares to be purchased as the number of Firm Shares set forth in Schedule II
hereto opposite the name of such Underwriter bears to the total number of Firm
Shares.
Each Seller hereby agrees that, without the prior written
consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of the Underwriters, it will not, during the
period ending 90 days after the date of the Prospectus, (i) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase or otherwise
transfer or dispose of, directly or indirectly, any shares of Common Stock or
any securities convertible into or exercisable or exchangeable for Common Stock
or (ii) enter into any swap or other arrangement that transfers to another, in
whole or in part, any of the economic consequences of ownership of the Common
Stock, whether any such transaction described in clause (i) or (ii) above is to
be settled by delivery of Common Stock or such other securities, in cash or
otherwise (the "Market Stand-Off"). The foregoing sentence shall not apply to
(A) the Shares to be sold hereunder, (B) the issuance by the Company of shares
of Common Stock upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof, (C) options issued under the 1989 Plan,
the 1997 Plan, the Directors Plan, and the shares issuable upon exercise
thereof, (D) shares issued under the 1997 Employee Stock Purchase Plan and the
shares issuable upon exercise thereof; provided, however, that any receiver of
securities issued under (B), (C) or (D) above agrees to the Market Stand-Off. In
addition, each Selling Stockholder agrees that, without the prior written
consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ on behalf of the Underwriters, it will not, during the
period ending 90 days after the date of the Prospectus, make any demand for, or
exercise any right with respect to, the registration of any shares of Common
Stock or any security convertible into or exercisable or exchangeable for Common
Stock.
4. TERMS OF PUBLIC OFFERING. The Sellers are advised by you
that the Underwriters propose to make a public offering of their respective
portions of the Shares as soon after the Registration Statement and this
Agreement have become effective as in your judgment is advisable. The Sellers
are further advised by you that the Shares are to be offered to the public
initially at $_____ a share (the "Public Offering Price") and to certain dealers
selected by you at a price that represents a concession not in excess of $_____
a share under the Public Offering Price, and that any Underwriter may allow, and
such dealers may reallow, a concession, not in excess of $_____ a share, to any
Underwriter or to certain other dealers.
5. PAYMENT AND DELIVERY. Payment for the Firm Shares to be
sold by each Seller shall be made in federal or immediately available funds at
the office of Fenwick & West LLP at 10:00 A.M., New York time, on __________ __,
1998 or at such other time on the same or such other date, not later than
__________ __, 1998, as shall be designated in writing by you. The time and date
of such payment are hereinafter referred to as the "Closing Date."
Payment for any Additional Shares shall be made by certified
or official bank check or checks payable to the order of the Company in same day
funds at the office of Fenwick & West LLP at 10:00 A.M., New York time, on the
date specified in the notice described in Section 3 or on such other date as
shall be designated in writing by you. The time and date of such payment are
hereinafter referred to as the "Option Closing Date."
Certificates for the Firm Shares and Additional Shares shall
be in definitive form and registered in such names and in such denominations as
you shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
6. CONDITIONS TO THE UNDERWRITER'S OBLIGATIONS. The
obligations of the Sellers to sell the Shares to the Underwriters and the
several obligations of the Underwriters to purchase and pay for the Shares on
the Closing Date are subject to the condition that the Registration Statement
shall have become effective not later than 5:30 p.m. (New York time) on the date
hereof.
The several obligations of the Underwriters are subject to the
following further conditions:
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(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:
(i) there shall not have occurred any
downgrading, nor shall any notice have been given of any
intended or potential downgrading or of any review for a
possible change that does not indicate the direction of the
possible change, in the rating accorded any of the Company's
securities by any "nationally recognized statistical rating
organization," as such term is defined for purposes of Rule
436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any
change, or any development involving a prospective change, in
the condition, financial or otherwise, or in the earnings,
business or operations of the Company and its Subsidiaries,
taken as a whole, from that set forth in the Prospectus
(exclusive of any amendments or supplements thereto subsequent
to the date of this Agreement) that, in your judgment, is
material and adverse and that makes it, in your judgment,
impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company on behalf of the Company, to the effect set forth in
clause (a) above and to the effect that the representations and
warranties of the Company contained in this Agreement are true and
correct as of the Closing Date and that the Company has complied with
all of the agreements and satisfied all of the conditions on its part
to be performed or satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely
upon his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date
an opinion of Fenwick & West LLP, outside counsel for the Company,
dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated,
is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation, has the
corporate power and corporate authority to own its property
and to conduct its business as described in the Prospectus and
is duly qualified to transact business and is in good standing
in each jurisdiction in which the conduct of its business or
its ownership or leasing of property requires such
qualification except to the extent that the failure to be so
qualified would not have a material adverse effect on the
Company and its Subsidiaries, taken as a whole;
(ii) OSI Puerto Rico has been duly
incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation and has the corporate power and corporate
authority to own its property and to conduct its business as
described in the Prospectus;
(iii) to such counsel's knowledge, other
than director qualifying shares, the Company is the sole
holder of all outstanding stock of the Subsidiaries (subject
to the rights of secured creditors as described in the
Prospectus);
(iv) the authorized capital stock of the
Company conforms as to legal matters in all material respects
to the description thereof contained in the Prospectus;
(v) the shares of Common Stock (including
the Shares to be sold by the Selling Stockholders) outstanding
prior to the issuance of the Shares to be sold by the Company
have been duly authorized and are validly issued and
non-assessable and, to such counsel's knowledge, fully paid;
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(vi) the Shares to be sold by the Company
have been duly authorized and, when issued and delivered in
accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and, to such counsel's
knowledge, the issuance of such Shares will not be subject to
any preemptive or similar rights;
(vii) to the knowledge of such counsel,
there is no owner of any securities of the Company who has any
rights, not effectively satisfied or waived, to require
registration of any shares of capital stock of the Company in
connection with the filing of the Registration Statement;
(viii) the Company has corporate power and
corporate authority to enter into this Agreement and to issue,
sell and deliver to the Underwriters the Shares to be issued
and sold by the Company;
(ix) this Agreement has been duly
authorized, executed and delivered by the Company;
(x) the execution and delivery by the
Company of, and the performance by the Company of its
obligations under, this Agreement will not contravene any
provision of applicable law or the certificate of
incorporation or bylaws of the Company or, to such counsel's
knowledge, any agreement or other instrument binding upon the
Company or any of its Subsidiaries that is material to the
Company and its Subsidiaries, taken as a whole (where such
agreements and instruments have been identified to such
counsel by the Company as all of the material agreements and
instruments binding upon the Company or its Subsidiaries) (the
"Material Agreements"), or, to such counsel's knowledge, any
judgment, order or decree of any governmental body, agency or
court having jurisdiction over the Company or its
Subsidiaries, and no consent, approval, authorization or order
of, or qualification with, any governmental body or
governmental agency is required for the performance by the
Company of its obligations under this Agreement, except such
as may be required by the securities or Blue Sky laws of the
various states or international jurisdiction in connection
with the offer and sale of the Shares (as to which such
counsel need not opine);
(xi) to such counsel's knowledge based
solely upon oral advice from the Staff of the Commission: (I)
the Registration Statement has become effective under the
Securities Act, no stop order proceedings with respect thereto
have been instituted or are pending or threatened under the
Securities Act, and (II) any required filing of the Prospectus
and any supplement thereto pursuant to Rule 424(b) under the
Securities Act has been made in the manner and within the time
period required by such Rule 424(b);
(xii) the Shares to be sold under this
Agreement to the Underwriters by the Company and the Selling
Stockholders are duly authorized for quotation on the Nasdaq
National Market;
(xiii) the statements (A) in the Prospectus
under the captions "Management--Executive Compensation,"
"Management--Employment Agreements," "Management--Employee
Benefit Plans," "Certain Transactions--OSL Acquisition and
Related Litigation" (except the third, fourth and fifth
paragraphs thereunder), "Description of Capital Stock," and
"Shares Eligible for Future Sale" and "Underwriters" (to the
extent of the description of this Agreement) and (B) in the
Registration Statement in Items 14 and 15, in each case
insofar as such statements constitute summaries of the legal
matters, documents or proceedings referred to therein, fairly
present the information called for with respect to such legal
matters, documents and proceedings and fairly summarize the
matters referred to therein;
(xiv) such counsel does not know of any
legal or governmental proceedings pending or threatened to
which the Company or any of its Subsidiaries is a party or to
which any of the properties of the Company or any of its
Subsidiaries is subject that are required to be described in
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the Registration Statement or the Prospectus and are not so
described or of any statutes, regulations, or to such
counsel's knowledge, contracts or other documents that are
required to be described in the Registration Statement or the
Prospectus or to be filed as exhibits to the Registration
Statement that are not described or filed as required;
(xv) the Company is not and, after giving
effect to the offering and sale of the Shares and the
application of the net proceeds therefrom as described in the
Prospectus, will not be an "investment company" as such terms
are defined in the Investment Company Act of 1940, as amended;
and
(xix) The statements in the Prospectus under
the captions "Risk Factors--Risk of Regulatory Action" and
"Business--Government Regulation," insofar as such statements
purport to summarize applicable provisions of the Federal
Food, Drug and Cosmetic Act and the regulations promulgated
thereunder, are accurate summaries in all material respects of
the provisions purported to be summarized under such captions
in the Prospectus.
In addition, such counsel shall state that in addition to
rendering legal advice and assistance to the Company in the course of the
preparation of the Registration Statement and the Prospectus, involving, among
other things, discussions and inquiries concerning various legal matters and the
review of certain corporate records, documents and proceedings, such counsel
also participated in conferences with certain officers and other representatives
of the Company, including its independent certified public accountants and with
the Underwriters and their counsel, at which the contents of the Registration
Statement and the Prospectus and related matters were discussed; provided, such
counsel may state that they have not independently verified the accuracy,
completeness or fairness of the information contained in the Registration
Statement and Prospectus.
In addition to the matters set forth above, counsel rendering
the foregoing opinion shall also include a statement to the effect that nothing
has come to the attention of such counsel that causes it to believe that (i) the
registration statement (except as to the financial statements, the notes
thereto, the schedules and the other financial and statistical data contained
therein, as to which such counsel need not express any opinion or belief) at the
date the Registration Statement became effective contained any untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (ii) the
Prospectus (except as to the financial statements, the notes thereto, the
schedules and the other financial and statistical data contained therein, as to
which such counsel need not express an opinion or belief) as of its date
contained or contains any untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading and (iii) the Registration Statement or the Prospectus (except as to
the financial statements, the notes thereto, the schedules and the other
financial and statistical data contained therein, as to which such counsel need
not express any opinion or belief) did not comply as to form in all material
respects with the Securities Act and the applicable rules and regulations
thereunder.
(d) The Underwriters shall have received on the Closing Date
an opinion or opinions of counsel for the Selling Stockholders (who may
also be counsel for the Company) to the effect that with respect to the
Selling Stockholder that such counsel represents:
(i) this Agreement has been duly authorized,
executed and delivered by or on behalf of such Selling
Stockholder;
(ii) the execution and delivery by such
Selling Stockholder of, and the performance by such Selling
Stockholder of its obligations under, this Agreement and the
Custody Agreement and Powers of Attorney of such Selling
Stockholder does not contravene any provision of applicable
law, or the certificate of incorporation or bylaws of such
Selling Stockholder (if such Selling Stockholder is a
corporation) or, to such counsel's knowledge, any agreement or
other instrument binding upon such Selling Stockholder (where
such agreements and
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instruments have been identified to such counsel by such
Selling Stockholder as all of the material agreements and
instruments binding upon such Selling Stockholder) or, to such
counsel's knowledge, any judgment, order or decree of any
governmental body, agency or court having jurisdiction over
such Selling Stockholder, and, to such counsel's knowledge, no
consent, approval, authorization or order of, or qualification
with, any governmental body or governmental agency is required
for the performance by such Selling Stockholder of its
obligations under this Agreement or the Custody Agreement or
Power of Attorney of such Selling Stockholder, except such as
may be required under the Securities Act or by the state
securities or Blue Sky laws in connection with the offer and
sale of the Shares (as to which such counsel need not opine);
(iii) to such counsel's knowledge, such
Selling Stockholder has the legal right and power, and all
authorization and approval required by law, to enter into this
Agreement and the Custody Agreement and Power of Attorney of
such Selling Stockholder and to sell, transfer and deliver the
Shares to be sold by such Selling Stockholder;
(iv) the Custody Agreement and the Power of
Attorney of such Selling Stockholder have been duly
authorized, executed and delivered by such Selling Stockholder
and are valid and binding agreements of such Selling
Stockholder; and
(v) upon delivery of and payment for the
stock to be sold by such Selling Stockholder as provided in
this Agreement and upon registration of the Shares in the
names of the Underwriters (or their nominees) in the stock
records of the Company (but without having conducted a search
of the records of any governmental authority or any third
person), the Underwriters will be the owners of the Shares,
free and clear of any adverse claim, security interests,
liens, equities and other encumbrances, provided that the
Underwriters are purchasing the Shares in good faith and
without notice of any adverse claim.
The opinions of Fenwick & West LLP described in paragraphs (c)
and (d) above (and any opinions of counsel for any Selling Stockholder referred
to in the immediately preceding paragraph) shall be rendered to the Underwriters
at the request of the Company or one or more of the Selling Stockholders, as the
case may be, and shall so state therein.
(e) The Underwriters shall have received on the Closing Date
an opinion of ▇▇▇▇▇ & ▇▇▇▇▇▇, counsel for OSL, dated the Closing Date,
to the effect that:
(i) OSL has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, has the
corporate power and authority to own its property and to
conduct its business as described in the Prospectus and is
duly qualified to transact business and is in good standing in
the United Kingdom;
(ii) all of the issued shares of capital
stock of OSL have been duly validly authorized and issued, are
fully paid up or credited as fully paid up, and owned directly
by the Company, free and clear of all liens and encumbrances
(other than the lien of Commercial Bank - California as
described in the Prospectus);
(iii) the execution and delivery by the
Company of, and the performance by the Company of its
obligations under, this Agreement will not contravene any
provision of English law or the Memorandum of Articles of
Association of OSL;
(f) The Underwriters shall have received on the Closing Date
an opinion of Bird, Bird and Hestres, counsel for OSI Puerto Rico,
dated as of the Closing Date, that OSI Puerto Rico is duly qualified to
transact business and is in good standing in each jurisdiction in which
the conduct of its business or its ownership or leasing of property
requires such qualification, except to the extent that the failure to
be so qualified or be in good standing would not have a material
adverse effect on OSI Puerto Rico.
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(g) The Underwriters shall have received on the Closing Date
an opinion of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇,
LLP, counsel for the Underwriters, dated the Closing Date, covering the
matters referred to in the first clause of subparagraph (c)(i), in the
first clause of subparagraph (c)(vi), in subparagraphs (c)(viii),
(c)(ix), (c)(xi) (but only as to the opinion in clause (I) thereof) and
(c)(xiii) (but only as to the statements in the Prospectus under
"Description of Capital Stock" and "Underwriters") and the second
paragraph following the enumerated opinions in paragraph (c) above.
Such opinion shall also cover the matters referred to in subparagraph
(d)(i).
(h) The Underwriters shall have received, on each of the date
hereof and the Closing Date, a letter dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory to
the Underwriters, from KPMG Peat Marwick LLP, independent certified
public accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectus;
provided that the letter delivered on the Closing Date shall use a
"cut-off date" not earlier than the date hereof.
(i) The "lock-up" agreements between you and certain
stockholders, officers and directors of the Company relating to sales
and certain other dispositions of shares of Common Stock or certain
other securities, delivered to you on or before the date hereof, shall
be in full force and effect on the Closing Date.
The several obligations of the Underwriters to purchase
Additional Shares hereunder are subject to the delivery to you on the Option
Closing Date of such documents as you may reasonably request with respect to the
good standing of the Company, the due authorization and issuance of the
Additional Shares and other matters related to the Additional Shares.
7. COVENANTS OF THE COMPANY. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, four (4) signed copies
of the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the Registration
Statement (without exhibits thereto) and to furnish to you in New York
City, without charge, prior to 5:00 P.M. local time on the business day
next succeeding the date of this Agreement and during the period
mentioned in paragraph (c) below, as many copies of the Prospectus and
any supplements and amendments thereto or to the Registration Statement
as you may reasonably request.
(b) Before amending or supplementing the Registration
Statement or the Prospectus, to furnish to you a copy of each such
proposed amendment or supplement and not to file any such proposed
amendment or supplement to which you reasonably object, and to file
with the Commission within the applicable period specified in Rule
424(b) under the Securities Act any prospectus required to be filed
pursuant to such Rule.
(c) If, during such period after the first date of the public
offering of the Shares as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist as a result of which it is necessary to amend
or supplement the Prospectus in order to make the statements therein,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to
the dealers (whose names and addresses you will furnish to the Company)
to which Shares may have been sold by you on behalf of the Underwriters
and to any other dealers upon request, either amendments or supplements
to the Prospectus so that the statements in the Prospectus as so
amended or supplemented will not, in the light of the circumstances
when the Prospectus is delivered to a purchaser, be misleading or so
that the Prospectus, as amended or supplemented, will comply with law.
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(d) To endeavor to qualify the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request.
(e) To make generally available to the Company's security
holders and to you as soon as practicable an earnings statement
covering the twelve-month period ending March 30, 1999 that satisfies
the provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
(f) To pay or cause to be paid all expenses incident to the
performance of its obligations under this Agreement, including: (i) the
fees, disbursements and expenses of the Company's counsel and the
Company's accountants in connection with the registration and delivery
of the Shares under the Securities Act and all other fees or expenses
in connection with the preparation and filing of the Registration
Statement, any preliminary prospectus, the Prospectus and amendments
and supplements to any of the foregoing, including all printing costs
associated therewith, and the mailing and delivering of copies thereof
to the Underwriters and dealers, in the quantities hereinabove
specified, (ii) all costs and expenses related to the transfer and
delivery of the Shares to the Underwriters, including any transfer or
other taxes payable thereon, (iii) the cost of printing or producing
any Blue Sky memorandum in connection with the offer and sale of the
Shares under state securities laws, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in
connection with the Blue Sky memorandum, (iv) all filing fees and
reasonable disbursements of counsel to the Underwriters incurred in
connection with the review and qualification of the offering of the
Shares by the National Association of Securities Dealers, Inc., (v) all
costs and expenses incident to listing the Shares on the Nasdaq
National Market, (vi) the cost of printing certificates representing
the Shares, (vii) the costs and charges of any transfer agent,
registrar or depositary, (viii) the costs and expenses of the Company
relating to investor presentations on any "road show" undertaken in
connection with the marketing of the offering of the Shares, including,
without limitation, expenses associated with the production of road
show slides and graphics, fees and expenses of any consultants engaged
in connection with the road show presentations with the prior approval
of the Company, travel and lodging expenses of the representatives and
officers of the Company and any such consultants and, if approved by
the Company, the cost of any aircraft chartered in connection with the
road show, (ix) any expenses of Selling Stockholders under Section 8
below and (x) all other costs and expenses incident to the performance
of the obligations of the Company hereunder for which provision is not
otherwise made in this Section. It is understood, however, that except
as provided in this Section, Section 9 entitled "Indemnity and
Contribution", and the last paragraph of Section 11 below, the
Underwriters will pay all of their costs and expenses, including fees
and disbursements of their counsel, stock transfer taxes payable on
resale of any of the Shares by them, and any advertising expenses
connected with any offers they may make.
(g) To not release any shares of Common Stock from any
restrictions imposed upon such shares by the Lock-Up Agreements without
the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇.
8. EXPENSES OF SELLING STOCKHOLDERS. The Underwriters shall
not be liable for any expenses of any Selling Stockholders in connection with
the sale of their Shares in the offering. As between the Company and the Selling
Stockholders, Selling Stockholder expenses will be paid by the Selling
Stockholders and/or the Company subject to the terms set forth in that certain
Registration Rights Agreement, dated as of October 30, 1992, as amended February
27, 1997, by and among the Company and the various signing stockholders thereto,
which include the Selling Stockholders. To the extent not set forth or provided
for therein, as between the Underwriters on the one hand, and the Company on the
other, all Selling Stockholder expenses shall be borne by the Company.
9. INDEMNITY AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter
within the meaning of either Section 15 of the Securities Act or
Section 20 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), from and against
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any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim)
caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) or caused by any omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar
as such losses, claims, damages or liabilities are caused by any such
untrue statement or omission or alleged untrue statement or omission
based upon information relating to any Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use
therein; provided, however, that the foregoing indemnity agreement with
respect to any preliminary prospectus shall not inure to the benefit of
any Underwriter, or any person controlling such Underwriter, from whom
the person asserting any such losses, claims, damages or liabilities
purchased Shares, if a copy of the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person, if required by law so to have been
delivered, at or prior to the written confirmation of the sale of the
Shares to such person, and if the Prospectus (as so amended or
supplemented) would have cured the defect giving rise to such loss,
claim, damage or liability.
(b) Each Selling Stockholder agrees, severally and not
jointly, to indemnify and hold harmless each Underwriter, the Company,
its directors, its officers who sign the Registration Statement and
each person, if any, who controls any Underwriter or the Company within
the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages
and liabilities (including, without limitation, any legal or other
expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto), or caused
by any 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 only with reference to information relating
to such Selling Stockholder furnished in writing by or on behalf of
such Selling Stockholder expressly for use in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendments
or supplements thereto; provided, however, that the foregoing indemnity
agreement with respect to any preliminary prospectus shall not inure to
the benefit of any Underwriter, or any person controlling such
Underwriter, from whom the person asserting any such losses, claims,
damages or liabilities purchased Shares, if a copy of the Prospectus
(as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) was not sent or given by or on
behalf of such Underwriter to such person, if required by law so to
have been delivered, at or prior to the written confirmation of the
sale of the Shares to such person, and if the Prospectus (as so amended
or supplemented) would have cured the defect giving rise to such loss,
claim, damage or liability.
(c) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, the Selling Stockholders, the
directors of the Company, the officers of the Company who sign the
Registration Statement and each person, if any, who controls the
Company or any Selling Stockholder within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages and liabilities (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim)
caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or any amendment
thereof, any preliminary prospectus or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto), or caused by any 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 only with
reference to information relating to such Underwriter furnished to the
Company in writing by or on behalf of such Underwriter through you
expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectus or any amendments or supplements thereto.
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(d) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to paragraph (a), (b) or (c) of
this Section 9, such person (the "indemnified party") shall promptly
notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon
request of the indemnified party, shall retain counsel reasonably
satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may reasonably designate in
such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any
indemnified party shall have the right to retain its own counsel, but
the fees and expenses of such counsel shall be at the expense of such
indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them. It is understood that the indemnifying party shall not, in
respect of the legal expenses of any indemnified party in connection
with any proceeding or related proceedings in the same jurisdiction, be
liable for the fees and expenses of more than one separate firm (in
addition to any local counsel) for (i) all Underwriters and all
persons, if any, who control any Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange
Act, (ii) the Company, its directors, its officers who sign the
Registration Statement and each person, if any, who controls the
Company within the meaning of either such Section and (iii) all Selling
Stockholders and all persons, if any, who control any Selling
Stockholder within the meaning of either such Section, and that all
such fees and expenses shall be reimbursed as they are incurred. In the
case of any such separate firm for the Underwriters and such control
persons of the Underwriters, such firm shall be designated in writing
by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇. In the case of any such separate firm for the
Company, and such directors, officers and control persons of the
Company, such firm shall be designated in writing by the Company. In
the case of any such separate firm for the Selling Stockholders and
such controlling persons of the Selling Stockholders, such firm shall
be designated in writing by the persons named as attorneys-in-fact for
the Selling Stockholders under the Powers of Attorney. The indemnifying
party shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party
agrees to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall have
requested an indemnifying party to reimburse the indemnified party for
fees and expenses of counsel as contemplated by the second and third
sentences of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into more than 30
days after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the date of
such settlement. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is
or could have been a party and indemnity could have been sought
hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on
claims that are the subject matter of such proceeding.
(e) To the extent the indemnification provided for in
paragraph (a), (b) or (c) of this Section 9 is unavailable to an
indemnified party or insufficient in respect of any losses, claims,
damages or liabilities referred to therein, then each indemnifying
party under such paragraph, in lieu of indemnifying such indemnified
party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the
relative benefits received by the indemnifying party or parties on the
one hand and the indemnified party or parties on the other hand from
the offering of the Shares or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the indemnifying party
or parties on the one hand and of the indemnified party or parties on
the other hand in connection with the statements or omissions that
resulted in such losses, claims, damages or liabilities, as well as any
other relevant equitable considerations. The relative benefits received
by the Company and the
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Selling Stockholders on the one hand and the Underwriters on the other
hand in connection with the offering of the Shares shall be deemed to
be in the same respective proportions as the net proceeds from the
offering of the Shares (before deducting expenses) received by each
Seller and the total underwriting discounts and commissions received by
the Underwriters, in each case as set forth in the table on the cover
of the Prospectus, bear to the aggregate Public Offering Price of the
Shares. The relative fault of each Seller 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
such Seller or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. The Underwriters' respective obligations to
contribute pursuant to this Section 9 are several in proportion to the
respective number of Shares they have purchased hereunder, and not
joint.
(f) The Sellers and the Underwriters agree that it would not
be just or equitable if contribution pursuant to this Section 9 were
determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in paragraph (e) of this Section 9. The amount paid or
payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any
such action or claim. Notwithstanding the provisions of this Section 9,
no Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the Shares underwritten by
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. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The remedies provided for in this Section
9 are not exclusive and shall not limit any rights or remedies which
may otherwise be available to any indemnified party at law or in
equity.
(g) The indemnity and contribution provisions contained in
this Section 9 and the representations, warranties and other statements
of the Company and the Selling Stockholders contained in this Agreement
shall remain operative and in full force and effect regardless of (i)
any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter,
any Selling Stockholder or any person controlling any Selling
Stockholder, or the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of
the Shares. The aggregate liability of each Selling Stockholder under
the indemnity and contribution agreements contained in this Section 9
and under the representations and warrants contained in paragraph (f)
of Section 2 hereof shall be limited to an amount equal to the net
proceeds received by such Selling Stockholder (before deducting
expenses) from the offering of the Shares sold by such Selling
Stockholder.
10. TERMINATION. This Agreement shall be subject to
termination by notice given by you to the Company, if (a) after the execution
and delivery of this Agreement and prior to the Closing Date (i) trading
generally shall have been suspended or materially limited on or by, as the case
may be, any of the New York Stock Exchange, the American Stock Exchange, the
National Association of Securities Dealers, Inc., the Chicago Board of Options
Exchange, the Chicago Mercantile Exchange or the Chicago Board of Trade, (ii)
trading of any securities of the Company shall have been suspended on any
exchange or in any over-the-counter market, (iii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in your judgment, is material and adverse and (b) in
the case of any of the events specified in clauses (a)(i) through (iv), such
event, singly or together with any other such event, makes it, in your judgment,
impracticable to market the Shares on the terms and in the manner contemplated
in the Prospectus.
11. EFFECTIVENESS: DEFAULTING UNDERWRITERS. This Agreement
shall become effective upon the execution and delivery hereof by the parties
hereto.
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If, on the Closing Date or the Option Closing Date, as the
case may be, any one or more of the Underwriters shall fail or refuse to
purchase Shares that it has or they have agreed to purchase hereunder on such
date, and the aggregate number of Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate number of the Shares to be purchased on such date, the other
Underwriters shall be obligated severally in the proportions that the number of
Firm Shares set forth opposite their respective names in Schedule II bears to
the aggregate number of Firm Shares set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as you may specify, to
purchase the Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase on such date; provided that in no event shall the
number of Shares that any Underwriter has agreed to purchase pursuant to this
Agreement be increased pursuant to this Section 11 by an amount in excess of
one-ninth of such number of Shares without the written consent of such
Underwriter. If, on the Closing Date, any Underwriter or Underwriters shall fail
or refuse to purchase Firm Shares and the aggregate number of Firm Shares with
respect to which such default occurs is more than one-tenth of the aggregate
number of Firm Shares to be purchased, and arrangements satisfactory to you, the
Company and the Selling Stockholders for the purchase of such Firm Shares are
not made within 36 hours after such default, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter, the Company or
the Selling Stockholders. In any such case either you or the relevant Sellers
shall have the right to postpone the Closing Date, but in no event for longer
than seven days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements may be
effected. If, on the Option Closing Date, any Underwriter or Underwriters shall
fail or refuse to purchase Additional Shares and the aggregate number of
Additional Shares with respect to which such default occurs is more than
one-tenth of the aggregate number of Additional Shares to be purchased, the
non-defaulting Underwriters shall have the option to (i) terminate their
obligation hereunder to purchase Additional Shares or (ii) purchase not less
than the number of Additional Shares that such non-defaulting Underwriters would
have been obligated to purchase in the absence of such default. Any action taken
under this paragraph shall not relieve any defaulting Underwriter from liability
in respect of any default of such Underwriter under this Agreement.
If this Agreement shall be terminated by the Underwriters, or
any of them, because of any failure or refusal on the part of any Seller to
comply with the terms or to fulfill any of the conditions placed upon it in this
Agreement, or if for any reason any Seller shall be unable to perform its
obligations under this Agreement that are within its control, the Sellers will
reimburse the Underwriters or such Underwriters as have so terminated this
Agreement with respect to themselves, severally, for all out-of-pocket expenses
(including the fees and disbursements of their counsel) reasonably incurred by
such Underwriters in connection with this Agreement or the offering contemplated
hereunder.
12. COUNTERPARTS. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
13. APPLICABLE LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
14. HEADINGS. The headings of the sections of this Agreement
have been inserted for convenience of reference only and shall not be deemed a
part of this Agreement.
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Very truly yours,
OCULAR SCIENCES, INC.
By:
---------------------------------------
Name:
Title:
THE SELLING STOCKHOLDERS NAMED IN
SCHEDULE I HERETO, ACTING SEVERALLY
By:
---------------------------------------
Attorney-in-Fact
Accepted as of the date hereof:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
BT ALEX. ▇▇▇▇▇ INCORPORATED
▇▇▇▇▇ & COMPANY
Acting severally on behalf of themselves
and the several Underwriters
named in Schedule II hereto.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By:
-----------------------------------
20
SCHEDULE I
Number of Number of
Firm Shares Additional Shares
Selling Stockholder To Be Sold To Be Sold
------------------- ---------- ----------
Total:
S-1
21
SCHEDULE II
Number of
Firm Shares
Underwriter To Be Purchased
----------- ---------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
BT Alex. ▇▇▇▇▇ Incorporated
▇▇▇▇▇ & Company
Total:
S-2
