3,000,000 Shares
ROFIN-SINAR TECHNOLOGIES INC.
COMMON STOCK
($0.01 Par Value)
UNDERWRITING AGREEMENT
________, 2004
UNDERWRITING AGREEMENT
_______, 2004
UBS Securities LLC
as Representative of the several underwriters named
in Schedule A hereto
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Rofin-Sinar Technologies Inc., a Delaware corporation (the "COMPANY"),
proposes to issue and sell to the underwriters named in Schedule A annexed
hereto (the "UNDERWRITERS"), for whom you are acting as representative, an
aggregate of 3,000,000 shares (the "FIRM SHARES") of Common Stock, $0.01 par
value (the "COMMON STOCK"), of the Company. In addition, solely for the purpose
of covering over-allotments, the Company proposes to grant to the Underwriters
the option to purchase from the Company up to an additional 450,000 shares of
Common Stock (the "ADDITIONAL SHARES"). The Firm Shares and the Additional
Shares are hereinafter collectively sometimes referred to as the "SHARES." The
Shares are described in the Prospectus which is referred to below.
The Company has filed, in accordance with the provisions of the Securities
Act of 1933, as amended, and the rules and regulations thereunder (collectively,
the "ACT"), with the Securities and Exchange Commission (the "COMMISSION") a
registration statement on Form S-3 (File No. 333-_______) including a
prospectus, relating to the Shares, which incorporates by reference documents
which the Company has filed or will file in accordance with the provisions of
the Securities Exchange Act of 1934, as amended, and the rules and regulations
thereunder (collectively, the "EXCHANGE ACT"). The Company has furnished to you,
for use by the Underwriters and by dealers, copies of one or more preliminary
prospectuses and the documents incorporated by reference therein (each such
preliminary prospectus, including the documents incorporated therein by
reference, being herein called a "PRELIMINARY PROSPECTUS") relating to the
Shares. Except where the context otherwise requires, the registration statement,
as amended when it became or becomes effective, including all documents filed as
a part thereof or incorporated by reference therein, and including any
information contained in a prospectus subsequently filed with the Commission
pursuant to Rule 424(b) under the Act and deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430(A) under the Act and
also including any registration statement filed pursuant to Rule 462(b) under
the Act, is herein called the "REGISTRATION STATEMENT," and the prospectus,
including all documents incorporated therein by reference, in the form filed by
the Company with the Commission pursuant to Rule 424(b) under the Act on or
before the second business day after the date hereof (or such earlier time as
may be required under the Act) or, if no such filing is required, the form of
final prospectus included in the Registration Statement at the time
it became effective, is herein called the "PROSPECTUS." As used herein,
"BUSINESS DAY" shall mean a day on which the New York Stock Exchange is open for
trading.
The Company and the Underwriters agree as follows:
1. SALE AND PURCHASE. Upon the basis of the representations and warranties
and subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to the respective Underwriters and each of the Underwriters,
severally and not jointly, agrees to purchase from the Company the number of
Firm Shares set forth opposite the name of such Underwriter in Schedule A
attached hereto, subject to adjustment in accordance with Section 8 hereof, in
each case at a purchase price of $____ per Share. The Company is advised by you
that the Underwriters intend (i) to make a public offering of their respective
portions of the Firm Shares as soon after the effective date of the Registration
Statement as in your judgment is advisable and (ii) initially to offer the Firm
Shares upon the terms set forth in the Prospectus. You may from time to time
increase or decrease the public offering price after the initial public offering
to such extent as you may determine.
In addition, the Company hereby grants to the several Underwriters the
option to purchase, and upon the basis of the representations and warranties and
subject to the terms and conditions herein set forth, the Underwriters shall
have the right to purchase, severally and not jointly, from the Company, ratably
in accordance with the number of Firm Shares to be purchased by each of them,
all or a portion of the Additional Shares as may be necessary to cover
over-allotments made in connection with the offering of the Firm Shares, at the
same purchase price per share to be paid by the Underwriters to the Company for
the Firm Shares. This option may be exercised by UBS Securities LLC ("UBS
SECURITIES") on behalf of the several Underwriters at any time and from time to
time on or before the thirtieth day following the date of the Prospectus, by
written notice to the Company. Such notice shall set forth the aggregate number
of Additional Shares as to which the option is being exercised, and the date and
time when the Additional Shares are to be delivered (such date and time being
herein referred to as the "ADDITIONAL TIME OF PURCHASE"); PROVIDED, HOWEVER,
that the additional time of purchase shall not be earlier than the time of
purchase (as defined below) nor earlier than the second business day after the
date on which the option shall have been exercised nor later than the tenth
business day after the date on which the option shall have been exercised. The
number of Additional Shares to be sold to each Underwriter shall be the number
which bears the same proportion to the aggregate number of Additional Shares
being purchased as the number of Firm Shares set forth opposite the name of such
Underwriter on Schedule A hereto bears to the total number of Firm Shares
(subject, in each case, to such adjustment as you may determine to eliminate
fractional shares), subject to adjustment in accordance with Section 8 hereof.
2. PAYMENT AND DELIVERY. Payment of the purchase price for the Firm Shares
shall be made to the Company by Federal Funds wire transfer, against delivery of
Firm Shares to you through the facilities of The Depository Trust Company
("DTC") for the respective accounts of the Underwriters. Such payment and
delivery shall be made at 10:00 A.M., New York City time, on ______, 2004
(unless another time shall be agreed to by you and the Company or unless
postponed in accordance with the provisions of Section 8 hereof). The time at
which such payment and delivery are to be made is hereinafter sometimes called
"THE TIME OF PURCHASE." Electronic transfer of the
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Firm Shares shall be made to you at the time of purchase in such names and in
such denominations as you shall specify.
Payment of the purchase price for the Additional Shares shall be made at
the additional time of purchase in the same manner and at the same office as the
payment for the Firm Shares. Electronic transfer of the Additional Shares shall
be made to you at the additional time of purchase in such names and in such
denominations as you shall specify.
Deliveries of the documents described in Section 6 hereof with respect to
the purchase of the Shares shall be made at the offices of Xxxxx Xxxx &
Xxxxxxxx, 000 Xxxxxxxxx Xxx., Xxx Xxxx, XX 00000, at 9:00 A.M., New York City
time, on the date of the closing of the purchase of the Firm Shares or the
Additional Shares, as the case may be.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has been declared effective under the
Act; no stop order of the Commission preventing or suspending the use of
any Preliminary Prospectus or the effectiveness of the Registration
Statement has been issued and no proceedings for such purpose have been
instituted or, to the best of the Company's knowledge, after due inquiry,
are contemplated by the Commission; each Preliminary Prospectus, at the
time of filing thereof, complied in all material respects to the
requirements of the Act and the last Preliminary Prospectus distributed in
connection with the offering of the Shares (the "PRELIMINARY FINAL
PROSPECTUS") did not, as of its date, and does not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading; the
Registration Statement complied when it became effective, complies and will
comply, at the time of purchase and any additional time of purchase, in all
material respects with the requirements of the Act and the Prospectus will
comply, as of its date and at the time of purchase and any additional times
of purchase, in all material respects with the requirements of the Act and
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 have been and will be so
described or filed; the conditions to the use of Form S-3 have been
satisfied; the Registration Statement did not when it became effective,
does not and will not, at the time of purchase and any additional time of
purchase, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading and the Prospectus will not, as of its
date and at the time of purchase and any additional time of purchase,
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; PROVIDED, HOWEVER, that the Company makes no warranty or
representation with respect to any statement contained in or omitted from
the Preliminary Final Prospectus, the Registration Statement or the
Prospectus in reliance upon and in conformity with information furnished in
writing by or on behalf of
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such Underwriter through you to the Company expressly for use in the
Preliminary Final Prospectus, the Registration Statement or the Prospectus;
the documents incorporated by reference in the Preliminary Prospectus, the
Registration Statement and the Prospectus, at the time they became
effective or were filed with the Commission, complied in all material
respects with the requirements of the Exchange Act and did not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading;
and the Company has not distributed and will not distribute any offering
material in connection with the offering or sale of the Shares other than
the Registration Statement, the Preliminary Final Prospectus and the
Prospectus;
(b) as of the date of this Agreement, the Company has an authorized
and outstanding capitalization as set forth in the section of the
Registration Statement and the Prospectus in the column entitled "Actual"
under the caption "Capitalization" (subject to the issuance of shares of
Common Stock upon exercise of stock options and rights disclosed as
outstanding in the Registration Statement and the Prospectus and grant of
options under existing stock option and employee stock purchase plans
described in the Registration Statement and the Prospectus); all of the
issued and outstanding shares of capital stock, including the Common Stock,
of the Company have been duly authorized and validly issued and are fully
paid and non-assessable, have been issued in compliance with all federal
and state securities laws and were not issued in violation of any
preemptive right, resale right, right of first refusal or similar right;
(c) the Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
full corporate power and authority to own, lease and operate its properties
and conduct its business as described in the Registration Statement and the
Prospectus, to execute and deliver this Agreement and to issue, sell and
deliver the Shares as contemplated herein;
(d) the Company is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where the
ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to be so qualified
and in good standing would not, individually or in the aggregate, have a
material adverse effect on the business, properties, financial condition,
results of operation or prospects of the Company and the Subsidiaries (as
hereinafter defined) taken as a whole (a "MATERIAL ADVERSE EFFECT");
(e) the Company has no subsidiaries (as defined in the Act) other than
those listed on Schedule B hereto (collectively, the "SUBSIDIARIES"); the
Company owns all of the issued and outstanding capital stock of each of the
Subsidiaries, except as noted on Schedule B hereto; other than the capital
stock of the Subsidiaries, the Company does not own, directly or
indirectly, any shares of stock or any other equity or long-term debt
securities of any corporation or have any equity interest in any firm,
partnership, joint venture, association or other entity; complete and
correct copies of the certificates of incorporation and the by-laws
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of the Company and the Subsidiaries and all amendments thereto have been
made available or delivered to you, and except as set forth in the exhibits
to the Registration Statement no changes therein are contemplated to be
made subsequent to the date hereof and prior to the time of purchase or, if
later, the additional time of purchase; each Subsidiary has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, with full
corporate power and authority to own, lease and operate its properties and
to conduct its business as described in the Registration Statement and the
Prospectus; each Subsidiary is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where the
ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to be so qualified
and in good standing would not, individually or in the aggregate, have a
Material Adverse Effect; all of the outstanding shares of capital stock of
each of the Subsidiaries have been duly authorized and validly issued, are
fully paid and non-assessable subject to no security interest, other
encumbrance or adverse claims; and no options, warrants or other rights to
purchase, agreements or other obligations to issue or other rights to
convert any obligation into shares of capital stock or ownership interests
in the Subsidiaries are outstanding;
(f) the Company has no Subsidiary that is a significant subsidiary (as
such term is defined in Rule 1-02(w) of Regulation S-X, as promulgated by
the Commission other than[list of each significant subsidiary] (each, a
"SIGNIFICANT SUBSIDIARY").
(g) the Shares have been duly and validly authorized and, when issued
and delivered against payment therefor as provided herein, will be validly
issued, fully paid and non-assessable and free of statutory and contractual
preemptive rights, resale rights, rights of first refusal and similar
rights;
(h) the capital stock of the Company, including the Shares, conforms
in all material respects to the description thereof contained in the
Registration Statement and the Prospectus and the certificates for the
Shares are in due and proper form and the holders of the Shares will not be
subject to personal liability by reason of being such holders;
(i) this Agreement has been duly authorized, executed and delivered by
the Company;
(j) neither the Company nor any of the Subsidiaries is in default
under any indenture, mortgage, deed of trust, bank loan or credit agreement
or other evidence of indebtedness, or any license, lease, contract or other
agreement or instrument to which the Company or any of the Subsidiaries is
a party or by which any of them or any of their properties may be bound or
affected, except for such defaults that would not have a Material Adverse
Effect or result in a violation of its respective charter or by-laws; and
the execution, delivery and performance of this Agreement, the issuance and
sale of the Shares and the consummation of the transactions contemplated
hereby will not conflict with, result in any breach or constitute a default
under (nor constitute any event which with notice, lapse of time
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or both would result in any breach of or constitute a default under or give
the holder of any indebtedness (or a person acting on such person's behalf)
the right to require the repurchase, redemption or repayment of all or a
part of such indebtedness under) any indenture, mortgage, deed of trust,
bank loan or credit agreement or other evidence of indebtedness, or any
license, lease, contract or other agreement or instrument to which the
Company or any of the Subsidiaries is a party or by which any of them or
any of their respective properties may be bound or affected, nor will such
action result in a violation of the provisions of the charter or by-laws of
the Company or any of the Subsidiaries, or any applicable federal, state,
local or foreign law, regulation or rule or any decree, judgment or order
of any government, government instrumentality or court having jurisdiction
over the Company or any of the Subsidiaries;
(k) no approval, authorization, consent or order of or filing with any
federal, state, local or foreign governmental or regulatory commission,
board, body, authority or agency is required in connection with the
issuance and sale of the Shares or the consummation by the Company of the
transactions contemplated hereby other than registration of the Shares
under the Act, which has been or will be effected, and any necessary
qualification under the securities or blue sky laws of the various
jurisdictions in which the Shares are being offered by the Underwriters or
under the rules and regulations of the National Association of Securities
Dealers (the "NASD");
(l) except as set forth in the Registration Statement and the
Prospectus, (i) no person has the right, contractual or otherwise, to cause
the Company to issue or sell to it any shares of Common Stock or shares of
any other capital stock or other equity interests of the Company, (ii) no
person has any preemptive rights, resale rights, rights of first refusal or
other rights to purchase any shares of Common Stock or shares of any other
capital stock or other equity interests of the Company, and (iii) no person
has the right to act as an underwriter or as a financial advisor to the
Company in connection with the offer and sale of the Shares, in the case of
each of the foregoing clauses (i), (ii) and (iii), whether as a result of
the filing or effectiveness of the Registration Statement or the sale of
the Shares as contemplated thereby or otherwise; no person has the right,
contractual or otherwise, to cause the Company to register under the Act
any shares of Common Stock or shares of any other capital stock or other
equity interests of the Company, or to include any such shares or interests
in the Registration Statement or the offering contemplated thereby, whether
as a result of the filing or effectiveness of the Registration Statement or
the sale of the Shares as contemplated thereby or otherwise;
(m) each of the Company and the Subsidiaries has all necessary
licenses, authorizations, consents and approvals and has made all necessary
filings required under any federal, state, local or foreign law, regulation
or rule, and has obtained all necessary authorizations, consents and
approvals from other persons, in order to conduct its respective business;
neither the Company nor any of the Subsidiaries is in violation of, or in
default under, or has received notice of any proceedings relating to
revocation or modification of, any such license, authorization, consent or
approval or any federal, state, local or foreign law,
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regulation or rule or any decree, order or judgment applicable to the
Company or any of the Subsidiaries, except where such violation, default,
revocation or modification would not, individually or in the aggregate,
have a Material Adverse Effect;
(n) all legal or governmental proceedings, affiliate transactions,
off-balance sheet transactions, contracts, licenses, agreements, leases or
documents of a character required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement have been so described or filed as required;
(o) there are no actions, suits, claims, investigations or proceedings
pending or threatened or, to the best of the Company's knowledge
contemplated to which the Company or any of the Subsidiaries or any of
their respective directors or officers is or would be a party or of which
any of their respective properties is or would be subject at law or in
equity, before or by any federal, state, local or foreign governmental or
regulatory commission, board, body, authority or agency (including the
Center for Devices and Radiological Health of the U.S. Food and Drug
Administration), except any such action, suit, claim, investigation or
proceeding which would not result in a judgment, decree or order having,
individually or in the aggregate, a Material Adverse Effect or preventing
consummation of the transactions contemplated hereby;
(p) KPMG LLP, whose report on the consolidated financial statements of
the Company and the Subsidiaries is filed with the Commission as part of
the Registration Statement and the Prospectus, are independent public
accountants as required by the Act;
(q) the audited financial statements included in the Registration
Statement and the Prospectus, together with the related notes and
schedules, present fairly the consolidated financial position of the
Company and the Subsidiaries as of the dates indicated and the consolidated
results of operations and cash flows of the Company and the Subsidiaries
for the periods specified and have been prepared in compliance with the
requirements of the Act and in conformity with generally accepted
accounting principles applied on a consistent basis during the periods
involved; and the Company and the Subsidiaries do not have any material
liabilities or obligations, direct or contingent (including any off-balance
sheet obligations), not disclosed in the Registration Statement and the
Prospectus;
(r) subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not been
(i) any material adverse change, or any development involving a prospective
material adverse change, in the business, properties, management, financial
condition or results of operations of the Company and the Subsidiaries
taken as a whole, (ii) any transaction which is material to the Company and
the Subsidiaries taken as a whole, (iii) any obligation, direct or
contingent (including any off-balance sheet obligations), incurred by the
Company or the Subsidiaries, which is material to the Company and the
Subsidiaries taken as a whole, (iv) any material change in the capital
stock or outstanding indebtedness of the Company or the Subsidiaries or (v)
any dividend or distribution of any kind declared, paid or made on the
capital stock of the Company;
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(s) the Company has obtained for the benefit of the Underwriters the
agreement (a "LOCK-UP AGREEMENT"), in the form set forth as EXHIBIT A
hereto, of each of its directors and officers;
(t) the Company is not required and, after giving effect to the
offering and sale of the Shares, will not be required to register as an
investment company under the Investment Company Act of 1940, as amended
(the "INVESTMENT COMPANY ACT");
(u) the Company and each of the Subsidiaries has good and marketable
title to all real property described the Registration Statement and in the
Prospectus as being owned by each of them, free and clear of all liens,
claims, security interests or other encumbrances, except such as do not,
singly or in the aggregate, materially affect the value of such property to
the Company or any of the Subsidiaries; all the property described in the
Registration Statement and the Prospectus as being held under lease by the
Company or a Subsidiary is held thereby under valid, subsisting and
enforceable leases;
(v) the Company and the Subsidiaries own, or have obtained valid and
enforceable licenses for, or other rights to use, the inventions, patent
applications, patents, trademarks (both registered and unregistered),
tradenames, copyrights, trade secrets and other proprietary information
described in the Registration Statement and the Prospectus as being owned
or licensed by them or which are necessary for the conduct of their
respective businesses except where the failure to own, license or have such
rights would not, individually or in the aggregate, have a Material Adverse
Effect (collectively, "COMPANY INTELLECTUAL PROPERTY"); except as described
in the Registration Statement and the Prospectus, (i) there are no third
parties who have established or, to the best of the Company's knowledge,
after due inquiry, will be able to establish rights to any Company
Intellectual Property, except for the ownership rights of the owners of the
Company Intellectual Property which is licensed to the Company; (ii) to the
best of the Company's knowledge, after due inquiry, there is no
infringement by third parties of any Company Intellectual Property which,
singly or in the aggregate would have a Material Adverse Effect; (iii)
there is no pending or, to the best of the Company's knowledge, after due
inquiry, threatened action, suit, proceeding or claim by others challenging
the Company's rights in or to any Company Intellectual Property, which
would reasonably be expected to render any rights of the Company in or to
such Intellectual Property invalid or inadequate to protect the interest of
the Company or any of the Subsidiaries, and which challenge (if the subject
of any unfavorable decision, ruling or finding), singly or in the aggregate
would have a Material Adverse Effect, and the Company is unaware of any
facts which could form a reasonable basis for any such claim; (iv) there is
no pending or, to the best of the Company's knowledge, after due inquiry,
threatened action, suit, proceeding or claim by others challenging the
validity or scope of any Company Intellectual Property which would
reasonably be expected to render any rights of the Company in or to such
Intellectual Property invalid or inadequate to protect the interest of the
Company or any of the Subsidiaries, and which challenge (if the subject of
any unfavorable decision, ruling or finding), singly or in the aggregate
would have a Material Adverse Effect, and the Company is unaware of any
facts which could form a reasonable basis for any such
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claim; (v) there is no pending or, to the best of the Company's knowledge,
after due inquiry, threatened action, suit, proceeding or claim by others
that the Company infringes or otherwise violates any patent, trademark,
copyright, trade secret or other proprietary rights of others which would
reasonably be expected to render any rights of the Company in or to such
Intellectual Property invalid or inadequate to protect the interest of the
Company or any of the Subsidiaries, and which claim (if the subject of any
unfavorable decision, ruling or finding), singly or in the aggregate would
have a Material Adverse Effect, and the Company is unaware of any facts
which could form a reasonable basis for any such claim; (vi) to the best of
the Company's knowledge, after due inquiry, there is no patent that
contains claims that interfere with the issued or pending claims of any of
the Company Intellectual Property; and (vii) to the best of the Company's
knowledge, after due inquiry, there is no prior art that may render any
patent application owned by the Company of the Company Intellectual
Property unpatentable that has not been disclosed to the U.S. Patent and
Trademark Office;
(w) neither the Company nor any of the Subsidiaries is engaged in any
unfair labor practice; except for matters which would not, individually or
in the aggregate, have a Material Adverse Effect, (i) there is (A) no
unfair labor practice complaint pending or, to the best of the Company's
knowledge, after due inquiry, threatened against the Company or any of the
Subsidiaries before the National Labor Relations Board, and no grievance or
arbitration proceeding arising out of or under collective bargaining
agreements is pending or threatened, (B) no strike, labor dispute, slowdown
or stoppage pending or, to the best of the Company's knowledge, after due
inquiry, threatened against the Company or any of the Subsidiaries and (C)
no union representation dispute currently existing concerning the employees
of the Company or any of the Subsidiaries, which, in any case, would have a
Material Adverse Effect, and (ii) to the best of the Company's knowledge,
after due inquiry, (A) no union organizing activities are currently taking
place concerning the employees of the Company or any of the Subsidiaries
and (B) to the best of the Company's knowledge, after due inquiry, there
has been no violation of any federal, state, local or foreign law relating
to discrimination in the hiring, promotion or pay of employees, any
applicable wage or hour laws or any provision of the Employee Retirement
Income Security Act of 1974 ("ERISA") or the rules and regulations
promulgated thereunder concerning the employees of the Company or any of
the Subsidiaries;
(x) the Company and the Subsidiaries and their properties, assets and
operations are in compliance with, and hold all permits, authorizations and
approvals required under, Environmental Laws (as defined below), except to
the extent that failure to so comply or to hold such permits,
authorizations or approvals would not, individually or in the aggregate,
have a Material Adverse Effect; there are no past, present or, to the best
of the Company's knowledge, after due inquiry, reasonably anticipated
future events, conditions, circumstances, activities, practices, actions,
omissions or plans that could reasonably be expected to give rise to any
material costs or liabilities to the Company or the Subsidiaries under, or
to interfere with or prevent compliance by the Company or the Subsidiaries
with, Environmental Laws; except as would not, individually or in the
aggregate, have a Material Adverse Effect, neither the Company nor any of
the Subsidiaries (i) is the subject of any investigation, (ii) has
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received any notice or claim, (iii) is a party to or affected by any
pending or, to the best of the Company's knowledge, after due inquiry,
threatened action, suit or proceeding, (iv) is bound by any judgment,
decree or order or (v) has entered into any agreement, in each case
relating to any alleged violation of any Environmental Law or any actual or
alleged release or threatened release or cleanup at any location of any
Hazardous Materials (as defined below) (as used herein, "ENVIRONMENTAL LAW"
means any federal, state, local or foreign law, statute, ordinance, rule,
regulation, order, decree, judgment, injunction, permit, license,
authorization or other binding requirement, or common law, relating to
health, safety or the protection, cleanup or restoration of the environment
or natural resources, including those relating to the distribution,
processing, generation, treatment, storage, disposal, transportation, other
handling or release or threatened release of Hazardous Materials, and
"HAZARDOUS MATERIALS" means any material (including, without limitation,
pollutants, contaminants, hazardous or toxic substances or wastes) that is
regulated by or may give rise to liability under any Environmental Law);
(y) in the ordinary course of its business, the Company and each of
the Subsidiaries conducts, from time to time, reviews of the effect of the
Environmental Laws on its business, operations and properties, in the
course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for cleanup, closure of properties or compliance with
the Environmental Laws or any permit, license or approval, any related
constraints on operating activities and any potential liabilities to third
parties);
(z) all tax returns required to be filed by the Company and each of
the Subsidiaries have been filed, and all taxes and other assessments of a
similar nature (whether imposed directly or through withholding) including
any interest, additions to tax or penalties applicable thereto due or
claimed to be due from such entities have, to the extent such taxes or
assessments have become due and payable, been paid, other than those being
contested in good faith and for which adequate reserves have been provided;
(aa) the Company and each of the Subsidiaries maintains insurance
covering its properties, operations, personnel and businesses as the
Company deems adequate; such insurance insures against such losses and
risks to an extent which is adequate in accordance with customary industry
practice to protect the Company and the Subsidiaries and their businesses;
all such insurance is fully in force on the date hereof;
(bb) neither the Company nor any of the Subsidiaries has sustained
since the date of the last audited financial statements included in the
Registration Statement and the Prospectus any material loss or interference
with its respective business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree;
(cc) except as disclosed in the Registration Statement and the
Prospectus, the Company has not sent or received any communication
regarding termination of, or intent not
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to renew, any of the contracts or agreements referred to or described in,
or filed as an exhibit to, the Registration Statement, and no such
termination or non-renewal has been threatened by the Company or, to the
best of Company's knowledge, after due inquiry, any other party to any such
contract or agreement;
(dd) the Company and each of the Subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets;
(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 existing assets at reasonable intervals and
appropriate action is taken with respect to any differences;
(ee) the Company has established and maintains disclosure controls and
procedures (as such term is defined in Rule 13a-14 and 15d-14 under the
Exchange Act); such disclosure controls and procedures are designed to
ensure that material information relating to the Company, including its
consolidated subsidiaries, is made known to the Company's Chief Executive
Officer and its Chief Financial Officer by others within those entities,
and such disclosure controls and procedures are effective to perform the
functions for which they were established; the Company's auditors and the
Audit Committee of the Board of Directors have been advised of: (i) any
significant deficiencies in the design or operation of internal controls
which could adversely affect the Company's ability to record, process,
summarize, and report financial data; and (ii) any fraud, whether or not
material, that involves management or other employees who have a role in
the Company's internal controls; any material weaknesses in internal
controls have been identified for the Company's auditors; and since the
date of the most recent evaluation of such disclosure controls and
procedures, there have been no significant changes in internal controls or
in other factors that could significantly affect internal controls,
including any corrective actions with regard to significant deficiencies
and material weaknesses;
(ff) since July 30, 2002, the Company has not, directly or indirectly,
including through any subsidiary: (i) extended credit, arranged to extend
credit, or renewed any extension of credit, in the form of a personal loan,
to or for any director or executive officer of the Company, or to or for
any family member or affiliate of any director or executive officer of the
Company; or (ii) made any material modification, including any renewal
thereof, to any term of any personal loan to any director or executive
officer of the Company, or any family member or affiliate of any director
or executive officer, which loan was outstanding on July 30, 2002;
(gg) any statistical and market-related data included in the
Registration Statement and the Prospectus are based on or derived from
sources that the Company believes to be reliable and accurate, and the
Company has obtained the written consent to the use of such data from such
sources to the extent required;
-11-
(hh) neither the Company nor any of the Subsidiaries nor, to the best
of the Company's knowledge, after due inquiry, any employee or agent of the
Company or the Subsidiaries has made any payment of funds of the Company or
the Subsidiaries or received or retained any funds in violation of any law,
rule or regulation, which payment, receipt or retention of funds is of a
character required to be disclosed in the Registration Statement or the
Prospectus;
(ii) neither the Company nor any of the Subsidiaries nor any of their
respective directors, officers, affiliates or controlling persons has
taken, directly or indirectly, any action designed, or which has
constituted or might reasonably be expected to cause or result in, under
the Exchange Act or otherwise, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of
the Shares;
(jj) to the best of the Company's knowledge, after due inquiry, there
are no affiliations or associations between any member of the NASD and any
of the Company's officers, directors or 5% or greater securityholders,
except as set forth in the Registration Statement and the Prospectus;
(kk) neither the Company nor any of its Subsidiaries has violated any
provision of the Foreign Corrupt Practices Act of 1977, as amended, or the
rules and regulations promulgated thereunder; and
(ll) there is no failure on the part of the Company or any of the
Company's directors or officers, in their capacities as such, to comply
with any applicable provision of the Xxxxxxxx-Xxxxx Act of 2002 and the
rules and regulations promulgated in connection therewith that are
effective.
In addition, any certificate signed by any officer of the Company or any of
the Subsidiaries and delivered to the Underwriters or counsel for the
Underwriters in connection with the offering of the Shares shall be deemed to be
a representation and warranty by the Company or Subsidiary, as the case may be,
as to matters covered thereby, to each Underwriter.
4. CERTAIN COVENANTS OF THE COMPANY. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to
cooperate in qualifying the Shares for offering and sale under the
securities or blue sky laws of such states or other jurisdictions as you
may designate and to maintain such qualifications in effect so long as you
may request for the distribution of the Shares; PROVIDED that the Company
shall not be required to qualify as a foreign corporation or to consent to
the service of process under the laws of any such jurisdiction (except
service of process with respect to the offering and sale of the Shares);
and to promptly advise you of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Shares for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose;
-12-
(b) to make available to the Underwriters in New York City, as soon as
practicable after the Registration Statement becomes effective, and
thereafter from time to time to furnish to the Underwriters, as many copies
of the Prospectus (or of the Prospectus as amended or supplemented if the
Company shall have made any amendments or supplements thereto after the
effective date of the Registration Statement) as the Underwriters may
reasonably request for the purposes contemplated by the Act; in case any
Underwriter is required to deliver a prospectus after the nine-month period
referred to in Section 10(a)(3) of the Act in connection with the sale of
the Shares, the Company will prepare, at its expense, promptly upon request
such amendment or amendments to the Registration Statement and the
Prospectus as may be necessary to permit compliance with the requirements
of Section 10(a)(3) of the Act;
(c) if, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or any post-effective amendment
thereto to be declared effective before the Shares maybe sold, the Company
will endeavor to cause the Registration Statement or such post-effective
amendment to become effective as soon as possible and the Company will
advise you promptly and, if requested by you, will confirm such advice in
writing, (i) when the Registration Statement and any such post-effective
amendment thereto has become effective, and (ii) if Rule 430A under the Act
is used, when the Prospectus is filed with the Commission pursuant to Rule
424(b) under the Act (which the Company agrees to file in a timely manner
under such Rule);
(d) to advise you promptly, confirming such advice in writing, of any
request by the Commission for amendments or supplements to the Registration
Statement or the Prospectus or for additional information with respect
thereto, or of notice of institution of proceedings for, or the entry of a
stop order, suspending the effectiveness of the Registration Statement and,
if the Commission should enter a stop order suspending the effectiveness of
the Registration Statement, to use its best efforts to obtain the lifting
or removal of such order as soon as possible; to advise you promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus, including by filing any documents that would be incorporated
therein by reference, and to provide you and Underwriters' counsel copies
of any such documents for review and comment a reasonable amount of time
prior to any proposed filing and to file no such amendment or supplement to
which you shall reasonably object in writing;
(e) subject to Section 4(d) hereof, to file promptly all reports and
any definitive proxy or information statement required to be filed by the
Company with the Commission in order to comply with the Exchange Act
subsequent to the date of the Prospectus and for so long as the delivery of
a prospectus is required in connection with the offering or sale of the
Shares; and to provide you with a copy of such reports and statements and
other documents to be filed by the Company pursuant to Section 13, 14 or
15(d) of the Exchange Act during such period in draft form a reasonable
amount of time prior to any proposed filing, and to promptly notify you of
such filing once made;
-13-
(f) if necessary or appropriate, to file a registration statement
pursuant to Rule 462(b) under the Act;
(g) to advise the Underwriters promptly of the happening of any event
within the time during which a prospectus relating to the Shares is
required to be delivered under the Act which could require the making of
any change in the Prospectus then being used so that the Prospectus would
not include an untrue statement of material fact or omit to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading, and, during such
time, subject to Section 4(d) hereof, to prepare and furnish, at the
Company's expense, to the Underwriters promptly such amendments or
supplements to such Prospectus as may be necessary to reflect any such
change;
(h) to make generally available to its security holders, and to
deliver to the Representatives, an earnings statement of the Company (which
will satisfy the provisions of Section 11(a) of the Act) covering a period
of twelve months beginning after the effective date of the Registration
Statement (as defined in Rule 158(c) under the Act) as soon as is
reasonably practicable after the termination of such twelve-month period
but not later than [__________], 2005;
(i) to furnish to its stockholders as soon as practicable after the
end of each fiscal year an annual report (including a consolidated balance
sheet and statements of income, stockholders' equity and cash flow of the
Company and the Subsidiaries for such fiscal year, accompanied by a copy of
the certificate or report thereon of nationally recognized independent
certified public accountants);
(j) to furnish to you four copies of the Registration Statement, as
initially filed with the Commission, and of all amendments thereto
(including all exhibits thereto and documents incorporated by reference
therein) and sufficient copies of the foregoing (other than exhibits) for
distribution of a copy to each of the other Underwriters;
(k) to furnish to you promptly and, upon request, to each of the other
Underwriters for a period of five years from the date of this Agreement (i)
copies of any reports, proxy statements, or other communications which the
Company shall send to its stockholders or shall from time to time publish
or publicly disseminate, (ii) copies of all annual, quarterly and current
reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such
other similar forms as may be designated by the Commission, (iii) copies of
documents or reports filed with any national securities exchange on which
any class of securities of the Company is listed, and (iv) such other
information as you may reasonably request regarding the Company or the
Subsidiaries; PROVIDED that any documents required to be furnished pursuant
to this paragraph shall be deemed furnished if filed by the Company with
the Commission via the Electronic Data Gathering, Analysis and Retrieval
System;
-14-
(l) to furnish to you as early as practicable prior to the time of
purchase and any additional time of purchase, as the case may be, but not
later than two business days prior thereto, a copy of the latest available
unaudited interim and monthly consolidated financial statements, if any, of
the Company and the Subsidiaries which have been read by the Company's
independent certified public accountants, as stated in their letter to be
furnished pursuant to Section 6(b) hereof;
(m) to apply the net proceeds from the sale of the Shares in the
manner set forth under the caption "Use of Proceeds" in the Prospectus;
(n) to pay all costs, expenses, fees and taxes in connection with (i)
the preparation and filing of the Registration Statement, each Preliminary
Prospectus, the Prospectus, and any amendments or supplements thereto, and
the printing and furnishing of copies of each thereof to the Underwriters
and to dealers (including costs of mailing and shipment), (ii) the
registration, issue, sale and delivery of the Shares including any stock or
transfer taxes and stamp or similar duties payable upon the sale, issuance
or delivery of the Shares to the Underwriters, (iii) the producing, word
processing and/or printing of this Agreement, any Agreement among
Underwriters, any dealer agreements, any Powers of Attorney and any closing
documents (including compilations thereof) and the reproduction and/or
printing and furnishing of copies of each thereof to the Underwriters and
(except closing documents) to dealers (including costs of mailing and
shipment), (iv) the qualification of the Shares for offering and sale under
state or foreign laws and the determination of their eligibility for
investment under state or foreign law as aforesaid (including the legal
fees and filing fees and other disbursements of counsel for the
Underwriters) and the printing and furnishing of copies of any blue sky
surveys or legal investment surveys to the Underwriters and to dealers, (v)
any listing of the Shares on any securities exchange or qualification of
the Shares for inclusion in the National Association of Securities Dealers
Automated Quotation National Market System ("NASDAQ") and any registration
thereof under the Exchange Act, (vi) any listing of the Shares on the
Geregelter Markt Segment of the Frankfurt Stock Exchange ("GEREGELTER
MARKT"), (vii) any filing for review of the public offering of the Shares
by the NASD, including the legal fees and filing fees and other
disbursements of counsel to the Underwriters, (viii) the fees and
disbursements of any transfer agent or registrar for the Shares, (ix) the
costs and expenses of the Company relating to presentations or meetings
undertaken in connection with the marketing of the offering and sale of the
Shares to prospective investors and the Underwriters' sales forces,
including, without limitation, expenses associated with the production of
road show slides and graphics, fees and expenses of any consultants engaged
in connection with the road show presentations, travel, lodging and other
expenses incurred by the officers of the Company and any such consultants,
and the portion of the cost of any aircraft chartered in connection with
the road show as separately agreed between the Company and the
Underwriters, and (x) the performance of the Company's other obligations
hereunder;
(o) not to sell, offer to sell, contract or agree to sell,
hypothecate, pledge, grant any option to purchase or otherwise dispose of
or agree to dispose of, directly or indirectly,
-15-
any Common Stock or securities convertible into or exchangeable or
exercisable for Common Stock or warrants or other rights to purchase Common
Stock or any other securities of the Company that are substantially similar
to Common Stock, or file or cause to be declared effective a registration
statement under the Act relating to the offer and sale of any shares of
Common Stock or securities convertible into or exercisable or exchangeable
for Common Stock or other rights to purchase Common Stock or any other
securities of the Company that are substantially similar to Common Stock
for a period of 90 days after the date hereof (the "LOCK-UP PERIOD"),
without the prior written consent of UBS Securities, except for (i) the
registration of the Shares and the sales to the Underwriters pursuant to
this Agreement, (ii) issuances of Common Stock upon the exercise of options
or rights disclosed as outstanding in the Registration Statement and the
Prospectus, and (iii) the issuance of employee stock options not
exercisable during the Lock Up Period pursuant to stock options plans
described in the Registration Statement and the Prospectus under existing
employee stock purchase plans; PROVIDED, HOWEVER, that if (i) during the
period that begins on the date that is 15 calendar days plus 3 --------
------- business days before the last day of the Lock Up Period and ends on
the last day of the Lock Up Period, the Company issues a earnings release
or material new or a material event relating to the Company occurs; or (ii)
prior to the expiration of the Lock-Up Period, the Company announces that
it will release earnings results during the 16-day period beginning on the
last day of the Lock-Up Period, the restrictions imposed by this letter
shall continue to apply until the expiration of the date that is 15
calendar days plus 3 business days (the "LOCK-UP CONTINUATION") after the
date on which the issuance of the earnings release or the material news or
material event occurs; PROVIDED FURTHER, HOWEVER, that this Lock-Up
Continuation -------- ------- ------- will not apply if the Company's
shares of Common Stock are, as of the date of delivery of such certificate,
"actively traded securities," as defined in Regulation M, 17 CFR
242.101(c)(1);
(p) to use its best efforts to cause the Common Stock to be approved
for inclusion in the NASDAQ and listed on Geregelter Markt, in each case
subject to official notice of issuance; and
(q) to maintain a transfer agent and, if necessary under the
jurisdiction of incorporation of the Company, a registrar for the Common
Stock.
5. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the Shares are not delivered
for any reason other than the termination of this Agreement pursuant to the
fifth paragraph of Section 8 hereof or the default by one or more of the
Underwriters in its or their respective obligations hereunder, the Company
shall, in addition to paying the amounts described in Section 4(n) hereof,
reimburse the Underwriters for all of their out-of-pocket expenses, including
the fees and disbursements of their counsel.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several obligations of the
Underwriters hereunder are subject to the accuracy of the representations and
warranties on the part of the Company on the date hereof, at the time of
purchase and, if applicable, at the additional time of
-16-
purchase, the performance by the Company of its obligations hereunder and to the
following additional conditions precedent:
(a) The Company shall furnish to you at the time of purchase and, if
applicable, at the additional time of purchase, an opinion of Shearman &
Sterling LLP, counsel for the Company, addressed to the Underwriters, and
dated the time of purchase or the additional time of purchase, as the case
may be, with reproduced copies for each of the other Underwriters and in
form and substance satisfactory to Xxxxx Xxxx & Xxxxxxxx, counsel for the
Underwriters, stating that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with full corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Registration Statement and the Prospectus, to execute and deliver this
Agreement and to issue, sell and deliver the Shares as contemplated
herein;
(ii) each of the Significant Subsidiaries organized in the United
States, Germany or the United Kingdom has been duly organized, is
validly existing as a corporation, and, with respect to each
Significant Subsidiary organized in the United States, is in good
standing, in each case under the laws of its jurisdiction of
incorporation, with full corporate power and authority to own, lease
and operate its properties and to conduct its business as described in
the Registration Statement and the Prospectus;
(iii) the Company and each of the Significant Subsidiaries
organized in the United States, Germany or the United Kingdom are duly
qualified to do business as a foreign corporation and are in good
standing in each jurisdiction where the ownership or leasing of their
properties or the conduct of their business requires such
qualification, except where the failure to be so qualified and in good
standing would not, individually or in the aggregate, have a Material
Adverse Effect;
(iv) this Agreement has been duly authorized, executed and
delivered by the Company;
(v) the Shares 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 are free of
statutory preemptive rights and, to such counsel's knowledge,
contractual preemptive rights, resale rights, or rights of first
refusal;
(vi) the Company has an authorized and, to such counsel's
knowledge, outstanding capitalization as set forth in the Registration
Statement and the Prospectus; all of the issued and outstanding shares
of capital stock of the Company have been duly authorized and validly
issued, are fully paid and non-assessable and are free of statutory
preemptive rights and, to such counsel's knowledge, contractual
preemptive rights, resale rights or rights of first refusal;
-17-
(vii) all of the outstanding shares of capital stock of each of
the Subsidiaries organized in the United States, Germany or the United
Kingdom have been duly authorized and validly issued, are fully paid
and non-assessable and, except as otherwise stated in the Registration
Statement and the Prospectus, are owned by the Company; and to such
counsel's knowledge, no options, warrants or other rights to purchase,
agreements or other obligations to issue or other rights to convert
any obligation into shares of capital stock or ownership interests in
the Subsidiaries are outstanding;
(viii) the capital stock of the Company, including the Shares,
conforms as to legal matters to the description thereof contained in
the Registration Statement and the Prospectus;
(ix) such counsel has been advised by a member of the staff of
the Commission that at or about _____, 2004 the Registration Statement
became effective under the Act and, to such counsel's knowledge, no
stop order proceedings with respect thereto are pending or threatened
under the Act and any required filing of the Prospectus and any
supplement thereto pursuant to Rule 424 under the Act has been made in
the manner and within the time period required by such Rule 424;
(x) to such Counsel's knowledge, no approval, authorization,
consent or order of or filing with any federal, state or local
governmental or regulatory commission, board, body, authority or
agency is required in connection with the issuance and sale of the
Shares and consummation by the Company of the transactions
contemplated hereby other than registration of the Shares under the
Act and except as have already been acquired or filed, as the case may
be (except such counsel need express no opinion as to any necessary
qualification under the state securities or blue sky laws of the
various jurisdictions in which the Shares are being offered by the
Underwriters);
(xi) the execution, delivery and performance of this Agreement by
the Company, the issuance and sale of the Shares by the Company in
accordance with the terms of this Agreement and the consummation by
the Company of the transactions contemplated hereby do not and will
not (a) result in a material violation of the charter or by-laws of
the Company or any Significant Subsidiary organized in the United
States, Germany or the United Kingdom, (b) conflict with or constitute
a breach of or default under (nor constitute any event which with
notice, lapse of time or both would result in any breach or violation
of or constitute a default under) any indenture, mortgage, deed of
trust, bank loan or credit agreement or other evidence of
indebtedness, or any document, agreement or instrument listed on Annex
I to this opinion, except for such breaches or defaults that would not
have a Material Adverse Effect, or (c) violate any federal law of the
United States, the law of the State of New York or the General
Corporation Law of the State of Delaware, in each case which
-18-
are customarily applicable to the types of transactions contemplated
by this Agreement;
(xii) to such counsel's knowledge, there are no affiliate
transactions, off balance sheet transactions, contracts, licenses,
agreements, leases or documents of a character which are required to
be described in the Registration Statement or the Prospectus or to be
filed as an exhibit to the Registration Statement which have not been
so described or filed;
(xiii) except as disclosed in the Registration Statement and
Prospectus, to such counsel's knowledge, there are no actions, suits,
claims, investigations or proceedings pending, threatened or
contemplated to which the Company or any of the Subsidiaries is or
would be a party or to which any of their respective properties is or
would be subject at law or in equity, before or by any federal, state,
local or foreign governmental or regulatory commission, board, body,
authority or agency which are required to be described in the
Registration Statement or the Prospectus but are not so described;
(xiv) to such counsel's knowledge and except (x) as disclosed in
the Registration Statement and Prospectus and (y) to the extent it
would not have, singly or in the aggregate, a Material Adverse Effect:
(A) the Company and the Subsidiaries own the patents described in the
Registration Statement and the Prospectus as being owned by them; (B)
there is no pending or threatened action, suit, proceeding or claim by
others challenging the Company's rights in or to any Company
Intellectual Property; (C) there is no pending or threatened action,
suit, proceeding or claim by others challenging the validity or scope
of any Company Intellectual Property; and (D) there is no pending or
threatened action, suit, proceeding or claim by others that the
Company infringes or otherwise violates any patent, trademark,
copyright, trade secret or other proprietary rights of others;
(xv) the Company is not required and, after giving effect to the
offering and sale of the Shares, will not be required to register as
an investment company under the Investment Company Act;
(xvi) statements in the Registration Statement and the Prospectus
under the headings "Business--Legal Proceedings," "Description of
Capital Stock," and "Risk Factors--Our charter documents, Delaware law
and our stockholder rights plan contain provisions that may inhibit
potential acquisition bids, which may adversely affect the market
price of our common stock, discourage merger offers or prevent changes
in our management," insofar as such statements constitute summaries of
legal matters therein, fairly summarize the matters referred to
therein; and
(xvii) no person has the right, pursuant to the terms of any
contract, agreement or other instrument described in or filed as an
exhibit to the Registration
-19-
Statement or otherwise known to such counsel, to cause the Company to
register under the Act any shares of Common Stock or shares of any
other capital stock or other equity interest of the Company, or to
include any such shares or interest in the Registration Statement or
the offering contemplated thereby, whether as a result of the filing
or effectiveness of the Registration Statement or the sale of the
Shares as contemplated thereby or otherwise.
In addition, such counsel shall state that such counsel has participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants of the Company and
representatives of the Underwriters at which the contents of the Registration
Statement and the Prospectus were discussed and, although such counsel is not
passing upon and does not assume responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statement or the
Prospectus (except as and to the extent stated in subparagraphs (vi), (viii) and
(xvi) above), on the basis of the foregoing (i) the Registration Statement, at
the time it became effective, and the Prospectus, as of its date, appeared on
their face to be appropriately responsive in all material respects to the
requirements of the Act, and the documents incorporated by reference in the
Registration Statement and the Prospectus, at the time they became effective or
were filed with the Commission, appeared on their face to be appropriately
responsive in all material respects to the requirements of the Exchange Act (it
being understood that such counsel need express no opinion with respect to the
financial statements and schedules and other financial data included in or
omitted from the Registration Statement or the Prospectus); and (ii) no facts
have come to the attention of such counsel that causes them to believe that (a)
the Registration Statement or any amendment thereto at the time such
Registration Statement or amendment became effective contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
(b) the Prospectus or any supplement thereto at the date of such Prospectus or
such supplement, and at the time of purchase or the additional time of purchase,
as the case may be, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading (it being understood that such counsel need express no opinion
with respect to the financial statements and schedules and other financial data
included in or omitted from the Registration Statement or the Prospectus).
(b) The Company shall furnish to you at the time of purchase and, if
applicable, at the additional time of purchase, an opinion of Xx. Xxxxxx
Xxxxxxx addressed to the Underwriters, and dated the time of purchase or
the additional time of purchase, as the case may be, with reproduced copies
for each of the other Underwriters and in form and substance satisfactory
to Xxxxx Xxxx & Xxxxxxxx, counsel for the Underwriters, stating that:
(i) to such counsel's knowledge and except (x) as disclosed in
the Registration Statement and Prospectus and (y) to the extent it
would not have, singly or in the aggregate, a Material Adverse Effect:
(A) the Company and the Subsidiaries
-20-
own, or have obtained valid and enforceable licenses for, or other
rights to use, the inventions, patent applications, patents,
trademarks, tradenames, copyrights, trade secrets and other
proprietary information described in the Registration Statement and
the Prospectus as being owned or licensed by them or which are
necessary for the conduct of their respective businesses; (B) there is
no material infringement by third parties of any Company Intellectual
Property; and (C) there is no patent that contains claims that
interfere with the Company Intellectual Property.
(c) You shall have received from KPMG LLP letters dated, respectively,
the date of this Agreement, the time of purchase and, if applicable, the
additional time of purchase, and addressed to the Underwriters (with
reproduced copies for each of the Underwriters) in the forms heretofore
approved by UBS Securities.
(d) You shall have received at the time of purchase and, if
applicable, at the additional time of purchase, the opinion of Xxxxx Xxxx &
Xxxxxxxx, counsel for the Underwriters, dated the time of purchase or the
additional time of purchase, with respect to such matters as may reasonably
be requested by the Underwriters.
(e) No Prospectus or amendment or supplement to the Registration
Statement or the Prospectus, including documents deemed to be incorporated
by reference therein, shall have been filed to which you object in writing.
(f) The Registration Statement shall become effective not later than
5:30 P.M. New York City time, on the date of this Agreement and, if Rule
430A under the Act is used, the Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) under the Act at or before 5:30 P.M.,
New York City time, on the second full business day after the date of this
Agreement and any registration statement pursuant to Rule 462(b) under the
Act required in connection with the offering and sale of the Shares shall
have been filed and become effective no later than 10:00 p.m., New York
City time, on the date of this Agreement.
(g) Prior to the time of purchase, and, if applicable, the additional
time of purchase, (i) no stop order with respect to the effectiveness of
the Registration Statement shall have been issued under the Act or
proceedings initiated under Section 8(d) or 8(e) of the Act; (ii) the
Registration Statement and all amendments thereto shall not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading; and (iii) the Prospectus and all amendments or supplements
thereto shall not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
(h) Between the time of execution of this Agreement and the time of
purchase or the additional time of purchase, as the case may be, no
material adverse change or any development involving a prospective material
adverse change in the business, properties,
-21-
management, financial condition or results of operations of the Company and
the Subsidiaries taken as a whole shall occur or become known.
(i) The Company will, at the time of purchase and, if applicable, at
the additional time of purchase, deliver to you a certificate of its Chief
Executive Officer and its Chief Financial Officer in the form attached as
EXHIBIT B hereto.
(j) You shall have received signed Lock-up Agreements referred to in
Section 3(r) hereof.
(k) The Company shall have furnished to you such other opinions,
documents and certificates as of the time of purchase and, if applicable,
the additional time of purchase, as you may reasonably request.
(l) The Shares shall have been approved for inclusion in NASDAQ
subject only to notice of issuance at or prior to the time of purchase or
the additional time of purchase, as the case may be.
7. EFFECTIVE DATE OF AGREEMENT; TERMINATION. This Agreement shall become
effective (i) if Rule 430A under the Act is not used, when you shall have
received notification of the effectiveness of the Registration Statement, or
(ii) if Rule 430A under the Act is used, when the parties hereto have executed
and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be subject to
termination in the absolute discretion of UBS Securities if (x) since the time
of execution of this Agreement or the earlier respective dates as of which
information is given in the Registration Statement and the Prospectus, there has
been any material adverse change or any development involving a prospective
material adverse change in the business, properties, management, financial
condition or results of operations of the Company and the Subsidiaries taken as
a whole, which would, in UBS Securities' judgment make it impracticable or
inadvisable to proceed with the public offering or the delivery of the Shares on
the terms and in the manner contemplated in the Registration Statement and the
Prospectus, or (y) since of execution of this Agreement, there shall have
occurred: (i) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or the
NASDAQ; (ii) a suspension or material limitation in trading in the Company's
securities on the NASDAQ or Geregelter Markt; (iii) a general moratorium on
commercial banking activities declared by either federal or New York State
authorities or a material disruption in commercial banking or securities
settlement or clearance services in the United States; (iv) an outbreak or
escalation of hostilities or acts of terrorism involving the United States or a
declaration by the United States of a national emergency or war; or (v) any
other calamity or crisis or any change in financial, political or economic
conditions in the United States or elsewhere, if the effect of any such event
specified in clause (iv) or (v) in UBS Securities' judgment makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Shares on the terms and in the manner contemplated in the Registration
Statement and the Prospectus.
-22-
If UBS Securities elects to terminate this Agreement as provided in this
Section 7, the Company and each other Underwriter shall be notified promptly in
writing.
If the sale to the Underwriters of the Shares, as contemplated by this
Agreement, is not carried out by the Underwriters for any reason permitted under
this Agreement or if such sale is not carried out because the Company shall be
unable to comply with any of the terms of this Agreement, the Company shall not
be under any obligation or liability under this Agreement (except to the extent
provided in Sections 4(n), 5 and 9 hereof), and the Underwriters shall be under
no obligation or liability to the Company under this Agreement (except to the
extent provided in Section 9 hereof) or to one another hereunder.
8. INCREASE IN UNDERWRITERS' COMMITMENTS. Subject to Sections 6 and 7
hereof, if any Underwriter shall default in its obligation to take up and pay
for the Firm Shares to be purchased by it hereunder (otherwise than for a
failure of a condition set forth in Section 6 hereof or a reason sufficient to
justify the termination of this Agreement under the provisions of Section 7
hereof) and if the number of Firm Shares which all Underwriters so defaulting
shall have agreed but failed to take up and pay for does not exceed 10% of the
total number of Firm Shares, the non-defaulting Underwriters shall take up and
pay for (in addition to the aggregate number of Firm Shares they are obligated
to purchase pursuant to Section 1 hereof) the number of Firm Shares agreed to be
purchased by all such defaulting Underwriters, as hereinafter provided. Such
Shares shall be taken up and paid for by such non-defaulting Underwriters in
such amount or amounts as you may designate with the consent of each Underwriter
so designated or, in the event no such designation is made, such Shares shall be
taken up and paid for by all non-defaulting Underwriters pro rata in proportion
to the aggregate number of Firm Shares set opposite the names of such
non-defaulting Underwriters in Schedule A.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company agrees with the non-defaulting Underwriters that it will
not sell any Firm Shares hereunder unless all of the Firm Shares are purchased
by the Underwriters (or by substituted Underwriters selected by you with the
approval of the Company or selected by the Company with your approval).
If a new Underwriter or Underwriters are substituted by the Underwriters or
by the Company for a defaulting Underwriter or Underwriters in accordance with
the foregoing provision, the Company or you shall have the right to postpone the
time of purchase for a period not exceeding five business days in order that any
necessary changes in the Registration Statement and the Prospectus and other
documents may be effected.
The term Underwriter as used in this Agreement shall refer to and include
any Underwriter substituted under this Section 8 with like effect as if such
substituted Underwriter had originally been named in Schedule A.
If the aggregate number of Firm Shares which the defaulting Underwriter or
Underwriters agreed to purchase exceeds 10% of the total number of Firm Shares
which all Underwriters agreed to purchase hereunder, and if neither the
non-defaulting Underwriters
-23-
nor the Company shall make arrangements within the five business day period
stated above for the purchase of all the Firm Shares which the defaulting
Underwriter or Underwriters agreed to purchase hereunder, this Agreement shall
terminate without further act or deed and without any liability on the part of
the Company to any non-defaulting Underwriter and without any liability on the
part of any non-defaulting Underwriter to the Company. Nothing in this
paragraph, and no action taken hereunder, shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
9. INDEMNITY AND CONTRIBUTION.
(a) The Company agrees to indemnify, defend and hold harmless each
Underwriter, its partners, directors and officers, and any person who controls
any Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, and the successors and assigns of all of the foregoing persons,
from and against any loss, damage, expense, liability or claim (including the
reasonable cost of investigation) which, jointly or severally, any such
Underwriter or any such person may incur under the Act, the Exchange Act, the
common law or otherwise, insofar as such loss, damage, expense, liability or
claim arises out of or is based upon (i) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or in the
Registration Statement as amended by any post-effective amendment thereof by the
Company) or in a Prospectus (the term Prospectus for the purpose of this Section
9 being deemed to include any Final Preliminary Final Prospectus, the Prospectus
and the Prospectus as amended or supplemented by the Company), or arises out of
or is based upon any omission or alleged omission to state a material fact
required to be stated in either such Registration Statement or such Prospectus
or necessary to make the statements made therein not misleading, except insofar
as any such loss, damage, expense, liability or claim arises out of or is based
upon any untrue statement or alleged untrue statement of a material fact
contained in and in conformity with information furnished in writing by or on
behalf of such Underwriter through you to the Company expressly for use in such
Registration Statement or such Prospectus or arises out of or is based upon any
omission or alleged omission to state a material fact in connection with such
information required to be stated in such Registration Statement or such
Prospectus or necessary to make such information not misleading or (ii) the
failure by the Company to perform when and as required any agreement or covenant
contained herein; PROVIDED that the foregoing indemnity is subject to the
condition that, insofar as it relates to any untrue statement or omission, or
any alleged untrue statement or omission, made in a Preliminary Prospectus but
corrected, eliminated or remedied in the Prospectus, or any amendment or
supplement thereto, it shall not inure to the benefit of any Underwriter from
whom the person asserting the claim purchased the Shares (or to the benefit of
any person who controls such Underwriter within the meaning of Section 15 of the
Securities Act) if the Company had previously furnished copies of the Prospectus
or such amendment or supplement to such Underwriter in the requisite quantity
and on a timely basis to permit proper delivery and such person was not sent a
copy of the Prospectus at or prior to the written confirmation of the sale of
such Share to such person and the untrue statement or omission contained in the
Preliminary Prospectus was corrected in the Prospectus or such amendment or
supplement.
-24-
If any action, suit or proceeding (each, a "PROCEEDING") is brought against
an Underwriter or any such person in respect of which indemnity may be sought
against the Company pursuant to the foregoing paragraph, such Underwriter or
such person shall promptly notify the Company in writing of the institution of
such Proceeding and the Company shall assume the defense of such Proceeding,
including the employment of counsel reasonably satisfactory to such indemnified
party and payment of all fees and expenses; PROVIDED, HOWEVER, that the omission
to so notify the Company shall not relieve the Company from any liability which
the Company may have to any Underwriter or any such person or otherwise. Such
Underwriter or such person shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such Underwriter or of such person unless the employment of such
counsel shall have been authorized in writing by the Company in connection with
the defense of such Proceeding or the Company shall not have, within a
reasonable period of time in light of the circumstances, employed counsel to
have charge of the defense of such Proceeding or such indemnified party or
parties shall have reasonably concluded that there may be defenses available to
it or them which are different from, additional to or in conflict with those
available to the Company (in which case the Company shall not have the right to
direct the defense of such Proceeding on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
Company and paid as incurred (it being understood, however, that the Company
shall not be liable for the expenses of more than one separate counsel (in
addition to any local counsel) in any one Proceeding or series of related
Proceedings in the same jurisdiction representing the indemnified parties who
are parties to such Proceeding). The Company shall not be liable for any
settlement of any Proceeding effected without its written consent but if settled
with the written consent of the Company, the Company agrees to indemnify and
hold harmless any Underwriter and any such person from and against any loss or
liability by reason of such settlement. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second sentence of this paragraph, then the indemnifying
party agrees that it shall be liable for any settlement of any Proceeding
effected without its written consent if (i) such settlement is entered into more
than 60 business days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall not have fully reimbursed the
indemnified party in accordance with such request prior to the date of such
settlement and (iii) such indemnified party shall have given the indemnifying
party at least 30 days' prior notice of its intention to settle. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened Proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such Proceeding and does not include an admission
of fault, culpability or a failure to act, by or on behalf of such indemnified
party.
(b) Each Underwriter severally agrees to indemnify, defend and hold
harmless the Company, its directors and officers, and any person who controls
the Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, and the successors and assigns of all of the foregoing persons,
from and against any loss, damage, expense, liability or claim (including the
reasonable cost of investigation) which, jointly or severally, the Company or
any such person may
-25-
incur under the Act, the Exchange Act, the common law or otherwise, insofar as
such loss, damage, expense, liability or claim arises out of or is based upon
any untrue statement or alleged untrue statement of a material fact contained in
and in conformity with information furnished in writing by or on behalf of such
Underwriter through you to the Company expressly for use in the Registration
Statement (or in the Registration Statement as amended by any post-effective
amendment thereof by the Company) or in a Prospectus, or arises out of or is
based upon any omission or alleged omission to state a material fact in
connection with such information required to be stated in such Registration
Statement or such Prospectus or necessary to make such information not
misleading.
If any Proceeding is brought against the Company or any such person in
respect of which indemnity may be sought against any Underwriter pursuant to the
foregoing paragraph, the Company or such person shall promptly notify such
Underwriter in writing of the institution of such Proceeding and such
Underwriter shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses; PROVIDED, HOWEVER, that the omission to so
notify such Underwriter shall not relieve such Underwriter from any liability
which such Underwriter may have to the Company or any such person or otherwise.
The Company or such person shall have the right to employ its own counsel in any
such case, but the fees and expenses of such counsel shall be at the expense of
the Company or such person unless the employment of such counsel shall have been
authorized in writing by such Underwriter in connection with the defense of such
Proceeding or such Underwriter shall not have, within a reasonable period of
time in light of the circumstances, employed counsel to defend such Proceeding
or such indemnified party or parties shall have reasonably concluded that there
may be defenses available to it or them which are different from or additional
to or in conflict with those available to such Underwriter (in which case such
Underwriter shall not have the right to direct the defense of such Proceeding on
behalf of the indemnified party or parties, but such Underwriter may employ
counsel and participate in the defense thereof but the fees and expenses of such
counsel shall be at the expense of such Underwriter), in any of which events
such fees and expenses shall be borne by such Underwriter and paid as incurred
(it being understood, however, that such Underwriter shall not be liable for the
expenses of more than one separate counsel (in addition to any local counsel) in
any one Proceeding or series of related Proceedings in the same jurisdiction
representing the indemnified parties who are parties to such Proceeding). No
Underwriter shall be liable for any settlement of any such Proceeding effected
without the written consent of such Underwriter but if settled with the written
consent of such Underwriter, such Underwriter agrees to indemnify and hold
harmless the Company and any such person from and against any loss or liability
by reason of such settlement. Notwithstanding the foregoing sentence, if at any
time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as contemplated
by the second sentence of this paragraph, then the indemnifying party agrees
that it shall be liable for any settlement of any Proceeding effected without
its written consent if (i) such settlement is entered into more than 60 business
days after receipt by such indemnifying party of the aforesaid request, (ii)
such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement and (iii) such
indemnified party shall have given the indemnifying party at least 30 days'
prior notice of its intention to settle. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement of any
pending or threatened Proceeding in respect of which any indemnified party is or
-26-
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.
(c) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a) and (b) of this
Section 9 or insufficient to hold an indemnified party harmless in respect of
any losses, damages, expenses, liabilities or claims referred to therein, then
each applicable indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, damages, expenses,
liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, damages, expenses, liabilities or
claims, as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same respective proportions as the total
proceeds from the offering (net of underwriting discounts and commissions but
before deducting expenses) received by the Company and the total underwriting
discounts and commissions received by the Underwriters, bear to the aggregate
public offering price of the Shares. The relative fault of the Company on the
one hand and of the Underwriters on the other shall be determined by reference
to, among other things, whether the untrue statement or alleged untrue statement
of a material fact or omission or alleged omission relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, damages, expenses, liabilities and claims referred to in this subsection
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating, preparing to defend or
defending any Proceeding.
(d) The Company and the Underwriters agree that it would not be just
and equitable if contribution pursuant to this Section 9 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in subsection (c) above. Notwithstanding
the provisions of this Section 9, 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 such Underwriter and distributed to the public were offered to
the public exceeds the amount of any damage which such Underwriter has otherwise
been required to pay by reason of such untrue statement or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 9 are several in proportion to their respective underwriting commitments
and not joint.
-27-
(e) The indemnity and contribution agreements contained in this
Section 9 and the covenants, warranties and representations of the Company
contained in this Agreement shall remain in full force and effect regardless of
any investigation made by or on behalf of any Underwriter, its partners,
directors or officers or any person (including each partner, officer or director
of such person) who controls any Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, or by or on behalf of the Company,
its directors or officers or any person who controls the Company within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and shall
survive the termination or cancellation of this Agreement or the issuance and
delivery of the Shares. The Company and each Underwriter agree promptly to
notify each other of the commencement of any Proceeding against it and, in the
case of the Company, against any of the Company's officers or directors in
connection with the issuance and sale of the Shares, or in connection with the
Registration Statement or the Prospectus.
10. INFORMATION FURNISHED BY THE UNDERWRITERS. The statements set forth in
the last paragraph on the cover page of the Prospectus and the statements set
forth in the _____ paragraphs under the caption "Underwriting" in the Prospectus
constitute the only information furnished by or on behalf of the Underwriters as
such information is referred to in Sections 3 and 9 hereof.
11. NOTICES. Except as otherwise herein provided, all statements, requests,
notices and agreements shall be in writing or by telegram and, if to the
Underwriters, shall be sufficient in all respects if delivered or sent to UBS
Securities LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000-0000, Attention: Syndicate
Department and, if to the Company, shall be sufficient in all respects if
delivered or sent to the Company at the offices of the Company at 00000 Xxxxxxx
Xxxxx, Xxxxxxxx, XX 00000, Attention: Xxxxx Xxxxx.
12. GOVERNING LAW; CONSTRUCTION. This Agreement and any claim, counterclaim
or dispute of any kind or nature whatsoever arising out of or in any way
relating to this Agreement ("CLAIM"), directly or indirectly, shall be governed
by, and construed in accordance with, the laws of the State of New York. The
Section headings in this Agreement have been inserted as a matter of convenience
of reference and are not a part of this Agreement.
13. SUBMISSION TO JURISDICTION. Except as set forth below, no Claim may be
commenced, prosecuted or continued in any court other than the courts of the
State of New York located in the City and County of New York or in the United
States District Court for the Southern District of New York, which courts shall
have jurisdiction over the adjudication of such matters, and the Company
consents to the jurisdiction of such courts and personal service with respect
thereto. The Company hereby consents to personal jurisdiction, service and venue
in any court in which any Claim arising out of or in any way relating to this
Agreement is brought by any third party against UBS Securities or any
indemnified party. Each of UBS Securities and the Company (on its behalf and, to
the extent permitted by applicable law, on behalf of its directors, officers,
stockholders and affiliates) waives all right to trial by jury in any action,
proceeding or counterclaim (whether based upon contract, tort or
-28-
otherwise) in any way arising out of or relating to this Agreement. The Company
agrees that a final judgment in any such action, proceeding or counterclaim
brought in any such court shall be conclusive and binding upon the Company and
may be enforced in any other courts to the jurisdiction of which the Company is
or may be subject, by suit upon such judgment.
14. PARTIES AT INTEREST. The Agreement herein set forth has been and is
made solely for the benefit of the Underwriters and the Company and to the
extent provided in Section 9 hereof the controlling persons, partners, directors
and officers referred to in such section, and their respective successors,
assigns, heirs, personal representatives and executors and administrators. No
other person, partnership, association or corporation (including a purchaser, as
such purchaser, from any of the Underwriters) shall acquire or have any right
under or by virtue of this Agreement.
15. COUNTERPARTS. This Agreement may be signed by the parties in one or
more counterparts which together shall constitute one and the same agreement
among the parties.
16. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
Underwriters and the Company and their successors and assigns and any successor
or assign of any substantial portion of the Company's and any of the
Underwriters' respective businesses and/or assets.
17. MISCELLANEOUS. UBS Securities, an indirect, wholly owned subsidiary of
UBS AG, is not a bank and is separate from any affiliated bank, including any
U.S. branch or agency of UBS AG. Because UBS Securities is a separately
incorporated entity, it is solely responsible for its own contractual
obligations and commitments, including obligations with respect to sales and
purchases of securities. Securities sold, offered or recommended by UBS are not
deposits, are not insured by the Federal Deposit Insurance Corporation, are not
guaranteed by a branch or agency, and are not otherwise an obligation or
responsibility of a branch or agency.
[Signature pages follow]
-29-
If the foregoing correctly sets forth the understanding
between the Company and the several Underwriters, please so indicate in the
space provided below for that purpose, whereupon this agreement and your
acceptance shall constitute a binding agreement between the Company and the
Underwriters, severally.
Very truly yours,
ROFIN-SINAR TECHNOLOGIES INC.
By:
----------------------------
Name:
Title:
-30-
Accepted and agreed to as of the
date first above written, on
behalf of itself and the other
several Underwriters
named in Schedule A
UBS SECURITIES LLC
By: UBS SECURITIES LLC
By: __________________________
Name:
Title:
By: __________________________
Name:
Title:
-31-
SCHEDULE A
Number of
UNDERWRITER FIRM SHARES
----------- -----------
UBS SECURITIES LLC...............................................
JESUP & XXXXXX...................................................
X.X.XXXXXXX & CO.................................................
Total........................
SCHEDULE B
SUBSIDIARIES*
Rofin-Sinar, Inc.
Rofin-Sinar Technologies Europe S.L.
Rofin-Sinar Laser GmbH
Rofin-Baasel Japan Corp. (88% owned)
Rasant-Alcotec Beschichtungstechnik GmbH
CBL Verwaltungsgesellschaft mbH
Xxxx Xxxxxx Lasertechnik GmbH & Co. KG
Rofin-Baasel, Inc.
Xxxxxxx-Xxxxxx Laser und elektrooptische Geraete GmbH
PMB Elektronik GmbH
Rofin-Baasel Inc.
Rofin-Baasel Italia S.r.l.
Rofin-Baasel France S.A.
Rofin-Sinar UK Ltd. (71% owned)
Rofin-Baasel UK Ltd.
Rofin-Baasel Benelux B.V.
Rofin-Baasel Singapore PTE Ltd.
Rofin-Baasel Espana S.L. (83% owned)
DILAS Diodenlaser GmbH (80% owned)
Rofin-Baasel Taiwan Ltd.
Rofin-Baasel Korea Co., Ltd.
* ALL SUBSIDIARIES ARE 100% OWNED BY THE COMPANY, EXCEPT WHERE OTHERWISE NOTED.
-2-
EXHIBIT A
ROFIN-SINAR TECHNOLOGIES INC.
Common Stock
($0.01 Par Value)
______, 2004
UBS Securities LLC
As Representative of the several Underwriters
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
This Lock-Up Letter Agreement is being delivered to you in
connection with the proposed Underwriting Agreement (the "UNDERWRITING
AGREEMENT") to be entered into by Rofin-Technologies Inc. (the "COMPANY") and
you, as Representative of the several Underwriters named therein, with respect
to the public offering (the "OFFERING") of Common Stock, par value $0.01 per
share, of the Company (the "COMMON STOCK").
In order to induce you to enter into the Underwriting
Agreement, the undersigned agrees that for a period of until 90 days after the
date of the final prospectus relating to the Offering the undersigned will not,
without the prior written consent of UBS Securities LLC ("UBS"), (i) sell, offer
to sell, contract or agree to sell, hypothecate, pledge, grant any option to
purchase or otherwise dispose of or agree to dispose of, directly or indirectly,
or file (or participate in the filing of) a registration statement with the
Securities and Exchange Commission (the "COMMISSION") in respect of, or
establish or increase a put equivalent position within the meaning of Section 16
of the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission promulgated thereunder (the "EXCHANGE ACT"), or
liquidate or decrease a call equivalent position within the meaning of Section
16 of the Exchange Act with respect to, any Common Stock of the Company or any
securities convertible into or exercisable or exchangeable for Common Stock, or
warrants or other rights to purchase Common Stock, (ii) enter into any swap or
other arrangement that transfers to another, in whole or in part, any of the
economic consequences of ownership of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock, or warrants or other
rights to purchase Common Stock, whether any such transaction is to be settled
by delivery of Common Stock or such other securities, in cash or otherwise, or
(iii) publicly announce an intention to effect any transaction specified in
clause (i) or (ii). The foregoing sentence shall not apply to (a) the
registration of or sale to the Underwriters of any Common Stock pursuant to the
Offering and the Underwriting Agreement, (b) bona fide gifts, PROVIDED the
recipient thereof agrees in writing with the
Underwriters to be bound by the terms of this Lock-Up Letter Agreement, (c)
dispositions to any trust for the direct or indirect benefit of the undersigned
and/or the immediate family of the undersigned, PROVIDED that such trust agrees
in writing with the Underwriters to be bound by the terms of this Lock-Up Letter
Agreement or (d) exercises of options or other rights granted by the Company
under employee benefit plans where Common Stock received upon any such exercises
are held by the undersigned subject to the terms of this Lock-Up Letter
Agreement. If (i) during the period that begins on the date that is 15 calendar
days plus 3 business days before the last day of the 90-day restricted period
and ends on the last day of the 90-day restricted period, the Company issues a
earnings release or material news or a material event relating to the Company
occurs; or (ii) prior to the expiration of the 90-day restricted period, the
Company announces that it will release earnings results during the 16-day period
beginning on the last day of the 90-day period, the restrictions imposed by this
letter shall continue to apply until the expiration of the date that is 15
calendar days plus 3 business days after the date on which the issuance of the
earnings release or the material news or material event occurs; PROVIDED;
HOWEVER, this paragraph will not apply if the Company's shares of Common Stock
are, as of the date of delivery of such certificate, "actively traded
securities," as defined in Regulation M, 17 CFR 242.101(c)(1).
In addition, the undersigned hereby waives any rights the
undersigned may have to require registration of Common Stock in connection with
the filing of a registration statement relating to the Offering. The undersigned
further agrees that, for a period of 90 days after the date of the final
prospectus relating to the Offering, the undersigned will not, without the prior
written consent of UBS, make any demand for, or exercise any right with respect
to, the registration of Common Stock of the Company or any securities
convertible into or exercisable or exchangeable for Common Stock, or warrants or
other rights to purchase Common Stock.
If (i) the Company notifies you in writing that it does not
intend to proceed with the Offering, (ii) the registration statement filed with
the Securities and Exchange Commission with respect to the Offering is withdrawn
or (iii) for any reason the Underwriting Agreement shall be terminated prior to
the time of purchase (as defined in the Underwriting Agreement), this Lock-Up
Letter Agreement shall be terminated and the undersigned shall be released from
its obligations hereunder.
Yours very truly,
---------------------------
Name:
-2-
EXHIBIT B
OFFICERS' CERTIFICATE
1. I have reviewed the Registration Statement and the Prospectus.
2. The representations and warranties of the Company as set forth in this
Agreement are true and correct as of the time of purchase and, if
applicable, the additional time of purchase.
3. The Company has performed all of its obligations under this Agreement as
are to be performed at or before the time of purchase and at or before the
additional time of purchase, as the case may be.
4. The conditions set forth in paragraphs (f) and (g) of Section 6 of this
Agreement have been met.
5. The financial statements and other financial information included in the
Registration Statement and the Prospectus fairly present in all material
respects the financial condition, results of operations, and cash flows of
the Company as of, and for, the periods presented in the Registration
Statement.
