1
EXHIBIT 1.1
3,000,000 Shares
MOLECULAR BIOSYSTEMS, INC.
Common Stock
UNDERWRITING AGREEMENT
May __, 1996
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
OPPENHEIMER & CO., INC.
VECTOR SECURITIES INTERNATIONAL, INC.
As representatives of the
several underwriters
named in Schedule I hereto
227 Park Avenue
New York, New York 10172
Dear Sirs:
Molecular Biosystems, Inc., a Delaware corporation (the "Company")
proposes to issue and sell 3,000,000 shares of its Common Stock, par value $.01
per share (the "Firm Shares"), to the several underwriters named in Schedule I
hereto (the "Underwriters"). The Company also proposes to issue and sell to the
several Underwriters not more than 450,000 additional shares of its Common
Stock, par value $.01 per share (the "Additional Shares"), if requested by the
Underwriters as provided in Section 2 hereof. The Firm Shares and the Additional
Shares are herein collectively called the Shares. The shares of common stock of
the Company to be outstanding after giving effect to the sales contemplated
hereby are hereinafter referred to as the Common Stock.
1. Registration Statement and Prospectus. The Company has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively called the
"Act"), a registration statement on Form S-3 including a prospectus relating to
the Shares, which
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may be amended. The registration statement as amended at the time when it
becomes effective, including any documents and information incorporated or
deemed to be incorporated by reference therein and including a registration
statement (if any) filed pursuant to Rule 462(b) under the Act increasing the
size of the offering registered under the Act and information (if any) deemed to
be part of the registration statement at the time of effectiveness pursuant to
Rule 430A under the Act, is hereinafter referred to as the Registration
Statement; and the prospectus in the form first used to confirm sales of Shares,
including any documents and information incorporated or deemed to be
incorporated by reference therein, is hereinafter referred as the Prospectus.
2. Agreements to Sell and Purchase. On the basis of the representations
and warranties contained in this Agreement, and subject to its terms and
conditions, the Company agrees to issue and sell, and each Underwriter agrees,
severally and not jointly, to purchase from the Company at a price per share of
$______ (the "Purchase Price") the number of Firm Shares set forth opposite the
name of such Underwriter in Schedule I hereto.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to issue
and sell the Additional Shares and the Underwriters shall have the right to
purchase, severally and not jointly, up to 450,000 Additional Shares from the
Company at the Purchase Price. Additional Shares may be purchased solely for the
purpose of covering over-allotments made in connection with the offering of the
Firm Shares. The Underwriters may exercise their right to purchase Additional
Shares in whole or in part from time to time by giving written notice thereof to
the Company within 30 days after the date of this Agreement. You shall give any
such notice on behalf of the Underwriters and such notice shall specify the
aggregate number of Additional Shares to be purchased pursuant to such exercise
and the date for payment and delivery thereof. The date specified in any such
notice shall be a business day (i) no earlier than the Closing Date (as
hereinafter defined), (ii) no later than ten business days after such notice has
been given and (iii) no earlier than two business days after such notice has
been given. If any Additional Shares are to be purchased, each Underwriter,
severally and not jointly, agrees to purchase from the Company the number of
Additional Shares (subject to such adjustments to eliminate fractional shares as
you may determine) which bears the same proportion to the total number of
Additional Shares to be purchased from the Company as the number of Firm Shares
set forth opposite the name of such Underwriter in Schedule I bears to the total
number of Firm Shares.
The Company hereby agrees to and the Company shall, concurrently with
the execution of this Agreement, deliver an agreement executed by (i) each of
the directors and officers of the Company, and (ii) each stockholder listed on
Schedule II hereto, pursuant to which each such person agrees, not to offer,
sell, contract to sell, grant any option to purchase, or otherwise dispose of
any common stock of the Company or
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any securities convertible into or exercisable or exchangeable for such common
stock or in any other manner transfer all or a portion of the economic
consequences associated with the ownership of any such common stock, except to
the Underwriters pursuant to this Agreement, for a period of 120 days after the
date of the Prospectus without the prior written consent of Donaldson, Lufkin &
Jenrette Securities Corporation. Notwithstanding the foregoing, during such
period (i) the Company may grant stock options pursuant to the Company's
existing stock option plan and (ii) the Company may issue shares of its common
stock upon the exercise of an option or warrant or the conversion of a security
outstanding on the date hereof.
3. Terms of Public Offering. The Company is advised by you that the
Underwriters propose (i) to make a public offering of their respective portions
of the Shares as soon after the effective date of the Registration Statement as
in your judgment is advisable and (ii) initially to offer the Shares upon the
terms set forth in the Prospectus.
4. Delivery and Payment. Delivery to the Underwriters of and payment
for the Firm Shares shall be made at 10:00 A.M., New York City time, on the
third or fourth business day unless otherwise permitted by the Commission
pursuant to Rule 15c6-1 of the Securities Exchange Act of 1934, as amended (the
"Exchange Act")(the "Closing Date") following the date of the initial public
offering, at the offices of Cooley Godward Castro Huddleson & Tatum, 4365
Executive Drive, Suite 1100, San Diego, California 92121 (or such other place as
mutually may be agreed upon). The Closing Date and the location of delivery of
and the form of payment for the Firm Shares may be varied by agreement between
you and the Company.
Delivery to the Underwriters of and payment for any Additional Shares
to be purchased by the Underwriters shall be made at such place as you shall
designate at 10:00 A.M., New York City time, on the date specified in the
applicable exercise notice given by you pursuant to Section 2 (an "Option
Closing Date"). Any such Option Closing Date and the location of delivery of and
the form of payment for such Additional Shares may be varied by agreement
between you and the Company.
Certificates for the Shares shall be registered in such names and
issued in such denominations as you shall request in writing not later than two
full business days prior to the Closing Date or an Option Closing Date, as the
case may be. Such certificates shall be made available to you for inspection not
later than 9:30 A.M., New York City time, on the business day next preceding the
Closing Date or the applicable Option Closing Date, as the case may be.
Certificates in definitive form evidencing the Shares shall be delivered to you
on the Closing Date or the applicable Option Closing Date, as the case may be,
with any transfer taxes thereon duly paid by the Company, for the respective
accounts of the several Underwriters, against payment of the Purchase Price
therefor by wire transfer of immediately available funds to the account or
accounts
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designated in writing to you by the Company at least two business days prior to
the Closing Date or applicable Option Date, as the case may be.
5. Agreements of the Company. The Company agrees with you:
(a) To use its best efforts to cause the Registration Statement to
become effective at the earliest possible time.
(b) To advise you promptly and, if requested by you, to confirm such
advice in writing, (i) when the Registration Statement has become effective
and when any post-effective amendment to it becomes effective, (ii) of any
request by the Commission for amendments to the Registration Statement or
amendments or supplements to the Prospectus or for additional information,
(iii) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the suspension of
qualification of the Shares for offering or sale in any jurisdiction, or
the initiation of any proceeding for such purposes, and (iv) of the
happening of any event during the period referred to in Section (e) below
which makes any statement of a material fact made in the Registration
Statement or the Prospectus untrue or which requires the making of any
additions to or changes in the Registration Statement or the Prospectus in
order to make the statements therein not misleading. If at any time the
Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, the Company will make every reasonable effort to
obtain the withdrawal or lifting of such order at the earliest possible
time.
(c) To furnish to you, without charge, four (4) signed copies of the
Registration Statement as first filed with the Commission and of each
amendment to it, including all exhibits, and to furnish to you and each
Underwriter designated by you such number of conformed copies of the
Registration Statement as so filed and of each amendment to it, without
exhibits, as you may reasonably request.
(d) Not to file any amendment or supplement to the Registration
Statement, whether before or after the time when it becomes effective, or
to make any amendment or supplement to the Prospectus, of which you shall
not previously have been advised or to which you shall reasonably object;
and to prepare and file with the Commission, promptly upon your reasonable
request, any amendment to the Registration Statement or supplement to the
Prospectus which may be necessary or advisable in connection with the
distribution of the Shares by you, and to use its best efforts to cause the
same to become promptly effective.
(e) Promptly after the Registration Statement becomes effective, and
from time to time thereafter for such period as in the opinion of counsel
for the Underwriters a prospectus is required by law to be delivered in
connection
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with sales by an Underwriter or a dealer, to furnish to each Underwriter
and dealer as many copies of the Prospectus (and of any amendment or
supplement to the Prospectus) as such Underwriter or dealer may reasonably
request.
(f) If during the period specified in Section (e) any event shall
occur as a result of which, in the opinion of counsel for the Underwriters,
it becomes necessary to amend or supplement the Prospectus in order to make
the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Prospectus to comply with the Act, the
rules and regulations of the National Association of Securities Dealers,
Inc. (the "NASD") or any applicable state securities laws, forthwith to
prepare and file with the Commission an appropriate amendment or supplement
to the Prospectus so that the statements in the Prospectus, as so amended
or supplemented, will not, in the light of the circumstances when it is so
delivered, be misleading, or so that the Prospectus will comply with law,
and to furnish to each Underwriter and to such dealers as you shall
specify, such number of copies thereof as such Underwriter or dealers may
reasonably request.
(g) Prior to any public offering of the Shares, to cooperate with
you and counsel for the Underwriters in connection with the registration or
qualification of the Shares for offer and sale by the several Underwriters
and by dealers under the state securities or Blue Sky laws of such
jurisdictions as you may request, to continue such qualification in effect
so long as required for distribution of the Shares and to file such
consents to service of process or other documents as may be necessary in
order to effect such registration or qualification. The Company shall not
be required, however, to qualify to do business as a foreign corporation in
any jurisdiction where it is not now so qualified or to take any action
that would subject it to general service of process in any jurisdiction
where it is not now so subject.
(h) To mail and make generally available to its stockholders as soon
as reasonably practicable an earnings statement covering a period of at
least twelve months after the effective date of the Registration Statement
(but in no event commencing later than 90 days after such date) which shall
satisfy the provisions of Section 11(a) of the Act, and to advise you in
writing when such statement has been so made available.
(i) During the period of five years from the effective date of the
Registration Statement, to furnish to you as soon as available a copy of
each report or other publicly available information of the Company mailed
to the holders of Common Stock or filed with the Commission and such other
publicly available
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information concerning the Company and its subsidiaries as you may
reasonably request.
(j) To pay all costs, expenses, fees and taxes arising from (i) the
preparation, printing, filing and distribution under the Act of the
Registration Statement (including financial statements and exhibits), each
preliminary prospectus and all amendments and supplements to any of them
prior to or during the period specified in Section (e), (ii) the printing
and delivery of the Prospectus and all amendments or supplements to it
during the period specified in Section (e), (iii) the printing and delivery
of this Agreement, the preliminary and supplemental Blue Sky memoranda and
all other agreements, memoranda, correspondence and other documents printed
and delivered in connection with the offering of the Shares (including in
each case any disbursements of counsel for the Underwriters relating to
such printing and delivery), (iv) the registration or qualification of the
Shares for offer and sale under the securities or Blue Sky laws of the
several states (including in each case the fees and disbursements of
counsel for the Underwriters relating to such registration or qualification
and memoranda relating thereto), (v) filings and clearance with the NASD in
connection with the offering, (vi) the listing of the Shares on the New
York Stock Exchange ("NYSE") and (vii) furnishing such copies of the
Registration Statement, the Prospectus and all amendments and supplements
thereto as may be requested for use in connection with the offering or sale
of the Shares by the Underwriters or by dealers to whom Shares may be sold.
(k) To use its best efforts to maintain the inclusion of such Common
Stock on the NYSE for a period of five years after the effective date of
the Registration Statement.
(l) To use its reasonable efforts to do and perform all things
required or necessary to be done and performed under this Agreement by the
Company prior to the Closing Date or any Option Closing Date, as the case
may be, and to satisfy all conditions precedent to the delivery of the
Shares.
6. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by the
Commission.
(b) (i) Each part of the Registration Statement, when such part
became effective, did not contain and each such part, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material
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fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) the
Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the
Act and (iii) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, except that the representations and warranties set
forth in this Section (b) do not apply to statements or omissions in the
Registration Statement or the Prospectus based upon information relating to
any Underwriter furnished to the Company in writing by such Underwriter
through you expressly for use therein. The Company acknowledges for all
purposes under this Agreement (including this Section and Section 7 hereof)
that the statements set forth in the first and third paragraphs under the
caption "Underwriting" in the Prospectus constitute the only written
information furnished to the Company by the Underwriters for use in the
Registration Statement or the Prospectus or any preliminary prospectus (or
any amendment or supplement to them).
(c) Each preliminary prospectus filed as part of the registration
statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Act, and each Registration Statement filed
pursuant to Rule 462(b) under the Act, if any, complied when so filed in
all material respects with the 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 the light of the
circumstances under which they were made, not misleading.
(d) The Company and each of its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation and has the corporate power
and authority to carry on its business as it is currently being conducted
and to own, lease and operate its properties, and each is duly qualified
and is in good standing as a foreign corporation authorized to do business
in each jurisdiction in which the nature of its business or its ownership
or leasing of property requires such qualification, except where the
failure to be so qualified or to be in good standing as a foreign
corporation would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(e) All of the outstanding shares of capital stock of, or other
ownership interests in, each of the Company's subsidiaries have been duly
authorized and validly issued and are fully paid and non-assessable, and
are owned by the Company, free and clear of any security interest, claim,
lien or encumbrance.
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(f) All the outstanding shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid, non-assessable
and not subject to any preemptive or similar rights; and the Shares have
been duly authorized and, when issued and delivered to the Underwriters
against payment therefor as provided by this Agreement, will be validly
issued, fully paid and non-assessable, and the issuance of such Shares will
not be subject to any preemptive or similar rights.
(g) The authorized capital stock of the Company, including the
Common Stock, conforms as to legal matters to the description thereof
contained in the Prospectus.
(h) Neither the Company nor any of its subsidiaries is in violation
of its respective charter or by-laws or, except for any claimed defaults
described in the Prospectus and except as would not, singly or in the
aggregate, have a material adverse effect on the business, prospects,
financial condition or results of operation of the Company and its
subsidiaries, taken as a whole (a "Material Adverse Effect"), in default in
the performance of any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness or in any other
agreement, indenture or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of its subsidiaries or their
respective property is bound.
(i) The execution, delivery and performance of this Agreement,
compliance by the Company with all the provisions hereof and the
consummation of the transactions contemplated hereby will not require any
consent, approval, authorization or other order of any court, regulatory
body, administrative agency or other governmental body (except as such may
be required under the Act, the Exchange Act, the rules and regulations of
the NASD and the securities or Blue Sky laws of the various states) and
will not conflict with or constitute a breach of any of the terms or
provisions of, or a default under, the charter or by-laws of the Company or
any of its subsidiaries or any agreement, indenture or other instrument to
which it or any of its subsidiaries is a party or by which it or any of its
subsidiaries or their respective property is bound, or, except as would
not, singly or in the aggregate, have a Material Adverse Effect, violate or
conflict with any laws, administrative regulations or rulings or court
decrees applicable to the Company, any of its subsidiaries or their
respective property.
(j) Except as otherwise set forth in the Prospectus, there are no
material legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any of their respective
property is the subject, and, to the Company's knowledge, no such
proceedings are threatened or contemplated. No contract or document of a
character required to be described in
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the Registration Statement or the Prospectus or to be filed as an exhibit
to the Registration Statement is not so described or filed as required.
(k) Neither the Company nor any of its subsidiaries has violated any
foreign, federal, state or local law or regulation relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("Environmental
Laws"), nor any federal or state law relating to discrimination in the
hiring, promotion or pay of employees nor any applicable federal or state
wages and hours laws, nor any provisions of the Employee Retirement Income
Security Act or the rules and regulations promulgated thereunder, except
for any such violation which would not, singly or in the aggregate, have a
Material Adverse Effect, or would otherwise require disclosure in the
Prospectus pursuant to Item 103 of Regulation S-K under the Act ("Item
103").
(l) Except as disclosed in the Prospectus, neither the Company nor
any of its subsidiaries has received any communication (written or oral),
whether from a governmental authority, citizens' group, employee or
otherwise, asserting that the Company or any of its subsidiaries or any
other person or entity for whom either is or may be liable is not in full
compliance with any Environmental Laws or permit or authorization required
under applicable Environmental Laws where such failure to comply fully
would have a Material Adverse Effect, or would otherwise require disclosure
in the Prospectus pursuant to Item 103.
(m) The Company and each of its subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("permits"), including, without limitation, under any
applicable Environmental Laws, as are necessary to own, lease and operate
its respective properties and to conduct its business, except for any such
permits the failure to obtain which would not have a Material Adverse
Effect; the Company and each of its subsidiaries has fulfilled and
performed all of its material obligations with respect to such permits and,
except as would not have a Material Adverse Effect, no event has occurred
which allows, or after notice or lapse of time would allow, revocation or
termination thereof or results in any other material impairment of the
rights of the holder of any such permit; and, except as described in the
Prospectus, such permits contain no restrictions that are materially
burdensome to the Company or any of its subsidiaries.
(n) Except as otherwise set forth in the Prospectus or such as are
not material to the business, prospects, financial condition or results of
operation of the Company and its subsidiaries, taken as a whole, the
Company and each of its subsidiaries has good and marketable title, free
and clear of all liens, claims,
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encumbrances and restrictions except liens for taxes not yet due and
payable, to all property and assets described in the Registration Statement
as being owned by it. All leases to which the Company or any of its
subsidiaries is a party are valid and binding and no default by the Company
or any of its subsidiaries, or to the Company's knowledge, by any lessor,
has occurred or is continuing thereunder, which might result in any
material adverse change in the business, prospects, financial condition or
results of operation of the Company and its subsidiaries, taken as a whole,
and the Company and its subsidiaries enjoy peaceful and undisturbed
possession under all such leases to which any of them is a party as lessee
with such exceptions as do not materially interfere with the use made by
the Company or such subsidiary.
(o) In the Company's judgment, the Company and each of its
subsidiaries maintains reasonably adequate insurance.
(p) Arthur Andersen LLP are independent public accountants with
respect to the Company as required by the Act.
(q) The financial statements, together with related schedules and
notes forming part of the Registration Statement and the Prospectus (and
any amendment or supplement thereto), present fairly the consolidated
financial position, results of operations and changes in financial position
of the Company and its subsidiaries on the basis stated in the Registration
Statement at the respective dates or for the respective periods to which
they apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as disclosed
therein; and the other financial and statistical information and data set
forth in the Registration Statement and the Prospectus (and any amendment
or supplement thereto) is, in all material respects, accurately presented
and prepared on a basis consistent with such financial statements and the
books and records of the Company.
(r) The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(s) Except for which waivers have been obtained in writing with
respect to inclusion in this offering, no holder of any security of the
Company has any right to require registration of shares of Common Stock or
any other security of the Company.
(t) The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida).
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(u) There are no outstanding subscriptions, rights, warrants,
options, calls, convertible securities, commitments of sale or liens
related to or entitling any person to purchase or otherwise to acquire any
shares of the capital stock of, or other ownership interest in, the Company
or any subsidiary thereof except (i) as disclosed in the Registration
Statement and (ii) certain anti-dilution rights of one stockholder, for
which a waiver has been obtained in writing with respect to the issuance of
the Shares.
(v) There are no business relationships or related party
transactions required to be disclosed in the Registration Statement by Item
404 of Regulation S-K of the Commission.
(w) There is (i) no significant unfair labor practice complaint
pending against the Company or any of its subsidiaries or, to the best
knowledge of the Company, threatened against any of them, before the
National Labor Relations Board or any state or local labor relations board,
and no significant grievance or more significant arbitration proceeding
arising out of or under any collective bargaining agreement is so pending
against the Company or any of its subsidiaries or, to the best knowledge of
the Company, threatened against any of them, and (ii) no significant
strike, labor dispute, slowdown or stoppage pending against the Company or
any of its subsidiaries or, to the best knowledge of the Company,
threatened against it or any of its subsidiaries except for such actions
specified in clause (i) or (ii) above, which, singly or in the aggregate,
could not reasonably be expected to have a Material Adverse Effect.
(x) The Company and each of its subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with the existing assets
at reasonable intervals and appropriate action is taken with respect to any
differences.
(y) All material tax returns required to be filed by the Company and
each of its subsidiaries in any jurisdiction have been filed, other than
those filings being contested in good faith, and all material taxes,
including withholding taxes, penalties and interest, assessments, fees and
other charges due pursuant to such returns or pursuant to any assessment
received by the Company or any of its subsidiaries have been paid, other
than those being contested in good faith and for which adequate reserves
have been provided. No deficiency or adjustment for any
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material taxes has been proposed or assessed against the Company or any of
its subsidiaries.
(z) The Company has filed a registration statement pursuant to
Section 12(b) of the Exchange Act to register the Common Stock, has filed
an application to list the Shares on the NYSE, and has received
notification that the listing has been approved, subject to notice of
issuance of the Shares.
(aa) The Company and its subsidiaries own, license or possess
adequate rights to use all material patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks and trade names presently
employed by them in connection with the businesses now operated by them,
and, except as otherwise disclosed in the Prospectus, neither the Company
nor any of its subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to any of the
foregoing, which, singly or in the aggregate, if the subject of any
unfavorable decision, ruling or finding, would result in a Material Adverse
Effect.
(bb) This Agreement has been duly authorized, executed and delivered
by the Company and constitutes the legal, valid and binding agreement of
the Company, enforceable against the Company in accordance with its terms
(except as rights to indemnity and contribution hereunder may be limited by
applicable law and except as enforcement may be limited by applicable
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally or by legal and equitable limitations on the
availability of specific remedies).
(cc) The Company has full power, authority and legal capacity to
enter into and perform its obligations under this Agreement and to issue,
sell and deliver the Shares; and the Company has taken all necessary
corporate action to authorize the execution and the performance of its
obligations under this Agreement.
(dd) No bid or purchase by the Company, and, to the Company's
knowledge, no bid or purchase that could be attributed to the Company (as a
result of bids or purchases by an "affiliated purchaser" within the meaning
of Rule 10b-6 under the Exchange Act for or of the Common Stock, any
securities of the same class or series as the Common Stock or any
securities immediately convertible into or exchangeable for or that
represent any right to acquire Common Stock, is now pending or in progress
or will have commenced at any time prior to the completion of the
distribution of the Shares by the Underwriters.
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(ee) Each of the Company and its subsidiaries is in compliance with
all laws, ordinances and regulations (domestic and foreign) applicable to
its properties (whether owned or leased) and its business, as described in
the Prospectus, except where noncompliance with such laws, ordinances and
regulations would not, singly or in the aggregate, have a Material Adverse
Effect.
7. Indemnification. (a) The Company agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages, liabilities and judgments
caused by any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or the Prospectus (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or any preliminary prospectus, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages, liabilities or judgments are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information relating to any Underwriters furnished in writing to the Company by
or on behalf of any Underwriter through you expressly for use therein; provided,
however, that the foregoing indemnity agreement with respect to any preliminary
prospectus shall not inure to the benefit of any Underwriter from whom the
person asserting any such losses, claims, damages and liabilities and judgments
purchased Shares, or any person controlling such Underwriter, if a copy of the
Prospectus (as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) was not sent or given by or on behalf of
such Underwriter to such person, if required by law so to have been delivered,
at or prior to the written confirmation of the sale of the Shares to such
person, and if the Prospectus (as so amended and supplemented) would have cured
the defect giving rise to such loss, claim, damage, liability or judgment.
(b) In case any action shall be brought against any Underwriter or any
person controlling such Underwriter, based upon any preliminary prospectus, the
Registration Statement or the Prospectus or any amendment or supplement thereto
and with respect to which indemnity may be sought against the Company, such
Underwriter shall promptly notify the Company in writing and the Company shall
assume the defense thereof, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses of
such counsel. Any Underwriter or any such controlling person shall have the
right to employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such Underwriter or such controlling person unless (i) the employment
of such counsel shall have been specifically authorized in writing by the
Company, (ii) the Company shall have failed to assume the defense and employ
counsel following prompt notice by such Underwriter or controlling person as
required by this Section 7(b) or (iii) the named parties to any such action
(including any impleaded parties) include
13.
14
both such Underwriter or such controlling person and the Company and such
Underwriter or such controlling person shall have been advised by such counsel
that there may be one or more legal defenses available to it which are different
from or additional to those available to the Company (in which case the Company
shall not have the right to assume the defense of such action on behalf of such
Underwriter or such controlling person, it being understood, however, that the
Company shall not, in connection with any one such action or separate but
substantially similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the fees and
expenses of more than one separate firm of attorneys (in addition to any
reasonable use of local counsel) for all such Underwriters and controlling
persons, which firm shall be designated in writing by Donaldson, Lufkin &
Jenrette Securities Corporation and that all such reasonable fees and expenses
shall be reimbursed as they are incurred). The Company shall not be liable for
any settlement of any such action 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 controlling person from and
against any loss or liability by reason of such settlement. Notwithstanding the
immediately preceding sentence, if in any case where the fees and expenses of
counsel are at the expense of the indemnifying party and an indemnified party
shall have requested the indemnifying party to reimburse the indemnified party
for such fees and expenses of counsel as incurred, such indemnifying party
agrees that it shall be liable for any settlement of any action effected without
its written consent if (i) such settlement is entered into more than 30 business
days after the receipt by such indemnifying party of the aforesaid request and
(ii) such indemnifying party shall have failed to reimburse the indemnified
party in accordance with such request for reimbursement prior to the date of
such settlement for any reason other than the indemnifying party's dispute in
good faith of the reasonableness of the fees and expenses for which
reimbursement has been requested. 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.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and any person controlling the Company within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act, to the same extent
as the foregoing indemnity from the Company to each Underwriter but only with
reference to information relating to such Underwriter furnished in writing by or
on behalf of such Underwriter through you expressly for use in the Registration
Statement, the Prospectus or any preliminary prospectus. In case any action
shall be brought against the Company, any of its directors, any such officer or
any person controlling the Company based on the Registration Statement, the
Prospectus or any preliminary prospectus and in respect of which
14.
15
indemnity may be sought against any Underwriter, the Underwriter shall have the
rights and duties given to the Company (except that if the Company shall have
assumed the defense thereof, such Underwriter shall not be required to do so,
but may employ separate counsel therein and participate in the defense thereof
but the fees and expenses of such counsel shall be at the expense of such
Underwriter), and the Company, its directors, any such officers and any person
controlling the Company shall have the rights and duties given to the
Underwriter, by Section 7(b) hereof.
(d) If the indemnification provided for in this Section 7 is
unavailable to an indemnified party in respect of any losses, claims, damages,
liabilities or judgments referred to therein, then each indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims,
damages, liabilities and judgments (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 and
the Underwriters in connection with the statements or omissions which resulted
in such losses, claims, damages, liabilities or judgments, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and the Underwriters shall be deemed to be in the same proportion as the total
net proceeds from the offering (before deducting expenses) received by the
Company, and the total underwriting discounts and commissions received by the
Underwriters, bear to the total price to the public of the Shares, in each case
as set forth in the table on the cover page of the Prospectus. The relative
fault of the Company and the Underwriters shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission to state a material fact relates to information supplied by
the Company or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7(d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were
offered to the
15.
16
public exceeds the amount of any damages which such Underwriter has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 7(d) are several in proportion to the respective number of Shares
purchased by each of the Underwriters hereunder and not joint.
8. Conditions of Underwriters' Obligations. The several obligations of
the Underwriters to purchase the Firm Shares under this Agreement are subject to
the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained
in this Agreement shall be true and correct on the Closing Date with the
same force and effect as if made on and as of the Closing Date.
(b) The Registration Statement shall have become effective not later
than 5:00 P.M. (and in the case of a Registration Statement filed under
Rule 462(b) of the Act, not later than 10:00 P.M.), New York City time, on
the date of this Agreement or at such later date and time as you may
approve in writing, and at the Closing Date no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been commenced or shall be pending
before or contemplated by the Commission.
(c) (i) Since the date of the latest balance sheet included in the
Registration Statement and the Prospectus, there shall not have been any
material adverse change, or any development involving a prospective
material adverse change, whether or not arising in the ordinary course of
business, in the condition, financial or otherwise, or in the earnings,
affairs or business prospects of the Company, (ii) since the date of the
latest balance sheet included in the Registration Statement and the
Prospectus there shall not have been any material change, or any
development involving a prospective material adverse change, in the capital
stock or in the long-term debt of the Company from that set forth in the
Registration Statement and Prospectus, (iii) the Company and its
subsidiaries shall have no liability or obligation, direct or contingent,
which is material to the Company and its subsidiaries, taken as a whole,
other than those reflected in the Registration Statement and the Prospectus
and (iv) on the Closing Date you shall have received a certificate dated
the Closing Date, signed by Kenneth J. Widder, M.D. and Gerard A. Wills, in
their capacities as the Chairman of the Board and Chief Executive Officer
and the Vice President, Finance and Chief Financial Officer, respectively,
of the Company, confirming, to the best of their knowledge, the matters set
forth in Sections (a), (b), and (c) of this Section 8.
16.
17
(d) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing
Date, of Johnson and Colmar, counsel for the Company, to the effect that:
(i) the Company and each of its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation and has the corporate power
and authority required to carry on its business as it is currently being
conducted and to own, lease and operate its properties;
(ii) the Company and each of its subsidiaries is duly qualified
and is in good standing as a foreign corporation authorized to do business
in each jurisdiction in which the nature of its business or its ownership
or leasing of property requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole;
(iii) all of the outstanding shares of capital stock of, or
other ownership interests in, each of the Company's subsidiaries have been
duly and validly authorized and issued and are fully paid and
non-assessable, and are owned by the Company and, to such counsel's
knowledge, free and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature;
(iv) all the outstanding shares of Common Stock have been duly
authorized and validly issued and are fully paid, non-assessable and, to
such counsel's knowledge, not subject to any preemptive or similar rights;
(v) the Shares have been duly authorized, and when issued and
delivered to the Underwriters against payment therefor as provided by this
Agreement, will have been validly issued and will be fully paid and
non-assessable, and the issuance of such Shares is not subject to any
statutory preemptive rights or, to such counsel's knowledge, any similar
contractual rights that have not been waived in writing;
(vi) this Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company enforceable in accordance with its terms (except as rights to
indemnity and contribution hereunder may be limited by applicable law and
except as enforcement may be limited by applicable bankruptcy, insolvency
or similar laws affecting the enforcement of creditors' rights generally or
by legal and equitable limitations on the availability of specific
remedies);
17.
18
(vii) the authorized capital stock of the Company, including the
Common Stock, conforms in all material respects as to legal matters to the
description thereof contained in the Prospectus;
(viii) the Registration Statement has become effective under the
Act, and to the best of such counsel's knowledge, after due inquiry, no
stop order suspending its effectiveness has been issued and no proceedings
for that purpose are pending before or contemplated by the Commission;
(ix) such contracts and documents as are summarized in the
Prospectus are fairly summarized in all material respects;
(x) the statements under the captions "Shares Eligible for
Future Sale" and "Description of Capital Stock" in the Prospectus and Item
15 of Part II of the Registration Statement, insofar as such statements
constitute a summary of legal matters, documents or proceedings referred to
therein, fairly present the information called for with respect to such
legal matters, documents and proceedings;
(xi) neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws and, to such counsel's
knowledge, neither the Company nor any of its subsidiaries is in default in
the performance of any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness or, except for
claimed defaults as described in the Prospectus, in any other agreement,
indenture or instrument material to the conduct of the business of the
Company and its subsidiaries, taken as a whole, to which the Company or any
of its subsidiaries is a party or by which it or any of its subsidiaries or
their respective property is bound;
(xii) the execution, delivery and performance of this Agreement
by the Company, compliance by the Company with all the provisions hereof
and the consummation of the transactions contemplated hereby will not
require any consent, approval, authorization or other order of any court,
regulatory body, administrative agency or other governmental body (except
as such may be required under the Act, the Exchange Act, the rules and
regulations of the NASD or other securities or Blue Sky laws) and will not
conflict with or constitute a breach of any of the terms or provisions of,
or a default under, the charter or by-laws of the Company or any of its
subsidiaries, or any agreement, indenture or other instrument known to such
counsel to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries or their respective properties
are bound, or to such counsel's knowledge, violate or conflict with any
laws, administrative regulations or rulings or court decrees applicable to
18.
19
the Company or any of its subsidiaries or their respective properties,
which violations or conflicts would have a Material Adverse Effect;
(xiii) to such counsel's knowledge, there is no legal or
governmental proceeding pending or threatened to which the Company or any
of its subsidiaries is a party or to which any of their respective property
is subject which is required to be described in the Registration Statement
or the Prospectus and is not so described, nor to the knowledge of such
counsel is there any contract or other document which is required to be
described in the Registration Statement or the Prospectus or is required to
be filed as an exhibit to the Registration Statement which is not described
or filed as required;
(xiv) to such counsel's knowledge, the Company and each of its
subsidiaries has such permits, licenses, franchises and authorizations of
governmental or regulatory authorities ("permits"), including, without
limitation, under any applicable Environmental Laws, as are necessary to
own, lease and operate its respective properties and to conduct its
business in the manner described in the Prospectus; to such counsel's
knowledge, the Company and each of its subsidiaries has fulfilled and
performed all of its material obligations with respect to such permits and
no event has occurred which allows, or after notice or lapse of time would
allow, revocation or termination thereof or results in any other material
impairment of the rights of the holder of any such permit;
(xv) the Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended;
(xvi) to the best of such counsel's knowledge, after due
inquiry, except for which waivers have been obtained in writing with
respect to inclusion in this offering, no holder of any security of the
Company has any right to require registration of shares of Common Stock or
any other security of the Company;
(xvii) Each document filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus, at the time it was filed or
last amended (other than financial statements and related schedules and
financial and statistical data, as to which such counsel need express no
opinion), appeared on its face to be appropriately responsive in all
material respects to the requirements of the Exchange Act.
In addition, such counsel shall state that, although such counsel has
not passed upon and does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or Prospectus (except as specified elsewhere in such counsel's
opinion) and has not made any independent
19.
20
verification or check of such statements, such counsel has participated in the
preparation of the Registration Statement and the Prospectus and in conferences
with certain officers and representatives of the Company and representatives of
the Underwriters and the Underwriters' counsel at which the contents of the
Registration Statement, the Prospectus and related matters were discussed; and
that on the basis of this participation and subject to the qualification noted,
(i) such counsel believes that the Registration Statement and the Prospectus
(except for financial statements and related schedules and financial and
statistical data ("financial information"), as to which such counsel need
express no opinion) comply as to form in all material respects with the Act and
the related rules and regulations of the Commission, and (ii) no facts have come
to the attention of such counsel which causes such counsel to believe that (A)
as of the effective date of the Registration Statement, the Registration
Statement (excluding financial information, as to which such counsel need
express no belief) contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading or that (B) as of the date of the Prospectus
and as of the date of such counsel's opinion, the Prospectus (excluding
financial information, as to which such counsel need express no belief)
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 in which they were made, not misleading.
(e) You shall have received on the Closing Date the opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing
Date, of Morrison & Foerster, patent counsel for the Company, to the effect
that:
(i) such counsel is familiar with the technology used by the
Company in its business and the manner of its use thereof and has read the
Registration Statement and the Prospectus, including particularly the
portions of the Registration Statement and the Prospectus referring to
patents, trade secrets, trademarks, service marks or other proprietary
information or materials; and
(ii) such counsel has no reason to believe that the Registration
Statement or the Prospectus (A) contains any untrue statement of a material
fact with respect to patents, trade secrets, trademarks, service marks or
other proprietary information or materials owned or used by the Company, or
the manner of its use thereof, or any allegation on the part of any person
that the Company is infringing any patent rights, trade secrets,
trademarks, service marks or other proprietary information or materials of
any such person or (B) omits to state any material fact relating to
patents, trade secrets, trademarks, service marks or other proprietary
information or materials owned or used by the Company, or the manner of its
use thereof, or any allegation of which such counsel has
20.
21
knowledge, that is required to be stated in the Registration Statement or
the Prospectus or is necessary to make the statements therein not
misleading.
(f) You shall have received on the Closing Date the opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing
Date, of _________________, regulatory counsel for the Company, to the
effect that the statements under the captions "Risk Factors -- Government
Regulation," "Risk Factors -- Uncertainty of Third Party Reimbursement,"
"Business -- Government Regulation" and "Business -- Third Party
Reimbursement" in the Prospectus, insofar as such statements constitute a
summary of legal matters, documents or proceedings referred to therein,
fairly present the information called for with respect to such legal
matters, documents and proceedings.
The opinions of Johnson and Colmar, Morrison & Foerster described in
Sections (d), (e) and (f) above shall be rendered to you at the request of the
Company and shall so state therein.
(g) You shall have received on the Closing Date an opinion, dated
the Closing Date, of Cooley Godward Castro Huddleson & Tatum ("Cooley
Godward"), counsel for the Underwriters, in form and substance reasonably
satisfactory to you.
(h) You shall have received letters on and as of the date hereof as
well as on and as of the Closing Date (in the latter case constituting an
affirmation of the statements set forth in the former, based on limited
procedures), in form and substance satisfactory to you, from Arthur
Andersen LLP, independent public accountants, with respect to the financial
statements and certain financial information contained in the Registration
Statement and the Prospectus.
(i) The Company shall have delivered to you the agreements specified
in Section 2 hereof.
(j) At the Closing Date, the Shares shall have been approved for
listing on the New York Stock Exchange, subject to official notice of
issuance.
(k) Cooley Godward shall have been furnished with such documents and
opinions as they may reasonably require for the purpose of enabling them to
review or pass upon the matters referred to in this Section 8 and in order
to evidence the accuracy, completeness or satisfaction in all material
respects of any of the representations, warranties or conditions herein
contained.
(l) Prior to the Closing Date, the Company shall have furnished to
you or caused to be furnished to you such further information,
certificates, opinions and documents as you may reasonably request.
21.
22
(m) The Company shall not have failed at or prior to the Closing
Date to perform or comply with any of the agreements herein contained and
required to be performed or complied with by the Company at or prior to the
Closing Date.
The several obligations of the Underwriters to purchase any Additional Shares
hereunder are subject to satisfaction on and as of each Option Closing Date of
the conditions set forth in Sections (a) through (m) except that the opinions
called for in Sections (d), (e), (f) and (g) and the letter referred to in
Section (h) shall be revised to reflect the sale of the Additional Shares.
9. Effective Date of Agreement and Termination. This Agreement shall
become effective upon the later of (i) execution of this Agreement and (ii) when
notification of the effectiveness of the Registration Statement has been
released by the Commission.
This Agreement may be terminated at any time prior to the Closing Date
by you by written notice to the Company if any of the following has occurred:
(i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any adverse change or development
involving a prospective material adverse change in the condition, financial or
otherwise, of the Company and its subsidiaries, taken as a whole, or the
earnings, affairs, or business prospects of the Company and its subsidiaries,
taken as a whole, whether or not arising in the ordinary course of business,
which would, in your judgment, make it impracticable to market the Shares on the
terms and in the manner contemplated in the Prospectus, (ii) any outbreak or
escalation of hostilities or other national or international calamity or crisis
or change in economic conditions or in the financial markets of the United
States or elsewhere that, in your judgment, is material and adverse and would,
in your judgment, make it impracticable to market the Shares on the terms and in
the manner contemplated in the Prospectus, (iii) the suspension or material
limitation of trading in securities on the New York Stock Exchange, the American
Stock Exchange or the Nasdaq Stock Market (National Market), (iv) the enactment,
publication, decree or other promulgation of any federal or state statute,
regulation, rule or order of any court or other governmental authority which in
your opinion materially and adversely affects, or will materially and adversely
affect, the business or operations of the Company or any subsidiary, (v) the
declaration of a banking moratorium by either federal or New York State
authorities or (vi) the taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs which in your
judgment has a material adverse effect on the financial markets in the United
States.
If on the Closing Date or on an Option Closing Date, as the case may
be, any one or more of the Underwriters shall fail or refuse to purchase the
Firm Shares or Additional Shares, as the case may be, which it or they have
agreed to purchase
22.
23
hereunder on such date and the aggregate number of Firm Shares or Additional
Shares, as the case may be, which such defaulting Underwriter or Underwriters,
as the case may be, agreed but failed or refused to purchase is not more than
one-tenth of the total number of Shares to be purchased on such date by all
Underwriters, each non-defaulting Underwriter shall be obligated severally, in
the proportion which the number of Firm Shares set forth opposite its name in
Schedule I bears to the total number of Firm Shares which all the non-defaulting
Underwriters, as the case may be, have agreed to purchase, or in such other
proportion as you may specify, to purchase the Firm Shares or Additional Shares,
as the case may be, which such defaulting Underwriter or Underwriters, as the
case may be, agreed but failed or refused to purchase on such date; provided
that in no event shall the number of Firm Shares or Additional Shares, as the
case may be, which any Underwriter has agreed to purchase pursuant to Section 2
hereof be increased pursuant to this Section 9 by an amount in excess of
one-ninth of such number of Firm Shares or Additional Shares, as the case may
be, without the written consent of such Underwriter. If on the Closing Date or
on an Option Closing Date, as the case may be, any Underwriter or Underwriters
shall fail or refuse to purchase Firm Shares, or Additional Shares, as the case
may be, and the aggregate number of Firm Shares or Additional Shares, as the
case may be, with respect to which such default occurs is more than one-tenth of
the aggregate number of Shares to be purchased on such date by all Underwriters
and arrangements satisfactory to you and the Company for purchase of such Shares
are not made within 48 hours after such default, this Agreement will terminate
without liability on the part of any non-defaulting Underwriter and the Company.
In any such case which does not result in termination of this Agreement, either
you or the Company shall have the right to postpone the Closing Date or the
applicable Option Closing Date, as the case may be, but in no event for longer
than seven days, in order that the required changes, if any, in the Registration
Statement and the Prospectus or any other documents or arrangements may be
effected. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of any such Underwriter
under this Agreement.
10. Miscellaneous. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (a) if to the Company, to Molecular
Biosystems, Inc., 10030 Barnes Canyon Road, San Diego, California 92121,
Attention: Vice President, Legal Affairs and General Counsel (with a required
copy to Johnson and Colmar, 300 South Wacker Drive, Chicago, Illinois 60606,
Attention: Craig P. Colmar, Esq.), and (b) if to any Underwriter or to you, to
you c/o Donaldson, Lufkin & Jenrette Securities Corporation, 227 Park Avenue,
New York, New York 10172, Attention: Syndicate Department (with a required copy
to Cooley Godward Castro Huddleson & Tatum, 4365 Executive Drive, Suite 1100,
San Diego, California 92121, Attention: Eric J. Loumeau, Esq.), or in any case
to such other address as the person to be notified may have requested in
writing.
23.
24
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company, its officers and directors and
of the several Underwriters set forth in or made pursuant to this Agreement
shall remain operative and in full force and effect, and will survive delivery
of and payment for the Shares, regardless of (i) any investigation, or statement
as to the results thereof, made by or on behalf of any Underwriter or by or on
behalf of the Company, the officers or directors of the Company or any
controlling person of the Company, (ii) acceptance of the Shares and payment for
them hereunder and (iii) termination of this Agreement.
If this Agreement shall be terminated by the Underwriters because of
any failure or refusal on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, the Company agrees to reimburse
the several Underwriters for all out-of-pocket expenses (including the fees and
disbursements of counsel) reasonably incurred by them.
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the
Underwriters, any controlling persons referred to herein and their respective
successors and assigns, all as and to the extent provided in this Agreement, and
no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
any of the Shares from any of the several Underwriters merely because of such
purchase.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
24.
25
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
MOLECULAR BIOSYSTEMS, INC.
By____________________________
Title:
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
OPPENHEIMER & CO., INC.
VECTOR SECURITIES INTERNATIONAL, INC.
Acting severally on behalf of
themselves and the several
Underwriters named in
Schedule I hereto
By DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
By__________________________
25.
26
SCHEDULE I
Number of Firm
Underwriters Shares to be Purchased
- ------------ ----------------------
Donaldson, Lufkin & Jenrette
Securities Corporation
Oppenheimer & Co., Inc.
Vector Securities International, Inc.
----------------------
Total 3,000,000
27
SCHEDULE II
Mallinckrodt Medical, Inc.