EXHIBIT 1.1
ADEZA BIOMEDICAL CORPORATION
2,500,000 SHARES*
COMMON STOCK
UNDERWRITING AGREEMENT
----------------------
June __, 1996
PRUDENTIAL SECURITIES INCORPORATED
NEEDHAM & COMPANY, INC.
TUCKER ANTHONY INCORPORATED
As Representatives of the several Underwriters
c/o Prudential Securities Incorporated
One New York Plaza
New York, New York 10292
Dear Sirs:
Each of Adeza Biomedical Corporation, a Delaware corporation (the
"Company"), and the persons and entities named in Schedule 2 hereto (the
"Selling Securityholders") hereby confirms its agreement with the several
underwriters named in Schedule 1 hereto (the "Underwriters"), for whom you have
been duly authorized to act as representatives (in such capacities, the
"Representatives"), as set forth below. If you are the only Underwriters, all
references herein to the Representatives shall be deemed to be to the
Underwriters.
1. SECURITIES. Subject to the terms and conditions herein contained, the
Company proposes to issue and sell to the several Underwriters an aggregate of
2,500,000 shares (the "Firm Securities") of the Company's Common Stock, par
value $.001 per share ("Common Stock"). The Selling Securityholders also propose
to sell to the several Underwriters not more than 375,000 additional shares of
Common Stock if requested by the Representatives as provided in Section 4 of
this Agreement. Any and all shares of Common Stock to be purchased by the
Underwriters pursuant to such option are referred to herein as the "Option
Securities," and the Firm Securities and any Option Securities are collectively
referred to herein as the "Securities." The Company is successor by merger to
Adeza Biomedical Corporation, a California corporation (the "Predecessor"), as a
result of a reincorporation transaction that became effective on ________ __,
1996 (the "Reincorporation").
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to, and agrees with, each of the several Underwriters that:
____________________
* Plus an option to purchase from the persons and entities named in Schedule
2 hereto up to 375,000 additional shares to cover over-allotments.
1.
(a) A registration statement on Form S-1 (File No. 333-03627) with
respect to the Securities, including a prospectus subject to completion, has
been filed by the Company with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), and one
or more amendments to such registration statement may also have been so filed.
After the execution of this Agreement, the Company will file with the Commission
either (i) if such registration statement, as it may have been amended, has been
declared by the Commission to be effective under the Act, either (A) if the
Company relies on Rule 434 under the Act, a Term Sheet (as hereinafter defined)
relating to the Securities, that shall identify the Preliminary Prospectus (as
hereinafter defined) that it supplements containing such information as is
required or permitted by Rules 434, 430A and 424(b) under the Act or (B) if the
Company does not rely on Rule 434 under the Act, a prospectus in the form most
recently included in an amendment to such registration statement (or, if no such
amendment shall have been filed, in such registration statement), with such
changes or insertions as are required by Rule 430A under the Act or permitted by
Rule 424(b) under the Act, and in the case of either clause (i)(A) or (i)(B) of
this sentence, as have been provided to and approved by the Representatives
prior to the execution of this Agreement, or (ii) if such registration
statement, as it may have been amended, has not been declared by the Commission
to be effective under the Act, an amendment to such registration statement,
including a form of prospectus, a copy of which amendment has been furnished to
and approved by the Representatives prior to the execution of this Agreement.
The Company may also file a related registration statement with the Commission
pursuant to Rule 462(b) under the Act for the purpose of registering certain
additional Securities, which registration shall be effective upon filing with
the Commission. As used in this Agreement, the term "Original Registration
Statement" means the registration statement initially filed relating to the
Securities, as amended at the time when it was or is declared effective,
including all financial schedules and exhibits thereto and including any
information omitted therefrom pursuant to Rule 430A under the Act and included
in the Prospectus (as hereinafter defined); the term "Rule 462(B) Registration
Statement" means any registration statement filed with the Commission pursuant
to Rule 462(b) under the Act (including the Registration Statement and any
Preliminary Prospectus (as hereinafter defined) or Prospectus incorporated
therein at the time such Registration Statement becomes effective); the term
"Registration Statement" includes both the Original Registration Statement and
any Rule 462(b) Registration Statement; the term "Preliminary Prospectus" means
each prospectus subject to completion filed with such registration statement or
any amendment thereto (including the prospectus subject to completion, if any,
included in the Registration Statement or any amendment thereto at the time it
was or is declared effective); the term "Prospectus" means:
(A) if the Company relies on Rule 434 under the Act, the Term Sheet
relating to the Securities that is first filed pursuant to Rule 424(b)(7)
under the Act, together with the Preliminary Prospectus identified therein
that such Term Sheet supplements;
(B) if the Company does not rely on Rule 434 under the Act, the
prospectus first filed with the Commission pursuant to Rule 424(b) under
the Act; or
2.
(C) if the Company does not rely on Rule 434 under the Act and if no
prospectus is required to be filed pursuant to Rule 424(b) under the Act,
the prospectus included in the Registration Statement;
and the term "Term Sheet" means any term sheet that satisfies the requirements
of Rule 434 under the Act. Any reference herein to the "date" of a Prospectus
that includes a Term Sheet shall mean the date of such Term Sheet.
(b) The Commission has not issued any order preventing or suspending
the use of any Preliminary Prospectus. When any Preliminary Prospectus was filed
with the Commission it (i) contained all statements required to be stated
therein in accordance with, and complied in all material respects with the
requirements of, the Act and the rules and regulations of the Commission
thereunder and (ii) did not include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. When the Registration Statement or any amendment thereto was or is
declared effective, it (i) contained or will contain all statements required to
be stated therein in accordance with, and complied or will comply in all
material respects with the requirements of, the Act and the rules and
regulations of the Commission thereunder and (ii) did not or will not include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading. When the Prospectus or
any Term Sheet that is a part thereof or any amendment or supplement to the
Prospectus is filed with the Commission pursuant to Rule 424(b) (or, if the
Prospectus or part thereof or such amendment or supplement is not required to be
so filed, when the Registration Statement or the amendment thereto containing
such amendment or supplement to the Prospectus was or is declared effective) and
on the Firm Closing Date and any Option Closing Date (both as hereinafter
defined), the Prospectus, as amended or supplemented at any such time, (i)
contained or will contain all statements required to be stated therein in
accordance with, and complied or will comply in all material respects with the
requirements of, the Act and the rules and regulations of the Commission
thereunder and (ii) did not or will not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The foregoing provisions of this paragraph (b) do not
apply to statements or omissions made in any Preliminary Prospectus, the
Registration Statement or any amendment thereto or the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein.
(c) If the Company has elected to rely on Rule 462(b) and the Rule
462(b) Registration Statement has not been declared effective (i) the Company
has filed a Rule 462(b) Registration Statement in compliance with and that is
effective upon filing pursuant to Rule 462(b) and has received confirmation of
its receipt and (ii) the Company has given irrevocable instructions for
transmission of the applicable filing fee in connection with the filing of the
Rule 462(b) Registration Statement in compliance with Rule 111 promulgated under
the Act or the Commission has received payment of such filing fee.
3.
(d) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of its jurisdiction of incorporation
and is duly qualified to transact business as a foreign corporation and is in
good standing under the laws of all other jurisdictions 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 does not amount to a
material liability or disability to the Company taken as a whole.
(e) The Company has full power (corporate and other) to own or lease
its properties and conduct its businesses as described in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus); and the Company has full power (corporate
and other) to enter into this Agreement and to carry out all the terms and
provisions hereof to be carried out by it.
(f) The Company does not, and immediately prior to the
Reincorporation the Predecessor did not, own any shares of stock or any other
equity securities of any corporation or have any equity interest in any firm,
partnership, association or other entity, except Adeza International Limited, a
private limited company organized under the laws of Ireland (the "Subsidiary").
(g) The Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus. All of the issued shares of
capital stock of the Company have been, and immediately prior to the
Reincorporation all of the issued shares of capital stock of the Predecessor had
been, duly authorized and validly issued and are, or were, as applicable, fully
paid and nonassessable. The Firm Securities and the Option Securities have been
duly authorized and at the Firm Closing Date or the related Option Closing Date
(as the case may be), after payment therefor in accordance herewith, will be
validly issued, fully paid and nonassessable. No holders of outstanding shares
of capital stock of the Company are entitled as such to any preemptive or other
rights to subscribe for any of the Securities, and no holder of securities of
the Company has any right which has not been fully exercised or waived to
require the Company to register the offer or sale of any securities owned by
such holder under the Act in the public offering contemplated by this Agreement.
(h) The capital stock of the Company conforms to the description
thereof contained in the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus) in all material respects.
(i) Except as disclosed in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), there are no
outstanding (A) securities or obligations of the Company convertible into or
exchangeable for any capital stock of the Company, (B) warrants, rights or
options to subscribe for or purchase from the Company any such capital stock or
any such convertible or exchangeable securities or obligations, or (C)
obligations of the Company to issue any shares of capital stock, any such
convertible or exchangeable securities or obligations, or any such warrants,
rights or options.
4.
(j) The consolidated financial statements and schedules of the
Company included in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus) fairly
present the financial position of the Company and the results of operations and
changes in financial condition as of the dates and periods therein specified.
Such consolidated financial statements and schedules have been prepared in
accordance with generally accepted accounting principles consistently applied
throughout the periods involved (except as otherwise noted therein). The
selected consolidated financial data set forth under the caption "Selected
Consolidated Financial Data" in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) fairly present, on the basis
stated in the Prospectus (or such Preliminary Prospectus), the information
included therein.
(k) Ernst & Young LLP, who have certified certain consolidated
financial statements of the Company and delivered their report with respect to
the audited consolidated financial statements and schedules included in the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), are independent public
accountants as required by the Act and the applicable rules and regulations
thereunder.
(l) The execution and delivery of this Agreement have been duly
authorized by the Company and this Agreement has been duly executed and by the
Company and is the valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as such enforceability
may be limited by the effect of bankruptcy, insolvency, reorganization,
moratorium and other similar laws relating to the rights and remedies of
creditors.
(m) No legal or governmental proceedings are pending to which the
Company or the Predecessor is a party or to which the property of the Company is
subject that are required to be described in the Registration Statement or the
Prospectus and are not described therein (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), and, to the best of the
Company's knowledge, no such proceedings have been threatened against the
Company or the Predecessor or with respect to any of their respective
properties; and no contract or other document is required to be described in the
Registration Statement or the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) or to be filed as an exhibit
to the Registration Statement that is not described therein or filed as
required.
(n) The issuance, offering and sale of the Securities to the
Underwriters by the Company pursuant to this Agreement, the compliance by the
Company with the other provisions of this Agreement and the consummation of the
other transactions herein contemplated do not (i) require the consent, approval,
authorization, registration or qualification of or with any governmental
authority, except such as have been obtained, such as may be required under
state securities or blue sky laws and, if the Registration Statement filed with
respect to the Securities (as amended) is not effective under the Act as of the
time of execution hereof, such as may be required (and shall be obtained as
provided in this Agreement) under the Act, or (ii) conflict with or result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, lease or other agreement
or
5.
instrument to which the Company is a party or by which the Company or any of
its properties are bound, or the charter documents or by-laws of the Company, or
any statute or any judgment, decree, order, rule or regulation of any court or
other governmental authority or any arbitrator applicable to the Company.
(o) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), the Company has not
sustained any material loss or interference with its businesses or properties
from fire, flood, hurricane, accident or other calamity, whether or not covered
by insurance, or from any labor dispute or any legal or governmental proceeding
and there has not been any material adverse change, or any development involving
a prospective material adverse change, in the condition (financial or
otherwise), management, business prospects, net worth, or results of operations
of the Company, except in each case as described in or contemplated by the
Prospectus or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus.
(p) The Company has not, and the Predecessor had not, directly or
indirectly, (i) taken any action designed to cause or to result in, or that has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities or (ii) since the filing of the
Registration Statement (A) sold, bid for, purchased, or paid anyone any
compensation for soliciting purchases of, the Securities or (B) paid or agreed
to pay to any person any compensation for soliciting another to purchase any
other securities of the Company (except for the sale of Securities by the
Selling Securityholders under this Agreement).
(q) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus) and, except in each
case as described in or contemplated by the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), (1) the Company has
not incurred any material liability or obligation, direct or contingent, nor
entered into any material transaction not in the ordinary course of business;
(2) the Company has not purchased any of its outstanding capital stock, nor
declared, paid or otherwise made any dividend or distribution of any kind on its
capital stock; and (3) there has not been any material change in the capital
stock, short-term debt or long-term debt of the Company.
(r) The Company has good and marketable title to all personal
property owned by it, in each case free and clear of any security interests,
liens, encumbrances, equities, claims and other defects, except such as do not
materially and adversely affect the value of such property and do not interfere
with the use made or proposed to be made of such property by the Company, and
any real property and buildings held under lease by the Company are held under
valid, subsisting and enforceable leases, with such exceptions as are not
material and do not interfere with the use made or proposed to be made of such
property and buildings by the Company, except in each case as described in the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
6.
(s) No labor dispute with the employees of the Company exists or is
threatened or, to the best of the Company's knowledge, imminent that could
result in a material adverse change in the condition (financial or otherwise),
business prospects, net worth or results of operations of the Company, except as
described in or contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(t) The Company owns or possesses, or, to the best of its knowledge,
can acquire on reasonable terms, adequate rights to all material patents, patent
applications, trademarks, service marks, trade names, licenses, copyrights and
proprietary or other confidential information currently employed by it in
connection with its business, and the Company has not and the Predecessor had
not received any notice of infringement of or conflict with asserted rights of
any third party with respect to any of the foregoing which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, would
result in a material adverse change in the condition (financial or otherwise),
business prospects, net worth or results of operations of the Company, except as
described in or contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(u) The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which it is engaged; the Company has not,
and, to the best of its knowledge, the Predecessor had not, been refused any
insurance coverage sought or applied for; and the Company has no reason to
believe that it will not be able to renew its existing insurance coverage as and
when such coverage expires or to obtain similar coverage from similar insurers
as may be necessary to continue its business at a cost that would not materially
and adversely affect the condition (financial or otherwise), business prospects,
net worth or results of operations of the Company, except as described in or
contemplated by the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus).
(v) The Company possesses all certificates, authorizations and
permits issued by the appropriate federal, state or foreign regulatory
authorities necessary to conduct its business, and the Company has not, and the
Predecessor had not, received any notice of proceedings relating to the
revocation or modification of any such certificate, authorization or permit
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a material adverse change in the condition
(financial or otherwise), business prospects, net worth or results of operations
of the Company, except as described in or contemplated by the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus). The
Company is not in violation of any foreign, state or local law, order, rule,
regulation, writ, injunction or decree of any court or governmental agency or
body, including, but not limited to, the United States Food and Drug
Administration (the "FDA"). All of the descriptions in the Registration
Statement and Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) of the legal and governmental proceedings
involving the Company by or before the FDA or any foreign, state or local
government body exercising comparable authority are true, complete and accurate
in all material respects.
(w) The Company will conduct its operations in a manner that will not
subject it to registration as an "investment company" within the meaning of the
Investment Company
7.
Act of 1940, as amended, and this transaction will not cause the Company to
become an investment company subject to registration.
(x) The Company has, and the Predecessor had, filed all foreign,
federal, state and local tax returns that are required to be filed or has
requested extensions thereof (except in any case in which the failure so to file
would not have a material adverse effect on the Company) and has paid all taxes
required to be paid by it and any other assessment, fine or penalty levied
against it, to the extent that any of the foregoing is due and payable, except
for any such assessment, fine or penalty that is currently being contested in
good faith or as described in or contemplated by the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus).
(y) The Company is not, and immediately prior to the Reincorporation
the Predecessor was not, in violation in any material respects of any federal or
state law or regulation relating to occupational safety and health or to the
storage, handling or transportation of hazardous or toxic materials, and the
Company has, and immediately prior to the Reincorporation the Predecessor had,
received all permits, licenses or other approvals required of it under
applicable federal and state occupational safety and health and environmental
laws and regulations to conduct its business, and the Company is, and
immediately prior to the Reincorporation the Predecessor was, in compliance with
all terms and conditions of any such permit, license or approval, except any
such violation of law or regulation, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals which would not, singly or in the
aggregate, result in a material adverse change in the condition (financial or
otherwise), business prospects, net worth or results of operations of the
Company taken as a whole, except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(z) There are no holders of securities of the Company, who, by reason
of the filing of the Registration Statement, have the right (which has not been
waived or complied with) to request the Company to register under the Act, or to
include in the Registration Statement, securities held by them.
(aa) The Company maintains, and immediately prior to the
Reincorporation the Predecessor maintained, a system of internal accounting
controls sufficient to provide reasonable assurance that (1) transactions are
executed in accordance with management's general or specific authorizations; (2)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain asset accountability; (3) access to assets is permitted only in
accordance with management's general or specific authorization; and (4) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(bb) No default exists, and no event has occurred which, with notice
or lapse of time or both, would constitute a default in the due performance and
observance of any term, covenant or condition of any indenture, mortgage, deed
of trust, lease or other agreement or
8.
instrument to which the Company is a party or by which the Company or any of its
properties is bound or may be affected in any material adverse respect with
regard to property, business or operations of the Company taken as a whole.
(cc) The Company has not distributed and, prior to the later of (i)
the Firm Closing Date and (ii) the completion of the distribution of the
Securities, will not distribute any offering material in connection with the
offering and sale of the Securities other than the Registration Statement or any
amendment thereto, any Preliminary Prospectus or the Prospectus or any amendment
or supplement thereto, or other materials, if any permitted by the Act.
(dd) The merger of the Predecessor with and into the Company has been
consummated in compliance with applicable law; the Company has succeeded to all
of the rights, privileges, powers and franchises, and is subject to all of the
restrictions, disabilities and duties, of the Predecessor; the Company has
succeeded to all of the material contract rights of the Predecessor, and all
required consents with respect to such contracts have been obtained; all of the
outstanding shares of capital stock of the Predecessor have been converted into
that number of shares of capital stock of the Company having the same rights,
preferences and privileges (except for differences resulting from applicable
law) as described in the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus); all of the outstanding options and
warrants of the Predecessor are exercisable for that number of shares of Common
Stock of the Company as described in the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus); the Reincorporation
was duly authorized by the Board of Directors and stockholders of the
Predecessor and the Company; the consummation of the Reincorporation does not
and will not conflict with, or result in any breach of, or constitute a default
under (nor constitute any event which with notice, lapse of time or both would
constitute a breach of or default under), any provision of any material license,
indenture, lease, mortgage, deed of trust, bank loan or credit agreement or
other agreement or instrument to which the Company or is, or immediately prior
to the Reincorporation the Predecessor was, a party or by which the Company or
its properties are, or immediately prior to the Reincorporation the Predecessor
or its properties were, bound or affected; the consummation of the
Reincorporation does not and will not conflict with, or result in a violation
of, any federal, state, local or foreign law, regulation or rule or any decree,
judgment or order applicable to the Company, or immediately prior to the
Reincorporation, the Predecessor, the result of which could have a material
adverse effect on the properties, assets, operations, business, business
prospects or condition (financial or other) of the Company taken as a whole; and
the issuance of capital stock by the Company in the Reincorporation was in
compliance with all applicable state securities or blue sky laws and was exempt
from registration under the Act.
(ee) The human clinical trials conducted by the Company or its
subsidiaries or in which the Company has participated that are described in the
Registration Statement and Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) or the results of which are
referred to in the Registration Statement and Prospectus (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus), and, to the best
of the Company's knowledge, such studies and tests conducted on behalf of the
Company, were and, if still pending, are being conducted in accordance with
experimental protocols, procedures and controls pursuant to accepted
professional scientific standards for the clinical study of new
9.
medical devices; the descriptions of the results of such studies, tests and
trials contained in the Registration Statement and Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus) are, to
the extent described, accurate and complete in all material respects, and the
Company has no knowledge of any other trials, studies or tests, the results of
which reasonably call into question the results described or referred to in the
Registration Statement and Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus); and the Company has not
received any notices or correspondence from the FDA or any other governmental
agency requiring the termination, suspension or modification of any clinical
trials conducted by, or, to the best of its knowledge, on behalf of, the Company
or in which the Company has participated that are described in the Registration
Statement and Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) or the results of which are referred to in the
Registration Statement and Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(ff) The Subsidiary currently does not conduct any operations and
currently does not have any significant assets or properties or any employees.
(gg) Each certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters shall be
deemed to be a representation and warranty by the Company to each Underwriter
as to the matters covered thereby.
3. REPRESENTATIONS AND WARRANTIES OF THE SELLING SECURITYHOLDERS.
(a) Each Selling Securityholder, severally and not jointly,
represents and warrants to and agrees with each of the several Underwriters
that:
(i) Such Selling Securityholder has full power (corporate and
other) to enter into this Agreement and to sell, assign, transfer and deliver to
the Underwriters the Securities to be sold by such Selling Securityholder
hereunder in accordance with the terms of this Agreement; the execution and
delivery of this Agreement have been duly authorized by all necessary corporate
action of such Selling Securityholder; and this Agreement has been duly executed
and delivered by or on behalf of such Selling Securityholder.
(ii) Such Selling Securityholder has duly executed and
delivered a power of attorney and custody agreement (with respect to such
Selling Securityholder, the "Power-of-Attorney" and the "Custody Agreement,"
respectively), each in the form heretofore delivered to the Representatives,
appointing Daniel O. Wilds and Emory V. Anderson as such Selling
Securityholder's attorneys-in-fact (the "Attorneys-in-Fact") with authority to
execute, deliver and perform this Agreement on behalf of such Selling
Securityholder and appointing First Chicago Trust Company of New York as
Custodian thereunder (the "Custodian"). Certificates in negotiable form,
endorsed in blank or accompanied by blank stock powers duly executed, with
signatures appropriately guaranteed, representing the Securities to be sold by
such Selling Securityholder hereunder have been deposited with the Custodian
pursuant to the Custody Agreement for the purpose of delivery pursuant to this
Agreement. Such Selling Securityholder has
10.
full power (corporate and other) to enter into the Custody Agreement and the
Power-of-Attorney and to perform its obligations under the Custody Agreement.
The execution and delivery of the Custody Agreement and the Power-of-Attorney
have been duly authorized by all necessary corporate action of such Selling
Securityholder; the Custody Agreement and the Power-of-Attorney have been duly
executed and delivered by such Selling Securityholder and, assuming due
authorization, execution and delivery by the Custodian, are the legal, valid,
binding and enforceable instruments of such Selling Securityholder. Such Selling
Securityholder agrees that each of the Securities to be sold by such Selling
Securityholder represented by the certificates on deposit with the Custodian is
subject to the interests of the Underwriters hereunder, that the arrangements
made for such custody, the appointment of the Attorneys-in-Fact and the right,
power and authority of the Attorneys-in-Fact to execute and deliver this
Agreement, to agree on the price at which the Securities (including such Selling
Securityholder's Securities) are to be sold to the Underwriters, and to carry
out the terms of this Agreement, are to that extent irrevocable and that the
obligations of such Selling Securityholder hereunder shall not be terminated,
except as provided in this Agreement, the Power of Attorney or the Custody
Agreement, by any act of such Selling Securityholder, by operation of law or
otherwise, whether in the case of any individual Selling Securityholder by the
death or incapacity of such Selling Securityholder, in the case of a trust or
estate by the death of the trustee or trustees or the executor or executors or
the termination of such trust or estate, or in the case of a corporate or
partnership Selling Securityholder by its liquidation or dissolution or by the
occurrence of any other event. If any individual Selling Securityholder, trustee
or executor should die or become incapacitated or any such trust should be
terminated, or if any corporate or partnership Selling Securityholder shall
liquidate or dissolve, or if any other event should occur, before the delivery
of such Securities hereunder, the certificates for such Securities deposited
with the Custodian shall be delivered by the Custodian in accordance with the
respective terms and conditions of this Agreement as if such death, incapacity,
termination, liquidation or dissolution or other event had not occurred,
regardless of whether or not the Custodian or the Attorneys-in-Fact shall have
received notice thereof.
(iii) Such Selling Securityholder is the lawful owner of the
Securities to be sold by such Selling Securityholder hereunder and upon sale and
delivery of, and payment for, such Securities, as provided herein, such Selling
Securityholder will convey good and marketable title to such Securities, free
and clear of any security interests, liens, encumbrances, equities, claims or
other defects (assuming that the several Underwriters are without notice of any
adverse claim, as defined in the Uniform Commercial Code (the "Code"), and are
otherwise bona fide purchasers for purposes of the Code).
(iv) Such Selling Securityholder has not, directly or
indirectly, (i) taken any action designed to cause or result in, or that has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities or (ii) since the filing of the
Registration Statement (A) sold, bid for, purchased, or paid anyone any
compensation for soliciting purchases of, the Securities except as otherwise
permitted
11.
pursuant to the terms of the Lock-up Agreements entered into between the
Representatives and each of the Selling Securityholders or, (B) paid or
agreed to pay to any person any compensation for soliciting another to
purchase any other securities of the Company (except for the sale of
Securities by the Selling Securityholders under this Agreement).
(v) The sale by such Selling Securityholder of Securities
pursuant hereto is not prompted by any material adverse information
concerning the Company that is not set forth in the Registration Statement
or the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus).
(vi) The sale of the Securities to the Underwriters by the
Selling Securityholder pursuant to this Agreement, the compliance by such
Selling Securityholder with the other provisions of this Agreement, the
Custody Agreement and the consummation of the other transactions herein
contemplated do not (i) require the consent, approval, authorization,
registration or qualification of or with any governmental authority, except
such as have been obtained, such as may be required under state securities
or blue sky laws and, if the registration statement filed with respect to
the Securities (as amended) is not effective under the act as of the time
of execution hereof, such as may be required (and shall be obtained as
provided in this Agreement) under the Act, or (ii) conflict with or result
in a breach or violation of any of the terms and provisions of, or
constitute a default under any indenture, mortgage, deed of trust, lease or
other agreement or instrument to which such Selling Securityholder or any
of its subsidiaries is a party or by which such Selling Securityholder or
any of its subsidiaries or any of their respective properties are bound, or
the charter documents or bylaws of such Selling Securityholder or any of
its subsidiaries, or any statute or any judgment, decree, order, rule or
regulation of any court or other governmental authority or any arbitrator
applicable to such Selling Securityholder or any of its subsidiaries.
(b) Aeneas Venture Corporation represents and warrants to and agrees
with each of the several Underwriters that (i) without having undertaken to
determine independently the accuracy or completeness of the information
contained in the Registration Statement, including the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus), Aeneas
Venture Corporation is familiar with the Registration Statement and has no
actual knowledge of any material fact, condition or information not disclosed in
the prospectus which has had a material adverse effect on the Company taken as a
whole and (ii) to the extent that any statements or omissions are made in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by Aeneas Venture Corporation specifically
for use therein, such Preliminary Prospectus did, and the Registration Statement
and the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) and any amendments or supplements thereto, when they
become effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder and will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they
12.
are made, not misleading. Aeneas Venture Corporation has reviewed the Prospectus
(or, if the Prospectus is not in existence, the most recent Preliminary
Prospectus) and the Registration Statement, and the information regarding such
Selling Securityholder set forth therein under the caption "Principal and
Selling Stockholders" is complete and accurate.
(c) Each Selling Securityholder except Aeneas Venture Corporation
represents and warrants to and agrees with each of the several Underwriters that
to the extent that any statements or omissions are made in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto in reliance upon and in conformity with written information
furnished to the Company by such Selling Securityholder specifically for use
therein, such Preliminary Prospectus did, and the Registration Statement and the
Prospectus and any amendments or supplements thereto, when they become effective
or are filed with the Commission, as the case may be, will conform in all
material respects to the requirements of the Act and the rules and regulations
of the Commission thereunder and will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they are made, not misleading. Such Selling Securityholder has
reviewed the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus) and the Registration Statement, and the
information regarding such Selling Securityholder set forth therein under the
caption "Principal and Selling Stockholders" is complete and accurate.
4. PURCHASE, SALE AND DELIVERY OF THE SECURITIES.
(a) On the basis of the representations, warranties, agreements and
covenants herein contained and subject to the terms and conditions herein set
forth, the Company agrees to issue and sell to each of the Underwriters, and
each of the Underwriters, severally and not jointly, agrees to purchase from the
Company, at a purchase price of $________ per share, the number of Firm
Securities set forth opposite the name of such Underwriter in Schedule 1 hereto.
One or more certificates in definitive form for the Firm Securities that the
several Underwriters have agreed to purchase hereunder, and in such denomination
or denominations and registered in such name or names as the Representatives
request upon notice to the Company at least 48 hours prior to the Firm Closing
Date, shall be delivered by or on behalf of the Company to the Representatives
for the respective accounts of the Underwriters, against payment by or on behalf
of the Underwriters of the purchase price therefor by wire transfer of same-day
funds (the "Wired Funds") to the account of the Company. Such delivery of the
Firm Securities shall be made at the offices of Cooley Godward Castro Huddleson
& Tatum, Five Palo Alto Square, 3000 El Camino Real, Palo Alto, CA 94306-2155 at
9:30 A.M., New York City time, on _______________, 1996, or at such other place,
time or date as the Representatives and the Company may agree upon or as the
Representatives may determine pursuant to Section 10 hereof, such time and date
of delivery against payment being herein referred to as the "Firm Closing Date."
The Company will make such certificate or certificates for the Firm Securities
available for checking and packaging by the Representatives at the offices in
New York, New York of the Company's transfer agent or registrar or of Prudential
Securities Incorporated at least 24 hours prior to the Firm Closing Date.
13.
(b) For the purpose of covering any over-allotments in connection
with the distribution and sale of the Firm Securities as contemplated by the
Prospectus, each of the Selling Securityholders hereby grants, severally and not
jointly, to the several Underwriters an option to purchase, severally and not
jointly, the Option Securities to be sold by such Selling Securityholder
hereunder. The purchase price to be paid for any Option Securities shall be the
same price per share as the price per share for the Firm Securities set forth
above in paragraph (a) of this Section 4. The option granted hereby may be
exercised as to all or any part of the Option Securities from time to time
within thirty days after the date of the Prospectus (or, if such 30th day shall
be a Saturday or Sunday or a holiday, on the next business day thereafter when
the New York Stock Exchange is open for trading). The Underwriters shall not be
under any obligation to purchase any of the Option Securities prior to the
exercise of such option. The Representatives may from time to time exercise the
option granted hereby by giving notice in writing or by telephone (confirmed in
writing) to the Company and the Selling Securityholders setting forth the
aggregate number of Option Securities as to which the several Underwriters are
then exercising the option and the date and time for delivery of and payment for
such Option Securities. Any such date of delivery shall be determined by the
Representatives but shall not be earlier than two business days or later than
three business days after such exercise of the option and, in any event, shall
not be earlier than the Firm Closing Date. The time and date set forth in such
notice, or such other time on such other date as the Representatives and the
Selling Securityholders may agree upon or as the Representatives may determine
pursuant to Section 10 hereof, is herein called the "Option Closing Date" with
respect to such Option Securities. Upon exercise of the option as provided
herein, the Selling Securityholders shall become obligated, severally and not
jointly, to sell to each of the several Underwriters, and, subject to the terms
and conditions herein set forth, each of the Underwriters (severally and not
jointly) shall become obligated to purchase from the Selling Securityholders,
the same percentage of the total number of the Option Securities to be sold by
such Selling Securityholder hereunder as to which the several Underwriters are
then exercising the option as such Underwriter is obligated to purchase of the
aggregate number of Firm Securities, as adjusted by the Representatives in such
manner as they deem advisable to avoid fractional shares. If the Option is
exercised as to all or any portion of the Option Securities, one or more
certificates in definitive form for such Option Securities, and payment
therefor, shall be delivered on the related Option Closing Date in the manner,
and upon the terms and conditions, set forth in paragraph (a) of this Section 4,
except that reference therein to the Firm Securities and the Firm Closing Date
shall be deemed, for purposes of this paragraph (b), to refer to such Option
Securities and Option Closing Date, respectively.
(c) It is understood that any of you, individually and not as one of
the Representatives, may (but shall not be obligated to) make payment on behalf
of any Underwriter or Underwriters for any of the Securities to be purchased by
such Underwriter or Underwriters. No such payment shall relieve such Underwriter
or Underwriters from any its or their obligations hereunder.
(d) Each of the Company and each Selling Securityholder hereby
acknowledges that the wire transfer by or on behalf of the Underwriters of the
purchase price for any Securities does not constitute closing of a purchase and
sale of the Securities. Only execution and delivery of a receipt for Securities
by the Underwriters indicates completion of the closing
14.
of a purchase of the Securities from the Company or the Selling Securityholders,
as the case may be. Furthermore, in the event that the Underwriters wire funds
to the Company or the Selling Securityholders prior to the completion of the
closing of a purchase of Securities, each of the Company and the Selling
Securityholders hereby acknowledges that until the Underwriters execute and
deliver a receipt for the Securities, by facsimile or otherwise, the Company or
the Selling Securityholders, as the case may be, will not be entitled to the
Wired Funds and shall return the Wired Funds to the Underwriters as soon as
practicable (by wire transfer of same-day funds) upon demand. In the event that
the closing of a purchase of Securities is not completed and the Wired Funds are
not returned by the Company or the Selling Securityholders, as the case may be,
to the Underwriters on the same day the Wired Funds were received by the Company
or the Selling Securityholders, each of the Company and the Selling
Securityholders agrees to pay to the Underwriters in respect of each day the
Wired Funds are not returned by it, in same-day funds, interest on the amount of
such Wired Funds in an amount representing the Underwriters' cost of financing
as reasonably determined by Prudential Securities Incorporated.
5. OFFERING BY THE UNDERWRITERS. Upon your authorization of the release
of the Firm Securities, the several Underwriters propose to offer the Firm
Securities for sale to the public upon the terms set forth in the Prospectus.
6. COVENANTS OF THE COMPANY AND THE SELLING SECURITYHOLDERS.
(a) The Company covenants and agrees with each of the Underwriters
that:
(i) The Company will use its best efforts to cause the
Registration Statement, if not effective at the time of execution of this
Agreement, and any amendments thereto to become effective as promptly as
possible. If required, the Company will file the Prospectus or any Term
Sheet that constitutes a part thereof and any amendment or supplement
thereto with the Commission in the manner and within the time period
required by Rule 434 and 424(b) under the Act. During any time when a
prospectus relating to the Securities is required to be delivered under the
Act, the Company (i) will comply with all requirements imposed upon it by
the Act and the rules and regulations of the Commission thereunder to the
extent necessary to permit the continuance of sales of or dealings in the
Securities in accordance with the provisions hereof and of the Prospectus,
as then amended or supplemented, and (ii) will not file with the Commission
the Prospectus, Term Sheet or the amendment referred to in the second
sentence of Section 2(a) hereof, any amendment or supplement to such
Prospectus, Term Sheet or any amendment to the Registration Statement or
any Rule 462(b) Registration Statement of which the Representatives shall
not previously have been advised and furnished with a copy for a reasonable
period of time prior to the proposed filing and as to which filing the
Representatives shall not have given their consent. The Company will
prepare and file with the Commission, in accordance with the rules and
regulations of the Commission, promptly upon request by the Representatives
or counsel for the Underwriters, any amendments to the Registration
Statement or amendments or supplements to the Prospectus that may be
necessary or advisable in connection with the distribution of the
Securities by the several Underwriters, and will use its best efforts to
cause any such amendment to the Registration Statement to be declared
effective by the
15.
Commission as promptly as possible. The Company will advise the
Representatives, promptly after receiving notice thereof, of the time when
the Registration Statement or any amendment thereto has been filed or
declared effective or the Prospectus or any amendment or supplement thereto
has been filed and will provide evidence satisfactory to the
Representatives of each such filing or effectiveness.
(ii) The Company will advise the Representatives, promptly
after receiving notice or obtaining knowledge thereof, of (i) the issuance
by the Commission of any stop order suspending the effectiveness of the
Original Registration Statement or any Rule 462(b) Registration Statement
or any amendment thereto or any order preventing or suspending the use of
any Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto, (ii) the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, (iii) the institution, threatening or
contemplation of any proceeding for any such purpose or (iv) any request
made by the Commission for amending the Original Registration Statement or
any Rule 462(b) Registration Statement, for amending or supplementing the
Prospectus or for additional information. The Company will use its best
efforts to prevent the issuance of any such stop order and, if any such
stop order is issued, to obtain the withdrawal thereof as promptly as
possible.
(iii) The Company will arrange for the qualification of the
Securities for offering and sale under the securities or blue sky laws of
such jurisdictions as the Representatives may designate and will continue
such qualifications in effect for as long as may be necessary to complete
the distribution of the Securities, provided, however, that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to execute a general consent to service of process in any
jurisdiction.
(iv) If, at any time prior to the later of (i) the final date
when a prospectus relating to the Securities is required to be delivered
under the Act or (ii) the Option Closing Date, any event occurs as a result
of which the Prospectus, as then amended or supplemented, would include any
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if for any
other reason it is necessary at any time to amend or supplement the
Prospectus to comply with the Act or the rules or regulations of the
Commission thereunder, the Company will promptly notify the Representatives
thereof and, subject to Section 6(a)(i) hereof, will prepare and file with
the Commission, at the Company's expense, an amendment to the Registration
Statement or an amendment or supplement to the Prospectus that corrects
such statement or omission or effects such compliance.
(v) The Company will, without charge, provide (i) to the
Representatives and to counsel for the Underwriters a conformed copy of the
Original Registration Statement filed with respect to the Securities and
each amendment thereto (in each case including exhibits thereto) and any
Rule 462(b) Registration Statement, certified by the Secretary or an
Assistant Secretary of the Company to be true and complete copies thereof
as filed with the Commission by electronic transmission, (ii) to each other
Underwriter, a conformed copy of such Original Registration Statement and
16.
any Rule 462(b) Registration Statement and each amendment thereto (in each
case without exhibits thereto) and (iii) so long as a prospectus relating
to the Securities is required to be delivered under the Act, as many copies
of each Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto as the Representatives may reasonably request; without
limiting the application of clause (iii) of this sentence, the Company, not
later than (A) 6:00 PM, New York City time, on the date of determination of
the public offering price, if such determination occurred at or prior to
10:00 AM, New York City time, on such date or (B) 2:00 PM, New York City
time, on the business day following the date of determination of the public
offering price, if such determination occurred after 10:00 AM, New York
City time, on such date, will deliver to the Underwriters, without charge,
as many copies of the Prospectus and any amendment or supplement thereto as
the Representatives may reasonably request for purposes of confirming
orders that are expected to settle on the Firm Closing Date. The Company
will provide or cause to be provided to each of the Representatives, and to
each Underwriter that so requests in writing, a copy of each report on Form
SR filed by the Company as required by Rule 463 under the Act.
(vi) The Company, as soon as practicable, will make generally
available to its stockholders and to the Representatives a consolidated
earnings statement of the Company and its subsidiaries that satisfies the
provisions of Section 11(a) of the Act and Rule 158 thereunder.
(vii) The Company will apply the net proceeds from the sale of
the Securities in accordance with the description set forth under "Use of
Proceeds" in the Prospectus.
(viii) The Company will not, directly or indirectly, without the
prior written consent of Prudential Securities Incorporated, on behalf of
the Underwriters, offer, sell, offer to sell, contract to sell, grant any
option to purchase or otherwise sell or dispose (or announce any offer,
sale, offer of sale, contract of sale, grant of any option to purchase or
other sale or disposition) of any shares of Common Stock or any securities
convertible into, or exchangeable or exercisable for, shares of Common
Stock for a period of 180 days after the date hereof except for (i)
issuances pursuant to exercise of securities of the Company outstanding on
the date hereof, (ii) issuances of Convertible Secured Promissory Notes and
Stock Purchase Warrants pursuant to the terms of the Note and Warrant
Purchase Agreement dated as of April 30, 1996 by and between the Company
and the shareholders of the Company identified therein and (iii) issuances
of securities under the Company's 1995 Stock Option and Restricted Stock
Plan, as amended, 1996 Employee Stock Purchase Plan and 1996 Directors'
Stock Option Plan (collectively, the "Plans"), provided that the Company
shall require any person acquiring securities pursuant to the Plans to
execute and deliver a Lock-Up Agreement in the form entered into between
the Representatives and officers, directors and certain stockholders of the
Company if the acquisition of securities pursuant to the Plans would cause
such person to beneficially own 5,000 or more shares of Common Stock, or
any securities convertible into, or exchangeable or exercisable for, 5,000
or more shares of Common Stock within 180 days subsequent to the date of
the final Prospectus filed with the
17.
Commission pursuant to Rule 424(b) of the Act, or, if no filing under Rule
424(b) is made, the date of the final Prospectus included in the
Registration Statement when declared effective under the Act.
(ix) The Company will not, directly or indirectly, (i) take
any action designed to cause or to result in, or that has constituted or
which might reasonably be expected to constitute, the stabilization or
manipulation of the price of any security of the Company to facilitate the
sale or resale of the Securities or (ii) (A) sell, bid for, purchase, or
pay anyone any compensation for soliciting purchases of, the Securities or
(B) pay or agree to pay to any person any compensation for soliciting
another to purchase any other securities of the Company.
(x) The Company will obtain the agreements described in
Section 8(j) hereof prior to the Firm Closing Date.
(xi) If at any time during the 25-day period after the
Registration Statement becomes effective or the period prior to the Option
Closing Date, any rumor, publication or event relating to or affecting the
Company shall occur as a result of which in your opinion the market price
of the Common Stock has been or is likely to be materially affected
(regardless of whether such rumor, publication or event necessitates a
supplement to or amendment of the Prospectus), the Company will, after
written notice from you advising the Company to the effect set forth above,
forthwith prepare, consult with you concerning the substance of, and
disseminate a press release or other public statement, reasonably
satisfactory to you, responding to or commenting on such rumor, publication
or event; provided, however, that the Company shall not be required to
disseminate a press release or other public statement responding to any
rumor if the Company can demonstrate to the Representatives that such
public statement would not be in the best interests of the Company and its
stockholders.
(xii) The Company will cause the Securities to be duly included
for quotation on the Nasdaq National Market prior to the Firm Closing Date.
The Company will ensure that the Securities remain included for quotation
on the Nasdaq National Market following the Firm Closing Date.
(xiii) If the Company elects to rely on Rule 462(b), the Company
shall both file a Rule 462(b) Registration Statement with the Commission in
compliance with Rule 462(b) and pay the applicable fees in accordance with
Rule 111 promulgated under the Act by the earlier of (i) 10:00 P.M. Eastern
time on the date of this Agreement and (ii) the time confirmations are sent
or given, as specified by Rule 462(b)(2).
(b) Each of the Selling Securityholders, severally and not jointly,
covenants and agrees with each of the Underwriters that:
(i) Such Selling Securityholder will not, directly or
indirectly, (i) take any action designed to cause or to result in, or that
has constituted or which might
18.
reasonably be expected to constitute, the stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale
of the Securities or (ii) (A) sell, bid for, purchase, or pay anyone any
compensation for soliciting purchases of, the Securities or (B) pay or
agree to pay to any person any compensation for soliciting another to
purchase any other securities of the Company (except for the sale of
Securities by such Selling Securityholder under this Agreement).
(ii) Such Selling Securityholder will not, directly or
indirectly, without the prior written consent of Prudential Securities
Incorporated, offer, sell, offer to sell, contract to sell, grant any
option to purchase or otherwise sell or dispose (or announce any offer,
sale, offer of sale, contract of sale, grant of any option to purchase or
other sale or disposition) of any Securities legally or beneficially owned
by such Selling Securityholder or any securities convertible into, or
exchangeable or exercisable for, Securities for a period of 180 days after
the date hereof; provided, however, that such Selling Securityholder may
offer, sell, offer to sell, contract to sell, grant an option to purchase
or otherwise dispose of or transfer such securities in a privately
negotiated transaction not effected on a national securities exchange
provided that the transferee of such securities executes an agreement
pursuant to which such transferee agrees to be bound by the terms of this
Agreement.
7. EXPENSES. The Company will pay all costs and expenses incident to the
performance of its obligations under this Agreement, whether or not the
transactions contemplated herein are consummated or this Agreement is terminated
pursuant to Section 12 hereof, including all costs and expenses incident to (i)
the printing or other production of documents with respect to the transactions,
including any costs of printing the registration statement originally filed with
respect to the Securities and any amendment thereto, any Rule 462(b)
Registration Statement, any Preliminary Prospectus and the Prospectus and any
amendment or supplement thereto, this Agreement and any blue sky memoranda, (ii)
all arrangements relating to the delivery to the underwriters of copies of the
foregoing documents, (iii) the fees and disbursements of the counsel, the
accountants and any other experts or advisors retained by the Company, (iv)
preparation, issuance and delivery to the Underwriters of any certificates
evidencing the Securities, including transfer agent's and registrar's fees, (v)
the qualification of the securities under state securities and blue sky laws,
including filing fees and fees and disbursements of counsel for the Underwriters
relating thereto, (vi) the filing fees of the Commission and the National
Association of Securities Dealers, Inc. relating to the Securities, (vii) any
quotation of the Securities on the Nasdaq National Market, (viii) any meetings
with prospective investors in the Securities (other than as shall have been
specifically approved by the Representatives to be paid for by the Underwriters)
and (ix) advertising relating to the offering of the Securities (other than as
shall have been specifically approved by the representatives to be paid for by
the Underwriters). If the sale of the Securities provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 8 hereof is not satisfied, because this Agreement is terminated
pursuant to Section 12 hereof or because of any failure, refusal or inability on
the part of the Company to perform all obligations and satisfy all conditions on
its part to be performed or satisfied hereunder other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
19.
severally upon demand for all reasonable out-of-pocket expenses (including
counsel fees and disbursements) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities. The Company
shall not in any event be liable to any of the Underwriters for the loss of
anticipated profits from the transactions covered by this Agreement.
8. CONDITIONS OF THE UNDERWRITERS' OBLIGATIONS. The obligations of the
several Underwriters to purchase and pay for the Firm Securities shall be
subject, in the Representatives' sole discretion, to the accuracy of the
representations and warranties of the Company contained herein as of the date
hereof and as of the Firm Closing Date, as if made on and as of the Firm Closing
Date, to the accuracy of the statements of the Company's officers made pursuant
to the provisions hereof, to the performance by the Company of its covenants and
agreements hereunder and to the following additional conditions:
(a) If the Original Registration Statement or any amendment thereto
filed prior to the Firm Closing Date has not been declared effective as of the
time of execution hereof, the Original Registration Statement or such amendment
and, if the Company has elected to rely upon Rule 462(b), the Rule 462(b)
Registration Statement, shall have been declared effective not later than the
earlier of (i) 11 A.M., New York City time, on the date on which the amendment
to the registration statement originally filed with respect to the Securities or
to the Registration Statement, as the case may be, containing information
regarding the initial public offering price of the Securities has been filed
with the Commission and (ii) the time confirmations are sent or given as
specified by Rule 462(b)(2) or, with respect to the Original Registration
Statement, such later time and date as shall have been consented to by the
Representatives; if required, the Prospectus or any Term Sheet that constitutes
a part thereof and any amendment or supplement thereto shall have been filed
with the Commission in the manner and within the time period required by Rules
434 and 424(b) under the Act; no stop order suspending the effectiveness of the
Registration Statement or any amendment thereto shall have been issued, and no
proceedings for that purpose shall have been instituted or threatened or, to the
knowledge of the Company or the Representatives, shall be contemplated by the
Commission; and the Company shall have complied with any request of the
Commission for additional information (to be included in the Registration
Statement or the Prospectus or otherwise).
(b) The Representatives shall have received an opinion, dated the
Firm Closing Date, of Venture Law Group, A Professional Corporation, counsel for
the Company, to the effect that:
(i) the Company has been duly organized and is validly
existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and is duly qualified to transact business as
a foreign corporation and is in good standing under the laws of all other
jurisdictions 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 does not amount to a material liability or
disability to the Company taken as a whole;
20.
(ii) the Company has corporate power to own or lease its
properties and conduct its business as described in the Registration
Statement and the Prospectus, and the Company has corporate power to enter
into this Agreement and to carry out all the terms and provisions hereof to
be carried out by it;
(iii) the merger of the Predecessor with and into the Company
has been consummated in compliance with applicable law; the Company has
succeeded to all of the rights, privileges, powers and franchises, and is
subject to all of the restrictions, disabilities and duties, of the
Predecessor as provided under Section 259 of the Delaware General
Corporation Law; the Company has succeeded to all of the rights of the
Predecessor with respect to each mortgage, deed of trust, bank loan or
credit agreement or other agreement or instrument to which the Predecessor
was a party or by which the Predecessor or its properties were bound or
affected immediately prior to the Reincorporation, and all required
consents with respect to such contracts have been obtained; all of the
outstanding shares of capital stock of the Predecessor have been converted
into that number of shares of Common Stock of the Company as described in
the Prospectus; the Reincorporation was duly authorized by the Board of
Directors and stockholders of the Predecessor and the Company; to the
knowledge of such counsel after due inquiry, the consummation of the
Reincorporation does not and will not conflict with, or result in any
breach of, or constitute a default under (nor constitute any event which
with notice, lapse of time or both would constitute a breach of or default
under), any provision of any material license, indenture, lease, mortgage,
deed of trust, bank loan or credit agreement or other agreement or
instrument to which the Company is, or immediately prior to the
Reincorporation the Predecessor was, a party or by which the Company or its
properties are, or immediately prior to the Reincorporation the Predecessor
or its properties were, bound or affected or under any federal, California
or Delaware corporate law, regulation or rule or any decree, judgment or
order applicable to the Company, or immediately prior to the
Reincorporation, the Predecessor; and the issuance of capital stock by the
Company in the Reincorporation was in compliance with all applicable state
securities or blue sky laws and was exempt from registration under the Act;
(iv) to such counsel's knowledge, the Company does not, and
immediately prior to the Reincorporation the Predecessor did not, own any
interest in any corporation, joint venture or partnership except the
Subsidiary;
(v) the Company has, and immediately prior to the
Reincorporation the Predecessor had, an authorized, issued and outstanding
capitalization as set forth in the Prospectus; all of the issued shares of
capital stock of the Company have been duly authorized and validly issued
and are fully paid and nonassessable; the Firm Securities have been duly
authorized by all necessary corporate action of the Company and, when
issued and delivered to and paid for by the Underwriters pursuant to this
Agreement, will be validly issued, fully paid and nonassessable; the
Securities have been duly accepted for quotation on the Nasdaq National
Market; to such counsel's knowledge, no holders of outstanding shares of
capital stock of the Company are entitled as such to any
21.
preemptive or other rights to subscribe for any of the Securities; and to
such counsel's knowledge, no holders of securities of the Company are
entitled to have such securities registered under the Registration
Statement (which have not been waived or satisfied);
(vi) statements set forth under the heading "Description of
Capital Stock" in the Prospectus, insofar as such statements purport to
summarize certain provisions of the capital stock of the Company, provide a
fair summary of such provisions; and the statements set forth under the
headings "Risk Factors--Dependence on Strategic Partners and Distributors,"
"-- Dependence on Licenses; Potential Need for Additional Collaborators,"
"--Limited Sales, Marketing And Distribution Experience," "--Shares
Eligible For Future Sale," "--Effect Of Certain Charter and Bylaw
Provisions," "Management's Discussion and Analysis of Financial Condition
and Results of Operations-liquidity and Capital Resources," "Business-Sales
& Marketing; Strategic Corporate Alliances," "--Certain License Agreements;
Patents and Proprietary Technology," "--Properties," "Management"
(excluding the portions thereof under the heading "Executive Officers and
Directors"), "Certain Transactions" and "Shares Eligible for Future Sale"
in the Prospectus, insofar as such statements constitute a summary of the
legal matters, documents or proceedings referred to therein, provide a fair
summary of such legal matters, documents and proceedings;
(vii) execution and delivery of this Agreement have been duly
authorized by all necessary corporate action of the Company and this
Agreement has been duly executed and delivered by the Company;
(viii) (A) to such counsel's knowledge, no legal or governmental
proceedings are pending to which the Company is a party or to which the
property of the Company is subject that are required to be described in the
Registration Statement or the Prospectus and are not described therein,
and, to the knowledge of such counsel, no such proceedings have been
threatened against the Company or with respect to any of its properties and
(B) to the knowledge of such counsel, no contract or other document is
required to be described in the Registration Statement or the Prospectus or
to be filed as an exhibit to the Registration Statement that is not
described therein or filed as required;
(ix) issuance, offering and sale of the Securities to the
Underwriters by the Company pursuant to this Agreement, the compliance by
the Company with the other provisions of this Agreement and the
consummation of the other transactions herein contemplated do not (A)
require the consent, approval, authorization, registration or qualification
of or with any governmental authority, except such as have been obtained
and such as may be required under state securities or blue sky laws in
connection with the purchase and distribution of the Securities by the
Underwriters and the clearance of the underwriting arrangements with the
National Association of Securities Dealers, Inc. (the "NASD") as to which
such counsel needs not express any opinion, or (B) conflict with or result
in a breach or violation of any of the terms and provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, lease
or other agreement or instrument, known to such counsel, to which the
Company is a party or by which the
22.
Company or any of its properties are bound, or the charter documents or by-
laws of the Company, or any statute or any judgment, decree, order, rule or
regulation of any court or other governmental authority or any arbitrator
known to such counsel and applicable to the Company, provided that such
counsel need not express any opinion with respect to clearance of
underwriting arrangements with the NASD or as to Blue Sky or state
securities matters in connection with the purchase and distribution of the
Securities by the Underwriters;
(x) the Company is not an "investment company" or an entity
"controlled" in by an "investment company," as such terms are defined in
the Investment Company Act of 1940, as amended;
(xi) the Registration Statement is effective under the Act;
any required filing of the Prospectus, or any Term Sheet that constitutes a
part thereof, pursuant to Rules 434 and 424(b) has been made in the manner
and within the time period required by Rules 434 and 424(b); and to such
counsel's knowledge, no stop order suspending the effectiveness of the
Registration Statement or any amendment thereto has been issued and no
proceedings for that purpose have been instituted, threatened or are
contemplated by the Commission;
(xii) the Registration Statement originally filed with respect
to the Securities and each amendment thereto, any Rule 462(b) Registration
Statement and the Prospectus (in each case, other than the consolidated
financial statements and other financial information contained therein, as
to which such counsel need express no opinion) comply as to form in all
material respects with the applicable requirements of the Act and the rules
and regulations of the Commission thereunder; and
(xiii) if the Company elects to rely on Rule 434, the Prospectus
is not "materially different," as such term is used in Rule 434, from the
prospectus included in the Registration Statement at the time of its
effectiveness or an effective post-effective amendment thereto (including
such information that is permitted to be omitted pursuant to Rule 430A).
Such counsel shall also state that, although such counsel has not independently
checked or verified the accuracy, completeness or fairness of the information
contained in the Registration Statement and the Prospectus, based on such
counsel's participation (i) in rendering legal advice and assistance to the
Company in the course of the preparation of the Registration Statement and
Prospectus and (ii) in conferences with certain officers and other
representatives of the Company at which the contents of the Registration
Statement and Prospectus and related matters were discussed, it has not come to
the attention of such counsel that (except for financial statements and
schedules and other financial data derived therefrom as to which such counsel
need not express any opinion) the Registration Statement, as of its effective
date, contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading or that (except for consolidated financial statements and
schedules and other financial data derived therefrom as to which such counsel
23.
need not express any opinion) the Prospectus, as of its date or the date of such
opinion, included or includes any untrue statement of a material fact or omitted
or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and public officials.
References to the Registration Statement and the Prospectus in this
paragraph (b) shall include any amendment or supplement thereto at the date of
such opinion.
(c) The Representatives shall have received an opinion, dated the
Firm Closing Date, of Skjerven, Morrill, Mac Pherson, Franklin & Friel, special
intellectual property counsel for the Company, to the effect that:
(i) Such counsel represents the Company in certain matters
relating to intellectual property, including patents, trade secrets and
certain trademark matters;
(ii) Such counsel is generally familiar with the technology
used by the Company in its business and the manner of its use and has read
the portions of the Registration Statement and the Prospectus entitled
"Risk Factors--Reliance on Patents and Protection of Proprietary
Technology" and "Business--Certain License Agreements; Patents and
Proprietary Technology --Patents and Proprietary Technology" (collectively,
the "Intellectual Property Portion");
(iii) To the best of such counsel's knowledge, the statements
in the Intellectual Property Portion of the Registration Statement are
accurate and complete summaries of the matters set forth therein.
(iv) The patent applications prepared and filed by such
counsel on behalf of the Company in the United States are, and to the best
of such counsel's knowledge, the patent applications of the Company filed
outside of the United States are, being pursued by the Company in
accordance with standard industry custom; the inventions described therein
are assigned or licensed to the Company; to the best of such counsel's
knowledge, no other entity or individual has any ownership right or claim
in any of such inventions, patent applications or patents to be issued
therefrom; and each of such patent applications discloses patentable
subject matter;
(v) To the best of such counsel's knowledge, there is no
pending or threatened action, suit, proceeding or claim by governmental
authorities or others relating to any patent rights, service marks,
trademarks, trade secrets or other proprietary information or materials of
the Company, except for a claim by Organon Teknika ("Organon") that the
Company's fetal fibronectin test infringes Organon's United States Patent
No. 4,313,734. Although the Company has taken the position that it does not
24.
require a license under this patent, Organon has provided preliminary terms
under which Organon would grant such a license. These terms are under
consideration by the Company.
(vi) Such counsel has no reason to believe that the
Intellectual Property Portion of the Registration Statement, either at the
time the Registration Statement became effective or as of the Firm Closing
Date, contained or contains, as the case may be, any untrue statement of a
material fact or omitted or omits, as the case may be, to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(d) The Representatives shall have received an opinion, dated the
Firm Closing Date, of Arnold & Porter, special FDA regulatory counsel for the
Company, to the effect that:
(i) Such counsel represents the Company in certain matters
relating to the United States Federal Food Drug and Cosmetic Act (the "FFDC
Act") and related government regulatory matters.
(ii) Such counsel is familiar with the technology used by the
Company in its business and the manner of its use thereof and have read the
Registration Statement and the Prospectus, including particularly the
portions of the Registration Statement and the Prospectus referring to
regulatory matters.
(iii) Such counsel is familiar with the technology of the
Company and has read the portions of the Registration Statement and the
Prospectus entitled "Risk Factors-Uncertainty Related to Third-Party
Reimbursement," "Risk Factors--Government Regulation," "Business--
Laboratory Services; Manufacturing," "Business-Third Party Reimbursement"
and "Business--Government Regulation" (the "Regulatory Portion"), and in
such counsel's opinion, the Regulatory Portion, insofar as such statements
constitute descriptions of federal statutes, laws, regulations or
proceedings, are accurate and complete in all material respects.
(iv) Such counsel has no reason to believe that the
information contained in the Regulatory Portion of the Registration
Statement or the Prospectus at the time it became effective contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading or that, at the Closing Date, the information contained in
the Regulatory Portion of the Prospectus or any amendment or supplement to
the Regulatory Portion of the Prospectus contains any untrue statement of a
material fact or omits to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
(e) Each of the Selling Securityholders shall have furnished to the
Representatives the opinion of counsel for such Selling Securityholder, dated
the Firm Closing Date, to the effect that:
25.
(i) such Selling Securityholder has full corporate power to
enter into this Agreement, the Custody Agreement and the Power-of-Attorney
and to sell, transfer and deliver the Securities being sold by such selling
Securityholder hereunder in the manner provided in this Agreement and to
perform its obligations under the Custody Agreement; the execution and
delivery of this Agreement, the Custody Agreement and the Power-Of-Attorney
have been duly authorized by all necessary corporate action or each Selling
Securityholder; this Agreement, the Custody Agreement and the Power-of-
Attorney have been duly executed and delivered by each Selling
Securityholder; assuming due authorization, execution and delivery by the
Custodian, the Custody Agreement and the Power-of-Attorney are the legal,
valid, binding and enforceable instruments of such Selling Securityholder,
subject to applicable bankruptcy, insolvency and similar laws affecting
creditors' rights generally and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law);
(ii) the delivery by each Selling Securityholder to the several
Underwriters of certificates for the Securities being sold hereunder by
such Selling Securityholder against payment therefor as provided herein,
will convey good and marketable title to such Securities to the several
Underwriters, free and clear of all security interests, liens,
encumbrances, equities, claims or other defects; and
(iii) the sale of the Securities to the Underwriters by such
Selling Securityholder pursuant to this Agreement, the compliance by such
Selling Securityholder with the other provisions of this Agreement, the
Custody Agreement and the consummation of the other transactions herein
contemplated do not (i) require the consent, approval, authorization,
registration or qualification of or with any governmental authority, except
such as have been obtained and such as may be required under state
securities or blue sky laws, or (ii) conflict with or result in a breach or
violation of any of the terms and provisions of, or constitute a default
under any indenture, mortgage, deed of trust, lease or other agreement or
instrument to which such Selling Securityholder or any of its subsidiaries
is a party or by which such Selling Securityholder or any of its
subsidiaries or any of their respective properties are bound, or the
charter documents or bylaws of such Selling Securityholder or any of its
subsidiaries or any statute or any judgment, decree, order, rule or
regulation of any court or other governmental authority or any arbitrator
applicable to such Selling Securityholder or any of its subsidiaries.
In rendering such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems proper, on certificates of responsible
officers of the Company and public officials.
References to the Registration Statement and the Prospectus in this
paragraph (e) shall include any amendment or supplement thereto at the date of
such opinion.
26.
(f) The Representatives shall have received an opinion, dated the
Firm Closing Date, of Cooley Godward Castro Huddleson & Tatum, counsel for the
Underwriters, with respect to the issuance and sale of the Firm Securities, the
Registration Statement and the Prospectus, and such other related matters as the
Representatives may reasonably require, and the Company shall have furnished to
such counsel such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters.
(g) The Representatives shall have received from Ernst & Young LLP a
letter or letters dated, respectively, the date hereof and the Firm Closing
Date, in form and substance satisfactory to the Representatives, to the effect
that:
(i) they are independent accountants with respect to the
Company and its consolidated subsidiaries within the meaning of the Act and
the applicable rules and regulations thereunder;
(ii) in their opinion, the audited consolidated financial
statements and schedules examined by them and included in the Registration
Statement and the Prospectus comply in form in all material respects with
the applicable accounting requirements of the Act and the related published
rules and regulations;
(iii) on the basis of a reading of the latest available interim
unaudited financial statements of the Company, a reading of the unaudited
amounts set forth under the heading "Selected Financial Data" in the
Prospectus for the quarters ended March 31, 1995 and 1996 and as of March
31, 1996 and of the unaudited financial statements of the Company for the
periods from which such amounts are derived, carrying out certain specified
procedures (which do not constitute an examination made in accordance with
generally accepted auditing standards) that would not necessarily reveal
matters of significance with respect to the comments set forth in this
paragraph (iii), a reading of the minute books of the stockholders, the
board of directors and any committees thereof of the Company and inquiries
of certain officials of the Company who have responsibility for financial
and accounting matters, nothing came to their attention that caused them to
believe that:
(A) the unaudited financial statements of the Company included in
the Registration Statement and the Prospectus do not comply in form in
all material respects with the applicable accounting requirements of
the Act and the related published rules and regulations thereunder or
are not in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the audited
financial statements included in the Registration Statement and the
Prospectus;
(B) the unaudited amounts set forth under the heading "Selected
Financial Data" in the Prospectus do not agree with the amounts set
forth in any unaudited financial statements for those same periods or
are not in conformity with generally accepted accounting principles
applied on a basis substantially consistent
27.
with that of the corresponding amounts in the audited financial
statements included in the Registration Statement and the Prospectus;
and
(C) at a specific date not more than five business days prior to
the date of such letter, there were any changes in the capital stock
or long-term debt of the Company or any decreases in net current
assets or stockholders' equity of the Company, in each case compared
with amounts shown on the March 31, 1996 unaudited balance sheet
included in the Registration Statement and the Prospectus, or for the
period from April 1, 1996 to such specified date there were any
decreases, as compared with the March 31, 1996 period, in net
revenues, net income (loss) before income taxes or total or per share
amounts of net income (loss) of the Company except in all instances
for changes, decreases or increases set forth in such letter; and
(iv) they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages and
financial information that are derived from the general accounting records
of the Company and are included in the Registration Statement and the
Prospectus and in Exhibit 11 to the Registration Statement, and have
compared such amounts, percentages and financial information with records
of the Company and with information derived from such records and have
found them to be in agreement, excluding any questions of legal
interpretation.
In the event that the letters referred to above set forth any such
changes, decreases or increases, it shall be a further condition to the
obligations of the Underwriters that (A) such letters shall be accompanied
by a written explanation of the Company as to the significance thereof,
unless the Representatives deem such explanation unnecessary, and (B) such
changes, decreases or increases do not, in the sole judgment of the
Representatives, make it impractical or inadvisable to proceed with the
purchase and delivery of the Securities as contemplated by the Registration
Statement, as amended as of the date hereof.
References to the Registration Statement and the Prospectus in this
paragraph (g) with respect to either letter referred to above shall include any
amendment or supplement thereto at the date of such letter.
(h) The Representatives shall have received a certificate, dated the
Firm Closing Date, of the principal executive officer and the principal
financial officer of the Company to the effect that:
(i) the representations and warranties of the Company in this
Agreement are true and correct as if made on and as of the Firm Closing
Date; the Registration Statement, as amended as of the Firm Closing Date,
does not include any untrue statement of a material fact or omit to state
any material fact necessary to make the statements therein not misleading,
and the Prospectus, as amended or supplemented as of the Firm Closing Date,
does not include any untrue statement of a material fact or
28.
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; and the Company has performed all covenants and agreements and
satisfied all conditions on its part to be performed or satisfied at or
prior to the Firm Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement or any amendment thereto has been issued, and no
proceedings for that purpose have been instituted or threatened or, to the
best of the Company's knowledge, are contemplated by the Commission; and
(iii) subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, the Company has
not sustained any material loss or interference with its business or
properties from fire, flood, hurricane, accident or other calamity, whether
or not covered by insurance, or from any labor dispute or any legal or
governmental proceeding, and there has not been any material adverse
change, or any development involving a prospective material adverse change,
in the condition (financial or otherwise), management, business prospects,
net worth or results of operations of the Company, except in each case as
described in or contemplated by the Prospectus (exclusive of any amendment
or supplement thereto).
(i) The Representatives shall have received a certificate from each
Selling Securityholder, signed by the principal executive officer and the
principal financial or accounting officer of such Selling Securityholder, dated
the Closing Date, to the effect that:
(i) the representations and warranties of such Selling
Securityholder in this Agreement are true and correct as if made on and as
of the Closing Date;
(ii) to the extent that any statements or omissions are made in
the Registration Statement, any Preliminary Prospectus, the Prospectus or
any amendment or supplement thereto in reliance upon and in conformity with
written information furnished to the Company by such Selling Securityholder
specifically for use therein, the registration statement, as amended as of
the Closing Date, does not include any untrue statement of a material fact
or omit to state any material fact necessary to make the statements therein
not misleading, and the Prospectus, as amended or supplemented as of the
Closing Date, does not include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; and
(iii) such Selling Securityholder has performed all covenants
and agreements on its part to be performed or satisfied at or prior to the
Closing Date with respect to this agreement.
(j) The Representatives shall have received from each person who is a
director or officer of the Company and from stockholders holding an aggregate of
_________ shares of Common Stock an agreement to the effect that such person
will not, directly or indirectly,
29.
without the prior written consent of Prudential Securities Incorporated, on
behalf of the Underwriters, offer, sell, offer to sell, contract to sell, grant
any option to purchase or otherwise sell or dispose (or announce any offer,
sale, offer of sale, contract of sale, grant of an option to purchase or other
sale or disposition) of any shares of Common Stock or any securities convertible
into, or exchangeable or exercisable for, shares of Common Stock for a period of
180 days after the date of this Agreement; provided, however, that certain
stockholders may offer, sell, offer to sell, contract to sell, grant an option
to purchase or otherwise dispose of or transfer such securities in a privately
negotiated transaction not effected on a national securities exchange provided
that the transferee of such securities executes an agreement pursuant to which
such transferee agrees to be bound by the terms of this Agreement.
(k) On or before the Firm Closing Date, the Representatives and
counsel for the Underwriters shall have received such further certificates,
documents or other information as they may have reasonably requested from the
Company.
(l) Prior to the commencement of the offering of the Securities, the
Securities shall have been included for trading on the Nasdaq National Market.
All opinions, certificates, letters and documents delivered pursuant to
this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Representatives and
counsel for the Underwriters. The Company shall furnish to the Representatives
such conformed copies of such opinions, certificates, letters and documents in
such quantities as the Representatives and counsel for the Underwriters shall
reasonably request.
The respective obligations of the several Underwriters to purchase and pay
for any Option Securities shall be subject, in their discretion, to each of the
foregoing conditions to purchase the Firm Securities, except that all references
to the Firm Securities and the Firm Closing Date shall be deemed to refer to
such Option Securities and the related Option Closing Date, respectively.
9. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Securities Exchange Act of
1934 (the "Exchange Act"), against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter or such controlling person may
become subject under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon:
(i) any untrue statement or alleged untrue statement made by
the Company in Section 2 of this Agreement,
(ii) any untrue statement or alleged untrue statement of any
material fact contained in (A) the Registration Statement or any amendment
thereto, any Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto or
30.
(B) any application or other document, or any amendment or supplement
thereto, executed by the Company or based upon written information
furnished by or on behalf of the Company filed in any jurisdiction in order
to qualify the Securities under the securities or blue sky laws thereof or
filed with the Commission or any securities association or securities
exchange (each an "Application"),
(iii) the omission or alleged omission to state in the
Registration Statement or any amendment thereto, any Preliminary Prospectus
or the Prospectus or any amendment or supplement thereto, or any
Application a material fact required to be stated therein or necessary to
make the statements therein not misleading or
(iv) any untrue statement or alleged untrue statement of any
material fact contained in any audio or visual materials used in
connection with the marketing of the Securities, including without
limitation, slides, videos, films and tape recordings,
and will reimburse, as incurred, each Underwriter and each such controlling
person for any legal or other expenses reasonably incurred by such Underwriter
or such controlling person in connection with investigating, defending against
or appearing as a third-party witness in connection with any such loss, claim,
damage, liability or action; provided, however, that the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement or
any amendment thereto, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto or any Application in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through the Representatives specifically for use therein; and provided, further,
-----------------
that the Company will not be liable to any Underwriter or any person controlling
such Underwriter with respect to any such untrue statement or omission made in
any Preliminary Prospectus that is corrected in the Prospectus (or any amendment
or supplement thereto) if the person asserting any such loss, claim, damage or
liability purchased Securities from such Underwriter but was not sent or given a
copy of the Prospectus (as amended or supplemented) at or prior to the written
confirmation of the sale of such Securities to such person in any case where
such delivery of the Prospectus (as amended or supplemented) is required by the
Act, unless such failure to deliver the Prospectus (as amended or supplemented)
was a result of noncompliance by the Company with Section 6(a)(iv) and (v) of
this Agreement. This indemnity agreement will be in addition to any liability
which the Company may otherwise have. The Company will not, without the prior
written consent of the Underwriter or Underwriters purchasing, in the aggregate,
more than fifty percent (50%) of the Securities, settle or compromise or consent
to the entry of any judgment in any pending or threatened claim, action, suit or
proceeding in respect of which indemnification may be sought hereunder (whether
or not any such Underwriter or any person who controls any such Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act is
a party to such claim, action, suit or proceeding), unless such settlement,
compromise or consent includes an unconditional release of all of the
Underwriters and such controlling persons from all liability arising out of such
claim, action, suit or proceeding.
31.
(b) Aeneas Venture Corporation agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signs the
Registration Statement, each Underwriter and each person, if any, who controls
the Company or any Underwriter within the meaning of the Act or the Exchange Act
and each other Selling Securityholder against any losses, claims, damages or
liabilities to which the Company, any such director, officer, such Underwriter
or any such controlling person may become subject under the Act, the Exchange
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made by
such Selling Securityholder in Section 3 of this Agreement,
(ii) any untrue statement or alleged untrue statement of any
material fact contained in (A) the Registration Statement or any amendment
thereto, any Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto, or (B) any Application, or
(iii) the omission or the alleged omission to state a material
fact required to be stated in the Registration Statement or any amendment
thereto, any Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto, or any Application or necessary to make the statements
therein not misleading;
in the case of (ii) and (iii) above to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by Aeneas Venture Corporation expressly for use
therein; provided, however, that Aeneas Venture Corporation will not be liable
-----------------
to any Underwriter or any person controlling such Underwriter with respect to
any such untrue statement or omission made in any Preliminary Prospectus that is
corrected in the Prospectus (or any amendment or supplement thereto) if the
person asserting any such loss, claim, damage or liability purchased Securities
from such Underwriter but was not sent or given a copy of the Prospectus (as
amended or supplemented) at or prior to the written confirmation of the sale of
such Securities to such person in any case where such delivery of the Prospectus
(as amended or supplemented) is required by the Act, unless such failure to
deliver the Prospectus (as amended or supplemented) was a result of
noncompliance by the Company with Section 6(a)(iv) and (v) of this Agreement;
and, subject to the limitation set forth immediately preceding this clause, will
reimburse, as incurred, any legal or other expenses reasonably incurred by the
Company, any such director, officer, such Underwriter or any such controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or any action in respect thereof. This indemnity agreement
will be in addition to any liability which any Selling Securityholder may
otherwise have. Aeneas Venture Corporation will not, without the prior written
consent of the Underwriter or Underwriters purchasing, in the aggregate, more
than fifty percent (50%) of the Securities, settle or comprise or consent to the
entry of any judgment in any pending or threatened claim, action, suit or
proceeding in respect of which indemnification may be sought hereunder (whether
or not any such Underwriter or any person who controls any such Underwriter
within the meaning of Section 15 of the Act or Section 20
32.
of the Exchange Act is a party to such claim, action, suit or proceeding),
unless such settlement, compromise or consent includes an unconditional release
of all of the Underwriters and such controlling persons from all liability
arising out of such claim, action, suit or proceeding. The liability of Aeneas
Venture Corporation pursuant to this subsection (b) shall not exceed the net
amount received by Aeneas Venture Corporation (after deducting underwriting
discounts and commissions) from the sale of the Option Securities pursuant to
this Agreement.
(c) Each Selling Securityholder except Aeneas Venture Corporation
severally and not jointly agrees to indemnify and hold harmless the Company,
each of its directors, each of its officers who signs the Registration
Statement, each Underwriter and each person who controls the Company or any
Underwriter within the meaning of the Act or the Exchange Act and each other
Selling Securityholder against any losses, claims, damages or liabilities to
which the Company, any such director, officer, such Underwriter or any such
controlling person may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made by
such Selling Securityholder in Section 3 of this Agreement,
(ii) any untrue statement or alleged untrue statement of any
material fact contained in (A) the Registration Statement or any amendment
thereto, any Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto, or (B) any Application or
(iii) the omission or the alleged omission to state a material
fact required to be stated in the Registration Statement or any amendment
thereto, any Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto, or any Application or necessary to make the statements
therein not misleading;
in the case of (ii) and (iii) above to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by such Selling Securityholder expressly for use
therein; provided, however, that such Selling Securityholder will not be liable
-----------------
to any Underwriter or any person controlling such Underwriter with respect to
any such untrue statement or omission made in any Preliminary Prospectus that is
corrected in the Prospectus (or any amendment or supplement thereto) if the
person asserting any such loss, claim, damage or liability purchased Securities
from such Underwriter but was not sent or given a copy of the Prospectus (as
amended or supplemented) at or prior to the written confirmation of the sale of
such Securities to such person in any case where such delivery of the Prospectus
(as amended or supplemented) is required by the Act, unless such failure to
deliver the Prospectus (as amended or supplemented) was a result of
noncompliance by the Company with Section 6(a)(iv) and (v) of this Agreement;
and, subject to the limitation set forth immediately preceding this clause, will
reimburse, as incurred, any legal or other expenses reasonably incurred by the
Company, any such director, officer, such Underwriter or any such controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or any action
33.
in respect thereof. This indemnity agreement will be in addition to any
liability which any Selling Securityholder may otherwise have. Each Selling
Securityholder will not, without the prior written consent of the Underwriter or
Underwriters purchasing, in the aggregate, more than fifty percent (50%) of the
Securities, settle or comprise or consent to the entry of any judgment in any
pending or threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not any such Underwriter or
any person who controls any such Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act is a party to such claim, action, suit
or proceeding), unless such settlement, compromise or consent includes an
unconditional release of all of the Underwriters and such controlling persons
from all liability arising out of such claim, action, suit or proceeding. The
liability of a Selling Securityholder pursuant to this subsection (c) shall not
exceed the net amount received by such Selling Securityholder (after deducting
underwriting discounts and commissions) from the sale of the Option Securities
pursuant to this Agreement.
(d) Each Underwriter will, severally and not jointly, indemnify and
hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement, each Selling Securityholder and each person,
if any, who controls the Company or such Selling Securityholder within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act against any
losses, claims, damages or liability to which the Company, any such director or
officer of the Company, such Selling Securityholder or any such controlling
person of the Company or such Selling Securityholder may become subject under
the Act, the Exchange Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
(i) any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement or any amendment thereto, any
Preliminary Prospectus or the Prospectus or any amendment or supplement thereto,
or any Application or (ii) the omission or the alleged omission to state therein
a material fact required to be stated in the Registration Statement or any
amendment thereto, any Preliminary Prospectus or the Prospectus or any amendment
or supplement thereto, or any Application or necessary to make the statement
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company by any Underwriter through the Representatives
specifically for use therein; and, subject to the limitation set forth
immediately preceding this clause, will reimburse, as incurred, any legal or
other expenses reasonably incurred by the Company, any such director, officer or
controlling person or such Selling Securityholder in connection with
investigating or defending any such loss, claim, damage, liability or any action
in respect thereof. This indemnity agreement will be in addition to any
liability which such Underwriter may otherwise have.
(e) Promptly after receipt by an indemnified party under this Section
9 of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 9, notify the indemnifying party of the commencement thereof; but the
omission so to notify in writing the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than under
this Section 9. In case any such action is brought against any indemnified
party, and it notifies the indemnifying party of the commencement thereof, the
34.
indemnifying party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel satisfactory to such indemnified
party; provided, however, that if the defendants in any such action include both
the indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be one or more legal defenses available
to it and/or other indemnified parties which are different from or additional to
those available to the indemnifying party, the indemnifying party shall not have
the right to direct the defense of such action on behalf of such indemnified
party or parties and such indemnified party or parties shall have the right to
select separate counsel to defend such action on behalf of such indemnified
party or parties. After notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof and approval by such
indemnified party of counsel appointed to defend such action, the indemnifying
party will not be liable to such indemnified party under this Section 9 for any
legal or other expenses, other than reasonable costs of investigation,
subsequently incurred by such indemnified party in connection with the defense
thereof, unless (i) the indemnified party shall have employed separate counsel
in accordance with the proviso to the next preceding sentence (it being
understood, however, that in connection with such action the indemnifying party
shall not be liable for the reasonable expenses of more than one separate
counsel (in addition to local counsel) in any one action or separate but
substantially similar actions in the same jurisdiction arising out of the same
general allegations or circumstances, designated by the Representatives in the
case of paragraph (a) of this Section 9, representing the indemnified parties
under such paragraph (a) who are parties to such action or actions) or (ii) the
indemnifying party does not promptly retain counsel satisfactory to the
indemnified party or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the expense of the indemnifying party.
After such notice from the indemnifying party to such indemnified party, the
indemnifying party will not be liable for the costs and expenses of any
settlement of such action effected by such indemnified party without the consent
of the indemnifying party.
(f) In circumstances in which the indemnity agreement provided for in
the preceding paragraphs of this Section 9 is unavailable or insufficient, for
any reason, to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities (or actions in respect thereof), each
indemnifying party, in order to provide for just and equitable contribution,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in respect
thereof) in such proportion as is appropriate to reflect (i) the relative
benefits received by the indemnifying party or parties on the one hand and the
indemnified party on the other from the offering of the Securities or (ii) if
the allocation provided by the foregoing clause (i) is not permitted by
applicable law, not only such relative benefits but also the relative fault of
the indemnifying party or parties on the one hand and the indemnified party on
the other in connection with the statements or omissions or alleged statements
or omissions that resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company, each of the
Selling Securityholders and the Underwriters shall be deemed to be in the same
proportion as the total proceeds from the offering (before deducting expenses)
received by the Company or such Selling Securityholder bear to the total
underwriting discounts and commissions received by the Underwriters. The
relative fault of the parties shall
35.
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, such Selling
Securityholder or the Underwriters, the parties' relative intents, knowledge,
access to information and opportunity to correct or prevent such statement or
omission, and any other equitable considerations appropriate in the
circumstances. The Company, each of the Selling Securityholders and the
Underwriters agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation that does not take into account the equitable considerations
referred to above in this paragraph (f). Notwithstanding any other provision of
this paragraph (f), no Underwriter shall be obligated to make contributions
hereunder that in the aggregate exceed the total public offering price of the
Securities purchased by such Underwriter under this Agreement, less the
aggregate amount of any damages that such Underwriter has otherwise been
required to pay in respect of the same or any substantially similar claim, and
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 hereunder are several in proportion to their respective underwriting
obligations and not joint, and contributions among Underwriters shall be
governed by the provisions of the Prudential Securities Incorporated Master
Agreement Among Underwriters. For purposes of this paragraph (f), each person,
if any, who controls an Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act shall have the same rights to contribution as
such Underwriter, and each director of the Company, each officer of the Company
who signed the Registration Statement and each person, if any, who controls the
Company or any Selling Securityholder within the meaning of Section 15 of the
Act or Section 20 of the Exchange Act, shall have the same rights to
contribution as the Company or such Selling Securityholder, as the case may be.
Notwithstanding the foregoing a Selling Securityholder shall not be required to
contribute under this subsection (f) except to the extent and under such
circumstances as such Selling Securityholder would have been liable pursuant to
Section 9(b) or 9(c) hereof. The liability of a Selling Securityholder pursuant
to this subsection (f) shall not exceed the net amount received by such Selling
Securityholder (after deducting underwriting discounts and commissions) from the
sale of the Option Securities pursuant to this Agreement.
10. DEFAULT OF UNDERWRITERS. If one or more Underwriters default in their
obligations to purchase Firm Securities or Option Securities hereunder and the
aggregate number of such Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase is ten percent or less of the
aggregate number of Firm Securities or Option Securities to be purchased by all
of the Underwriters at such time hereunder, the other Underwriters may make
arrangements satisfactory to the Representatives for the purchase of such
Securities by other persons (who may include one or more of the non-defaulting
Underwriters, including the representatives), but if no such arrangements are
made by the Firm Closing Date or the related Option Closing Date, as the case
may be, the other Underwriters shall be obligated severally in proportion to
their respective commitments hereunder to purchase the Firm Securities or Option
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase. If one or more Underwriters so default with respect to an aggregate
number of Securities that is more
36.
than ten percent of the aggregate number of Firm Securities or Option
Securities, as the case may be, to be purchased by all of the Underwriters at
such time hereunder, and if arrangements satisfactory to the Representatives are
not made within 36 hours after such default for the purchase by other persons
(who may include one or more of the non-defaulting Underwriters, including the
Representatives) of the Securities with respect to which such default occurs,
this Agreement will terminate without liability on the part of any non-
defaulting Underwriter or the Company other than as provided in Section 11
hereof. In the event of any default by one or more Underwriters as described in
this Section 10, the Representatives shall have the right to postpone the Firm
Closing Date or the Option Closing Date, as the case may be, established as
provided in Section 4 hereof for not more than seven business days in order that
any necessary changes may be made in the arrangements or documents for the
purchase and delivery of the Firm Securities or Option Securities, as the case
may be. As used in this Agreement, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10. Nothing herein shall
relieve any defaulting Underwriter from liability for its default.
11. SURVIVAL. The respective representations, warranties, agreements,
covenants, indemnities and other statements of the Company, its officers and the
several Underwriters set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement shall remain in full force and
effect, regardless of (i) any investigation made by or on behalf of the Company,
any of its officers or directors, any Underwriter or any controlling person
referred to in Section 9 hereof and (ii) delivery of and payment for the
Securities. The respective agreements, covenants, indemnities and other
statements set forth in Sections 7 and 9 hereof shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement.
12. TERMINATION.
(a) This Agreement may be terminated with respect to the Firm
Securities or any Option Securities in the sole discretion of the
Representatives by notice to the Company given prior to the Firm Closing Date or
the related Option Closing Date, respectively, in the event that the Company
shall have failed, refused or been unable to perform all obligations and satisfy
all conditions on its part to be performed or satisfied hereunder at or prior
thereto or, if at or prior to the Firm Closing Date or such Option Closing Date,
respectively,
(i) the Company shall have, in the sole judgment of the
Representatives, sustained any material loss or interference with its
businesses or properties from fire, flood, hurricane, accident or other
calamity, whether or not covered by insurance, or from any labor dispute or
any legal or governmental proceeding or there shall have been any material
adverse change, or any development involving a prospective material adverse
change (including without limitation a change in management or control of
the Company), in the condition (financial or otherwise), business
prospects, net worth or results of operations of the Company, except in
each case as described in or contemplated by the Prospectus (exclusive of
any amendment or supplement thereto);
37.
(ii) trading in the Common Stock shall have been suspended by
the Commission or the Nasdaq National Market or trading in securities
generally on the New York Stock Exchange or Nasdaq National Market shall
have been suspended or minimum or maximum prices shall have been
established on either such exchange or market system;
(iii) a banking moratorium shall have been declared by New York
or United States authorities; or
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or (C) any other calamity or crisis or material
adverse change in general economic, political or financial conditions
having an effect on the U.S. financial markets that, in the sole judgment
of the Representatives, makes it impractical or inadvisable to proceed with
the public offering or the delivery of the securities as contemplated by
the Registration Statement, as amended as of the date hereof.
(b) Termination of this Agreement pursuant to this Section 12 shall
be without liability of any party to any other party except as provided in
Section 11 hereof.
13. INFORMATION SUPPLIED BY UNDERWRITERS. The statements set forth in the
last paragraph on the front cover page and under the heading "Underwriting" in
any Preliminary Prospectus or the Prospectus (to the extent such statements
relate to the Underwriters) constitute the only information furnished by any
Underwriter through the Representatives to the Company for the purposes of
Sections 2(b) and 9 hereof. The Underwriters confirm that such statements (to
such extent) are correct.
14. NOTICES. All communications hereunder shall be in writing and, if
sent to any of the Underwriters, shall be delivered or sent by mail, telex or
facsimile transmission and confirmed in writing to Prudential Securities
Incorporated, One New York Plaza, New York, New York 10292, Attention: Equity
Transactions Group; if sent to the Company, shall be delivered or sent by mail,
telex or facsimile transmission and confirmed in writing to the Company at 1240
Elko Drive, Sunnyvale, CA 94089; and if sent to any of the Selling
Securityholders shall be delivered or sent by mail, telex or facsimile
transmission and confirmed in writing to such Selling Securityholder at the
address set forth in Schedule 2 hereto.
15. SUCCESSORS. This Agreement shall inure to the benefit of and shall be
binding upon the several Underwriters, the Company and their respective
successors and legal representatives, and nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person any legal
or equitable right, remedy or claim under or in respect of this Agreement, or
any provisions herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that (i)
the indemnities of the Company
38.
contained in Section 9 of this Agreement shall also be for the benefit of any
person or persons who control any Underwriter within the meaning of Section 15
of the Act or Section 20 of the Exchange Act and (ii) the indemnities of the
Underwriters contained in Section 9 of this Agreement shall also be for the
benefit of the directors of the Company, the officers of the Company who have
signed the Registration Statement and any person or persons who control the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act. No purchaser of Securities from any Underwriter shall be deemed a
successor because of such purchase.
16. APPLICABLE LAW. The validity and interpretation of this Agreement,
and the terms and conditions set forth herein, shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to any provisions relating to conflicts of laws.
17. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. All judicial
proceedings arising out of or relating to this Agreement may be brought in any
state or federal court of competent jurisdiction in the State of New York, and
by execution and delivery of this Agreement, each Selling Securityholder accepts
for itself and in connection with its properties, generally and unconditionally,
the nonexclusive jurisdiction of the aforesaid courts and waives any defense of
forum non conveniens and irrevocably agrees to be bound by any judgment rendered
thereby in connection with this Agreement. Each Selling Securityholder
designates and appoints Daniel O. Wilds and Emory V. Anderson, or each of them,
and such other persons as may hereafter by selected by the Selling
Securityholders irrevocably agreeing in writing to so serve, as its agent to
receive on its behalf service of all process in any such proceedings in any such
court, such service being hereby acknowledged by each Selling Securityholder to
be effective and binding service in every respect. A copy of any such process so
served shall be mailed by registered mail to each Selling Scurityholder at its
Address provided in Section 14 hereof; provided, however, that, unless otherwise
provided by applicable law, any failure to mail such copy shall not affect the
validity of service of such process. If any agent appointed by the Selling
Securityholders refuses to accept service, each Selling Securityholder hereby
agrees that service of process sufficient for personal jurisdiction in any
action against any of the Selling Securityholders in the State of New York may
be made by registered or certified mail, return receipt requested, to each
Selling Securityholder at its address provided in Section 14 hereof, and each
Selling Securityholder hereby acknowledges that such service shall be effective
and binding in every respect. Nothing herein shall affect the right to serve
process in any other manner permitted by law or shall limit the right of any
Underwriter to bring proceedings against any of the Selling Securityholders in
the courts of any other jurisdiction .
18. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
39.
If the foregoing correctly sets forth our understanding, please indicate
your acceptance thereof in the space provided below for that purpose, whereupon
this letter shall constitute an agreement binding the Company and each of the
several Underwriters.
Very truly yours,
ADEZA BIOMEDICAL CORPORATION
By______________________________________________
Name:
Title:
THE SELLING SECURITYHOLDERS NAMED IN SCHEDULE 2
ATTACHED HERETO
By______________________________________________
Name:_________________________________________
Attorneys-in-Fact
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
PRUDENTIAL SECURITIES INCORPORATED
NEEDHAM & COMPANY, INC.
TUCKER ANTHONY INCORPORATED
By: PRUDENTIAL SECURITIES INCORPORATED
By:_______________________________
Name: Jean-Claude Canfin
Title: Director
For itself and on behalf of the Representatives.
40.
SCHEDULE 1
UNDERWRITERS
NUMBER OF FIRM
SECURITIES
UNDERWRITER TO BE PURCHASED
- ----------- ---------------
Prudential Securities Incorporated....................
Needham & Company, Inc................................
Tucker Anthony Incorporated...........................
[Insert names of other underwriters alphabetically by
bracket or in other order determined by Prudential
Securities Incorporated - Equity Transactions Group]
===============
Total...................................
===============
SCHEDULE 2
SELLING SECURITYHOLDERS
NUMBER OF OPTION
NAME ADDRESS SECURITIES OFFERED
- ---- ------- ------------------
Aeneas Venture Corporation 600 Atlantic Avenue 255,049
26th Floor
Boston, MA 02210-2203
Aspen Venture Partners 3374 Peachtree Road, NE 28,500
Suite 1140, East Tower
Atlanta, GA 30326
BG Services Limited c/o Minden House 46,462
6 Minden Place
St. Helier, Jersey,
Channel Islands
Copy to:
Bruce Keller
Berkeley International
650 California Street
Suite 2800
San Francisco, CA 94108-
2609
H & Q Life Sciences Ventures One Bush Street 7,875
San Francisco, CA 94104
KB (CI) Nominees Minden House 37,114
6 Minden Place
St. Helier, Jersey,
Channel Islands
Copy to:
Bruce Keller
Berkeley International
650 California Street
Suite 2800
San Francisco, CA 94108-
2609
--------
375,000
========