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EXHIBIT 1.1
SPECTRX, INC.
2,201,699 SHARES(1)
COMMON STOCK
UNDERWRITING AGREEMENT
_____ __, 1997
HAMBRECHT & QUIST LLC
VOLPE BROWN WHELAN & COMPANY, LLC
c/o Hambrecht & Quist LLC
One Bush Street
San Francisco, CA 94104
Ladies and Gentlemen:
SpectRx, Inc., a Delaware corporation (herein called the Company),
proposes to issue and sell 2,000,000 shares of its authorized but unissued
Common Stock, $.001 par value (herein called the "Common Stock"), and the
stockholders of the Company named in Schedule II hereto (the "Selling
Stockholders") propose to sell an aggregate amount of 201,699 shares of Common
Stock of the Company (said 201,699 shares of Common Stock being herein called
the "Underwritten Stock"). The Company proposes to grant to the Underwriters (as
hereinafter defined) an option to purchase up to 330,255 additional shares of
Common Stock (herein called the Option Stock and with the Underwritten Stock
herein collectively called the Stock). The Common Stock is more fully described
in the Registration Statement and the Prospectus hereinafter mentioned.
The Company and the Selling Stockholders hereby severally confirm the
agreements made with respect to the purchase of the Stock by the several
underwriters, for whom you are acting, named in Schedule I hereto (herein
collectively called the Underwriters, which term shall also include any
underwriter purchasing Stock pursuant to Section 3(b) hereof). You represent and
warrant that you have been authorized by each of the other Underwriters to enter
into this Agreement on its behalf and to act for it in the manner herein
provided.
1. REGISTRATION STATEMENT. The Company has filed with the Securities
and Exchange Commission (herein called the Commission) a registration statement
on Form S-1 (No. 333-22429), including the related preliminary prospectus, for
the registration under the Securities Act of 1933, as amended (herein called the
Securities Act) of the Stock. Copies of such registration statement and of each
amendment thereto, if any, including the related preliminary prospectus (meeting
the requirements of Rule 430A of the rules and regulations of the Commission)
heretofore filed by the Company with the Commission have been delivered to you.
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(1)Plus an option to purchase from the Company up to 330,255 additional
shares to cover over-allotments.
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The term Registration Statement as used in this agreement shall mean
such registration statement, including all exhibits and financial statements,
all information omitted therefrom in reliance upon Rule 430A and contained in
the Prospectus referred to below, in the form in which it became effective, and
any registration statement filed pursuant to Rule 462(b) of the rules and
regulations of the Commission with respect to the Stock (herein called a Rule
462(b) registration statement), and, in the event of any amendment thereto after
the effective date of such registration statement (herein called the Effective
Date), shall also mean (from and after the effectiveness of such amendment) such
registration statement as so amended (including any Rule 462(b) registration
statement). The term Prospectus as used in this Agreement shall mean the
prospectus relating to the Stock first filed with the Commission pursuant to
Rule 424(b) and Rule 430A (or if no such filing is required, as included in the
Registration Statement) and, in the event of any supplement or amendment to such
prospectus after the Effective Date, shall also mean (from and after the filing
with the Commission of such supplement or the effectiveness of such amendment)
such prospectus as so supplemented or amended. The term Preliminary Prospectus
as used in this Agreement shall mean each preliminary prospectus included in
such registration statement prior to the time it becomes effective.
The Registration Statement has been declared effective under the
Securities Act, and no post-effective amendment to the Registration Statement
has been filed as of the date of this Agreement. The Company has caused to be
delivered to you copies of each Preliminary Prospectus and has consented to the
use of such copies for the purposes permitted by the Securities Act.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY AND
THE SELLING STOCKHOLDERS.
(a) The Company hereby represents and warrants as follows:
(i) The Company has been duly incorporated and
is validly existing as a corporation in good standing under the laws
of the jurisdiction of its incorporation, has full corporate power
and authority to own or lease its properties and conduct its
business as described in the Registration Statement and the
Prospectus and as being conducted, and is duly qualified as a
foreign corporation and in good standing in all jurisdictions in
which the character of the property owned or leased or the nature of
the business transacted by it makes qualification necessary (except
where the failure to be so qualified would not have a material
adverse effect on the business, properties, financial condition or
results of operations of the Company and its subsidiaries, taken as
a whole).
(ii) Since the respective dates as of which
information is given in the Registration Statement and the
Prospectus, there has not been any materially adverse change in the
business, properties, financial condition or results of operations
of the Company and its subsidiaries, taken as a whole, whether or
not arising from transactions in the ordinary course of business,
other than as set forth in the Registration Statement and the
Prospectus, and since such dates, except in the ordinary course of
business, neither the Company nor any of its subsidiaries has
entered into any material transaction not referred to in the
Registration Statement and the Prospectus.
(iii) The Registration Statement and the
Prospectus comply, and on the Closing Date (as hereinafter defined)
and any later date on which Option Stock is to be purchased, the
Prospectus will comply, in all material respects, with the
provisions of the Securities Act and the Securities Exchange Act of
1934, as amended (herein called the Exchange Act) and the rules and
regulations of the Commission thereunder; on the Effective Date, the
Registration Statement did not contain any untrue statement of a
material fact and did not omit to state any material fact required
to be stated therein or necessary in order to make the statements
therein not misleading; and, on the Effective Date the Prospectus
did not and, on the Closing Date and any later date on which Option
Stock is to be purchased, will not contain 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; provided, however, that
none of the representations and warranties in this subparagraph
(iii) shall apply to statements in, or omissions
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from, the Registration Statement or the Prospectus made in reliance
upon and in conformity with information herein or otherwise
furnished in writing to the Company by or on behalf of the
Underwriters for use in the Registration Statement or the
Prospectus.
(iv) The Stock is duly and validly authorized, is
(or, in the case of shares of the Stock to be sold by the Company,
will be), when issued and sold to the Underwriters as provided
herein, duly and validly issued, fully paid and nonassessable and
conforms to the description thereof in the Prospectus. No further
approval or authority of the stockholders or the Board of Directors
of the Company will be required for the transfer and sale of the
Stock to be sold by the Selling Stockholders or the issuance and
sale of the Stock as contemplated herein.
(v) This Agreement has been duly executed and
delivered by the Company and constitutes the valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms, except as enforceability thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect relating to creditors'
rights generally and general principles of equity and the discretion
of the court before which any proceeding therefor may be brought.
The execution, delivery and performance of this Agreement by the
Company, the consummation by the Company of the transactions
contemplated herein and the compliance by the Company with the terms
of this Agreement have been duly authorized by all necessary
corporate action on the part of the Company and do not and will not,
with or without the giving of notice or the lapse of time, or both,
(1) result in any violation of the Certificate of Incorporation or
By-laws of the Company; (2) result in a breach of the terms or
provisions of, or constitute a default under, or result in the
modification or termination of, or result in the creation or
imposition of any lien, security interest, charge or encumbrance
upon any of the properties or assets of the Company pursuant to any
indenture, mortgage, note, contract, commitment or other agreement
or instrument to which the Company is a party or by which the
Company or any of its properties or assets is or may be bound or
affected; (3) violate any existing applicable law, rule, regulation,
judgment, order or decree of any governmental agency or court,
domestic or foreign, having jurisdiction over the Company or any of
its properties or business; or (4) have any effect on any permit,
certification, registration, approval, consent, order, license,
franchise or other authorization necessary for the Company to own or
lease and operate its properties and to conduct its business or the
ability of the Company to make use thereof, which, in the case of
clauses (2), (3) and (4) of this Section 2(v), would have material
adverse effect on the business, properties, financial condition or
result of operations of the Company and its subsidiaries, taken as a
whole.
(vi) Neither the Commission nor, to the best of
the Company's knowledge, any state regulatory authority has issued
any order preventing or suspending the use of any Preliminary
Prospectus or has instituted or, to the best of the Company's
knowledge, threatened to institute any proceedings with respect to
such an order.
(vii) The Company had at the date or dates
indicated in the Prospectus a duly authorized and outstanding
capitalization as set forth in the Registration Statement and
Prospectus. Based on the assumptions stated in the Registration
Statement and the Prospectus, the Company will have on the Closing
Date the adjusted stock capitalization set forth therein. Except as
set forth in the Registration Statement or the Prospectus, on the
Effective Date and on the Closing Date, there will be no options to
purchase, warrants or other rights to subscribe for, or any
securities or obligations convertible into, or any contracts or
commitments to issue or sell shares of the Company's capital stock
or any such warrants, convertible securities or obligations. Except
as set forth in the Prospectus, no holders of any of the Company's
securities has any rights, "demand," "piggyback" or otherwise, to
have such securities registered under the Securities Act.
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(viii) The descriptions in the Registration
Statement and the Prospectus of contracts and other documents are in
all material respects accurate and present fairly the information
required to be disclosed, and there are no contracts or other
documents required to be described in the Registration Statement or
the Prospectus or to be filed as exhibits to the Registration
Statement under the Securities Act or the regulations promulgated
thereunder which have not been so described or filed as required.
(ix) The financial statements and schedules and
the notes thereto filed as part of the Registration Statement and
included in the Prospectus are complete, correct and present fairly
in all material respects the financial position of the Company as of
the dates thereof, and the results of operations and changes in
financial position of the Company for the periods indicated therein,
all in conformity with generally accepted accounting principles
applied on a consistent basis throughout the periods involved except
as otherwise stated in the Registration Statement and Prospectus.
The selected financial data set forth in the Registration Statement
and the Prospectus present fairly in all material respects the
information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in
the Registration Statement and the Prospectus.
(x) The Company has filed with the appropriate
federal, state and local governmental agencies, and all appropriate
foreign countries and political subdivisions thereof, all tax
returns, including franchise tax returns, which are required to be
filed or has duly obtained extensions of time for the filing thereof
and has paid all taxes shown on such returns and all assessments
received by it to the extent that the same have become due; and the
provisions for income taxes payable, if any, shown on the financial
statements filed with or as part of the Registration Statement are
sufficient for all accrued and unpaid foreign and domestic taxes,
whether or not disputed, and for all periods to and including the
dates of such financial statements. Except as previously disclosed
in writing, the Company has not executed or filed with any taxing
authority, foreign or domestic, any agreement extending the period
for assessment or collection of any income taxes and is not a party
to any pending action or proceeding by any foreign or domestic
governmental agency for assessment or collection of taxes; and no
claims for assessment or collection of taxes have been asserted
against the Company the adverse determination of which would have
material adverse effect on the business, properties, financial
condition or results of operations of the Company and its
subsidiaries, taken as a whole.
(xi) The outstanding equity securities of the
Company and outstanding options and warrants to purchase equity
securities of the Company have been duly authorized and validly
issued. The outstanding equity securities of the Company are fully
paid and nonassessable. The outstanding options and warrants to
purchase equity securities of the Company constitute the valid and
binding obligations of the Company, enforceable in accordance with
their terms, except as enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights
generally and general principles of equity and the discretion of the
court before which any proceeding therefor may be brought. None of
the outstanding equity securities of the Company or options or
warrants to purchase such equity securities has been issued in
violation of the preemptive rights of any shareholder of the
Company. None of the holders of the outstanding equity securities of
the Company is subject to personal liability solely by reason of
being such a holder. The offers and sales of the outstanding equity
securities of the Company and outstanding options and warrants to
purchase such equity securities were at all relevant times either
registered under the Securities Act and the applicable state
securities or blue sky laws or exempt from such registration
requirement. The authorized equity securities of the Company and
outstanding options and warrants to purchase such equity securities
conform in all material respects to the descriptions thereof
contained in the Registration Statement and Prospectus. Except as
set forth in the Registration Statement and the Prospectus, on the
Effective Date and the Closing Date, there will be no outstanding
options or warrants for the purchase of, or other outstanding rights
to purchase, Common Stock or securities convertible into Common
Stock.
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(xii) No securities of the Company have been sold
by the Company or by or on behalf of, or for the benefit of, any
person or persons controlling, controlled by, or under common
control with the Company within the three years prior to the date
hereof, except as disclosed in the Registration Statement.
(xiii) The Company is not in violation of, nor in
default under, (1) any term or provision of its Articles of
Incorporation or By-Laws; (2) any term or provision or any financial
covenants of any indenture, mortgage, contract, commitment or other
agreement or instrument to which it is a party or by which it or any
of its property or business is or may be bound or affected; or (3)
any existing applicable law, rule, regulation, judgment, order or
decree of any governmental agency or court, domestic or foreign,
having jurisdiction over the Company or any of the Company's
properties or business, which, in the case of clause (2) and clause
(3), would have material adverse effect on the business, properties,
financial condition or results of operations of the Company and its
subsidiaries, taken as a whole. The Company owns, possesses or has
obtained all governmental and other (including those obtainable from
third parties) permits necessary to own or lease, as the case may
be, and to operate its properties, whether tangible or intangible,
and to conduct any of the business or operations of the Company as
presently conducted. All such permits are outstanding and in good
standing and there are no proceedings pending or, to the best of the
Company's knowledge, threatened (nor, to the Company's knowledge, is
there any basis therefor) seeking to cancel, terminate or limit such
permits.
(xiv) Except as set forth in the Prospectus, there
are no claims, actions, suits, proceedings, arbitrations,
investigations, or inquiries before any governmental agency, court
or tribunal, domestic or foreign, or before any private arbitration
tribunal, pending, or, to the best of the Company's knowledge,
threatened against the Company or involving its properties or
business which, if determined adversely to the Company would,
individually or in the aggregate, result in a material adverse
effect on the business, properties, financial condition or results
of operations of the Company and its subsidiaries, taken as a whole,
or which question the validity of the capital stock of the Company
or this Agreement or of any action taken or to be taken by the
Company pursuant to, or in connection with, this Agreement; nor to
the best of the Company's knowledge, is there any basis for any such
claim, action, suit, proceeding, arbitration, investigation or
inquiry. There are no outstanding orders, judgments or decrees of
any court, governmental agency or other tribunal naming the Company
and enjoining the Company from taking, or requiring the Company to
take, any action, or to which the Company or the Company's
properties or business is bound or subject.
(xv) To the best of the Company's knowledge,
except as described in the Prospectus no parties other than the
Company has any right or license to make or sell the Company's
glucose marketing product, its diabetes screening product or its
infant jaundice monitoring product, each as described in the
Prospectus.
(xvi) The Company has good and marketable title in
fee simple to all real property and good title to all personal
property (tangible and intangible) owned by it, free and clear of
all security interests, charges, mortgages, liens, encumbrances and
defects, except such as are described in the Registration Statement
and Prospectus or such as do not materially affect the value or
transferability of such property and do not interfere with the use
of such property made, or proposed to be made, by the Company. The
leases, licenses or other contracts or instruments under which the
Company leases, holds or is entitled to use any property, real or
personal, are valid, subsisting and enforceable only with such
exceptions as are not material and do not interfere with the use of
such property made, or proposed to be made, by the Company, and
except as enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and
general principles of equity and the discretion of the court before
which any proceeding therefor may be brought, and all rentals,
royalties or other payments accruing thereunder which became due
prior to the date of this Agreement have been duly paid, and neither
the Company nor, to the best of the Company's knowledge, any other
party is in default thereunder and, to the best of the Company's
knowledge, no event has occurred
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which, with the passage of time or the giving of notice, or both,
would constitute a default thereunder, in each case which would have
a material adverse effect on the business, properties, financial
condition or results of operations of the Company and its
subsidiaries, taken as a whole. The Company has not received notice
of any violation of any applicable law, ordinance, regulation, order
or requirement relating to its owned or leased properties. The
Company has insured its properties against loss or damage by fire or
other casualty and maintains such casualty and other insurance as is
usually maintained by companies engaged in the same or similar
businesses.
(xvii) Each contract or other instrument (however
characterized or described) to which the Company is a party or by
which its property or business is or may be bound or affected and to
which reference is made in the Prospectus has been duly and validly
executed, is in full force and effect in all respects and is
enforceable against the Company, and, to the best of the Company's
knowledge, the other parties in accordance with its terms, except as
enforceability thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally and general
principles of equity and the discretion of the court before which
any proceeding therefor may be brought, and none of such contracts
or instruments has been assigned by the Company, and neither the
Company nor, to the best of the Company's knowledge, any other party
is in default thereunder and, to the best of the Company's
knowledge, no event has occurred which, with the lapse of time or
the giving of notice, or both, would constitute a default hereunder,
which, in each case, would have a material adverse effect on the
business, properties, financial condition or results of operations
of the Company and its subsidiaries, taken as a whole.
None of the provisions of such contracts or
instruments violates any existing applicable law, rule, regulation,
judgment, order or decree of any governmental agency or court
having jurisdiction over the Company or any of its assets or
businesses, including, without limitation, those relating to the
production, development, research, marketing or commercialization
of medical devices, which, in each case, would have a material
adverse effect on the business, properties, financial condition or
results of operations of the Company and its subsidiaries, taken as
a whole.
(xviii) Except as set forth in the Prospectus, the
Company has no employee benefit plans (including, without
limitation, profit sharing and welfare benefit plans) or deferred
compensation arrangements that are subject to the provisions of the
Employee Retirement Income Security Act of 1974.
(xix) To the best of the Company's knowledge, no
labor problem exists with any of the Company's employees or is
imminent which could result in a material adverse effect on the
business, properties, financial condition or results of operations
of the Company and its subsidiaries, taken as a whole.
(xx) The Company has not, directly or indirectly,
at any time (i) made any contributions to any candidate for
political office, or failed to disclose fully any such contribution
in violation of law or (ii) made any payment to any state, federal
or foreign governmental officer or official, or other person charged
with similar public or quasi-public duties, other than payments or
contributions required or allowed by applicable law. The Company's
internal accounting controls and procedures are sufficient to cause
the Company to comply in all material respects with the Foreign
Corrupt Practices Act of 1977, as amended.
(xxi) The Company owns, or possesses adequate
rights to use, all patents, patent rights, inventions, trade
secrets, licenses, know-how, proprietary techniques, including
processes and substances, trademarks, service marks, trade names and
copyrights described or referred to in the Prospectus as owned or
used by it or which are necessary for the conduct of its business as
described in the Prospectus, except as otherwise disclosed in the
Prospectus. To the best knowledge of the Company, all such patents,
patent rights, licenses, trademarks, service marks and copyrights
are (a) valid and enforceable and (b) not being infringed by any
third parties which infringement could, whether singly or in the
aggregate, materially and adversely
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affect the business, properties, operations, condition (financial or
otherwise), income, business prospects or results of operations of
the Company, as presently being conducted or as proposed to be
conducted in the Prospectus. The Company has no knowledge of, nor
has it received any notice of, infringement of or conflict with,
asserted rights of others with respect to any patents, patent
rights, inventions, trade secrets, licenses, know-how, proprietary
techniques, including processes and substances, trademarks, service
marks, trade names or copyrights which, singly or in the aggregate,
if the subject of an unfavorable decision, ruling or finding could
materially and adversely affect the business, properties,
operations, condition (financial or otherwise), income, business
prospects or results of operations of the Company as presently being
conducted or as proposed to be conducted in the Prospectus.
(xxii) Prior to the Closing Date the Stock to be
issued and sold by the Company and by the Selling Stockholders will
be authorized for listing by the Nasdaq National Market upon
official notice of issuance.
(b) Each Selling Stockholder, severally and not jointly, hereby
represents, warrants and covenants as follows:
(i) Such Selling Stockholder has valid
marketable title to the shares of Stock to be sold by such Selling
Stockholder, free and clear of any pledge, lien, security interest,
encumbrance, claim or equitable interest other than pursuant to the
Custody Agreement; and upon delivery of such shares of Stock
hereunder and payment of the purchase price, each of the
Underwriters will obtain valid marketable title to the shares of
Stock purchased by it from such Selling Stockholder, free and clear
of any pledge, lien, security interest pertaining to such Selling
Stockholder or such Selling Stockholder's property, encumbrance,
claim or equitable interest, including any liability for estate or
inheritance taxes, or any liability to or claims of any creditor,
devisee, legatee or beneficiary of such Selling Stockholder.
(ii) Such Selling Stockholder has duly authorized
(if applicable), executed and delivered, in the form heretofore
furnished to the Underwriters the Irrevocable Power of Attorney and
the Custody Agreement; each of the Irrevocable Power of Attorney and
the Custody Agreement constitutes a valid and binding agreement on
the part of such Selling Stockholder, enforceable in accordance with
its terms, except as the enforcement thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws relating to or affecting creditors' rights
generally or by general equitable principles, and each of such
Selling Stockholder's Attorney-in-Fact, acting alone, is authorized
to execute and deliver this Agreement and the certificate referred
to in Section 9(e) of this Agreement on behalf of such Selling
Stockholder in accordance with the terms of such Irrevocable Power
of Attorney.
(iii) All consents, approvals, authorizations and
orders required for the execution and delivery by such Selling
Stockholder of the Irrevocable Power of Attorney and the Custody
Agreement, the execution and delivery by or on behalf of such
Selling Stockholder of this Agreement and the sale and delivery of
the shares of Stock of the Selling Stockholder under this Agreement
(other than, at the time of the execution hereof (if the
Registration Statement has not yet been declared effective by the
Commission), the issuance of the order of the Commission declaring
the Registration Statement effective and such consents, approvals,
authorizations or order as may be necessary under state or other
securities or Blue Sky laws) have been obtained and are in full
force and effect; and such Selling Stockholder has full legal right,
power and authority to enter into and perform its obligations under
this Agreement, the Irrevocable Power of Attorney and the Custody
Agreement, and to sell, assign, transfer and deliver the shares of
Stock to be sold by such Selling Stockholder under this Agreement.
(iv) Such Selling Stockholder has executed a NASD
Questionnaire, and represents, warrants and covenants that the
information contained therein is, and at the time the Registration
Statement became or becomes, as the case may be, effective and all
times subsequent thereto up to and on the Closing Date (or such
later date on which Option Stock may be purchased), was or will be,
true, correct and complete, and
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does not, and will not, and at the time the Registration Statement
became or becomes, as the case may be, effective and all times
subsequent thereto up to and on the Closing Date (or such later date
on which Option Stock may be purchased), contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make such information
not misleading.
(v) Certificates in negotiable form for the
shares of Stock to be sold hereunder by such Selling Stockholder
have been placed in custody under the Custody Agreement and
Irrevocable Power of Attorney which appoints SunTrust Bank as
custodian (the "Custodian") for each Selling Stockholder for the
purpose of making delivery of such shares under this Agreement. Such
Selling Stockholder agrees that the shares of Stock represented by
the certificates held in custody for such Selling Stockholder under
the Custody Agreement and the Irrevocable Power of Attorney are for
the benefit of and coupled with and subject to the interest
hereunder of the Custodian, the Attorney-in-Fact (as defined in the
Irrevocable Power of Attorney), the Underwriters, each other Selling
Stockholder and the Company, that the arrangements made by such
Selling Stockholder for such custody and the appointment of the
Custodian and the Attorney-in-Fact by such Selling Stockholder are
irrevocable, and that the obligations of such Selling Stockholder
hereunder shall not be terminated by any act of such Selling
Stockholder or by operation of law, whether by the death,
disability, incapacity or liquidation of any Selling Stockholder or
the occurrence of any other event. If any Selling Stockholder should
die, become disabled or incapacitated or be liquidated or if any
other such event should occur before the delivery of the shares of
Stock hereunder, certificates for the shares of Stock shall be
delivered by the Custodian in accordance with the terms and
conditions of this Agreement and actions taken by the
Attorney-in-Fact and the Custodian pursuant to the Custody Agreement
and Irrevocable Power of Attorney, shall be as valid as if such
death, liquidation, incapacity or other event had not occurred,
regardless of whether or not the Custodian or the Attorney-in-Fact,
or either of them, shall have received notice thereof.
(vi) Each of this Agreement, the Irrevocable
Power of Attorney and the Custody Agreement has been duly authorized
by each Selling Stockholder that is not a natural person and has
been duly executed and delivered by or on behalf of such Selling
Stockholder and is a valid and binding agreement of such Selling
Stockholder, enforceable in accordance with its terms, except as
rights to indemnification hereunder may be limited by applicable law
and except as the enforcement hereof maybe limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
relating to or affecting creditors' rights generally or by general
equitable principles; and the performance of this Agreement and the
consummation of the transactions herein contemplated will not result
in a material breach or violation of any of the terms and provisions
of, or constitute a default under, (i) any bond, debenture, note or
other evidence of indebtedness, or under any lease, contract,
indenture, mortgage, deed of trust, loan agreement, joint venture or
other agreement or instrument to which such Selling Stockholder is a
party or by which such Selling Stockholder may be bound or (ii) to
the best of such Selling Stockholder's knowledge, result in any
violation of any law, order, rule, regulation, writ, injunction,
judgment or decree of any court, government or governmental agency
or body, domestic or foreign, having jurisdiction over such Selling
Stockholder or over the properties of such Selling Stockholder.
(vii) Such Selling Stockholder has not taken and
will not take, directly or indirectly, any action designed to or
that might reasonably be expected to cause or result in
stabilization or manipulation of the price of the Common Stock to
facilitate the sale or resale of the shares of Stock.
(viii) Such Selling Stockholder has not distributed
and will not distribute any prospectus or other offering material in
connection with the offering and sale of the shares of Stock.
(ix) All information furnished by or on behalf of
such Selling Stockholder relating to such Selling Stockholder and
the Stock of such Selling Stockholder that is set forth on the cover
page, the back cover page and pages 5, 16, 18, 53, 58 and 59 of the
Prospectus is, and at the time the Registration Statement
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became or becomes, as the case may be, effective and all times
subsequent thereto up to and on the Closing Date (or such later date
on which Option Stock may be purchased), was or will be, true,
correct and complete, and does not, and will not, and at the time
the Registration Statement became or becomes, as the case may be,
effective and all times subsequent thereto up to and on the Closing
Date (or such later date on which Option Stock may be purchased),
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make
such information not misleading.
(x) Such Selling Stockholder has reviewed the
Prospectus and has complied with all agreements and satisfied all
conditions on its part to be complied with or satisfied pursuant to
this Agreement as of the date hereof and has advised its
Attorney-in-Fact if any statement to be made on behalf of such
Selling Stockholder in the certificate contemplated by Section 9(e)
of this Agreement is inaccurate.
(xi) Such Selling Stockholder does not have, or
has waived, any preemptive right, co-sale right or right of first
refusal or other similar right to purchase any of the shares of
Stock that are to be sold by the Company or any of the other Selling
Stockholders to the Underwriters pursuant to this Agreement; such
Selling Stockholder does not have, or has waived, any registration
right or other similar right to participate in the offering made by
the Prospectus, other than such rights of participation as have been
satisfied by the participation of such Selling Stockholder in the
transactions to which this Agreement relates in accordance with the
terms of this Agreement; and such Selling Stockholder does not own
any warrants, options or similar rights to acquire, and does not
have any right or arrangement to acquire, any capital stock, rights,
warrants, options or other securities from the Company, other than
those described in the Registration Statement and the Prospectus.
Any certificate signed by an officer of the Company and
delivered to Hambrecht & Quist LLC or to White & Case, counsel to the
Underwriters, shall be deemed to be a representation and warranty by the Company
to Hambrecht & Quist LLC and Volpe Brown Whelan & Company, LLC as to the matters
covered thereby.
3. PURCHASE OF THE STOCK BY THE UNDERWRITERS.
(a) On the basis of the representations and warranties and
subject to the terms and conditions herein set forth, the Company agrees to
issue and sell 2,000,000 shares of the Underwritten Stock to the several
Underwriters, each Selling Stockholder agrees to sell to the several
Underwriters the number of shares of Underwritten Stock set forth in Schedule II
opposite the name of such Selling Stockholder, and each of the Underwriters
agrees to purchase from the Company and the Selling Stockholders the respective
aggregate number of shares of Underwritten Stock set forth opposite their names
in Schedule I and Schedule II, respectively. The price at which such shares of
Underwritten Stock shall be sold by the Company and the Selling Stockholders and
purchased by the several Underwriters shall be $___ per share. The obligation of
each Underwriter to the Company and the Selling Stockholders shall be to
purchase from the Company and the Selling Stockholders that number of shares of
the Underwritten Stock which represents the same proportion of the total number
of shares of the Underwritten Stock to be sold by the Company and the Selling
Stockholders pursuant to this Agreement as the number of shares of the
Underwritten Stock set forth opposite the name of such Underwriter in Schedule I
hereto represents of the total number of shares of the Underwritten Stock to be
purchased by all Underwriters pursuant to this Agreement, as adjusted by you in
such manner as you deem advisable to avoid fractional shares. In making this
Agreement, each Underwriter is contracting severally and not jointly; except as
provided in paragraphs (b) and (c) of this Section 3, the agreement of each
Underwriter is to purchase only the respective number of shares of the
Underwritten Stock specified in Schedule I.
(b) If for any reason one or more of the Underwriters shall
fail or refuse (otherwise than for a reason sufficient to justify the
termination of this Agreement under the provisions of Section 8 or 9 hereof) to
purchase and pay for the number of shares of the Stock agreed to be purchased by
such Underwriter or Underwriters, the Company or the Selling Stockholders shall
immediately give notice thereof to you, and the non-defaulting Underwriters
shall have the right within 24 hours after the receipt by you of such notice to
purchase, or procure one or more other Underwriters
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to purchase, in such proportions as may be agreed upon between you and such
purchasing Underwriter or Underwriters and upon the terms herein set forth, all
or any part of the shares of the Stock which such defaulting Underwriter or
Underwriters agreed to purchase. If the non-defaulting Underwriters fail so to
make such arrangements with respect to all such shares and portion, the number
of shares of the Stock which each non-defaulting Underwriter is otherwise
obligated to purchase under this Agreement shall be automatically increased on a
pro rata basis to absorb the remaining shares and portion which the defaulting
Underwriter or Underwriters agreed to purchase; provided, however, that the
non-defaulting Underwriters shall not be obligated to purchase the shares and
portion which the defaulting Underwriter or Underwriters agreed to purchase if
the aggregate number of such shares of the Stock exceeds 10% of the total number
of shares of the Stock which all Underwriters agreed to purchase hereunder. If
the total number of shares of the Stock which the defaulting Underwriter or
Underwriters agreed to purchase shall not be purchased or absorbed in accordance
with the two preceding sentences, the Company and the Selling Stockholders shall
have the right, within 24 hours next succeeding the 24-hour period above
referred to, to make arrangements with other underwriters or purchasers
satisfactory to you for purchase of such shares and portion on the terms herein
set forth. In any such case, either you or the Company and the Selling
Stockholders shall have the right to postpone the Closing Date determined as
provided in Section 5 hereof for not more than seven business days after the
date originally fixed as the Closing Date pursuant to said Section 5 in order
that any necessary changes in the Registration Statement, the Prospectus or any
other documents or arrangements may be made. If neither the non-defaulting
Underwriters nor the Company and the Selling Stockholders shall make
arrangements within the 24-hour periods stated above for the purchase of all the
shares of the Stock which the defaulting Underwriter or Underwriters agreed to
purchase hereunder, this Agreement shall be terminated without further act or
deed and without any liability on the part of the Company or the Selling
Stockholders to any non-defaulting Underwriter and without any liability on the
part of any non-defaulting Underwriter to the Company. Nothing in this paragraph
(b), and no action taken hereunder, shall relieve any defaulting Underwriter
from liability in respect of any default of such Underwriter under this
Agreement.
(c) On the basis of the representations, warranties and
covenants herein contained, and subject to the terms and conditions herein set
forth, the Company grants an option to the several Underwriters to purchase,
severally and not jointly, up to 330,255 shares in the aggregate of the Option
Stock from the Company at the same price per share as the Underwriters shall pay
for the Underwritten Stock. Said option may be exercised only to cover
over-allotments in the sale of the Underwritten Stock by the Underwriters and
may be exercised in whole or in part at any time (but not more than once) on or
before the thirtieth day after the date of this Agreement upon written or
telegraphic notice by you to the Company setting forth the aggregate number of
shares of the Option Stock as to which the several Underwriters are exercising
the option. Delivery of certificates for the shares of Option Stock, and payment
therefor, shall be made as provided in Section 5 hereof. The number of shares of
the Option Stock to be purchased by each Underwriter shall be the same
percentage of the total number of shares of the Option Stock to be purchased by
the several Underwriters as such Underwriter is purchasing of the Underwritten
Stock, as adjusted by you in such manner as you deem advisable to avoid
fractional shares.
4. OFFERING BY UNDERWRITERS.
(a) The terms of the initial public offering by the Underwriters
of the Stock to be purchased by them shall be as set forth in the Prospectus.
The Underwriters may from time to time change the public offering price after
the closing of the initial public offering and increase or decrease the
concessions and discounts to dealers as they may determine.
(b) The information set forth in the last paragraph on the
front cover page and under "Underwriting" in any Preliminary Prospectus and the
Prospectus relating to the Stock filed by the Company (insofar as such
information relates to the Underwriters) constitutes the only information
furnished by the Underwriters to the Company for inclusion in the Registration
Statement, any Preliminary Prospectus, and the Prospectus, and you on behalf of
the respective Underwriters represent and warrant to the Company that the
statements made therein are correct.
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5. DELIVERY OF AND PAYMENT FOR THE STOCK.
(a) Delivery of certificates for the shares of the Underwritten
Stock and the Option Stock (if the option granted by Section 3(c) hereof shall
have been exercised not later than 10:00 a.m., New York time, on the date two
business days preceding the Closing Date), and payment therefor, shall be made
at the office of (degree) , (degree) , at 10:00 a.m.,
New York time, on the [fourth](2) business day after the date of this
Agreement, or at such time on such other day, not later than seven full
business days after such [fourth] business day, as shall be agreed upon in
writing by the Company and you. The date and hour of such delivery and payment
(which may be postponed as provided in Section 3(b) hereof) are herein called
the Closing Date.
(b) If the option granted by Section 3(c) hereof shall be exercised
after 10:00 a.m., New York time, on the date two business days preceding the
Closing Date, delivery of certificates for the shares of Option Stock, and
payment therefor, shall be made at the office of (degree) ,
(degree) , at 10:00 a.m., New York time, on the third business day after
the exercise of such option.
(c) Payment for the Stock purchased from the Company shall be made to
the Company or its order and payment for the Stock purchased from the Selling
Stockholders shall be made to the Custodian for the account of the Selling
Stockholders, in each case by one or more certified or official bank check or
checks in same day funds. Such payment shall be made upon delivery of
certificates for the Stock to you for the respective accounts of the several
Underwriters against receipt therefor signed by you. Certificates for the Stock
to be delivered to you shall be registered in such name or names and shall be in
such denominations as you may request at least one business day before the
Closing Date, in the case of Underwritten Stock, and at least one business day
prior to the purchase thereof, in the case of the Option Stock. Such
certificates will be made available to the Underwriters for inspection, checking
and packaging at the offices of Lewco Securities Corporation, 2 Broadway, New
York, New York 10004 on the business day prior to the Closing Date or, in the
case of the Option Stock, by 3:00 p.m., New York time, on the business day
preceding the date of purchase.
It is understood that you, individually and not on behalf of the
Underwriters, may (but shall not be obligated to) make payment to the Company
and the Selling Stockholders for shares to be purchased by any Underwriter whose
check shall not have been received by you on the Closing Date or any later date
on which Option Stock is purchased for the account of such Underwriter. Any such
payment by you shall not relieve such Underwriter from any of its obligations
hereunder.
6. FURTHER AGREEMENTS OF THE COMPANY. The Company covenants and
agrees as follows:
(a) The Company will (i) prepare and timely file with the Commission
under Rule 424(b) a Prospectus containing information previously omitted at the
time of effectiveness of the Registration Statement in reliance on Rule 430A and
(ii) not file any amendment to the Registration Statement or supplement to the
Prospectus of which you shall not previously have been advised and furnished
with a copy or to which you shall have reasonably objected in writing or which
is not in compliance with the Securities Act or the rules and regulations of the
Commission.
(b) The Company will promptly notify each Underwriter in the event of
(i) the request by the Commission for amendment of the Registration Statement or
for supplement to the Prospectus or for any additional information, (ii) the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement, (iii) the
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(2) This assumes that the transaction will be priced after the close of market
and that T+4 will apply to the transaction. If the pricing took place
before or during market hours (which will generally not be the case), the
closing would be three business days after pricing.
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institution or notice of intended institution of any action or proceeding for
that purpose, (iv) the receipt by the Company of any notification with respect
to the suspension of the qualification of the Stock for sale in any
jurisdiction, or (v) the receipt by it of notice of the initiation or
threatening of any proceeding for such purpose. The Company will make every
reasonable effort to prevent the issuance of such a stop order and, if such an
order shall at any time be issued, to obtain the withdrawal thereof at the
earliest possible moment.
(c) The Company will (i) on or before the Closing Date, deliver to
you a signed copy of the Registration Statement as originally filed and of each
amendment thereto filed prior to the time the Registration Statement becomes
effective and, promptly upon the filing thereof, a signed copy of each
post-effective amendment, if any, to the Registration Statement (together with,
in each case, all exhibits thereto unless previously furnished to you) and will
also deliver to you, for distribution to the Underwriters, a sufficient number
of additional conformed copies of each of the foregoing (but without exhibits)
so that one copy of each may be distributed to each Underwriter, (ii) as
promptly as possible deliver to you and send to the several Underwriters, at
such office or offices as you may designate, as many copies of the Prospectus as
you may reasonably request, and (iii) thereafter from time to time during the
period in which a prospectus is required by law to be delivered by an
Underwriter or dealer, likewise send to the Underwriters as many additional
copies of the Prospectus and as many copies of any supplement to the Prospectus
and of any amended prospectus, filed by the Company with the Commission, as you
may reasonably request for the purposes contemplated by the Securities Act.
(d) If at any time during the period in which a prospectus is
required by law to be delivered by an Underwriter or dealer any event relating
to or affecting the Company, or of which the Company shall be advised in writing
by you, shall occur as a result of which it is necessary, in the opinion of
counsel for the Company or of counsel for the Underwriters, to supplement or
amend the Prospectus in order to make the Prospectus not misleading in the light
of the circumstances existing at the time it is delivered to a purchaser of the
Stock, the Company will forthwith prepare and file with the Commission a
supplement to the Prospectus or an amended prospectus so that the Prospectus as
so supplemented or amended will not contain 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 existing at the time such
Prospectus is delivered to such purchaser, not misleading. If, after the initial
public offering of the Stock by the Underwriters and during such period, the
Underwriters shall propose to vary the terms of offering thereof by reason of
changes in general market conditions or otherwise, you will advise the Company
in writing of the proposed variation, and, if in the opinion either of counsel
for the Company or of counsel for the Underwriters such proposed variation
requires that the Prospectus be supplemented or amended, the Company will
forthwith prepare and file with the Commission a supplement to the Prospectus or
an amended prospectus setting forth such variation. The Company authorizes the
Underwriters and all dealers to whom any of the Stock may be sold by the several
Underwriters to use the Prospectus, as from time to time amended or
supplemented, in connection with the sale of the Stock in accordance with the
applicable provisions of the Securities Act and the applicable rules and
regulations thereunder for such period.
(e) Prior to the filing thereof with the Commission, the Company will
submit to you, for your information, a copy of any post-effective amendment to
the Registration Statement and any supplement to the Prospectus or any amended
prospectus proposed to be filed.
(f) The Company will cooperate, when and as requested by you, in the
qualification of the Stock for offer and sale under the securities or blue sky
laws of such jurisdictions as you may designate and, during the period in which
a prospectus is required by law to be delivered by an Underwriter or dealer, in
keeping such qualifications in good standing under said securities or blue sky
laws; provided, however, that the Company shall not be obligated to file any
general consent to service of process or to qualify as a foreign corporation in
any jurisdiction in which it is not so qualified. The Company will, from time to
time, prepare and file such statements, reports, and other documents as are or
may be required to continue such qualifications in effect for so long a period
as you may reasonably request for distribution of the Stock.
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(g) During a period of five years commencing with the date hereof,
the Company will furnish to you, and to each Underwriter who may so request in
writing, copies of all periodic and special reports furnished to stockholders of
the Company and of all information, documents and reports filed with the
Commission (including the Report on Form SR required by Rule 463 of the
Commission under the Securities Act).
(h) Not later than the 45th day following the end of the fiscal
quarter first occurring after the first anniversary of the Effective Date, the
Company will make generally available to its security holders an earnings
statement in accordance with Section 11(a) of the Securities Act and Rule 158
thereunder.
(i) The Company agrees to pay all costs and expenses incident to the
performance of their obligations under this Agreement, including all costs and
expenses incident to (i) the preparation, printing and filing with the
Commission and the National Association of Securities Dealers, Inc. ("NASD") of
the Registration Statement, any Preliminary Prospectus and the Prospectus, (ii)
the furnishing to the Underwriters of copies of any Preliminary Prospectus and
of the several documents required by paragraph (c) of this Section 6 to be so
furnished, (iii) the printing of this Agreement and related documents delivered
to the Underwriters, (iv) the preparation, printing and filing of all
supplements and amendments to the Prospectus referred to in paragraph (d) of
this Section 6, (v) the furnishing to you and the Underwriters of the reports
and information referred to in paragraph (g) of this Section 6 and (vi) the
printing and issuance of stock certificates, including the transfer agent's
fees. The Company will pay any transfer taxes incident to the transfer to the
Underwriters of the shares of Stock being sold by the Selling Stockholders.
(j) The Company agrees to reimburse you, for the account of the
several Underwriters, for blue sky fees and related disbursements (including
counsel fees and disbursements and cost of printing memoranda for the
Underwriters) paid by or for the account of the Underwriters or their counsel in
qualifying the Stock under state securities or blue sky laws and in the review
of the offering by the NASD.
(k) The provisions of paragraphs (i) and (j) of this Section are
intended to relieve the Underwriters from the payment of the expenses and costs
which the Company and the Selling Stockholders hereby agree to pay and shall not
affect any agreement which the Company and the Selling Stockholders may make, or
may have made, for the sharing of any such expenses and costs.
(l) The Company hereby agrees that, without the prior written consent
of Hambrecht & Quist LLC on behalf of the Underwriters, the Company will not,
for a period of 180 days following the commencement of the public offering of
the Stock by the Underwriters, directly or indirectly, (i) sell, offer, contract
to sell, make any short sale, pledge, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase or otherwise transfer or dispose of any shares of Common Stock or any
securities convertible into or exchangeable or exercisable for or any rights to
purchase or acquire Common Stock or (ii) enter into any swap or other agreement
that transfers, in whole or in part, any of the economic consequences or
ownership of Common Stock, whether any such transaction described in clause (i)
or (ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to the
Stock to be sold to the Underwriters pursuant to this Agreement.
(m) If at any time during the 25-day period after the Registration
Statement becomes effective any rumor, publication or event relating to or
affecting the Company shall occur as a result of which in your opinion the
market price for the 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.
(n) The Company is familiar with the Investment Company Act of 1940,
as amended, and has in the past conducted its affairs, and will in the future
conduct its affairs, in such a manner to ensure that the Company was not
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and will not be an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, and the rules and regulations thereunder.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company and the Selling Stockholders severally agree to
indemnify and hold harmless each Underwriter and each person (including each
partner or officer thereof) who controls any Underwriter within the meaning of
Section 15 of the Securities Act from and against any and all losses, claims,
damages or liabilities, joint or several, to which such indemnified parties or
any of them may become subject under the Securities Act, the Securities Exchange
Act of 1934, as amended (herein called the Exchange Act), or the common law or
otherwise, and the Company and the Selling Stockholders jointly and severally
agree to reimburse each such Underwriter and controlling person for any legal or
other expenses (including, except as otherwise hereinafter provided, reasonable
fees and disbursements of counsel) incurred by the respective indemnified
parties in connection with defending against any such losses, claims, damages or
liabilities or in connection with any investigation or inquiry of, or other
proceeding which may be brought against, the respective indemnified parties, in
each case arising out of or based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(including the Prospectus as part thereof and any Rule 462(b) registration
statement) or any post-effective amendment thereto (including any Rule 462(b)
registration statement), or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (ii) any untrue statement or alleged untrue statement
of a material fact contained in any Preliminary Prospectus or the Prospectus (as
amended or as supplemented if the Company shall have filed with the Commission
any amendment thereof or supplement thereto) or the omission or alleged omission
to state therein a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that (1) the indemnity agreement of the Company
and the Selling Stockholders contained in this paragraph (a) shall not apply to
any such losses, claims, damages, liabilities or expenses if such statement or
omission was made in reliance upon and in conformity with information furnished
as herein stated or otherwise furnished in writing to the Company by or on
behalf of any Underwriter for use in any Preliminary Prospectus or the
Registration Statement or the Prospectus or any such amendment thereof or
supplement thereto and (2) the indemnity agreement contained in this paragraph
(a) with respect to any Preliminary Prospectus shall not inure to the benefit of
any Underwriter from whom the person asserting any such losses, claims, damages,
liabilities or expenses purchased the Stock which is the subject thereof (or to
the benefit of any person controlling such Underwriter) if at or prior to the
written confirmation of the sale of such Stock a copy of the Prospectus (or the
Prospectus as amended or supplemented) was not sent or delivered to such person
and the untrue statement or omission of a material fact contained in such
Preliminary Prospectus was corrected in the Prospectus (or the Prospectus as
amended or supplemented) unless the failure is the result of noncompliance by
the Company or the Selling Stockholders with paragraph (c) of Section 7 hereof.
Each Selling Stockholder shall only be liable under this paragraph with respect
to (A) information pertaining to such Selling Stockholder furnished in writing
directly (and not through an attorney-in-fact or other agent) by such Selling
Stockholder expressly for use in any Preliminary Prospectus or the Registration
Statement or the Prospectus or any such amendment thereof or supplement thereto
or (B) facts that would constitute a breach of any representation or warranty of
such Selling Stockholder set forth in Section 2(b) hereof. The indemnity
agreement of the Company and the Selling Stockholders contained in this
paragraph (a) and the representations and warranties of the Company and the
Selling Stockholders contained in Section 2 hereof shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of
any indemnified party and shall survive the delivery of and payment for the
Stock.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its officers who signs the Registration Statement on his
own behalf or pursuant to a power of attorney, each of its directors, each other
Underwriter and each person (including each partner or officer thereof) who
controls the Company or any such other Underwriter within the meaning of Section
15 of the Securities Act and the Selling Stockholders from and against any and
all losses, claims, damages or liabilities, joint or several, to which such
indemnified parties or any of them may become subject under the Securities Act,
the Exchange Act, or the common law or otherwise and to reimburse each of them
for any legal or other expenses (including, except as otherwise hereinafter
provided, reasonable fees and
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disbursements of counsel) incurred by the respective indemnified parties in
connection with defending against any such losses, claims, damages or
liabilities or in connection with any investigation or inquiry of, or other
proceeding which may be brought against, the respective indemnified parties, in
each case arising out of or based upon (i) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(including the Prospectus as part thereof and any Rule 462(b) registration
statement) or any post-effective amendment thereto (including any Rule 462(b)
registration statement) or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading or (ii) any untrue statement or alleged untrue statement
of a material fact contained in the Prospectus (as amended or as supplemented if
the Company shall have filed with the Commission any amendment thereof or
supplement thereto) or the omission or alleged omission to state therein a
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, if such statement
or omission was made in reliance upon and in conformity with information
furnished as herein stated or otherwise furnished in writing to the Company by
or on behalf of such indemnifying Underwriter for use in the Registration
Statement or the Prospectus or any such amendment thereof or supplement thereto.
The indemnity agreement of each Underwriter contained in this paragraph (b)
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any indemnified party and shall survive
the delivery of and payment for the Stock.
(c) Each party indemnified under the provision of paragraphs (a) and
(b) of this Section 7 agrees that, upon the service of a summons or other
initial legal process upon it in any action or suit instituted against it or
upon its receipt of written notification of the commencement of any
investigation or inquiry of, or proceeding against, it in respect of which
indemnity may be sought on account of any indemnity agreement contained in such
paragraphs, it will promptly give written notice (herein called the Notice) of
such service or notification to the party or parties from whom indemnification
may be sought hereunder; provided, however, that the failure so to notify the
indemnifying party shall not relieve the indemnifying party from any liability
it may have to the indemnified party (y) under this Section 7 except to the
extent that the indemnifying party has been materially prejudiced by such
failure or (z) otherwise than under this Section 7. Any indemnifying party shall
be entitled at its own expense to participate in the defense of any action, suit
or proceeding against, or investigation or inquiry of, an indemnified party. Any
indemnifying party shall be entitled, if it so elects within a reasonable time
after receipt of the Notice by giving written notice (herein called the Notice
of Defense) to the indemnified party, to assume (alone or in conjunction with
any other indemnifying party or parties) the entire defense of such action,
suit, investigation, inquiry or proceeding, in which event such defense shall be
conducted, at the expense of the indemnifying party or parties, by counsel
chosen by such indemnifying party or parties and reasonably satisfactory to the
indemnified party or parties; provided, however, that (i) if the indemnified
party or parties reasonably determine that there may be a conflict between the
positions of the indemnifying party or parties and of the indemnified party or
parties in conducting the defense of such action, suit, investigation, inquiry
or proceeding or that there may be legal defenses available to such indemnified
party or parties different from or in addition to those available to the
indemnifying party or parties, then counsel for the indemnified party or parties
shall be entitled to conduct the defense to the extent reasonably determined by
such counsel to be necessary to protect the interests of the indemnified party
or parties and (ii) in any event, the indemnified party or parties shall be
entitled to have counsel chosen by such indemnified party or parties participate
in, but not conduct, the defense. If, within a reasonable time after receipt of
the Notice, an indemnifying party gives a Notice of Defense and the counsel
chosen by the indemnifying party or parties is reasonably satisfactory to the
indemnified party or parties, the indemnifying party or parties will not be
liable under paragraphs (a) through (c) of this Section 7 for any legal or other
expenses subsequently incurred by the indemnified party or parties in connection
with the defense of the action, suit, investigation, inquiry or proceeding,
except that (A) the indemnifying party or parties shall bear the legal and other
expenses incurred in connection with the conduct of the defense as referred to
in clause (i) of the proviso to the preceding sentence and (B) the indemnifying
party or parties shall bear such other expenses as it or they have authorized to
be incurred by the indemnified party or parties. If, within a reasonable time
after receipt of the Notice, no Notice of Defense has been given, the
indemnifying party or parties shall be responsible for any legal or other
expenses incurred by the indemnified party or parties in connection with the
defense of the action, suit, investigation, inquiry or proceeding.
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(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
paragraph (a) or (b) of this Section 7, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in paragraph (a) or (b) of this Section 7 (i) in such
proportion as is appropriate to reflect the relative benefits received by each
indemnifying party from the offering of the Stock or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of each indemnifying party in
connection with the 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 and the Selling Stockholders on the one hand and the Underwriters on the
other shall be deemed to be in the same respective proportions as the total net
proceeds from the offering of the Stock received by the Company and the Selling
Stockholders and the total underwriting discount received by the Underwriters,
as set forth in the table on the cover page of the Prospectus, bear to the
aggregate public offering price of the Stock. Relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by each indemnifying party and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. In determining the
relative fault of the Selling Stockholders under this paragraph (d), the
limitations on the obligations of the Selling Stockholders set forth in
paragraph (a) of this Section 7 shall be applicable.
The parties agree that it would not be just and equitable if
contributions pursuant to this paragraph (d) were to be determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to in the first sentence of this paragraph
(d). The amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities, or actions in respect thereof, referred to in the first
sentence of this paragraph (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigation, preparing to defend or defending against any action or claim
which is the subject of this paragraph (d). Notwithstanding the provisions of
this paragraph (d), no Underwriter shall be required to contribute any amount in
excess of the underwriting discount applicable to the Stock purchased by such
Underwriter. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this paragraph (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
Each party entitled to contribution agrees that upon the service of a
summons or other initial legal process upon it in any action instituted against
it in respect of which contribution may be sought, it will promptly give written
notice of such service to the party or parties from whom contribution may be
sought, but the omission so to notify such party or parties of any such service
shall not relieve the party from whom contribution may be sought from any
obligation it may have hereunder or otherwise (except as specifically provided
in paragraph (c) of this Section 7).
(e) Neither the Company nor the Selling Stockholders will, without
the prior written consent of each Underwriter, 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 such Underwriter or any person who controls such Underwriter within the
meaning of Section 15 of the Securities 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 such Underwriter and
each such controlling person from all liability arising out of such claim,
action, suit or proceeding.
(f) The term "jointly and severally" in the second and fifth lines of
paragraph (a) of this Section 7 means that the Company's obligation is joint and
several with the obligation for each of the Selling Stockholders, but that the
obligation of a Selling Stockholder is several and not joint with the obligation
of the Company or any other Selling Stockholder. The liability of each Selling
Stockholder under the indemnity, contribution and reimbursement agreements
contained in the provisions of this Section 7 and Section 11 hereof shall be
limited to an amount equal to the price to
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the underwriters of the stock sold by such Selling Stockholder to the
Underwriters. The Company and the Selling Stockholders may agree, as among
themselves and without limiting the rights of the Underwriters under this
Agreement, as to the respective amount of such liability for which each shall be
responsible.
8. TERMINATION. This Agreement may be terminated by you at any time
prior to the Closing Date by giving written notice to the Company and the
Selling Shareholders if after the date of this Agreement trading in the Common
Stock shall have been suspended, or if there shall have occurred (i) the
engagement in hostilities or an escalation of major hostilities by the United
States or the declaration of war or a national emergency by the United States on
or after the date hereof, (ii) any outbreak of hostilities or other national or
international calamity or crisis or change in economic or political conditions
if the effect of such outbreak, calamity, crisis or change in economic or
political conditions in the financial markets of the United States would, in the
Underwriters' reasonable judgment, make the offering or delivery of the Stock
impracticable, (iii) suspension of trading in securities generally or a material
adverse decline in value of securities generally on the New York Stock Exchange,
the American Stock Exchange, or The Nasdaq Stock Market, or limitations on
prices (other than limitations on hours or numbers of days of trading) for
securities on either such exchange or system, (iv) the enactment, publication,
decree or other promulgation of any federal or state statute, regulation, rule
or order of, or commencement of any proceeding or investigation by, any court,
legislative body, agency or other governmental authority which in the
Underwriters' reasonable opinion materially and adversely affects or will
materially or adversely affect the business or operations of the Company, (v)
declaration of a banking moratorium by either federal or New York State
authorities, or (vi) the taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs which in the
Underwriters' reasonable opinion has a material adverse effect on the securities
markets in the United States. If this Agreement shall be terminated pursuant to
this Section 8, there shall be no liability of the Company or the Selling
Stockholders to the Underwriters and no liability of the Underwriters to the
Company or the Selling Stockholders; provided, however, that in the event of any
such termination the Company agrees to indemnify and hold harmless the
Underwriters from all costs or expenses incident to the performance of the
obligations of the Company and the Selling Stockholders under this Agreement,
including all costs and expenses referred to in paragraphs (i) and (j) of
Section 6 hereof.
9. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
several Underwriters to purchase and pay for the Stock shall be subject to the
performance by the Company and the Selling Stockholders of all their respective
obligations to be performed hereunder at or prior to the Closing Date or any
later date on which Option Stock is to be purchased, as the case may be, and to
the following further conditions:
(a) The Registration Statement shall have become effective; and no
stop order suspending the effectiveness thereof shall have been issued and no
proceedings therefor shall be pending or threatened by the Commission.
(b) The legality and sufficiency of the sale of the Stock hereunder
and the validity and form of the certificates representing the Stock, all
corporate proceedings and other legal matters incident to the foregoing, and the
form of the Registration Statement and of the Prospectus (except as to the
financial statements contained therein), shall have been approved at or prior to
the Closing Date by White & Case, counsel for the Underwriters.
(c) You shall have received from (i) Wilson Sonsini Goodrich &
Rosati, counsel for the Company, an opinion addressed to the Underwriters and
dated the Closing Date, covering the matters set forth in Annex A hereto, and if
Option Stock is purchased at any date after the Closing Date, an additional
opinion from such counsel, addressed to the Underwriters and dated such later
date, confirming that the statements expressed as of the Closing Date in such
opinion remain valid as of such later date; (ii) Johnson & Montgomery, counsel
for the Selling Stockholders, an opinion addressed to the Underwriters and dated
the Closing Date, covering the matters set forth in Annex B hereto, and if
Option Stock is purchased at any date after the Closing Date, an additional
opinion from such counsel, addressed to the Underwriters and dated such later
date, confirming that the statements expressed as of the Closing Date in such
opinion remain valid as of such later date; (iii) Thorpe, North & Western,
Kilpatrick & Stockton and Fleshner & Associates, each patent counsel for the
Company, opinions, addressed to the Underwriters and dated the Closing Date,
covering
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the matters set forth in Annex C hereto, with respect to the Company's glucose
monitoring product, diabetes screening product and infant jaundice monitoring
product, each as described in the Prospectus, and if Option Stock is purchased
at any date after the Closing Date, additional opinions from such counsel,
addressed to the Underwriters' and dated such later date, confirming that the
statements expressed as of the Closing Date in such opinions remain valid as of
such later date; and (iv) FDA counsel to the Company, as opinion addressed to
the Underwriters and dated the Closing Date, covering the matters set forth in
Annex D hereto, and if Option Stock is purchased at any date after the Closing
Date, an additional opinion from such counsel, addressed to the Underwriters and
dated such later date, confirming that the statements expressed as of the
Closing Date in such opinion remain valid as of such later date.
(d) You shall be satisfied that (i) as of the Effective Date, the
statements made in the Registration Statement and the Prospectus were true and
correct and neither the Registration Statement nor the Prospectus omitted to
state any material fact required to be stated therein or necessary in order to
make the statements therein, respectively, not misleading, (ii) since the
Effective Date, no event has occurred which should have been set forth in a
supplement or amendment to the Prospectus which has not been set forth in such a
supplement or amendment, (iii) since the respective dates as of which
information is given in the Registration Statement in the form in which it
originally became effective and the Prospectus contained therein, there has not
been any material adverse change or any development involving a prospective
material adverse change in or affecting the business, properties, financial
condition or results of operations of the Company and its subsidiaries, taken as
a whole, whether or not arising from transactions in the ordinary course of
business, and, since such dates, except in the ordinary course of business,
neither the Company nor any of its subsidiaries has entered into any material
transaction not referred to in the Registration Statement in the form in which
it originally became effective and the Prospectus contained therein, (iv)
neither the Company nor any of its subsidiaries has any material contingent
obligations which are not disclosed in the Registration Statement and the
Prospectus, (v) there are no pending or known threatened legal proceedings to
which the Company or any of its subsidiaries is a party or of which property of
the Company or any of its subsidiaries is the subject which are material and
which are not disclosed in the Registration Statement and the Prospectus, (vi)
there are no franchises, contracts, leases or other documents which are required
to be filed as exhibits to the Registration Statement which have not been filed
as required, (vii) the representations and warranties of the Company herein are
true and correct in all material respects as of the Closing Date or any later
date on which Option Stock is to be purchased, as the case may be, and (viii)
there has not been any material change in the market for securities in general
or in political, financial or economic conditions from those reasonably
foreseeable as to render it impracticable in your reasonable judgment to make a
public offering of the Stock, or a material adverse change in market levels for
securities in general (or those of companies in particular) or financial or
economic conditions which render it inadvisable to proceed.
(e) You shall have received on the Closing Date and on any later date
on which Option Stock is purchased a certificate, dated the Closing Date or such
later date, as the case may be, and signed by the Attorney- in-Fact for the
Selling Stockholders, stating that the representations and warranties of the
Selling Stockholders are true and correct in all material respects as of the
Closing Date or the date on which Option Stock is to be purchased, as the case
may be.
(f) You shall have received on the Closing Date and on any later date
on which Option Stock is purchased a certificate, dated the Closing Date or such
later date, as the case may be, and signed by the President and the Chief
Financial Officer of the Company, stating that the respective signers of said
certificate have carefully examined the Registration Statement in the form in
which it originally became effective and the Prospectus contained therein and
any supplements or amendments thereto, and that the statements included in
clauses (i) through (vii) of paragraph (d) of this Section 9 are true and
correct.
(g) You shall have received from Arthur Andersen & Co., a letter or
letters, addressed to the Underwriters and dated the Closing Date and any later
date on which Option Stock is purchased, confirming that they are independent
public accountants with respect to the Company within the meaning of the
Securities Act and the applicable published rules and regulations thereunder and
based upon the procedures described in their letter delivered to you
concurrently with the execution of this Agreement (herein called the Original
Letter), but carried out to a date not more than three business days prior to
the Closing Date or such later date on which Option Stock is purchased
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(i) confirming, to the extent true, that the statements and conclusions set
forth in the Original Letter are accurate as of the Closing Date or such later
date, as the case may be, and (ii) setting forth any revisions and additions to
the statements and conclusions set forth in the Original Letter which are
necessary to reflect any changes in the facts described in the Original Letter
since the date of the Original Letter or to reflect the availability of more
recent financial statements, data or information. The letters shall not disclose
any change, or any development involving a prospective change, in or affecting
the business or properties of the Company or any of its subsidiaries which, in
your sole judgment, makes it impractical or inadvisable to proceed with the
public offering of the Stock or the purchase of the Option Stock as contemplated
by the Prospectus.
(h) You shall have been furnished evidence in usual written or
telegraphic form from the appropriate authorities of the several jurisdictions,
or other evidence satisfactory to you, of the qualification referred to in
paragraph (f) of Section 6 hereof.
(i) Prior to the Closing Date, the Stock to be issued and sold by the
Company shall have been duly authorized for listing by the Nasdaq National
Market upon official notice of issuance.
(j) On or prior to the Closing Date, you shall have received from
each director, officer, and stockholder (other than the Selling Stockholders)
agreements, in form reasonably satisfactory to Hambrecht & Quist LLC, stating
that without the prior written consent of Hambrecht & Quist LLC on behalf of the
Underwriters, each such person or entity will not, for a period of 180 days
following the commencement of the public offering of the Stock by the
Underwriters, directly or indirectly, (i) sell, offer, contract to sell, make
any short sale, pledge, sell any option or contract to purchase, purchase any
option or contract to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of any shares of Common Stock or any securities
convertible into or exchangeable or exercisable for or any rights to purchase or
acquire Common Stock or (ii) enter into any swap or other agreement that
transfers, in whole or in part, any of the economic consequences or ownership of
Common Stock, whether any such transaction described in clause (i) or (ii) above
is to be settled by delivery of Common Stock or such other securities, in cash
or otherwise.
All the agreements, opinions, certificates and letters mentioned above
or elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if White & Case, counsel for the Underwriters, shall be
satisfied that they comply in form and scope.
In case any of the conditions specified in this Section 9 shall not be
fulfilled, this Agreement may be terminated by you by giving notice to the
Company and the Selling Stockholders. Any such termination shall be without
liability of the Company or the Selling Stockholders to the Underwriters and
without liability of the Underwriters to the Company or the Selling
Stockholders; provided, however, that (i) in the event of such termination, the
Company agrees to indemnify and hold harmless the Underwriters from all costs or
expenses incident to the performance of the obligations of the Company and the
Selling Stockholders under this Agreement, including all costs and expenses
referred to in paragraphs (i) and (j) of Section 6 hereof, and (ii) if this
Agreement is terminated by you because of any refusal, inability or failure on
the part of the Company or the Selling Stockholders to perform any agreement
herein, to fulfill any of the conditions herein, or to comply with any provision
hereof other than by reason of a default by any of the Underwriters, the Company
will reimburse the Underwriters severally upon demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by them in connection with the transactions contemplated
hereby.
10. CONDITIONS OF THE OBLIGATION OF THE COMPANY AND THE SELLING
STOCKHOLDERS. The obligation of the Company and the Selling Stockholders to
deliver the Stock shall be subject to the conditions that (a) the Registration
Statement shall have become effective and (b) no stop order suspending the
effectiveness thereof shall be in effect and no proceedings therefor shall be
pending or threatened by the Commission.
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In case either of the conditions specified in this Section 10 shall not
be fulfilled, this Agreement may be terminated by the Company and the Selling
Stockholders by giving notice to you. Any such termination shall be without
liability of the Company and the Selling Stockholders to the Underwriters and
without liability of the Underwriters to the Company or the Selling
Stockholders; provided, however, that in the event of any such termination the
Company and the Selling Stockholders jointly and severally agree to indemnify
and hold harmless the Underwriters from all costs or expenses incident to the
performance of the obligations of the Company and the Selling Stockholders under
this Agreement, including all costs and expenses referred to in paragraphs (i)
and (j) of Section 6 hereof.
11. REIMBURSEMENT OF CERTAIN EXPENSES. In addition to their other
obligations under Section 7 of this Agreement, the Company hereby agrees to
reimburse on a quarterly basis the Underwriters for all reasonable legal and
other expenses incurred in connection with investigating or defending any claim,
action, investigation, inquiry or other proceeding arising out of or based upon
any statement or omission, or any alleged statement or omission, described in
paragraph (a) of Section 7 of this Agreement, notwithstanding the absence of a
judicial determination as to the propriety and enforceability of the obligations
under this Section 11 and the possibility that such payments might later be held
to be improper; provided, however, that (i) to the extent any such payment is
ultimately held to be improper, the persons receiving such payments shall
promptly refund them and (ii) such persons shall provide to the Company, upon
request, reasonable assurances of their ability to effect any refund, when and
if due.
12. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall
inure to the benefit of the Company, the Selling Stockholders and the several
Underwriters and, with respect to the provisions of Section 7 hereof, the
several parties (in addition to the Company, the Selling Stockholders and the
several Underwriters) indemnified under the provisions of said Section 7, and
their respective personal representatives, successors and assigns. Nothing in
this Agreement is intended or shall be construed to give to any other person,
firm or corporation any legal or equitable remedy or claim under or in respect
of this Agreement or any provision herein contained. The term "successors and
assigns" as herein used shall not include any purchaser, as such purchaser, of
any of the Stock from any of the several Underwriters.
13. NOTICES. Except as otherwise provided herein, all
communications hereunder shall be in writing or by telegraph and, if to the
Underwriters, shall be mailed, telegraphed or delivered to Hambrecht & Quist
LLC, One Bush Street, San Francisco, California 94104; and if to the Company,
shall be mailed, telegraphed or delivered to it at its office, 6025A Unity
Drive, Norcross, Georgia 30071, Attention: (degree) ; and if
to the Selling Stockholders, shall be mailed, telegraphed or delivered to the
Selling Stockholders in care of (degree) at
(degree) . All notices given by telegraph shall be promptly
confirmed by letter.
14. MISCELLANEOUS. The reimbursement, indemnification and
contribution agreements contained in this Agreement and the representations,
warranties and covenants in this Agreement shall remain in full force and effect
regardless of (a) any termination of this Agreement, (b) any investigation made
by or on behalf of any Underwriter or controlling person thereof, or by or on
behalf of the Company or the Selling Stockholders or their respective directors
or officers, and (c) delivery and payment for the Stock under this Agreement;
provided, however, that if this Agreement is terminated prior to the Closing
Date, the provisions of paragraphs (l) and (m) of Section 6 hereof shall be of
no further force or effect.
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.
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of California.
Please sign and return to the Company the enclosed duplicates of this
letter, whereupon this letter will become a binding agreement among the Company,
the Selling Stockholders and the several Underwriters in accordance with its
terms.
Very truly yours,
SPECTRX, INC.
By
------------------------------
[Name]
[Title]
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SELLING STOCKHOLDERS
By
------------------------------
Name: Dr. Dan Hankey
By
------------------------------
Name: Scott Patterson
By
------------------------------
Name: Glenn Robinson
The foregoing Agreement is hereby
confirmed and accepted as of the date first
above written.
HAMBRECHT & QUIST LLC
VOLPE BROWN WHELAN & COMPANY, LLC
By Hambrecht & Quist LLC
By
---------------------
Managing Director
Acting on behalf of the several Underwriters,
including themselves, named in
Schedule I hereto.
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SCHEDULE I
UNDERWRITERS
NUMBER OF
SHARES
TO BE
UNDERWRITERS PURCHASED
------------ ---------
Hambrecht & Quist LLC . . . . . . . . . . . X
Volpe Brown Whelan & Company, LLC . . . . . Y
23
SCHEDULE II
SELLING STOCKHOLDERS
NUMBER OF
UNDERWRITTEN
SHARES
TO BE
NAME OF SELLING STOCKHOLDER SOLD
--------------------------- ----
Dr. Dan Hankey 17,137
Scott Patterson 167,425
Glenn Robinson 17,137
Total 201,699
24
ANNEX A
MATTERS TO BE COVERED IN THE OPINION OF WILSON SONSINI GOODRICH & ROSATI,
COUNSEL FOR THE COMPANY
(i) Each of the Company and its subsidiaries has been duly incorporated
and is validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, is duly qualified as a foreign corporation
and in good standing in each state of the United States of America in which its
ownership or leasing of property requires such qualification [(except where the
failure to be so qualified would not have a material adverse effect on the
business, properties, financial condition or results of operations of the
Company and its subsidiaries, taken as a whole)], and has full corporate power
and authority to own or lease its properties and conduct its business as
described in the Registration Statement; all the issued and outstanding capital
stock of each of the subsidiaries of the Company has been duly authorized and
validly issued and is fully paid and nonassessable, and such stock as is owned
by the Company is owned by the Company free and clear of all liens, encumbrances
and security interests, and to the best of such counsel's knowledge, no options,
warrants or other rights to purchase, agreements or other obligations to issue
or other rights to convert any obligations into shares of capital stock or
ownership interests in such subsidiaries are outstanding;
(ii) the authorized capital stock of the Company consists of (degree)
shares of (degree) Stock, of which there are outstanding (degree) shares, and
(degree) shares of Common Stock, $ (degree) par value, of which there are
outstanding _ ___(degree)_ ___ shares (including the Underwritten Stock plus the
number of shares of Option Stock issued on the date hereof); proper corporate
proceedings have been taken validly to authorize such authorized capital stock;
all of the outstanding shares of such capital stock (including the Underwritten
Stock and the shares of Option Stock issued, if any) have been duly and validly
issued and are fully paid and nonassessable; any Option Stock purchased after
the Closing Date, when issued and delivered to and paid for by the Underwriters
as provided in the Underwriting Agreement, will have been duly and validly
issued and be fully paid and nonassessable; and no preemptive rights of, or
rights of refusal in favor of, stockholders exist with respect to the Stock, or
the issue and sale thereof, pursuant to the Certificate of Incorporation or
Bylaws of the Company;
(iii) the Registration Statement has become effective under the Securities
Act and, to the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement or suspending or preventing the use
of the Prospectus is in effect and no proceedings for that purpose have been
instituted or are pending or contemplated by the Commission;
(iv) the Registration Statement and the Prospectus (except as to the
financial statements and schedules and other financial data contained therein,
as to which such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Securities Act, the Exchange Act
and with the rules and regulations of the Commission thereunder;
(v) such counsel have no reason to believe that the Registration Statement
(except as to the financial statements and schedules and other financial data
contained or incorporated by reference therein, as to which such counsel need
not express any opinion or belief) at the Effective Date contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
that the Prospectus (except as to the financial statements and schedules and
other financial data contained or incorporated by reference therein, as to which
such counsel need not express any opinion or belief) as of its date or at the
Closing Date (or any later date on which Option Stock is purchased), contained
or contains any untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading;
25
(vi) the information required to be set forth in the Registration
Statement in answer to Items 9, 10 (insofar as it relates to such counsel) and
11(c) of Form S-1 is to the best of such counsel's knowledge accurately and
adequately set forth therein in all material respects or no response is required
with respect to such Items, and to the best of such counsel's knowledge, the
description of the Company's stock option plans and the options granted and
which may be granted thereunder and the options granted otherwise than under
such plans set forth in the Prospectus accurately and fairly presents the
information required to be shown with respect to said plans and options to the
extent required by the Securities Act and the rules and regulations of the
Commission thereunder;
(vii) such counsel do not know of any franchises, contracts, leases,
documents or legal proceedings, pending or threatened, which in the opinion of
such counsel are of a character required to be described in the Registration
Statement or the Prospectus or to be filed as exhibits to the Registration
Statement, which are not described and filed as required;
(viii) the Underwriting Agreement has been duly authorized, executed
and delivered by the Company and is the legal, valid and binding obligation of
each of the Company and the Selling Stockholders, enforceable against each of
the Company and the Selling Stockholders in accordance with its terms;
(ix) the issue and sale by the Company of the shares of Stock sold
by the Company as contemplated by the Underwriting Agreement will not conflict
with, or result in a breach of, the Certificate of Incorporation or Bylaws of
the Company or any of its subsidiaries or any agreement or instrument known to
such counsel to which the Company or any of its subsidiaries is a party or any
applicable law or regulation, or so far as is known to such counsel, any order,
writ, injunction or decree, of any jurisdiction, court or governmental
instrumentality;
(x) all holders of securities of the Company having rights to the
registration of shares of Common Stock, or other securities, because of the
filing of the Registration Statement by the Company have waived such rights or
such rights have expired by reason of lapse of time following notification of
the Company's intent to file the Registration Statement;
(xi) no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the transactions
contemplated in the Underwriting Agreement, except such as have been obtained
under the Securities Act and such as may be required under state securities or
blue sky laws in connection with the purchase and distribution of the Stock by
the Underwriters; and
(xii) the Stock issued and sold by the Company will been duly
authorized for listing on the Nasdaq National Market System upon official notice
of issuance.
Counsel rendering the foregoing opinion may rely as to questions of law
not involving the laws of the United States or of the State of Delaware, upon
opinions of local counsel satisfactory in form and scope to counsel for the
Underwriters. Copies of any opinions so relied upon shall be delivered to the
Representative(s) and to counsel for the Underwriters and the foregoing opinion
shall also state that counsel knows of no reason the Underwriters are not
entitled to rely upon the opinions of such local counsel.
26
ANNEX B
MATTERS TO BE COVERED IN THE OPINION OF JOHNSON & MONTGOMERY,
COUNSEL FOR THE SELLING STOCKHOLDERS
(i) The Underwriting Agreement has been duly authorized, executed
and delivered by each of the Selling Stockholders.
27
ANNEX C
MATTERS TO BE COVERED IN THE OPINION OF (DEGREE)
PATENT COUNSEL FOR THE COMPANY
Such counsel are familiar with [the technology used by the Company in
its ________ product or products (the "Technology")] [the patents and other
intellectual property set forth on Schedule I hereto (the "IP")] 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 the [Technology] [IP] and:
(i) such counsel have no reason to believe that the Registration
Statement or the Prospectus (A) contains any untrue statement of a material fact
with respect to the [Technology] [IP], or the manner of its use thereof, or any
allegation on the part of any person that the Company is infringing any patent
rights, trade secrets, trademarks, service marks or other proprietary
information or materials of any such person or (B) omits to state any material
fact relating to the [Technology] [IP], or the manner of its use thereof, or any
allegation of which such counsel have knowledge, that is required to be stated
in the Registration Statement or the Prospectus or is necessary to make the
statements therein not misleading;
(ii) to the best of such counsel's knowledge there are no legal or
governmental proceedings pending relating to the [Technology] [IP], and to the
best of such counsel's knowledge no such proceedings are threatened or
contemplated by governmental authorities or others;
(iii) such counsel do not know of any contracts or other documents,
relating to the [Technology] [IP] of a character required to be filed as an
exhibit to the Registration Statement or required to be described in the
Registration Statement or the Prospectus that are not filed or described as
required;
(iv) to the best of such counsel's knowledge, the Company is not
infringing or otherwise violating any patents, trade secrets, trademarks,
service marks or other proprietary information or materials, of others, and to
the best of such counsel's knowledge there are no infringements by others of any
of the [Technology] [IP] which in the judgment of such counsel could affect
materially the use thereof by the Company; and
(v) to the best of such counsel's knowledge, the Company owns or
possesses sufficient licenses or other rights to use the [Technology] [IP] as
described in the Prospectus.
28
ANNEX D
MATTERS TO BE COVERED IN THE OPINION OF
REGULATORY COUNSEL FOR THE COMPANY
During the course of preparation of the Registration Statement, such
counsel participated in discussions with officers of the Company as to the FDA
regulatory matters dealt with under the captions "Risk Factors - Lack of
Regulatory Approvals" and "Business -- Government Regulation" in the Prospectus.
On the basis of these discussions and such counsel's activities as special FDA
regulatory counsel to the Company, no facts have come to such counsel's
attention which cause such counsel to believe that the statements in the
Prospectus under the captions "Risk Factors - Lack of Regulatory Approvals" and
"Business - Government Regulation", insofar as such statements relate to FDA
regulatory matters, at the time the Registration Statement became effective,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or as of the Closing Date contain an 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.
Based upon, subject to and limited by the foregoing, such counsel are
of the opinion that the statements in the Prospectus under the captions "Risk
Factors - Lack of Government Regulations" and "Business - Government Regulation"
insofar as such statements summarize applicable provisions of the Federal Food,
Drug and Cosmetic Act and the regulations promulgated thereunder, are accurate
summaries in all material respects of the provisions summarized under such
captions in the Prospectus, and do not omit to summarize applicable provision of
the Federal Food, Drug and Cosmetic Act or the regulations promulgated
thereunder necessary to make those statements not misleading.