Exhibit 1.2
EXACT SCIENCES CORPORATION
(a Delaware corporation)
[number of shares] Shares of Common Stock
INTERNATIONAL PURCHASE AGREEMENT
Dated: , 2001
EXACT SCIENCES CORPORATION
(a Delaware corporation)
[number of shares] Shares of Common Stock
(Par Value $0.01 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
, 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
CIBC WORLD MARKETS PLC
▇▇▇▇▇▇ ▇▇▇▇▇▇ PARTNERS LLC
as International Managers
c/o Merrill ▇▇▇▇▇ International
Ropemaker Place
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇
Ladies and Gentlemen:
EXACT Sciences Corporation, a Delaware corporation (the "COMPANY"),
confirms its agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ International ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), CIBC
World Markets plc, and ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners LLC (collectively, the
"INTERNATIONAL MANAGERS", which term shall also include any underwriter
substituted as hereinafter provided in Section 10 hereof), for whom ▇▇▇▇▇▇▇
▇▇▇▇▇ is acting as the representative, with respect to the issue and sale by the
Company and the purchase by the International Managers, acting severally and not
jointly, of the respective numbers of shares of Common Stock, par value $0.01
per share, of the Company ("COMMON STOCK") set forth in said Schedule A, and
with respect to the grant by the Company to the International Managers, acting
severally and not jointly, of the option described in Section 2(b) hereof to
purchase all or any part of [number of over-allotment shares] additional shares
of Common Stock to cover over-allotments, if any. The aforesaid [number of
shares] shares of Common Stock (the "INITIAL INTERNATIONAL SECURITIES") to be
purchased by the International Managers and all or any part of the [number of
over-allotment shares] shares of Common Stock subject to the option described in
Section 2(b) hereof (the "INTERNATIONAL OPTION SECURITIES") are hereinafter
called, collectively, the "INTERNATIONAL SECURITIES".
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "U.S. PURCHASE AGREEMENT") providing for
the offering by the Company of an aggregate of [number of U.S. shares] shares of
Common Stock (the "INITIAL U.S. SECURITIES") through arrangements with certain
underwriters in the United States and Canada (the "U.S. UNDERWRITERS") for which
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated, CIBC World Markets, and
▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners LLC are acting as representatives (the "U.S.
REPRESENTATIVES") and the grant by the Company to the U.S. Underwriters, acting
severally and
not jointly, of an option to purchase all or any part of the U.S. Underwriters'
pro rata portion of up to [number of U.S. over-allotment shares] additional
shares of Common Stock solely to cover over-allotments, if any (the "U.S. OPTION
SECURITIES" and, together with the International Option Securities, the "OPTION
SECURITIES"). The Initial U.S. Securities and the U.S. Option Securities are
hereinafter called the "U.S. SECURITIES". It is understood that the Company is
not obligated to sell and the International Managers are not obligated to
purchase, any Initial International Securities unless all of the Initial U.S.
Securities are contemporaneously purchased by the U.S. Underwriters.
The International Managers and the U.S. Underwriters are hereinafter
collectively called the "UNDERWRITERS", the Initial International Securities and
the Initial U.S. Securities are hereinafter collectively called the "INITIAL
SECURITIES", and the International Securities and the U.S. Securities are
hereinafter collectively called the "SECURITIES".
The Underwriters will concurrently enter into an Intersyndicate Agreement
of even date herewith (the "INTERSYNDICATE AGREEMENT") providing for the
coordination of certain transactions among the Underwriters under the direction
of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (in
such capacity, the "GLOBAL COORDINATOR").
The Company understands that the International Managers propose to make a
public offering of the International Securities as soon as they deem advisable
after this Agreement has been executed and delivered.
The Company and the International Managers agree that up to _______ shares
of the Initial International Securities to be purchased by the International
Managers and that up to __________ shares of the Initial U.S. Securities to be
purchased by the U.S. Underwriters (collectively, the "RESERVED SECURITIES")
shall be reserved for sale by the Underwriters to certain eligible directors,
officers, employees and business associates of the Company and related persons,
as part of the distribution of the Securities by the Underwriters, subject to
the terms of this Agreement, the applicable rules, regulations and
interpretations of the National Association of Securities Dealers, Inc. and all
other applicable laws, rules and regulations. To the extent that such Reserved
Securities are not orally confirmed for purchase by such eligible directors,
officers, employees and business associates of the Company and related persons
by the end of the first business day after the date of this Agreement, such
Reserved Securities may be offered to the public as part of the public offering
contemplated hereby.
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on Form S-1 (No. 333-48812) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 ACT"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with the provisions of Rule 430A
("RULE 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 ACT REGULATIONS") and paragraph (b) of Rule 424 ("RULE 424(b)") of
the 1933 Act Regulations or (ii) if the Company has elected to rely upon Rule
434 ("RULE 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"TERM SHEET") in accordance with the provisions of Rule 434 and Rule 424(b). Two
forms of prospectus are to be used in connection with the offering and sale of
the Securities: one relating to the International Securities (the "FORM
2
OF INTERNATIONAL PROSPECTUS") and one relating to the U.S. Securities (the "FORM
OF U.S. PROSPECTUS"). The Form of International Prospectus is identical to the
Form of U.S. Prospectus, except for the front cover and back cover pages and the
information under the caption "Underwriting." The information included in any
such prospectus or in any such Term Sheet, as the case may be, that was omitted
from such registration statement at the time it became effective but that is
deemed to be part of such registration statement at the time it became effective
(a) pursuant to paragraph (b) of Rule 430A is referred to as "RULE 430A
INFORMATION" or (b) pursuant to paragraph (d) of Rule 434 is referred to as
"RULE 434 INFORMATION." Each Form of International Prospectus and Form of U.S.
Prospectus used before such registration statement became effective, and any
prospectus that omitted, as applicable, the Rule 430A Information or the Rule
434 Information, that was used after such effectiveness and prior to the
execution and delivery of this Agreement, is herein called a "preliminary
prospectus." Such registration statement, including the exhibits thereto and
schedules thereto at the time it became effective and including the Rule 430A
Information and the Rule 434 Information, as applicable, is herein called the
"REGISTRATION STATEMENT." Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the "RULE 462(b)
REGISTRATION STATEMENT," and after such filing the term "REGISTRATION STATEMENT"
shall include the Rule 462(b) Registration Statement. The final Form of
International Prospectus and the final Form of U.S. Prospectus in the forms
first furnished to the Underwriters for use in connection with the offering of
the Securities are herein called the "INTERNATIONAL PROSPECTUS" and the "U.S.
Prospectus," respectively, and collectively, the "PROSPECTUSES." If Rule 434 is
relied on, the terms "INTERNATIONAL PROSPECTUS" and "U.S. PROSPECTUS" shall
refer to the preliminary International Prospectus dated January 8, 2001 and
preliminary U.S. Prospectus dated January 8, 2001, respectively, each together
with the applicable Term Sheet and all references in this Agreement to the date
of such Prospectuses shall mean the date of the applicable Term Sheet. For
purposes of this Agreement, all references to the Registration Statement, any
preliminary prospectus, the International Prospectus, the U.S. Prospectus or any
Term Sheet or any amendment or supplement to any of the foregoing shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company.
The Company represents and warrants to each International Manager as of the
date hereof, as of the Closing Time referred to in Section 2(c) hereof, and as
of each Date of Delivery (if any) referred to in Section 2(b) hereof, and agrees
with each International Manager, as follows:
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS.
Each of the Registration Statement and any Rule 462(b) Registration
Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement or any Rule
462(b) Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are
3
pending or, to the knowledge of the Company, are contemplated by the
Commission, and any request on the part of the Commission for additional
information has been complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time (and, if any International Option
Securities are purchased, at the Date of Delivery), the Registration
Statement, the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and did not
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading, and the Prospectuses, any
preliminary prospectuses and any supplement thereto or prospectus wrapper
prepared in connection therewith, at their respective times of issuance and
at the Closing Time, complied and will comply in all material respects with
any applicable laws or regulations of foreign jurisdictions in which the
Prospectuses and such preliminary prospectuses, as amended or supplemented,
if applicable, are distributed in connection with the offer and sale of
Reserved Securities. Neither of the Prospectuses nor any amendments or
supplements thereto (including any prospectus wrapper), at the time the
Prospectuses or any amendments or supplements thereto were issued and at
the Closing Time (and, if any International Option Securities are
purchased, at the Date of Delivery), included or will include an untrue
statement of a material fact or omitted or will 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. If Rule 434 is
used, the Company will comply with the requirements of Rule 434 and the
Prospectuses shall not be "materially different", as such term is used in
Rule 434, from the prospectuses included in the Registration Statement at
the time it became effective. The representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or the International Prospectus made in reliance
upon and in conformity with information furnished to the Company in writing
by any International Manager expressly for use in the Registration
Statement or the International Prospectus.
Each preliminary prospectus and the prospectuses filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the 1933 Act, complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectuses delivered to the Underwriters
for use in connection with this offering was identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
4
(ii) INDEPENDENT ACCOUNTANTS.
The accountants who certified the financial statements and supporting
schedules included in the Registration Statement are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(iii) FINANCIAL STATEMENTS.
The financial statements included in the Registration Statement and
the Prospectuses, together with the related schedules and notes, present
fairly the financial position of the Company at the dates indicated and the
statement of operations, stockholders' equity and cash flows of the Company
for the periods specified; said financial statements have been prepared in
conformity with generally accepted accounting principles ("GAAP") applied
on a consistent basis throughout the periods involved except as disclosed
therein. The supporting schedules included in the Registration Statement
present fairly in accordance with GAAP the information required to be
stated therein. The selected financial data and the summary financial
information included in the Prospectuses present fairly the information
shown therein and have been compiled on a basis consistent with that of the
audited financial statements or the unaudited financial statements, as the
case may be, to which such selected financial data and summary financial
information relates. The pro forma financial statements and the related
notes thereto included in the Registration Statement and the Prospectuses
present fairly the information shown therein, have been prepared in
accordance with the Commission's rules and guidelines with respect to pro
forma financial statements and have been properly compiled on the bases
described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect
to the transactions and circumstances referred to therein.
(iv) NO MATERIAL ADVERSE CHANGE IN BUSINESS.
Since the respective dates as of which information is given in the
Registration Statement and the Prospectuses, except as otherwise stated
therein, (A) there has been no material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and its subsidiary considered as one enterprise,
whether or not arising in the ordinary course of business (a "MATERIAL
ADVERSE EFFECT"), (B) there have been no transactions entered into by the
Company or its subsidiary, other than those in the ordinary course of
business, which are material with respect to the Company and its subsidiary
considered as one enterprise, and (C) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class
of its capital stock.
(v) GOOD STANDING OF THE COMPANY.
The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware and
has corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectuses and to enter
into and perform its obligations under this Agreement;
5
and the Company is duly qualified as a foreign corporation to transact
business and is in good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify
or to be in good standing would not result in a Material Adverse Effect.
(vi) GOOD STANDING OF SUBSIDIARY.
The Company's subsidiary, EXACT Sciences Securities Corporation (the
"SUBSIDIARY"), has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectuses
and is duly qualified as a foreign corporation to transact business and is
in good standing in each jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect; except as
otherwise disclosed in the Registration Statement, all of the issued and
outstanding capital stock of the Subsidiary has been duly authorized and
validly issued, is fully paid and non-assessable and is owned by the
Company, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity; none of the outstanding shares of capital
stock of the Subsidiary was issued in violation of the preemptive or
similar rights of any securityholder of the Subsidiary.
(vii) CAPITALIZATION.
The authorized, issued and outstanding capital stock of the Company is
as set forth in the Prospectuses in the column entitled "Actual" under the
caption "Capitalization" (except for subsequent issuances, if any, pursuant
to this Agreement, pursuant to reservations, agreements or employee benefit
plans referred to in the Prospectuses or pursuant to the exercise of
convertible securities or options referred to in the Prospectuses). The
shares of issued and outstanding capital stock of the Company have been
duly authorized and validly issued and are fully paid and non-assessable;
none of the outstanding shares of capital stock of the Company was issued
in violation of the preemptive or other similar rights of any
securityholder of the Company.
(viii) AUTHORIZATION OF AGREEMENT.
This Agreement and the U.S. Purchase Agreement have been duly
authorized, executed and delivered by the Company.
(ix) AUTHORIZATION AND DESCRIPTION OF SECURITIES.
The Securities to be purchased by the International Managers and the
U.S. Underwriters from the Company have been duly authorized for issuance
and sale to the International Managers pursuant to this Agreement and the
U.S. Underwriters pursuant to the U.S. Purchase Agreement, respectively,
and, when issued and delivered by the Company pursuant to this Agreement
and the U.S. Purchase Agreement, respectively, against payment of the
consideration set forth herein and the U.S. Purchase Agreement,
6
respectively, will be validly issued, fully paid and non-assessable; the
Common Stock conforms to all statements relating thereto contained in the
Prospectuses and such description conforms to the rights set forth in the
instruments defining the same; no holder of the Securities will be subject
to personal liability by reason of being such a holder; and the issuance of
the Securities is not subject to the preemptive or other similar rights of
any securityholder of the Company.
(x) ABSENCE OF DEFAULTS AND CONFLICTS.
Neither the Company nor the Subsidiary is in violation of its charter
or by-laws or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease
or other agreement or instrument to which the Company or the Subsidiary is
a party or by which it may be bound, or to which any of the property or
assets of the Company or the Subsidiary is subject (collectively,
"AGREEMENTS AND INSTRUMENTS") except for such defaults that would not
result in a Material Adverse Effect; and the execution, delivery and
performance of this Agreement and the U.S. Purchase Agreement and the
consummation of the transactions contemplated in this Agreement, the U.S.
Purchase Agreement and in the Registration Statement (including the
issuance and sale of the Securities and the use of the proceeds from the
sale of the Securities as described in the Prospectuses under the caption
"Use of Proceeds") and compliance by the Company with its obligations under
this Agreement and the U.S. Purchase Agreement have been duly authorized by
all necessary corporate action and do not and will not, whether with or
without the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or the Subsidiary
pursuant to, the Agreements and Instruments (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not
result in a Material Adverse Effect), nor will such action result in any
violation of the provisions of the charter or by-laws of the Company or the
Subsidiary or any applicable law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or the
Subsidiary or any of their assets, properties or operations. As used
herein, a "REPAYMENT EVENT" means any event or condition which gives the
holder of any note, debenture or other evidence of indebtedness (or any
person acting on such holder's behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the
Company or the Subsidiary.
(xi) ABSENCE OF LABOR DISPUTE.
No labor dispute with the employees of the Company or the Subsidiary
exists or, to the knowledge of the Company, is imminent, and the Company is
not aware of any existing or imminent labor disturbance by the employees of
any of its or the Subsidiary's principal suppliers, manufacturers,
customers or contractors, which, in either case, may reasonably be expected
to result in a Material Adverse Effect.
7
(xii) ABSENCE OF PROCEEDINGS.
There is no action, suit, proceeding, inquiry or investigation before
or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company, threatened,
against or affecting the Company or the Subsidiary, which is required to be
disclosed in the Registration Statement (other than as disclosed therein),
or which might reasonably be expected to result in a Material Adverse
Effect, or which might reasonably be expected to materially and adversely
affect the properties or assets thereof or the consummation of the
transactions contemplated in this Agreement and the U.S. Purchase Agreement
or the performance by the Company of its obligations hereunder or
thereunder; the aggregate of all pending legal or governmental proceedings
to which the Company or the Subsidiary is a party or of which any of their
respective property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation incidental to
the business, could not reasonably be expected to result in a Material
Adverse Effect.
(xiii) ACCURACY OF EXHIBITS.
There are no contracts or documents which are required to be described
in the Registration Statement or the Prospectuses or to be filed as
exhibits thereto which have not been so described and filed as required.
(xiv) POSSESSION OF INTELLECTUAL PROPERTY.
The Company and the Subsidiary own or possess, or can acquire on
reasonable terms, adequate patents, patent rights, licenses, inventions,
copyrights, know-how (including trade secrets and other unpatented and/or
unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other intellectual
property (collectively, "INTELLECTUAL PROPERTY") necessary to carry on the
business now operated by them, and neither the Company nor the Subsidiary
has received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any Intellectual
Property except as disclosed in the Registration Statement or of any facts
or circumstances which would render any Intellectual Property invalid or
inadequate to protect the interest of the Company or the Subsidiary
therein, and which infringement or conflict (if the subject of any
unfavorable decision, ruling or finding) or invalidity or inadequacy,
singly or in the aggregate, would result in a Material Adverse Effect.
(xv) ABSENCE OF FURTHER REQUIREMENTS.
No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the performance by the
Company of its obligations hereunder, in connection with the offering,
issuance or sale of the Securities under this Agreement and the U.S.
Purchase Agreement or the consummation of the transactions contemplated by
this Agreement and the U.S. Purchase Agreement, except (i) such as have
been already obtained or as may be required under the 1933 Act or the 1933
Act Regulations and foreign or state securities or blue sky laws and (ii)
such as have been obtained under the laws and regulations of jurisdictions
outside the United States in which the Reserved Securities are offered.
8
(xvi) POSSESSION OF LICENSES AND PERMITS.
The Company and the Subsidiary possess such permits, licenses,
approvals, consents and other authorizations (collectively, "GOVERNMENTAL
LICENSES") issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now
operated by them; the Company and the Subsidiary are in compliance with the
terms and conditions of all such Governmental Licenses, except where the
failure so to comply would not, singly or in the aggregate, have a Material
Adverse Effect; all of the Governmental Licenses are valid and in full
force and effect, except when the invalidity of such Governmental Licenses
or the failure of such Governmental Licenses to be in full force and effect
would not have a Material Adverse Effect; and neither the Company nor the
Subsidiary has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
(xvii) TITLE TO PROPERTY.
The Company and the Subsidiary own no real property. The Company and
the Subsidiary have good title to all personal properties owned by the
Company and the Subsidiary, free and clear of all mortgages, pledges,
liens, security interests, claims, restrictions or encumbrances of any kind
except such as (a) are described in the Prospectuses or (b) do not, singly
or in the aggregate, materially affect the value of such property and do
not interfere with the use made and proposed to be made of such property by
the Company or the Subsidiary; and all of the leases and subleases material
to the business of the Company and the Subsidiary, considered as one
enterprise, and under which the Company or the Subsidiary holds properties
described in the Prospectuses, are in full force and effect, and neither
the Company nor the Subsidiary has any notice of any material claim of any
sort that has been asserted by anyone adverse to the rights of the Company
or the Subsidiary under any of the leases or subleases mentioned above, or
affecting or questioning the rights of the Company or the Subsidiary to the
continued possession of the leased or subleased premises under any such
lease or sublease.
(xviii) INVESTMENT COMPANY ACT.
The Company is not, and upon the issuance and sale of the Securities
as herein contemplated and the application of the net proceeds therefrom as
described in the Prospectuses will not be, an "investment company" or an
entity "controlled" by an "investment company" as such terms are defined in
the Investment Company Act of 1940, as amended (the "1940 ACT").
9
(xix) ENVIRONMENTAL LAWS.
Except as described in the Registration Statement and except as would
not, singly or in the aggregate, result in a Material Adverse Effect, (A)
neither the Company nor the Subsidiary is in violation of any federal,
state, local or foreign statute, law, rule, regulation, ordinance, code,
policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative order,
consent, decree or judgment, relating to pollution or protection of human
health, the environment (including, without limitation, ambient air,
surface water, groundwater, land surface or subsurface strata) or wildlife,
including, without limitation, laws and regulations relating to the release
or threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "HAZARDOUS MATERIALS") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "ENVIRONMENTAL LAWS"), (B) the Company
and the Subsidiary have all permits, authorizations and approvals required
under any applicable Environmental Laws and are each in compliance with
their requirements, (C) there are no pending or, to the best knowledge of
the Company, threatened administrative, regulatory or judicial actions,
suits, demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental Law
against the Company or the Subsidiary and (D) there are no events or
circumstances that might reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the
Company or the Subsidiary relating to Hazardous Materials or any
Environmental Laws.
(xx) REGISTRATION RIGHTS.
Except as disclosed in the Registration Statement, there are no
persons with registration rights or other similar rights to have any
securities registered pursuant to the Registration Statement or otherwise
registered by the Company under the 1933 Act.
(b) Officer's Certificates.
Any certificate signed by any officer of the Company or the Subsidiary
delivered to the Global Coordinator, the International Managers or to counsel
for the International Managers shall be deemed a representation and warranty by
the Company to each International Manager as to the matters covered thereby.
SECTION 2. Sale and Delivery to International Managers; Closing.
(a) Initial Securities.
On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Company agrees to sell
to each International Manager, severally and not jointly, and each International
Manager, severally and not jointly, agrees to purchase from the Company, at the
price per share set forth in Schedule B, the number of Initial International
Securities set forth in Schedule A opposite the name of such International
Manager, plus any additional number of Initial International Securities which
such International Manager may become obligated to purchase pursuant to the
provisions of Section 10 hereof.
10
(b) Option Securities.
In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Company
hereby grants an option to the International Managers, severally and not
jointly, to purchase up to an additional [number of over-allotment shares]
shares of Common Stock at the price per share set forth in Schedule B, less an
amount per share equal to any dividends or distributions declared by the Company
and payable on the Initial International Securities but not payable on the
International Option Securities. The option hereby granted will expire 30 days
after the date hereof and may be exercised in whole or in part from time to time
only for the purpose of covering over-allotments which may be made in connection
with the offering and distribution of the Initial International Securities upon
notice by the Global Coordinator to the Company setting forth the number of
International Option Securities as to which the several International Managers
are then exercising the option and the time and date of payment and delivery for
such International Option Securities. Any such time and date of delivery for the
International Option Securities (a "DATE OF DELIVERY") shall be determined by
the Global Coordinator, but shall not be later than seven full business days
after the exercise of said option, nor in any event prior to the Closing Time,
as hereinafter defined. If the option is exercised as to all or any portion of
the International Option Securities, each of the International Managers, acting
severally and not jointly, will purchase that proportion of the total number of
International Option Securities then being purchased which the number of Initial
International Securities set forth in Schedule A opposite the name of such
International Manager bears to the total number of Initial International
Securities, subject in each case to such adjustments as the Global Coordinator
in its discretion shall make to eliminate any sales or purchases of fractional
shares.
(c) Payment.
Payment of the purchase price for, and delivery of certificates for, the
Initial Securities shall be made at the offices of Shearman & Sterling, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, or at such other place as shall be
agreed upon by the Global Coordinator and the Company, at 9:00 A.M. (Eastern
time) on the third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time)
on any given day) business day after the date hereof (unless postponed in
accordance with the provisions of Section 10), or such other time not later than
ten business days after such date as shall be agreed upon by the Global
Coordinator and the Company (such time and date of payment and delivery being
herein called "CLOSING TIME").
In addition, in the event that any or all of the International Option
Securities are purchased by the International Managers, payment of the purchase
price for, and delivery of certificates for, such International Option
Securities shall be made at the above-mentioned offices, or at such other place
as shall be agreed upon by the Global Coordinator and the Company, on each Date
of Delivery as specified in the notice from the Global Coordinator to the
Company.
11
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the International Managers for the respective accounts of the International
Managers of certificates for the International Securities to be purchased by
them. ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and not as representative of the International
Managers, may (but shall not be obligated to) make payment of the purchase price
for the Initial International Securities or the International Option Securities,
if any, to be purchased by any International Manager whose funds have not been
received by the Closing Time or the relevant Date of Delivery, as the case may
be, but such payment shall not relieve such International Manager from its
obligations hereunder.
(d) Denominations; Registration.
Certificates for the Initial International Securities and the International
Option Securities, if any, shall be in such denominations and registered in such
names as the International Managers may request in writing at least one full
business day before the Closing Time or the relevant Date of Delivery, as the
case may be. The certificates for the Initial International Securities and the
International Option Securities, if any, will be made available for examination
and packaging by the International Managers in New York City not later than
10:00 A.M. (Eastern time) on the business day prior to the Closing Time or the
relevant Date of Delivery, as the case may be.
SECTION 3. COVENANTS OF THE COMPANY.
The Company covenants with each International Manager as follows:
(a) Compliance with Securities Regulations and Commission Requests.
The Company, subject to Section 3(b), will comply with the requirements of
Rule 430A or Rule 434, as applicable, and will notify the Global Coordinator
immediately, and confirm the notice in writing, (i) when any post-effective
amendment to the Registration Statement shall become effective, or any
supplement to the Prospectuses or any amended Prospectuses shall have been
filed, (ii) of the receipt of any comments from the Commission, (iii) of any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectuses or for additional information, and
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the initiation or
threatening of any proceedings for any of such purposes. The Company will
promptly effect the filings necessary pursuant to Rule 424(b) and will take such
steps as it deems necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file such
prospectus. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
12
(b) Filing of Amendments.
The Company will give the Global Coordinator notice of its intention to
file or prepare any amendment to the Registration Statement (including any
filing under Rule 462(b)), any Term Sheet or any amendment, supplement or
revision to either any prospectus included in the Registration Statement at the
time it became effective or to the Prospectuses, will furnish the Global
Coordinator with copies of any such documents a reasonable amount of time prior
to such proposed filing or use, as the case may be, and will not file or use any
such document to which the Global Coordinator or counsel for the International
Managers shall object.
(c) Delivery of Registration Statements.
The Company has furnished or will deliver to the International Managers and
counsel for the International Managers, without charge, signed copies of the
Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein) and
signed copies of all consents and certificates of experts, and will also deliver
to the International Managers, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits). The copies of the Registration Statement and each amendment
thereto furnished to the International Managers will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses.
The Company has delivered to each International Manager, without charge, as
many copies of each preliminary prospectus as such International Manager
reasonably requested, and the Company hereby consents to the use of such copies
for purposes permitted by the 1933 Act. The Company will furnish to each
International Manager, without charge, during the period when the International
Prospectus is required to be delivered under the 1933 Act or the Securities
Exchange Act of 1934 (the "1934 ACT"), such number of copies of the
International Prospectus (as amended or supplemented) as such International
Manager may reasonably request. The International Prospectus and any amendments
or supplements thereto furnished to the International Managers will be identical
to the electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws.
The Company will comply with the 1933 Act and the 1933 Act Regulations so
as to permit the completion of the distribution of the Securities as
contemplated in this Agreement, the U.S. Purchase Agreement and in the
Prospectuses. If at any time when a prospectus is required by the 1933 Act to be
delivered in connection with sales of the Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion of
counsel for the International Managers or for the Company, to amend the
Registration Statement or amend or supplement any Prospectus in order that the
Prospectuses will not include any untrue statements of a material fact or omit
to state a material fact necessary in order to make the statements therein not
misleading in the
13
light of the circumstances existing at the time any such Prospectus is delivered
to a purchaser, or if it shall be necessary, in the opinion of such counsel, at
any such time to amend the Registration Statement or amend or supplement any
Prospectus in order to comply with the requirements of the 1933 Act or the 1933
Act Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b), such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement or the
Prospectuses comply with such requirements, and the Company will furnish to the
International Managers such number of copies of such amendment or supplement as
the International Managers may reasonably request.
(f) Blue Sky Qualifications.
The Company will use its best efforts, in cooperation with the
International Managers, to qualify the Securities for offering and sale under
the applicable securities laws of such states and other jurisdictions (domestic
or foreign) as the Global Coordinator may designate and to maintain such
qualifications in effect for a period of not less than one year from the later
of the effective date of the Registration Statement and any Rule 462(b)
Registration Statement; 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 or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified, the Company will
file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not less
than one year from the effective date of the Registration Statement and any Rule
462(b) Registration Statement.
(g) Rule 158.
The Company will timely file such reports pursuant to the 1934 Act as are
necessary in order to make generally available to its securityholders as soon as
practicable an earnings statement for the purposes of, and to provide the
benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.
(h) Use of Proceeds.
The Company will use the net proceeds received by it from the sale of the
Securities in the manner specified in the Prospectuses under "Use of Proceeds".
(i) Listing.
The Company will use its best efforts to effect and maintain the quotation
of the Securities on the Nasdaq National Market and will file with the Nasdaq
National Market all documents and notices required by the Nasdaq National Market
of companies that have securities that are traded in the over-the-counter market
and quotations for which are reported by the Nasdaq National Market.
14
(j) Restriction on Sale of Securities.
During the period commencing on the date of this Agreement (the
"COMMENCEMENT DATE") and ending 180 days thereafter, the Company will not,
without the prior written consent of the Global Coordinator, (i) directly or
indirectly, offer, pledge, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase or otherwise transfer or dispose of any share of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock or file any registration statement under the 1933 Act with respect
to any of the foregoing or (ii) enter into any swap or any other agreement or
any transaction that transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of the Common Stock, whether any such swap or
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; provided,
however, the Company may issue shares of Common Stock or other securities
convertible into or exercisable or exchangeable for shares of Common Stock in
connection with strategic business relationships, including marketing and
distribution business relationships, only if such transferee executes and
delivers to ▇▇▇▇▇▇▇ ▇▇▇▇▇ an agreement in the same form and content, and with
the same expiration date, as the form of lock-up agreement attached hereto as
Exhibit C-1 or Exhibit C-2, as the case may be. The foregoing sentence shall not
apply to (A) any shares of Common Stock issued by the Company upon the exercise
of an option or warrant or the conversion of a security outstanding on the date
hereof and referred to in the Prospectuses or (B) any shares of Common Stock
issued or options to purchase Common Stock granted pursuant to existing employee
benefit plans of the Company referred to in the Prospectuses and any
registration statements filed related thereto.
(k) Reporting Requirements.
The Company, during the period when the Prospectuses are required to be
delivered under the 1933 Act or the 1934 Act, will file all documents required
to be filed with the Commission pursuant to the 1934 Act within the time periods
required by the 1934 Act and the rules and regulations of the Commission
thereunder.
(l) Compliance with NASD Rules.
The Company hereby agrees that it will ensure that the Reserved Securities
will be restricted as required by the National Association of Securities
Dealers, Inc. (the "NASD") or the NASD rules from sale, transfer, assignment,
pledge or hypothecation for a period of three months following the date of this
Agreement. The Underwriters will notify the Company as to which persons will
need to be so restricted. At the request of the Underwriters, the Company will
direct the transfer agent to place a stop transfer restriction upon such
securities for such period of time. Should the Company release, or seek to
release, from such restrictions any of the Reserved Securities, the Company
agrees to reimburse the Underwriters for any reasonable expenses (including,
without limitation, legal expenses) they incur in connection with such release.
15
(m) Compliance with Rule 463.
The Company will include in its periodic reports filed with the Commission
pursuant to the 1934 Act such information as may be required pursuant to Rule
463 of the 1933 Act Regulations.
SECTION 4. PAYMENT OF EXPENSES.
(a) Expenses.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including (i) the preparation, printing and
filing of the Registration Statement (including financial statements and
exhibits) as originally filed and of each amendment thereto, (ii) the
preparation, printing and delivery to the Underwriters of this Agreement, any
Agreement among Underwriters and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Securities, (iii) the preparation, issuance and delivery of the certificates for
the Securities to the Underwriters, including any stock or other transfer taxes
and any stamp or other duties payable upon the sale, issuance or delivery of the
Securities to the Underwriters and the transfer of the Securities between the
U.S. Underwriters and the International Managers, (iv) the fees and
disbursements of the Company's counsel, accountants and other advisors, (v) the
filing fees incident to any necessary filings under state securities laws and
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto (which shall not exceed $5,000), (vi) the
printing and delivery to the Underwriters of copies of each preliminary
prospectus, any Term Sheets and of the Prospectuses and any amendments or
supplements thereto, (vii) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplement thereto, (viii)
the fees and expenses of any transfer agent or registrar for the Securities,
(ix) the filing fees incident to, and the reasonable fees and disbursements of
counsel to the Underwriters in connection with, the review by the NASD of the
terms of the sale of the Securities, (x) the fees and expenses incurred in
connection with the inclusion of the Securities in the Nasdaq National Market
and (xi) all costs and expenses of the Underwriters, including the fees and
disbursements of counsel for the Underwriters, in connection with matters
related to the Reserved Securities which are designated by the Company for sale
to eligible directors, officers, employees and business associates of the
Company and related persons.
(b) Termination of Agreement.
If this Agreement is terminated by the International Managers in accordance
with the provisions of Section 5 or Section 9(a)(i) hereof, the Company shall
reimburse the International Managers for all of their out-of-pocket expenses,
including the reasonable fees and disbursements of counsel for the International
Managers.
SECTION 5. CONDITIONS OF INTERNATIONAL MANAGERS' OBLIGATIONS.
The obligations of the several International Managers hereunder are subject
to the accuracy of the representations and warranties of the Company contained
in Section 1 hereof or in certificates of any officer of the Company or the
Subsidiary of the Company delivered pursuant to the provisions hereof, to the
performance by the Company of its covenants and other obligations hereunder, and
to the following further conditions:
16
(a) Effectiveness of Registration Statement.
The Registration Statement, including any Rule 462(b) Registration
Statement, has become effective and at Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission, and
any request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the
International Managers. A prospectus containing the Rule 430A Information shall
have been filed with the Commission in accordance with Rule 424(b) (or a
post-effective amendment providing such information shall have been filed and
declared effective in accordance with the requirements of Rule 430A) or, if the
Company has elected to rely upon Rule 434, a Term Sheet shall have been filed
with the Commission in accordance with Rule 424(b).
(b) Opinions of Counsel for Company.
At Closing Time, the International Managers shall have received the
favorable opinion, dated as of Closing Time, of each of (1) ▇▇▇▇▇, ▇▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇▇, LLP, counsel for the Company, in form and substance satisfactory to
counsel for the International Managers, to the effect set forth in Exhibit A
hereto and to such further effect as counsel to the International Managers may
reasonably request; (2) ▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, patent counsel for the
Company, in form and substance satisfactory to counsel for the Underwriters, to
the effect set forth in Exhibit B hereto and to such further effect as counsel
to the Underwriters may reasonably request; and (3) Buc & ▇▇▇▇▇▇▇▇▇, special
regulatory counsel for the Company, in form and substance satisfactory to
counsel for the Underwriters, to the effect set forth in Exhibit D hereto and to
such further effect as counsel to the Underwriters may reasonably request.
(c) Opinion of Counsel for International Managers.
At Closing Time, the International Managers shall have received the
favorable opinion, dated as of Closing Time, of Shearman & Sterling, counsel for
the International Managers, with respect to the matters set forth in clauses
(i), (ii), (v), (vi) (solely as to preemptive or other similar rights arising by
operation of law or under the charter or by-laws of the Company), (viii) through
(x), inclusive, (xii), (xiv) (solely as to the information in the Prospectus
under "Description of Capital Stock--Common Stock") and the penultimate
paragraph of Exhibit A hereto. In giving such opinion such counsel may rely, as
to all matters governed by the laws of jurisdictions other than the law of the
State of New York and the federal law of the United States, upon the opinions of
counsel satisfactory to the International Managers. Such counsel may also state
that, insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company and the
Subsidiary and certificates of public officials.
17
(d) Officers' Certificate.
At Closing Time, there shall not have been, since the date hereof or since
the respective dates as of which information is given in the Prospectuses, any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and the
Subsidiary considered as one enterprise, whether or not arising in the ordinary
course of business, and the International Managers shall have received a
certificate of the Chairman or President of the Company and of the chief
financial officer of the Company, dated as of Closing Time, to the effect that
(i) there has been no such material adverse change, (ii) the representations and
warranties in Section 1(a) hereof are true and correct with the same force and
effect as though expressly made at and as of Closing Time, (iii) the Company has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or are
contemplated by the Commission.
(e) Accountants' Comfort Letter.
At the time of the execution of this Agreement, the International Managers
shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a letter dated such date, in form
and substance satisfactory to the International Managers containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectuses.
(f) Bring-down Comfort Letter.
At Closing Time, the International Managers shall have received from ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ LLP a letter, dated as of Closing Time, to the effect that they
reaffirm the statements made in the letter furnished pursuant to subsection (e)
of this Section, except that the specified date referred to shall be a date not
more than three business days prior to Closing Time.
(g) Approval of Listing.
At Closing Time, the Securities shall have been approved for inclusion in
the Nasdaq National Market, subject only to official notice of issuance.
(h) No Objection.
The NASD has confirmed that it has not raised any objection with respect to
the fairness and reasonableness of the underwriting terms and arrangements.
18
(i) Lock-up Agreements.
At the date of this Agreement, the International Managers shall have
received an agreement substantially in the form of Exhibit C-1 hereto signed by
each of the entities and persons listed on Schedule C-1 hereto, and an agreement
substantially in the form of Exhibit C-2 hereto signed by each of the entities
and persons listed on Schedule C-2 hereto.
(j) Purchase of Initial U.S. Securities.
Contemporaneously with the purchase by the International Managers of the
Initial International Securities under this Agreement, the U.S. Underwriters
shall have purchased the Initial U.S. Securities under the U.S. Purchase
Agreement.
(k) Conditions to Purchase of International Option Securities.
In the event that the International Managers exercise their option provided
in Section 2(b) hereof to purchase all or any portion of the International
Option Securities, the representations and warranties of the Company contained
herein and the statements in any certificates furnished by the Company or the
Subsidiary hereunder shall be true and correct as of each Date of Delivery and,
at the relevant Date of Delivery, the International Managers shall have
received:
(i) OFFICERS' CERTIFICATE. A certificate, dated such Date of Delivery,
of the Chairman or President of the Company and of the chief financial
officer of the Company confirming that the certificate delivered at Closing
Time pursuant to Section 5(d) hereof remains true and correct as of such
Date of Delivery.
(ii) OPINION OF COUNSEL FOR COMPANY. The favorable opinion each of (1)
▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, counsel for the Company; (2) ▇▇▇▇▇,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP, patent counsel for the Company; and (3) Buc &
▇▇▇▇▇▇▇▇▇, special regulatory counsel for the Company, each in form and
substance satisfactory to counsel for the International Managers, dated
such Date of Delivery, relating to the International Option Securities to
be purchased on such Date of Delivery and otherwise to the same effect as
the opinions required by Section 5(b) hereof.
(iii) OPINION OF COUNSEL FOR INTERNATIONAL MANAGERS. The favorable
opinion of Shearman & Sterling, counsel for the International Managers,
dated such Date of Delivery, relating to the International Option
Securities to be purchased on such Date of Delivery and otherwise to the
same effect as the opinion required by Section 5(c) hereof.
(iv) BRING-DOWN COMFORT LETTER. A letter from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, in
form and substance satisfactory to the International Managers and dated
such Date of Delivery, substantially in the same form and substance as the
letter furnished to the International Managers pursuant to Section 5(f)
hereof, except that the "specified date" in the letter furnished pursuant
to this paragraph shall be a date not more than three days prior to such
Date of Delivery.
19
(l) Additional Documents.
At Closing Time and at each Date of Delivery counsel for the International
Managers shall have been furnished with such documents and opinions as they may
require for the purpose of enabling them to pass upon the issuance and sale of
the Securities as herein contemplated, or in order to evidence the accuracy of
any of the representations or warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Securities as herein contemplated
shall be satisfactory in form and substance to the International Managers and
counsel for the International Managers.
(m) Termination of Agreement.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement, or, in the case of any
condition to the purchase of International Option Securities on a Date of
Delivery which is after the Closing Time, the obligations of the several
International Managers to purchase the relevant Option Securities, may be
terminated by notice to the Company at any time at or prior to Closing Time or
such Date of Delivery, as the case may be, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 6, 7 and, if any Securities have been purchased and sold
pursuant hereto, Section 8 shall survive any such termination and remain in full
force and effect.
SECTION 6. INDEMNIFICATION.
(a) Indemnification of International Managers.
The Company agrees to indemnify and hold harmless each International
Manager and each person, if any, who controls any International Manager within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act as
follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430A Information and the
Rule 434 Information, if applicable, or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact included in any
preliminary prospectus or the Prospectuses (or any amendment or supplement
thereto), or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of (A) the violation of any applicable
laws or regulations of foreign jurisdictions where Reserved Securities have
been offered and (B) any untrue
20
statement or alleged untrue statement of a material fact included in the
supplement or prospectus wrapper material distributed in any foreign
jurisdiction in connection with the reservation and sale of the Reserved
Securities eligible directors, officers, employees and business associates
of the Company and related persons or the omission or alleged omission
therefrom of a material fact necessary to make the statements therein, when
considered in conjunction with the Prospectuses or preliminary
prospectuses, not misleading;
(iii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission or in connection with any violation of
the nature referred to in Section 6(a)(ii)(A) hereof; provided that
(subject to Section 6(d) below) any such settlement is effected with the
written consent of the Company; and
(iv) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by ▇▇▇▇▇▇▇ ▇▇▇▇▇), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission or
in connection with any violation of the nature referred to in Section
6(a)(ii)(A) hereof, to the extent that any such expense is not paid under
(i), (ii) or (iii) above;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense (a) to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
International Manager expressly for use in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or any preliminary prospectus or the International
Prospectus (or any amendment or supplement thereto) and (b) with respect to any
preliminary prospectus to the extent that any such loss, liability, claim,
damage or expense of such International Manager results solely from the fact
that such International Manager sold Securities to a person as to whom the
Company shall establish that there was not sent by commercially reasonable
means, at or prior to the written confirmation of such sale, a copy of the
Prospectus in any case where such delivery is required by the 1933 Act, if the
Company has previously furnished copies thereof in sufficient quantity to such
International Manager (in compliance with Section 3(d) hereof) and the loss,
liability, claim, damage or expense of such International Manager results from
an untrue statement or omission of a material fact contained in the preliminary
prospectus that was corrected in the Prospectus.
(b) Indemnification of Company, Directors and Officers.
Each International Manager severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, and each
21
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary international
prospectus or the International Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such International Manager expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary prospectus
or the International Prospectus (or any amendment or supplement thereto).
(c) Actions against Parties; Notification.
Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any liability
hereunder to the extent it is not materially prejudiced as a result thereof and
in any event shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. In the case of parties indemnified
pursuant to Section 6(a) above, counsel to the indemnified parties shall be
selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in the case of parties indemnified pursuant to
Section 6(b) above, counsel to the indemnified parties shall be selected by the
Company. An indemnifying party may participate at its own expense in the defense
of any such action; PROVIDED, HOWEVER, that counsel to the indemnifying party
shall not (except with the consent of the indemnified party) also be counsel to
the indemnified party. In no event shall the indemnifying parties be liable for
fees and expenses of more than one counsel (in addition to any local counsel)
separate from their own counsel for all indemnified parties in connection with
any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances. No
indemnifying party shall, without the prior written consent of the indemnified
parties, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification or contribution could be sought under this
Section 6 or Section 7 hereof (whether or not the indemnified parties are actual
or potential parties thereto), unless such settlement, compromise or consent (i)
includes an unconditional release of each indemnified party from all liability
arising out of such litigation, investigation, proceeding or claim and (ii) does
not include a statement as to or an admission of fault, culpability or a failure
to act by or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse.
If at any time an indemnified party shall have requested an indemnifying
party to reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) and Section 6(a)(iii) effected without
its written consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have
22
reimbursed such indemnified party in accordance with such request prior to the
date of such settlement; provided that an indemnifying party shall not be liable
for any such settlement effected without its consent if such indemnifying party,
prior to the date of such settlement, (1) reimburses such indemnified party in
accordance with such request for the amount of such fees and expenses of counsel
as the indemnifying party believes in good faith to be reasonable, and (2)
provides written notice to the indemnified party that the indemnifying party
disputes in good faith the reasonableness of the unpaid balance of such fees and
expenses.
(e) Indemnification for Reserved Securities.
In connection with the offer and sale of the Reserved Securities, the
Company agrees, promptly upon a request in writing, to indemnify and hold
harmless the International Managers from and against any and all losses,
liabilities, claims, damages and expenses incurred by them as a result of the
failure of eligible directors, officers, employees and business associates of
the Company and related persons to pay for and accept delivery of Reserved
Securities which, by the end of the first business day following the date of
this Agreement, were subject to a properly confirmed agreement to purchase.
SECTION 7. CONTRIBUTION.
If the indemnification provided for in Section 6 hereof is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect
of any losses, liabilities, claims, damages or expenses referred to therein,
then each indemnifying party shall contribute to the aggregate amount of such
losses, liabilities, claims, damages and expenses incurred by such indemnified
party, as incurred, (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the International
Managers on the other hand from the offering of the Securities pursuant to this
Agreement or (ii) if the allocation provided by clause (i) is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and of the International Managers on the other hand
in connection with the statements or omissions, or in connection with any
violation of the nature referred to in Section 6(a)(ii)(A) hereof, which
resulted in such losses, liabilities, claims, damages or expenses, as well as
any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
International Managers on the other hand in connection with the offering of the
International Securities pursuant to this Agreement shall be deemed to be in the
same respective proportions as the total net proceeds from the offering of the
International Securities pursuant to this Agreement (before deducting expenses)
received by the Company and the total underwriting discount received by the
International Managers, in each case as set forth on the cover of the
International Prospectus, or, if Rule 434 is used, the corresponding location on
the Term Sheet, bear to the aggregate initial public offering price of the
International Securities as set forth on such cover.
The relative fault of the Company on the one hand and the International
Managers on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a
23
material fact relates to information supplied by the Company or by the
International Managers and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission or
any violation of the nature referred to in Section 6(a)(ii)(A) hereof.
The Company and the International Managers agree that it would not be just
and equitable if contribution pursuant to this Section were determined by pro
rata allocation (even if the International Managers were treated as one entity
for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this Section. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section, no International Manager
shall be required to contribute any amount in excess of the amount by which the
total price at which the International Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such International Manager has otherwise been required to pay by
reason of any such untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section, each person, if any, who controls an
International Manager within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
International Manager, and each director of the Company, each officer of the
Company who signed the Registration Statement, and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Company.
The International Managers' respective obligations to contribute pursuant to
this Section are several in proportion to the number of Initial International
Securities set forth opposite their respective names in Schedule A hereto and
not joint.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement
or in certificates of officers of the Company or the Subsidiary submitted
pursuant hereto shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any International Manager or
controlling person, or by or on behalf of the Company, and shall survive
delivery of the Securities to the International Managers.
24
SECTION 9. Termination of Agreement.
(a) Termination; General.
The International Managers may terminate this Agreement, by notice to the
Company, at any time at or prior to Closing Time (i) if there has been, since
the time of execution of this Agreement or since the respective dates as of
which information is given in the International Prospectus, any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and the Subsidiary considered as
one enterprise, whether or not arising in the ordinary course of business, or
(ii) if there has occurred any material adverse change in the financial markets
in the United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the International Managers, impracticable
to market the Securities or to enforce contracts for the sale of the Securities,
or (iii) if trading in any securities of the Company has been suspended or
materially limited by the Commission or the Nasdaq National Market, or if
trading generally on the American Stock Exchange or the New York Stock Exchange
or in the Nasdaq National Market has been suspended or materially limited, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices have been required, by any of said exchanges or by such system or by
order of the Commission, the NASD or any other governmental authority, or (iv)
if a banking moratorium has been declared by Federal, Delaware or New York
authorities.
(b) Liabilities.
If this Agreement is terminated pursuant to this Section, such termination
shall be without liability of any party to any other party except as provided in
Section 4 hereof, and provided further that Sections 1, 6, 7 and, if any
Securities have been purchased and sold pursuant hereto, Section 8 shall survive
such termination and remain in full force and effect.
SECTION 10. DEFAULT BY ONE OR MORE OF THE INTERNATIONAL MANAGERS.
If one or more of the International Managers shall fail at Closing Time or
a Date of Delivery to purchase the Securities which it or they are obligated to
purchase under this Agreement (the "DEFAULTED SECURITIES"), the International
Managers shall have the right, within 24 hours thereafter, to make arrangements
for one or more of the non-defaulting International Managers, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the International Managers shall not have completed such
arrangements within such 24-hour period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the number
of International Securities to be purchased on such date, the non-defaulting
International Managers shall be obligated, each severally and not jointly, to
purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of all
non-defaulting International Managers, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
International Securities to be purchased on such date, this Agreement or, with
respect to any Date of Delivery which occurs after Closing Time, the obligation
of the International
25
Managers to purchase and of the Company to sell the Option Securities to be
purchased and sold on such Date of Delivery shall terminate without liability on
the part of any non-defaulting International Manager.
No action taken pursuant to this Section shall relieve any defaulting
International Manager from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement or, in the case of a Date of Delivery which is after Closing
Time, which does not result in a termination of the obligation of the
International Managers to purchase and the Company to sell the relevant
International Option Securities, as the case may be, either the International
Managers or the Company shall have the right to postpone Closing Time or the
relevant Date of Delivery, as the case may be, for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Prospectuses or in any other documents or arrangements. As used herein, the term
"International Manager" includes any person substituted for an International
Manager under this Section.
SECTION 11. NOTICES.
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the International Managers shall be
directed to the International Managers at World Financial Center, North Tower,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, attention of ▇▇▇▇▇ ▇▇▇▇; and
notices to the Company shall be directed to it at ▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, attention of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
SECTION 12. PARTIES.
This Agreement shall inure to the benefit of and be binding upon the
International Managers and the Company and their respective successors. Nothing
expressed or mentioned in this Agreement is intended or shall be construed to
give any person, firm or corporation, other than the International Managers and
the Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the International Managers and the Company and their
respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Securities from any International
Manager shall be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY
TIME.
26
SECTION 14. EFFECT OF HEADINGS.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
27
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company a counterpart hereof, whereupon this
instrument, along with all counterparts, will become a binding agreement between
the International Managers and the Company in accordance with its terms.
Very truly yours,
EXACT SCIENCES CORPORATION
By:
----------------------------------
Title:
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
CIBC WORLD MARKETS PLC
▇▇▇▇▇▇ ▇▇▇▇▇▇ PARTNERS LLC
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
By:
-------------------------------------------
Authorized Signatory
For itself and as representatives of the other International Managers named in
Schedule A hereto.
28
SCHEDULE A
NUMBER OF
INITIAL
INTERNATIONAL
SECURITIES
NAME OF INTERNATIONAL MANAGER
▇▇▇▇▇▇▇ ▇▇▇▇▇ International................................
CIBC World Markets plc.....................................
▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners LLC.................................
------------
Total...................................................... [number of
shares]
SCHEDULE B
EXACT SCIENCES CORPORATION
[number of shares] Shares of Common Stock
(Par Value $0.01 Per Share)
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $-.
2. The purchase price per share for the International Securities to be
paid by the several International Managers shall be $-, being an amount equal
to the initial public offering price set forth above less $- per share;
provided that the purchase price per share for any International Option
Securities purchased upon the exercise of the over-allotment option described
in Section 2(b) shall be reduced by an amount per share equal to any
dividends or distributions declared by the Company and payable on the Initial
International Securities but not payable on the International Option
Securities.
SCHEDULE C-1
List of persons and entities (other than officers, directors and 10%
stockholders of the Company) subject to lock-up
SCHEDULE C-2
List of officers, directors and 10% stockholders of the Company
subject to lock-up
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
_________, 2001
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
CIBC World Markets Corp.
▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners LLC
As Representatives of the several U.S. Underwriters
c/o Merrill Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Re: EXACT Sciences Corporation
SHARES OF COMMON STOCK
Ladies and Gentlemen:
We have acted as counsel for EXACT Sciences Corporation, a Delaware
corporation (the "COMPANY"), in connection with the sale by the Company to the
several underwriters (the "U.S. UNDERWRITERS") named in SCHEDULE I to the U.S.
Purchase Agreement dated _____, 2001 (the "U.S. PURCHASE AGREEMENT") among you,
as Representatives of the Underwriters, and the Company of an aggregate of
________ shares (the "INITIAL U.S. SECURITIES") of the Company's common stock,
par value $.01 per share (the "COMMON STOCK"), and up to an aggregate of ___
shares of Common Stock issuable pursuant to an over-allotment option granted to
the U.S. Underwriters, (the "U.S. OPTION SECURITIES," and together with the
Initial U.S. Securities, the "U.S. SECURITIES") and the sale by the Company to
▇▇▇▇▇▇▇ ▇▇▇▇▇ International, CIBC World Markets plc, and ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners
LLC (collectively, the "International Managers") pursuant to the International
Purchase Agreement, dated January__, 2001 (the "INTERNATIONAL PURCHASE
AGREEMENT", and together with the U.S. Purchase Agreement, the "PURCHASE
AGREEMENTS"), among the Company and the International Managers of ___ shares
(the "INITIAL INTERNATIONAL SECURITIES") of the Common Stock and up to an
aggregate of __ shares of Common Stock issuable pursuant to an over-allotment
option granted to the International Managers (the "INTERNATIONAL OPTION
SECURITIES", and together with the Initial International Securities, the
"INTERNATIONAL SECURITIES"). The Initial U.S. Securities and the Initial
International Securities are hereinafter called the "INITIAL SECURITIES", the
U.S. Option Securities and the International Option Securities are hereinafter
called the "OPTION SECURITIES" and the U.S. Securities and the International
Securities are hereinafter called the "SECURITIES." Capitalized terms used
herein, unless otherwise defined herein, shall have the respective meanings
assigned to such terms in the U.S. Purchase Agreement.
This opinion is being furnished to you pursuant to Section 5(b) of each of
the Purchase Agreements.
We have examined such documents, records and matters of law as we have
deemed necessary for purposes of this opinion, including:
the Company's Registration Statement on Form S-1 (File No. 333-48812)
relating to the Securities, filed with the Securities and Exchange Commission
(the "COMMISSION") on October 27, 2000 under the Securities Act of 1933, as
amended (the "ACT"), Amendment No. 1 thereto filed with the Commission on
December 4, 2000, Amendment No. 2 thereto filed with the Commission on December
7, 2000, Amendment No. 3 thereto filed with the Commission on December 26, 2000,
Amendment No. 4 thereto filed with the Commission on January 8, 2001, and
Amendment No. 5 thereto filed with the Commission on January __, 2001, including
information deemed to be part of the registration statement at the time of
effectiveness pursuant to Rule 430A of the General Rules and Regulations
promulgated under the Act (the "1933 ACT REGULATIONS") (such registration
statement, as so amended, being hereinafter referred to as the "REGISTRATION
STATEMENT");
the final U.S. prospectus (the "U.S. PROSPECTUS"), dated January __,
2001, and the final international prospectus (the "INTERNATIONAL PROSPECTUS",
and together with the U.S. Prospectus, the "PROSPECTUSES"), dated January __,
2001, each relating to the Securities, in the forms filed with the Commission
pursuant to Rule 424(b) of the 1933 Act Regulations;
executed copies of the Purchase Agreements;
Certificates of the Secretary of State of the State of Delaware and
Certificates of the Secretary of State of the Commonwealth of Massachusetts with
respect to each of the Company and its subsidiary, EXACT Sciences Securities
Corporation (the "SUBSIDIARY");
the Sixth Amended and Restated Certificate of Incorporation of the
Company as filed on ______ (the "Company's Certificate of Incorporation"), and
the Certificate of Incorporation of the Subsidiary as filed on ____ (the
Subsidiary's Certificate of Incorporation", and together with the Company's
Certificate of Incorporation, the "Certificates of Incorporation"), each as
certified by the Secretary of State of the State of Delaware;
the by-laws, as amended, of the Company (the "Company's By-laws") and
the by-laws of the Subsidiary (the "Subsidiary's By-laws", and together with the
Company's By-laws, the "By-laws"), each as currently in effect;
the minute books and stock records of each of the Company and the
Subsidiary;
a Secretary's Certificate of the Company, dated the date hereof;
the officers' certificates, dated the date hereof; and
(xi) such other documents, records, and materials as we deemed
necessary for the purpose of rendering the opinions rendered herein.
In rendering this opinion, as to all matters of fact relevant to this
opinion, we have assumed the completeness and accuracy of, and are relying
solely upon, the representations, warranties and agreements of the Company set
forth in the Purchase Agreements and the statements set forth in certificates of
public officials and officers of the Company, without making any independent
investigation or inquiry with respect to the completeness or accuracy of such
representations, warranties, agreements or statements, other than a review of
the Certificates of Incorporation, the By-laws and the relevant minute books of
the Company and the Subsidiary, respectively. In rendering the opinions set
forth in paragraphs (1) and (3) below as to the valid existence and good
standing of the Company and the Subsidiary in the State of Delaware and the
Commonwealth of Massachusetts, we have assumed the completeness and accuracy of,
and are relying solely upon, certificates of legal existence and good standing
issued by the Secretary of State of Delaware and the Secretary of State of
Massachusetts, respectively. Any reference herein to "our knowledge," "known to
us" or any variation thereof shall mean that in the course of our representation
of the Company in connection with the preparation of the Registration Statement,
we have not obtained actual knowledge of the existence or absence of any facts
that would contradict our opinions set forth below.
We have assumed the genuineness of all signatures and the authenticity of
all documents submitted to us as originals and the conformity to original
documents of all documents submitted to us as copies, whether certified or not.
We are members only of the bar of the Commonwealth of Massachusetts and
therefore do not hold ourselves out as experts in, and express no opinion as to,
the laws of any other state or jurisdiction other than the federal laws of the
United States and the Commonwealth of Massachusetts, and, to the extent
necessary for this opinion, the General Corporation Law of the State of
Delaware. We note that each Purchase Agreement provides that it is to be
governed by the laws of the State of New York. We express no opinion as to
matters of the laws of the State of New York. For the matters covered in
paragraphs 12 and 14 below, we express no opinion with respect to the federal
Food, Drug and Cosmetic Act ("FDCA") or the Clinical Laboratory Improvement Act
("CLIA") and the regulations promulgated thereunder. We have not acted, and do
not act, as counsel for the Company in connection with FDCA, CLIA or such
regulations.
Based on and subject to the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware. The
Company is duly qualified as a foreign corporation to transact business and
is in good standing in Massachusetts, which is the only jurisdiction in the
United States in which, to our knowledge, the Company maintains an office
or leases real property.
2. The Company has the corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectuses and to enter into and perform its obligations under the
Purchase Agreements.
3. The Subsidiary has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware.
The Subsidiary is duly qualified as a foreign corporation to transact
business and is in good standing in
Massachusetts, which is the only jurisdiction in the United States in
which, to our knowledge, the Subsidiary maintains an office or leases real
property.
4. The Subsidiary has the corporate power and authority to own, lease
and operate its properties and to conduct its business as described in the
Prospectuses and to enter into and perform its obligations under the
Purchase Agreements; except as otherwise disclosed in the Registration
Statement, all of the issued and outstanding capital stock of the
Subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and is owned by the Company, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of the Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of the
Subsidiary.
5. The authorized, issued and outstanding capital stock of the Company
is as set forth in the Prospectuses in the column entitled "Actual" under
the caption "Capitalization" (except for subsequent issuances, if any,
pursuant to the Purchase Agreements or pursuant to reservations, agreements
or employee benefit plans referred to in the Prospectuses or pursuant to
the exercise of convertible securities or options referred to in the
Prospectuses); the shares of issued and outstanding capital stock of the
Company have been duly authorized and validly issued and are fully paid and
non-assessable; and none of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive or other similar rights
of any securityholder of the Company arising under the Delaware General
Corporation Law, the Company's Certificate of Incorporation, the Company's
Bylaws or, to our knowledge, any agreement to which the Company is a party.
6. The Securities have been duly authorized for issuance and sale to
the Underwriters pursuant to the Purchase Agreements, and, when issued and
delivered by the Company pursuant to the Purchase Agreements, against
payment of the consideration set forth in the Purchase Agreements, will be
validly issued and fully paid and non-assessable and no holder of the
Securities is or will be subject to personal liability by reason of being
such a holder.
7. The issuance of the Securities is not subject to the preemptive or
other similar rights of any securityholder of the Company arising under the
Delaware General Corporation law, the Certificate of Incorporation, Bylaws
or, to our knowledge, any agreement to which the Company is a party.
8. The Purchase Agreements have been duly authorized, executed and
delivered by the Company.
9. The Registration Statement, the Prospectuses and each amendment or
supplement to the Registration Statement and the Prospectuses as of their
respective effective or issue dates (other than the financial statements
and supporting schedules included therein or omitted therefrom, as to which
we express no opinion) complied as to form in all material respects with
the requirements of the Act and the Rules and Regulations.
10. The form of certificate filed with the Commission used to evidence
the Common Stock complies in all material respects with all applicable
statutory requirements, with any applicable requirements of the Company's
Certificate of Incorporation and Bylaws and the requirements of the Nasdaq
National Market.
11. The information in the Prospectuses under "Description of Capital
Stock - Common Stock," "Description of Capital Stock - Preferred Stock,"
"Business - Legal Proceedings," and "Management," to the extent that such
statements purport to summarize legal matters, the Company's Certificate of
Incorporation and Bylaws, legal proceedings or legal conclusions, has been
reviewed by us and is correct in all material respects.
12. To our knowledge, there are no statutes or regulations that are
required to be described in the Prospectuses that are not described as
required.
13. All descriptions in the Registration Statement of contracts and
other documents to which the Company is a party are accurate in all
material respects; and we do not know of any contracts or other documents
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
Prospectuses which are not filed or described as required.
14. No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency (other than under the Act and the 1933 Act Regulations,
which have been obtained, or as may be required under the securities or
blue sky laws of the various states or any non-U.S. jurisdiction, as to
which we express no opinion) is necessary or required in connection with
the due authorization, execution and delivery of the Purchase Agreements or
for the offering, issuance, sale or delivery of the Securities. The
execution, delivery and performance of the Purchase Agreements and the
consummation of the transactions contemplated in the Purchase Agreements
and in the Registration Statement (including the issuance and sale of the
Securities) and compliance by the Company with its obligations under the
Purchase Agreements do not and will not, whether with or without the giving
of notice or lapse of time or both, contravene or constitute a breach of,
or default or Repayment Event under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or the Subsidiary pursuant to any agreement that is filed as
an exhibit to the Registration Statement, nor will such action result in
any violation of the provisions of the Certificates of Incorporation or the
By-laws, or a material violation of any applicable law, statute, rule,
regulation, judgment, order, writ or decree, known to us, of any
government, government instrumentality or court having jurisdiction over
the Company, the Subsidiary, or any of their respective properties, assets
or operations (except that we express no opinion as to state securities
laws or, with respect to this paragraph, federal antifraud laws).
15. To our knowledge, except as disclosed in the Registration
Statement, there are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to file a registration statement under the Securities Act with
respect to any securities of the Company or to require the Company to
include such securities with the Securities registered pursuant to the
Registration Statement.
16. The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
1940 Act.
17. We do not know of any legal or governmental proceedings pending or
overtly threatened to which the Company or the Subsidiary is a party or to
which any of their respective property is subject that are required to be
described in the Registration Statement or the Prospectuses and are not so
described therein.
--------------------------
The Registration Statement has become effective under the Act and, to our
knowledge, no stop order suspending its effectiveness has been issued and no
proceedings for that purpose are pending before or threatened by the Commission.
In the course of the preparation of the Registration Statement and the
Prospectuses, we have participated in conferences with officers, employees and
other representatives of the Company, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, the Company's
independent public accountants, Buc & ▇▇▇▇▇▇▇▇▇, regulatory counsel to the
Company, and your representatives and counsel concerning the information
contained in the Registration Statement and the Prospectuses. We have not,
however, independently verified and are not passing upon, and do not assume any
responsibility for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement and the Prospectuses. Based on our
participation as described above, nothing has come to our attention that would
lead us to believe that the Registration Statement (except for financial
statements, financial statement schedules, and other financial included therein,
as to which we make no statement), at the time it became effective, contained an
untrue statement of a material fact, or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, or that the Prospectuses (except for financial
statements, financial statement schedules, and other financial included therein,
as to which we make no statement), as of the date of such Prospectuses or as of
the date hereof, included or include an untrue statement of a material fact or
omitted or omits to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
This opinion is being furnished to you solely for your benefit in
connection with the transactions contemplated by the Purchase Agreements and may
not be used for any other purpose or relied upon by any person other than you.
Except with our prior written consent, the opinions herein expressed are not to
be used, circulated, quoted or otherwise referred to in connection with any
transactions other than those contemplated by the Purchase Agreements by or to
any other person.
Very truly yours,
▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP
Exhibit B
FORM OF OPINION OF PATENT COUNSEL TO THE COMPANY
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
_____________, 2001
We are patent counsel to EXACT Sciences Corporation, a Delaware corporation
(referred to herein as the "Company"). This opinion is being furnished to you
pursuant to that certain Purchase Agreement dated , 2001 (the "Agreement")
relating to the sale by the Company of shares of its Common Stock. Unless
otherwise defined herein, the definition of the capitalized terms used herein
shall be the same as those in the Agreement.
We are familiar generally with the technology used by the Company in its
business and that is the subject of issued patents, and pending patent
applications listed in SCHEDULE A hereto. We have read the sections of the
Registration Statement under the captions "Risk Factors--To the extent we cannot
enforce and protect our intellectual property rights, our business may suffer"
and "Business--Patents and Intellectual Property" (collectively, the
"Intellectual Property Sections"), referring to patents, trade secrets,
trademarks, service marks or other proprietary information or materials.
In rendering the following opinion, we have not conducted, nor have we been
requested to conduct, a specific search, investigation, or evaluation with
respect to the enforceability or validity of any patents owned or licensed by
the Company; or third party infringement of any claim of any patent; nor have we
conducted, or been requested to conduct, any other specific search,
investigation, or evaluation.
Based upon the foregoing, we are of the opinion that:
(i) The statements in the Registration Statement and the Prospectuses under
the captions "Risk Factors--To the extent we cannot enforce and protect our
intellectual property rights, our business may suffer" and "Business--Patents
and Intellectual Property" (collectively, the "Intellectual Property Sections")
insofar as such statements constitute a summary of legal matters, documents or
proceedings referred to therein, are accurate and fairly summarize the matters
referred to therein.
(ii) To the best of our knowledge, there are no pending or threatened
actions, suits or proceedings against or affecting any patents, patent licenses,
trademarks, or other proprietary intellectual property rights ("INTELLECTUAL
PROPERTY") owned or used by the Company or necessary to conduct the business now
or proposed to be conducted by it as described in the Prospectuses, to which the
Company is a party or to which any of the properties of the Company is subject,
except as disclosed in the Registration Statement and the Prospectuses.
(iii) To the best of our knowledge, the Company has not received any notice
of infringement or alleged infringement by the Company or conflict with asserted
rights of others with respect to Intellectual Property, except as disclosed in
the Registration Statement and the Prospectuses.
(iv) Although we have not verified the accuracy or completeness of
statements contained in the Registration Statement, nothing has come to our
attention that would lead us to believe (1) that the Intellectual Property
Sections in the Registration Statement at the time such Registration Statement
or any such amendment became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statement therein not misleading or (2) that the
Intellectual Property Sections in the Prospectuses or any amendment or
supplement thereto, at the time the Prospectuses was issued, at the time any
such amended or supplemented prospectus was issued or at the Closing Time,
included or includes an untrue statement of a material fact or omitted or omits
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading.
Very truly yours,
▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP
FORM OF LOCK-UP AGREEMENT PURSUANT TO SECTION 5(i)
Exhibit ▇-▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
CIBC Worldmarkets and
▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners
as U.S. Representatives of the several
U.S. Underwriters to be named in the
within-mentioned U.S. Purchase Agreement
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
North Tower
World Financial Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: PROPOSED PUBLIC OFFERING BY EXACT CORPORATION
Dear Sirs:
The undersigned, a stockholder of Exact Corporation (the "COMPANY"),
understands that ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and CIBC World Markets and ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners
propose to enter into a U.S. Purchase Agreement (the "U.S. PURCHASE AGREEMENT")
with the Company providing for the public offering of shares (the "SECURITIES")
of the Company's common stock, par value $.01 per share (the "COMMON STOCK"). In
recognition of the benefit that such an offering will confer upon the
undersigned as a stockholder of the Company, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
undersigned agrees with each underwriter to be named in the U.S. Purchase
Agreement that, during the period commencing on the date of the U.S. Purchase
Agreement (the "Commencement Date") and ending 180 days thereafter, the
undersigned will not, without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇,
directly or indirectly, (i) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant for the sale of, or otherwise dispose of or
transfer any shares of the Company's Common Stock or any securities convertible
into or exchangeable or exercisable for Common Stock, whether now owned or
hereafter acquired by the undersigned or with respect to which the undersigned
has or hereafter acquires the power of disposition, or file any registration
statement under the Securities Act of 1933,
as amended, with respect to any of the foregoing or (ii) enter into any swap or
any other agreement or any transaction that transfers, in whole or in part,
directly or indirectly, the economic consequence of ownership of the Common
Stock, whether any such swap or transaction is to be settled by delivery of
Common Stock or other securities, in cash or otherwise; provided, however, that
the undersigned may transfer shares of Common Stock or options to purchase
shares of Common Stock (i) if the undersigned is an individual, pursuant to a
bona fide gift to the undersigned's immediate family members, trusts for the
benefit of such person or immediate family members and partnerships in which
such person and immediate family members are the only partners and (ii) if the
undersigned is a corporation, partnership, limited liability company or other
form of business entity, to a partner or member of such entity or the estate of
any such partner or member, or to an affiliate of the undersigned, in each case,
only if such transferee executes and delivers to ▇▇▇▇▇▇▇ ▇▇▇▇▇ an agreement in
the same form and content, and with the same expiration date, as this agreement;
and PROVIDED FURTHER, HOWEVER, that the undersigned may (X) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant for the sale of, or
otherwise dispose of or transfer, directly or indirectly, shares of Common Stock
that the undersigned purchases in the open market after the Commencement Date
(the "Freely Tradable Shares") without any restrictions or (Y) enter into any
swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of Freely Tradable
Shares.
This Agreement shall lapse and become null and void if the Commencement
Date shall not have occurred on or before March 31, 2001.
Very truly yours,
Signature:
------------------------------------
FORM OF LOCK-UP AGREEMENT PURSUANT TO SECTION 5(I)
Exhibit ▇-▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
CIBC Worldmarkets and
▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners
as U.S. Representative(s) of the several
U.S. Underwriters to be named in the
Within-mentioned U.S. Purchase Agreement
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
North Tower
World Financial Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Re: PROPOSED PUBLIC OFFERING BY EXACT CORPORATION
Dear Sirs:
The undersigned, a stockholder of Exact Corporation (the "COMPANY"),
understands that ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and CIBC World Markets and ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners
propose to enter into a U.S. Purchase Agreement (the "U.S. PURCHASE AGREEMENT")
with the Company providing for the public offering of shares (the "SECURITIES")
of the Company's common stock, par value $.01 per share (the "COMMON STOCK"). In
recognition of the benefit that such an offering will confer upon the
undersigned as a stockholder of the Company, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
undersigned agrees with each underwriter to be named in the U.S. Purchase
Agreement that, during the period commencing on the date of the U.S. Purchase
Agreement (the "Commencement Date") and ending 180 days thereafter, the
undersigned will not, without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇,
directly or indirectly, (i) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant for the sale of, or otherwise dispose of or
transfer any shares of the Company's Common Stock or any securities convertible
into or exchangeable or exercisable for Common Stock, whether now owned or
hereafter acquired by the undersigned or with respect to which the undersigned
has or hereafter acquires the power of disposition, or file any registration
statement under the Securities Act of 1933, as amended, with respect to any of
the foregoing or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of the Common Stock, whether any such swap or
transaction is to be settled by delivery of Common Stock or other securities, in
cash or otherwise; provided, however, that the undersigned may transfer shares
of Common Stock or options to purchase shares of Common Stock (i) if the
undersigned is an individual, pursuant to a bona fide gift to the undersigned's
immediate family members, trusts for the benefit of such person or immediate
family members and partnerships in which such person and immediate family
members are the only partners and (ii) if the undersigned is a corporation,
partnership, limited liability company or other form of business entity, to a
partner or member such entity or the estate of any such partner or member, or to
an affiliate of the undersigned, in each case, only if such transferee executes
and delivers to ▇▇▇▇▇▇▇ ▇▇▇▇▇ an agreement in the same form and content, and
with the same expiration date, as this agreement.
This Agreement shall lapse and become null and void if the Commencement
Date shall not have occurred on or before March 31, 2001.
Very truly yours,
Signature:
--------------------------------
Exhibit D
FORM OF OPINION OF COMPANY'S REGULATORY COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
_________, 2001
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
CIBC World Markets Corp.
▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners LLC
As Representatives of the several U.S. Underwriters
c/o Merrill Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Re: EXACT Sciences Corporation
SHARES OF COMMON STOCK
Ladies and Gentlemen:
We have acted as special regulatory counsel for EXACT Sciences Corporation,
a Delaware corporation (the "COMPANY"), with respect to U.S. Food and Drug
Administration ("FDA") regulatory matters in connection with the sale by the
Company to the several underwriters (the "U.S. UNDERWRITERS") named in SCHEDULE
I to the U.S. Purchase Agreement dated __________, 2001 (the "U.S. PURCHASE
AGREEMENT") among you, as Representatives of the Underwriters, and the Company
of an aggregate of ________ shares (the "INITIAL U.S. SECURITIES") of the
Company's common stock, par value $.01 per share (the "COMMON STOCK"), and up to
an aggregate of ___ shares of Common Stock issuable pursuant to an
over-allotment option granted to the U.S. Underwriters, (the "U.S. OPTION
SECURITIES," and together with the Initial U.S. Securities, the "U.S.
SECURITIES") and the sale by the Company to ▇▇▇▇▇▇▇ ▇▇▇▇▇ International, CIBC
World Markets plc, and ▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners LLC pursuant to the International
Purchase Agreement, dated January__, 2001 (the "INTERNATIONAL PURCHASE
AGREEMENT", and together with the U.S. Purchase Agreement, the "PURCHASE
AGREEMENTS"), among the Company and the International Managers of ___ shares
(the "INITIAL INTERNATIONAL SECURITIES") of the Common Stock and up to an
aggregate of __ shares of Common Stock issuable pursuant to an over-allotment
option granted to the International Managers (the "INTERNATIONAL OPTION
SECURITIES", and together with the Initial International Securities, the
"INTERNATIONAL SECURITIES"). The Initial U.S. Securities and the Initial
International Securities are hereinafter called the "INITIAL SECURITIES", the
U.S. Option Securities and the International Option Securities are hereinafter
called the "OPTION SECURITIES" and the U.S. Securities and the International
Securities are hereinafter called the "SECURITIES."
This opinion is furnished to you pursuant to Section 5(b) of each of the
Purchase Agreements.
We have examined the statements included under the captions "Risk Factors:
If we fail to obtain the approval of the FDA, or comply with other FDA
requirements, we may not be able to market our products and services and may be
subject to stringent penalties" and "Business: Government Regulation" that
summarize provisions of the Federal Food, Drug, and Cosmetic Act ("FDCA"), and
"Risk Factors: If we fail to comply with regulations relating to clinical
laboratories, we may be prohibited from processing our own tests in-house, be
required to incur significant expense to correct non-compliance, or be subject
to other requirements or penalties," that summarize provisions of the federal
Clinical Laboratory Improvement Act in
(i) the Company's Registration Statement on Form S-1 (File No.
333-48812) relating to the Securities, filed with the Securities and
Exchange Commission (the "COMMISSION") on October 27, 2000 under the
Securities Act of 1933, as amended (the "SECURITIES ACT"), Amendment No. 1
thereto filed with the Commission on December 4, 2000, Amendment No. 2
thereto filed with the Commission on December 7, 2000, Amendment No. 3
thereto filed with the Commission on December 26, 2000, and Amendment No. 4
thereto filed with the Commission on January __, 2001 (such registration
statement, as so amended, being hereinafter referred to as the
"REGISTRATION STATEMENT"); and
the final U.S. prospectus (the "U.S. PROSPECTUS"), dated January __, 2001,
and the final international prospectus (the "INTERNATIONAL PROSPECTUS", and
together with the U.S. Prospectus, the "PROSPECTUSES"), dated January __, 2001,
each relating to the Securities, in the forms filed with the Commission pursuant
to Rule 424(b) of the General Rules and Regulations under the Securities Act.
Based on and subject to the foregoing, we are of the opinion that:
1. The statements included under the captions "Risk Factors: If we
fail to obtain the approval of the FDA, or comply with other FDA
requirements, we may not be able to market our products and services and
may be subject to stringent penalties" and "Business: Government
Regulation" that summarize provisions of the Federal Food, Drug, and
Cosmetic Act ("FDCA") and implementing regulations thereunder, and "Risk
Factors: If we fail to comply with regulations relating to clinical
laboratories, we may be prohibited from processing our own tests in-house,
be required to incur significant expense to correct non-compliance, or be
subject to other requirements or penalties," that summarize provisions of
the federal Clinical Laboratory Improvement Act ("CLIA") are correct in all
material respects and do not omit to summarize applicable provisions of the
FDCA or implementing regulations necessary to make those statements not
misleading.
2. To our knowledge, there are no FDA statutes or regulations that are
required to be described in the Prospectuses that are not described as
required.
In addition, although we have made no independent inquiry, nothing has come
to our attention that leads us to believe that the statements in the Prospectus
under the captions "Risk Factors: If we fail to obtain the approval of the FDA,
or comply with other FDA requirements, we may not be able to market our products
and services and may be subject to stringent penalties"; "Business: Government
Regulation"; and "Risk Factors: If we fail to comply with regulations relating
to clinical laboratories, we may be prohibited from processing our own tests
in-house, be required to incur significant expense to correct non-compliance, or
be subject to other requirements or penalties" that summarize provisions of the
federal Clinical Laboratory Improvement Act contain any untrue statement of a
material fact relating to the Company or omit to state any material fact
relating to the Company which is necessary to make the statements therein not
misleading. As to the matters addressed in this paragraph, we have relied
without independent investigation upon the certificate of the Company attached
hereto as Appendix I.
This opinion is being furnished to you solely for your benefit in
connection with the transactions contemplated by the Purchase Agreements and may
not be used for any other purpose or relied upon by any person other than you.
Except with our prior written consent, the opinions herein expressed are not to
be used, circulated, quoted, filed with a governmental agency or otherwise
referred to in connection with any transactions other than those contemplated by
the Purchase Agreements by or to any other person. This opinion is limited to
the matters stated herein, and no opinion or belief is implied or may be
inferred beyond the matters expressly stated herein.
Very truly yours,
BUC & ▇▇▇▇▇▇▇▇▇
Appendix 1
Certificate of the Company
TABLE OF CONTENTS
INTERNATIONAL PURCHASE AGREEMENT 1
SECTION 1. Representations and Warranties. 3
(a) Representations and Warranties by the Company. 3
(b) Officer's Certificates. 10
SECTION 2. Sale and Delivery to International Managers; Closing. 10
(a) Initial Securities. 10
(b) Option Securities. 11
(c) Payment. 11
(d) Denominations; Registration. 12
SECTION 3. COVENANTS OF THE COMPANY. 12
(a) Compliance with Securities Regulations and Commission
Requests. 12
(b) Filing of Amendments. 12
(c) Delivery of Registration Statements. 13
(d) Delivery of Prospectuses. 13
(e) Continued Compliance with Securities Laws. 13
(f) Blue Sky Qualifications. 14
(g) Rule 158. 14
(h) Use of Proceeds. 14
(i) Listing. 14
(j) Restriction on Sale of Securities. 14
(k) Reporting Requirements. 15
(l) Compliance with NASD Rules. 15
(m) Compliance with Rule 463. 15
SECTION 4. PAYMENT OF EXPENSES. 16
(a) Expenses. 16
(b) Termination of Agreement. 16
SECTION 5. CONDITIONS OF INTERNATIONAL MANAGERS' OBLIGATIONS. 16
(a) Effectiveness of Registration Statement. 17
(b) Opinion of Counsel for Company. 17
(c) Opinion of Counsel for International Managers. 17
(d) Officers' Certificate. 18
(e) Accountants' Comfort Letter. 18
(f) Bring-down Comfort Letter. 18
(g) Approval of Listing. 18
(h) No Objection. 18
(i) Lock-up Agreements. 19
(j) Purchase of Initial U.S. Securities. 19
(k) Conditions to Purchase of International Option Securities. 19
(l) Additional Documents. 20
(m) Termination of Agreement. 20
SECTION 6. INDEMNIFICATION. 20
(a) Indemnification of International Managers. 20
(b) Indemnification of Company, Directors and Officers. 21
(c) Actions against Parties; Notification. 22
(d) Settlement without Consent if Failure to Reimburse. 22
(e) Indemnification for Reserved Securities. 23
SECTION 7. CONTRIBUTION. 23
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. 24
SECTION 9. Termination of Agreement. 24
(a) Termination; General. 24
(b) Liabilities. 25
SECTION 10. DEFAULT BY ONE OR MORE OF THE INTERNATIONAL MANAGERS. 25
SECTION 11. NOTICES. 26
SECTION 12. PARTIES. 26
SECTION 13. GOVERNING LAW AND TIME. 26
SECTION 14. EFFECT OF HEADINGS. 27
SCHEDULES
Schedule A - List of International Managers
Schedule B - Pricing Information
Schedule C-1 - List of Persons and Entities (Other than Officers, Directors
and 10% Stockholders of the Company) Subject to Lock-up
Schedule C-2 - List of Officers, Directors and 10% Stockholders of the
Company Subject to Lock-up
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel
Exhibit B - Form of Opinion of Patent Counsel to the Company
Exhibit C-1 - Form of Lock-up Agreement for Stockholders Who Are Not
Officers, Directors or 10% Stockholders of the Company
Exhibit C-2 - Form of Lock-up Agreement for Stockholders Who Are Officers,
Directors, or 10% Stockholders of the Company
Exhibit D - Form of Opinion of the Company's Special Regulatory Counsel