EXHIBIT 1.1
MICRUS CORPORATION
_____ Shares Common Stock(1)
UNDERWRITING AGREEMENT
______________, 2005
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
▇▇▇▇▇▇▇ & COMPANY, LLC
As Representatives of the Several
Underwriters Named in Schedule A
c/o ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
SECTION 1. Introductory. Micrus Corporation, a Delaware corporation
("Company"), has authorized capital stock consisting of ____________ shares,
$0.01 par value per share, of Common Stock ("Common Stock"), of which ________
shares were outstanding as of _________, 2005, and ________ shares of Preferred
Stock, $0.01 par value per share, which shares are designated in several series
as set forth in Schedule B and of which the number of shares in each series set
forth in Schedule B were outstanding as of __________, 2005. The Company
proposes to issue and sell ________ shares of its authorized but unissued Common
Stock ("Firm Shares") to the several underwriters named in Schedule A as it may
be amended by the Pricing Agreement hereinafter defined ("Underwriters"), who
are acting severally and not jointly. In addition, the Company proposes to grant
to the Underwriters an option to purchase up to __________ additional shares of
Common Stock ("Option Shares") as provided in Section 4 hereof. The Firm Shares
and, to the extent such option is exercised, the Option Shares, are hereinafter
collectively referred to as the "Shares."
You have advised the Company that the Underwriters propose to make a
public offering of their respective portions of the Shares as soon as you deem
advisable after the registration statement hereinafter referred to becomes
effective, if it has not yet become effective, and the Pricing Agreement
hereinafter defined has been executed and delivered.
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(1) Plus an option to acquire up to _____ additional Shares to cover
overallotments.
Prior to the purchase and public offering of the Shares by the several
Underwriters, the Company and the Representatives, acting on behalf of the
several Underwriters, shall enter into an agreement substantially in the form of
Exhibit A hereto (the "Pricing Agreement"). The Pricing Agreement may take the
form of an exchange of any standard form of written telecommunication (including
via electronic means) between the Company and the Representatives and shall
specify such applicable information as is indicated in Exhibit A hereto. The
offering of the Shares will be governed by this Agreement, as supplemented by
the Pricing Agreement. From and after the date of the execution and delivery of
the Pricing Agreement, this Agreement shall be deemed to incorporate the Pricing
Agreement.
The Company hereby confirms its agreement with the Underwriters as
follows:
SECTION 2. Representations and Warranties of the Company. The Company
represents and warrants to the several Underwriters that:
(a) A registration statement on Form S-1 (File No. 333-123154) and a
related preliminary prospectus with respect to the Shares have been
prepared and filed with the Securities and Exchange Commission
("Commission") by the Company in conformity with the requirements of the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "1933 Act;" all references herein
to specific rules are rules promulgated under the ▇▇▇▇ ▇▇▇); and the
Company has so prepared and has filed such amendments thereto, if any, and
such amended preliminary prospectuses as may have been required to the
date hereof. If the Company has elected not to rely upon Rule 430A, the
Company has prepared and will promptly file an amendment to the
registration statement and an amended prospectus. If the Company has
elected to rely upon Rule 430A, it will prepare and file a prospectus
pursuant to Rule 424(b) that discloses the information previously omitted
from the prospectus in reliance upon Rule 430A. There have been or will
promptly be delivered to you three signed copies of such registration
statement and amendments, three copies of each exhibit filed therewith,
and conformed copies of such registration statement and amendments (but
without exhibits) and of the related preliminary prospectus or
prospectuses and final forms of prospectus for each of the Underwriters.
Such registration statement (as amended, if applicable) at the
time it becomes effective and the prospectus constituting a part thereof
(including the information, if any, deemed to be part thereof pursuant to
Rule 430A(b) and/or Rule 434), as from time to time amended or
supplemented, are hereinafter referred to as the "Registration Statement,"
and the "Prospectus," respectively, except that if any revised prospectus
shall be provided to the Underwriters by the Company for use in connection
with the offering of the Shares which differs from the Prospectus on file
at the Commission at the time the Registration Statement became or becomes
effective (whether or not such revised prospectus is required to be filed
by the Company pursuant to Rule 424(b)), the term Prospectus shall refer
to such revised prospectus from and after the time it was
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provided to the Underwriters for such use. If the Company elects to rely
on Rule 434 of the 1933 Act, all references to "Prospectus" shall be
deemed to include, without limitation, the form of prospectus and the term
sheet, taken together, provided to the Underwriters by the Company in
accordance with Rule 434 of the 1933 Act ("Rule 434 Prospectus"). Any
registration statement (including any amendment or supplement thereto or
information which is deemed part thereof) filed by the Company under Rule
462(b) ("Rule 462(b) Registration Statement") shall be deemed to be part
of the "Registration Statement" as defined herein, and any prospectus
(including any amendment or supplement thereto or information which is
deemed part thereof) included in such registration statement shall be
deemed to be part of the "Prospectus", as defined herein, as appropriate.
The Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder are hereinafter collectively
referred to as the "Exchange Act."
(b) The Commission has not issued any order preventing or suspending
the use of any preliminary prospectus, and each preliminary prospectus has
conformed in all material respects with the requirements of the 1933 Act
and, as of its date, has not included any untrue statement of a material
fact or omitted to state a material fact necessary to make the statements
therein not misleading; and when the Registration Statement became or
becomes effective, and at all times subsequent thereto, up to the First
Closing Date or the Second Closing Date hereinafter defined, as the case
may be, the Registration Statement, including the information deemed to be
part of the Registration Statement at the time of effectiveness pursuant
to Rule 430A(b), if applicable, and the Prospectus and any amendments or
supplements thereto, contained or will contain all statements that are
required to be stated therein in accordance with the 1933 Act and in all
material respects conformed or will in all material respects conform to
the requirements of the 1933 Act, and neither the Registration Statement
nor the Prospectus, nor any amendment or supplement thereto, included or
will include any untrue statement of a material fact or omitted or will
omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however, that the
Company makes no representation or warranty as to information contained in
or omitted from any preliminary prospectus, the Registration Statement,
the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for use
in the preparation thereof.
(c) Micrus SA is the sole subsidiary of the Company (the
"Subsidiary"). The Company and the Subsidiary have been duly incorporated
and are validly existing as corporations in good standing under the laws
of their respective places of incorporation, with corporate power and
authority to own their properties and conduct their business as described
in the Prospectus; the Company and the Subsidiary are duly qualified to do
business as foreign corporations under the corporation law of, and are in
good standing as such in, each jurisdiction in which they own or lease
substantial properties, have an office, or in which substantial business
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is conducted and such qualification is required except in any such case
where the failure to so qualify or be in good standing would not have a
material adverse effect upon the Company and the Subsidiary and their
business, condition, financial or otherwise, results of operations or
prospects taken as a whole ("Material Adverse Effect"); and no proceeding
of which the Company has knowledge has been instituted in any such
jurisdiction, revoking, limiting or curtailing, or seeking to revoke,
limit or curtail, such power and authority or qualification, except as
would not have a Material Adverse Effect.
(d) Except as disclosed in the Registration Statement, the Company
owns 100 percent of the issued and outstanding capital stock of the
Subsidiary, free and clear of any claims, liens, encumbrances or security
interests, and all of such capital stock has been duly authorized and
validly issued and is fully paid and nonassessable.
(e) The issued and outstanding shares of capital stock of the
Company as set forth in the Prospectus have been duly authorized and
validly issued, are fully paid and nonassessable, and conform to the
description thereof contained in the Prospectus.
(f) The Shares to be sold by the Company have been duly authorized
and when issued, delivered and paid for pursuant to this Agreement, will
be validly issued, fully paid and nonassessable, and will conform to the
description thereof contained in the Prospectus.
(g) The making and performance by the Company of this Agreement and
the Pricing Agreement have been duly authorized by all necessary corporate
action and will not (i) violate any provision of the Company's amended and
restated certificate of incorporation or bylaws (collectively, the
"Charter Documents"), (ii) result in the breach, or be in contravention,
of any provision of any agreement, franchise, license, indenture,
mortgage, deed of trust, or other instrument to which the Company or the
Subsidiary is a party or by which the Company or the Subsidiary or the
property of either of them may be bound or affected and that is filed as
an exhibit to the Registration Statement ("Applicable Contract") except to
the extent such violation, breach or contravention would not have a
Material Adverse Effect or affect the consummation of the offering
contemplated herein, (iii) violate, breach or be in contravention of any
order, rule or regulation applicable to the Company or the Subsidiary of
any court or regulatory body, administrative agency or other governmental
body having jurisdiction over the Company or the Subsidiary or any of
their respective properties, or any order of any court or governmental
agency or authority entered in any proceeding to which the Company or the
Subsidiary was or is now a party or by which it is bound except to the
extent such violation, breach or contravention could not have a Material
Adverse Effect or affect the consummation of the offering contemplated
herein. No consent, approval, authorization or other order of any court,
regulatory body, administrative agency or other governmental body is
required for the execution and delivery of this Agreement or the Pricing
Agreement or the consummation of the transactions
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contemplated herein or therein, except for compliance with the 1933 Act
and blue sky laws applicable to the public offering of the Shares by the
several Underwriters and clearance of such offering with the National
Association of Securities Dealers, Inc. ("NASD") and except to the extent
the failure by the Company to obtain such consent, approval, authorization
or other order would not have a Material Adverse Effect or affect the
consummation of the offering contemplated herein. This Agreement has been
duly executed and delivered by the Company.
(h) The accountants who have expressed their opinions with respect
to certain of the financial statements and schedules included in the
Registration Statement are independent accountants as required by the 1933
Act.
(i) The consolidated financial statements, together with the related
notes and schedules of the Company included in the Registration Statement,
present fairly, in all material respects, the consolidated financial
position of the Company as of the respective dates of such financial
statements, and the consolidated results of operations and cash flows of
the Company for the respective periods covered thereby, all in conformity
with generally accepted accounting principles consistently applied
throughout the periods involved, except as disclosed in the Prospectus;
and the supporting schedules included in the Registration Statement
present fairly, in all material respects, the information required to be
stated therein. The financial information set forth in the Prospectus
under "Selected Consolidated Financial Data" presents fairly on the basis
stated in the Prospectus, the information set forth therein.
The pro forma financial statements and other pro forma information
included in the Prospectus present fairly, in all material respects, the
information shown therein, have been prepared in accordance with generally
accepted accounting principles and the Commission's rules and guidelines
with respect to pro forma financial statements and other pro forma
information and have been properly compiled on the pro forma basis
described therein, and, in the opinion of the Company, the assumptions
used in the preparation thereof are reasonable and the adjustments used
therein are appropriate under the circumstances.
(j) Neither the Company nor the Subsidiary is in violation of its
Charter Documents or in default under any consent decree, or in default
with respect to any material provision of any Applicable Contract or any
other lease, loan agreement, franchise, license, permit or other contract
obligation to which it is a party which either singly or in the aggregate
would have a Material Adverse Effect and, to the Company's knowledge,
there does not exist any state of facts which constitutes an event of
default by the other party thereto as defined in such documents or which,
with notice or lapse of time or both, would constitute such an event of
default, in each case, which singly nor in the aggregate would have a
Material Adverse Effect.
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(k) There are no material legal or governmental proceedings pending,
or to the Company's knowledge, threatened to which the Company or the
Subsidiary is or may be a party or of which material property owned or
leased by the Company or the Subsidiary is or may be the subject, or which
are related to environmental or discrimination matters which are not
disclosed in the Prospectus, or which question the validity of this
Agreement or the Pricing Agreement or any action taken or to be taken
pursuant hereto or thereto.
(l) There are no holders of securities of the Company having rights
to registration thereof or preemptive rights to purchase Common Stock
except as disclosed in the Prospectus. Holders of registration rights have
waived such rights with respect to the offering being made by the
Prospectus.
(m) The Company and the Subsidiary have good and marketable title to
all the properties and assets reflected as owned in the consolidated
financial statements hereinabove described (or elsewhere in the
Prospectus), subject to no lien, mortgage, pledge, charge or encumbrance
of any kind except those, if any, reflected in such financial statements
(or elsewhere in the Prospectus) or which are not material to the Company
and the Subsidiary taken as a whole. The Company and the Subsidiary hold
their respective leased properties which are material to the Company and
the Subsidiary taken as a whole, under valid and binding leases.
(n) The Company has not taken and will not take, directly or
indirectly, any action designed to or which has constituted or which might
reasonably be expected to cause or result, under the Exchange Act or
otherwise, in stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Shares.
(o) Subsequent to the respective dates as of which information is
given in the Registration Statement and Prospectus, and except as
contemplated by the Prospectus, the Company and the Subsidiary, taken as a
whole, have not incurred any material liabilities or obligations, direct
or contingent, nor entered into any material transactions not in the
ordinary course of business and there have not been any material adverse
change in their condition (financial or otherwise) or results of
operations nor any material change in their capital stock, short-term debt
or long-term debt.
(p) There is no material document required by the 1933 Act to be
described in the Registration Statement or the Prospectus or to be filed
as an exhibit to the Registration Statement which is not described or
filed as required.
(q) Except as described in or as may otherwise result due to the
outcome of the Company's pending litigation with Boston Scientific
Corporation described in the Prospectus, the Company together with the
Subsidiary owns and possesses all right, title and interest in and to, or
has duly licensed from third parties, all patents, patent rights, trade
secrets, inventions, know-how, trademarks, trade names, copyrights,
service marks
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and other proprietary rights ("Trade Rights") material to the business of
the Company and the Subsidiary taken as a whole as currently conducted or
proposed to be conducted and described in the Prospectus. Except as
described in or as may otherwise result due to the outcome of the
Company's pending litigation with Boston Scientific Corporation described
in the Prospectus, neither the Company nor the Subsidiary has received any
notice of infringement, misappropriation or conflict from any third party
as to such material Trade Rights which has not been resolved or disposed
of and, except as described in the Prospectus, neither the Company nor the
Subsidiary has infringed, misappropriated or otherwise conflicted with
material Trade Rights of any third parties, which infringement,
misappropriation or conflict would have a Material Adverse Effect.
(r) Except as described in the Prospectus, the conduct of the
business of the Company and the Subsidiary is in compliance in all
respects with applicable federal, state, local and foreign laws and
regulations, except where the failure to be in compliance would not have a
Material Adverse Effect. The Company has no knowledge of, nor has the
Company received any notice of, investigation, product recall or
detention, warning letter, seizure or other material regulatory action by
the U.S. Food and Drug Administration or by the Department of Health and
Human Services Office of Inspector General.
(s) Except as disclosed in the Prospectus, all offers and sales of
the Company's capital stock prior to the date hereof were at all relevant
times exempt from the registration requirements of the 1933 Act and were
duly registered with or the subject of an available exemption from the
registration requirements of the applicable state securities laws.
(t) The Company has filed all necessary federal and state income and
franchise tax returns and has paid all taxes shown as due thereon, and
there is no tax deficiency that has been, or to the knowledge of the
Company might be, asserted against the Company or any of its properties or
assets that would or could reasonably be expected to have a Material
Adverse Effect.
(u) The Company has filed a registration statement on Form 8-A
pursuant to Section 12(g) of the Exchange Act to register the Common Stock
thereunder, has filed an application to list the Shares on the Nasdaq
National Market, and has received notification that the listing has been
approved, subject to notice of issuance or sale of the Shares, as the case
may be.
(v) The Company is not, and does not intend to conduct its business
in a manner in which it would become, an "investment company" as defined
in Section 3(a) of the Investment Company Act of 1940, as amended
("Investment Company Act").
(w) Neither the Company nor the Subsidiary does or intends to do
business with the government of Cuba within the meaning of Section
517,075, Florida Statutes.
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(x) The Company maintains a system of internal accounting controls,
with respect to itself and the Subsidiary, sufficient to provide
reasonable assurance that (i) transactions are executed in accordance with
management's general or specific authorization; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences. The Company maintains "disclosure controls and procedures" in
compliance with the requirements of Rule 13a-15 under the Exchange Act and
the Nasdaq National Market. The Company is otherwise in compliance in all
material respects with all applicable effective provisions of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act and is actively taking steps to ensure that it will be
in compliance with other applicable provisions of the ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act
not currently in effect upon the effectiveness of such provisions.
(y) The Company's auditors and the Audit Committee of the Board of
Directors of the Company have been advised of: (i) any significant
deficiencies and material weaknesses in the design or operation of
internal controls over financial reporting which could adversely affect
the Company's ability to record, process, summarize, and report financial
data; and (ii) any fraud, whether or not material, that involves
management or other employees who have a material role in the Company's
internal controls over financial reporting; and any material weaknesses in
internal controls that have been identified for the Company's auditors.
Since the date of the most recent evaluation of such "disclosure controls
and procedures," there have been no significant changes in internal
controls over financial reporting or in other factors that could
significantly affect internal controls over financial reporting, including
any corrective actions with regard to significant deficiencies and
material weaknesses.
(z) The Company has provided you with true, correct, and complete
copies of all documentation pertaining to any extension of credit in the
form of a personal loan made, directly or indirectly, by the Company to
any director or executive officer of the Company, or to any family member
or affiliate of any director or executive officer of the Company that are
currently outstanding.
(aa) The operations of the Company and the Subsidiary are and have
been conducted at all times in compliance with applicable financial
recordkeeping and reporting requirements of the Currency and Foreign
Transactions Reporting Act of 1970, as amended, the money laundering
statutes of all jurisdictions, the rules and regulations thereunder and
any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively, the
"Money Laundering Laws") and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any arbitrator
involving the
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Company or the Subsidiary with respect to the Money Laundering Laws is
pending, or to the best knowledge of the Company, threatened.
(bb) Neither the Company nor the Subsidiary nor, to the knowledge of
the Company, any director, officer, agent, employee or affiliate of the
Company or the Subsidiary is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S. Treasury
Department ("OFAC"); and the Company will not directly or indirectly use
the proceeds of the offering, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or other
person or entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by OFAC.
SECTION 3. Representations and Warranties of the Underwriters. The
Representatives, on behalf of the several Underwriters, represent and warrant to
the Company that the information set forth (a) on the cover page of the
Prospectus with respect to price, underwriting discount and terms of the
offering and (b) under paragraphs nine through fourteen in "Underwriting"
in the Prospectus was furnished to the Company by and on behalf of the
Underwriters for use in connection with the preparation of the Registration
Statement and is correct and complete in all material respects.
SECTION 4. Purchase, Sale and Delivery of Shares. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Underwriters named in Schedule A hereto, and the Underwriters agree, severally
and not jointly, to purchase the Firm Shares from the Company at the price per
share set forth in the Pricing Agreement. The obligation of each Underwriter to
the Company shall be to purchase from the Company that number of Shares set
forth opposite the name of such Underwriter in Schedule A hereto, subject to
adjustment in accordance with Section 11 hereof. The initial public offering
price and the purchase price shall be set forth in the Pricing Agreement.
At 9:00 A.M., Chicago Time, on the fourth business day, if permitted under
Rule 15c6-1 under the Exchange Act, (or the third business day if required under
Rule 15c6-1 under the Exchange Act or unless postponed in accordance with the
provisions of Section 12 of this Agreement) following the date the Registration
Statement becomes effective (or, if the Company has elected to rely upon Rule
430A, the fourth business day, if permitted under Rule 15c6-1 under the Exchange
Act, (or the third business day if required under Rule 15c6-1 under the Exchange
Act) after execution of the Pricing Agreement), or such other time not later
than ten business days after such date as shall be agreed upon by the
Representatives and the Company, the Company will deliver to you at the offices
of counsel for the Underwriters or through the facilities of The Depository
Trust Company for the accounts of the several Underwriters, certificates
representing the Firm Shares to be sold by it against payment of the purchase
price therefor by delivery of federal or other immediately available funds, by
wire transfer or otherwise, to the Company. Such time of delivery and payment is
herein referred to as the "First Closing Date." The certificates for the Firm
Shares so to be delivered will be in such denominations and registered in such
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names as you request by notice to the Company prior to 10:00 A.M., Chicago Time,
on the second full business day preceding the First Closing Date, and will be
made available at the Company's expense for checking and packaging by the
Representatives at 10:00 A.M., Chicago Time, on the business day preceding the
First Closing Date. Payment for the Firm Shares so to be delivered shall be made
at the time and in the manner described above to an account designated by the
Company prior to the First Closing Date.
In addition, on the basis of the representations, warranties and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company hereby grants an option to the several Underwriters to
purchase, severally and not jointly, up to an aggregate of ________ Option
Shares, at the same purchase price per share to be paid for the Firm Shares, for
use solely in covering any overallotments made by the Underwriters in the sale
and distribution of the Firm Shares. The option granted hereunder may be
exercised at any time (but not more than once) within 30 days after the date of
the initial public offering upon notice by you to the Company setting forth the
aggregate number of Option Shares as to which the Underwriters are exercising
the option, the names and denominations in which the certificates for such
shares are to be registered and the time and place at which such certificates
will be delivered. Such time of delivery (which may not be earlier than the
First Closing Date), being herein referred to as the "Second Closing Date,"
shall be determined by you, but if at any time other than the First Closing
Date, shall not be earlier than three nor later than 10 full business days after
delivery of such notice of exercise. The number of Option Shares to be purchased
by each Underwriter shall be determined by multiplying the number of Option
Shares to be sold by the Company pursuant to such notice of exercise by a
fraction, the numerator of which is the number of Firm Shares to be purchased by
such Underwriter as set forth opposite its name in Schedule A and the
denominator of which is the total number of Firm Shares (subject to such
adjustments to eliminate any fractional share purchases as you in your absolute
discretion may make). Certificates for the Option Shares will be made available
at the Company's expense for checking and packaging at 10:00 A.M., Chicago Time,
on the first full business day preceding the Second Closing Date. The manner of
payment for and delivery of the Option Shares shall be the same as for the Firm
Shares as specified in the preceding paragraph.
You have advised the Company that each Underwriter has authorized you to
accept delivery of its Shares, to make payment and to acknowledge receipt
therefor. You, individually and not as the Representatives of the Underwriters,
may make payment for any Shares to be purchased by any Underwriter whose funds
shall not have been received by you by the First Closing Date or the Second
Closing Date, as the case may be, for the account of such Underwriter, but any
such payment shall not relieve such Underwriter from any obligation hereunder.
SECTION 5. Covenants of the Company. The Company covenants and agrees
with each Underwriter that:
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(a) The Company will advise you promptly of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or of the institution of any proceedings for that
purpose, or of any notification of the suspension of qualification of the
Shares for sale in any jurisdiction or the initiation or threatening of
any proceedings for that purpose, and will also advise you promptly of any
request of the Commission for amendment or supplement of the Registration
Statement, of any preliminary prospectus or of the Prospectus, or for
additional information.
(b) The Company will give you notice of its intention to file or
prepare any amendment to the Registration Statement (including any
post-effective amendment) or any Rule 462(b) Registration Statement or any
amendment or supplement to the Prospectus (including any revised
prospectus which the Company proposes for use by the Underwriters in
connection with the offering of the Shares which differs from the
prospectus on file at the Commission at the time the Registration
Statement became or becomes effective, whether or not such revised
prospectus is required to be filed pursuant to Rule 424(b) and any term
sheet as contemplated by Rule 434) and will furnish you with copies of any
such amendment or supplement a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file any such
amendment or supplement or use any such prospectus to which you or counsel
for the Underwriters shall reasonably object.
(c) If the Company elects to rely on Rule 434 of the 1933 Act, the
Company will prepare a term sheet that complies with the requirements of
Rule 434. If the Company elects not to rely on Rule 434, the Company will
provide the Underwriters with copies of the form of prospectus, in such
numbers as the Underwriters may reasonably request, and file with the
Commission such prospectus in accordance with Rule 424(b) of the 1933 Act
by the close of business in New York City on the second business day
immediately succeeding the date of the Pricing Agreement. If the Company
elects to rely on Rule 434, the Company will provide the Underwriters with
copies of the form of Rule 434 Prospectus, in such numbers as the
Underwriters may reasonably request, by the close of business in New York
on the business day immediately succeeding the date of the Pricing
Agreement.
(d) If at any time when a prospectus relating to the Shares is
required to be delivered under the 1933 Act any event occurs as a result
of which the Prospectus, including any amendments or supplements, would
include an untrue statement of a material fact, or omit to state any
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, or if it is necessary at any time to amend the
Prospectus, including any amendments or supplements thereto and including
any revised prospectus which the Company proposes for use by the
Underwriters in connection with the offering of the Shares which differs
from the prospectus on file with the Commission at the time of
effectiveness of the Registration Statement, whether or not such
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revised prospectus is required to be filed pursuant to Rule 424(b) to
comply with the 1933 Act, the Company promptly will advise you thereof and
will promptly prepare and file with the Commission an amendment or
supplement which will correct such statement or omission or an amendment
which will effect such compliance; and, in case any Underwriter is
required to deliver a prospectus nine months or more after the effective
date of the Registration Statement, the Company upon request, but at the
expense of such Underwriter, will prepare promptly such prospectus or
prospectuses as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the 1933 Act.
(e) Neither the Company nor the Subsidiary will, acquire any capital
stock of the Company prior to the earlier of the Second Closing Date or
termination or expiration of the option relating to the Option Shares nor
will the Company declare or pay any dividend or make any other
distribution upon the Common Stock payable to stockholders of record on a
date prior to the earlier of the Second Closing Date or termination or
expiration of the option relating to the Option Shares, except in either
case as contemplated by the Prospectus.
(f) Not later than ____________, 2006 the Company will make
generally available to its security holders an earnings statement (which
need not be audited) covering a period of at least 12 months beginning
after the effective date of the Registration Statement, which will satisfy
the provisions of the last paragraph of Section 11(a) of the 1933 Act.
(g) During such period as a prospectus is required by law to be
delivered in connection with offers and sales of the Shares by an
Underwriter or dealer, the Company will furnish to you at its expense,
subject to the provisions of subsection (d) hereof, copies of the
Registration Statement, the Prospectus, each preliminary prospectus and
all amendments and supplements to any such documents in each case as soon
as available and in such quantities as you may reasonably request, for the
purposes contemplated by the 1933 Act.
(h) The Company will cooperate with the Underwriters in qualifying
or registering the Shares for sale under the state securities laws of such
jurisdictions as you designate, and will continue such qualifications in
effect so long as reasonably required for the distribution of the Shares.
The Company shall not be required to qualify as a foreign corporation or
to file a general consent to service of process in any such jurisdiction
where it is not currently qualified or where it would be subject to
taxation as a foreign corporation.
(i) During the period of five years hereafter, the Company will
furnish you and each of the other Underwriters with a copy (i) as soon as
practicable after the filing thereof, of each report filed by the Company
with the Commission, any securities exchange or the NASD; (ii) as soon as
practicable after the release thereof, of each material press release in
respect of the Company; and (iii) as soon as available, of each report of
the Company mailed to stockholders.
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(j) The Company will use the net proceeds received by it from the
sale of the Shares being sold by it in the manner specified in the
Prospectus under the caption "Use of Proceeds."
(k) If, at the time of effectiveness of the Registration Statement,
any information shall have been omitted therefrom in reliance upon Rule
430A and/or Rule 434, then immediately following the execution of the
Pricing Agreement, the Company will prepare, and file or transmit for
filing with the Commission in accordance with such Rule 430A, Rule 424(b)
and/or Rule 434, copies of an amended Prospectus, or, if required by such
Rule 430A and/or Rule 434, a post-effective amendment to the Registration
Statement (including an amended Prospectus), containing all information so
omitted. If required, the Company will prepare and file, or transmit for
filing, a Rule 462(b) Registration Statement not later than the date of
the execution of the Pricing Agreement. If a Rule 462(b) Registration
Statement is filed, the Company shall make payment of, or arrange for
payment of, the additional registration fee owing to the Commission
required by Rule 111 under the 1933 Act.
(l) The Company will comply with all registration, filing and
reporting requirements of the Exchange Act which from time to time may be
applicable to the Company and will file with the Commission in a timely
manner such information as may be required by Rule 463 of the 1933 Act and
will furnish you copies of any such reports as soon as practicable after
the filing thereof.
(m) The Company agrees not to sell, contract to sell or otherwise
dispose of, directly or indirectly, any Common Stock or securities
convertible into Common Stock, for a period of 180 days after this
Agreement becomes effective without the prior written consent of the
Representatives, except (i) Common Stock issued pursuant to the exercise
or conversion of options, warrants or convertible securities described in
the Prospectus whether outstanding as of the date of the Prospectus or
granted or issued subsequent to such date, (ii) the grant, in the ordinary
course of business, to employees and/or directors of options to purchase
shares of Common Stock pursuant to the agreements or employee benefit
plans described in the Prospectus, or (iii) in connection with the
offering of the Shares. The Company has obtained similar lock-up
agreements, subject to certain exceptions, from each of its current and
former officers and directors and certain of its stockholders and option
holders and will maintain, and not grant waivers of, such agreements at
all times for 180 days after this Agreement becomes effective.
SECTION 6. Payment of Expenses. Whether or not the transactions
contemplated hereunder are consummated or this Agreement becomes effective as to
all of its provisions or is terminated, the Company agrees to pay (i) all costs,
fees and expenses (other than legal fees and disbursements of counsel for the
Underwriters and the expenses incurred by the Underwriters) incurred in
connection with the performance of the Company's obligations hereunder,
including without limiting the generality of the
-13-
foregoing, all fees and expenses of legal counsel for the Company and of the
Company's independent accountants, all costs and expenses incurred in connection
with the preparation, printing, filing and distribution of the Registration
Statement, each preliminary prospectus and the Prospectus (including all
exhibits and financial statements) and all amendments and supplements provided
for herein, this Agreement, the Pricing Agreement and any blue sky memorandum,
(ii) all costs, fees and expenses (including legal fees and disbursements of
counsel for the Underwriters) incurred by the Underwriters in connection with
qualifying or registering all or any part of the Shares for offer and sale under
applicable state securities laws, including the preparation of a blue sky
memorandum relating to the Shares and clearance of such offering with the NASD;
and (iii) all fees and expenses of the Company's transfer agent, printing of the
certificates for the Shares and all transfer taxes, if any, with respect to the
sale and delivery of the Shares to the several Underwriters. It is understood,
however, that, except as provided in this Section, the Underwriters will pay
their own costs and expenses other than those specified in this Section 6
including fees of their counsel (other than as contemplated in clause (ii) of
this Section 6), stock transfer taxes or resale of any of the shares by them,
and any advertising expenses connected with any offer they may make.
SECTION 7. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Firm Shares
on the First Closing Date and, to the extent the Underwriters have elected to
purchase the Option Shares, the Option Shares on the Second Closing Date shall
be subject to the accuracy of the representations and warranties on the part of
the Company herein set forth as of the date hereof and as of the First Closing
Date or the Second Closing Date, as the case may be, to the accuracy of the
statements of officers of the Company made pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder, and to the
following additional conditions:
(a) The Registration Statement shall have become effective either
prior to the execution of this Agreement or not later than 1:00 P.M.,
Chicago Time, on the first full business day after the date of this
Agreement, or such later time as shall have been consented to by you but
in no event later than 1:00 P.M., Chicago Time, on the third full business
day following the date hereof; and prior to the First Closing Date or the
Second Closing Date, as the case may be, no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or shall be
pending or, to the knowledge of the Company or you, shall be contemplated
by the Commission. If the Company has elected to rely upon Rule 430A
and/or Rule 434, the information concerning the initial public offering
price of the Shares and price-related information shall have been
transmitted to the Commission for filing pursuant to Rule 424(b) within
the prescribed period and the Company will provide evidence satisfactory
to the Representatives of such timely filing (or a post-effective
amendment providing such information shall have been filed and declared
effective in accordance with the requirements of Rules 430A and 424(b)).
If a Rule 462(b) Registration Statement is required, such Registration
Statement shall have been transmitted to the
-14-
Commission for filing and become effective within the prescribed time
period and, prior to the First Closing Date, the Company shall have
provided evidence of such filing and effectiveness in accordance with Rule
462(b).
(b) The Shares shall have been qualified for sale under the state
securities laws of such states as shall have been specified by the
Representatives.
(c) The legality and sufficiency of the authorization, issuance and
sale or transfer and sale of the Shares hereunder, the validity and form
of the certificates representing the Shares, the execution and delivery of
this Agreement and the Pricing Agreement, and all corporate proceedings
and other legal matters incident thereto, and the form of the Registration
Statement and the Prospectus (except financial statements) shall have been
approved by counsel for the Underwriters exercising reasonable judgment.
(d) You shall not have advised the Company that the Registration
Statement or the Prospectus or any amendment or supplement thereto,
contains an untrue statement of fact, which, in the opinion of counsel for
the Underwriters, is material or omits to state a fact which, in the
opinion of such counsel, is material and is required to be stated therein
or necessary to make the statements therein not misleading.
(e) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred any change, or any development involving a
prospective change, in or affecting particularly the business or
properties of the Company or the Subsidiary, whether or not arising in the
ordinary course of business, which, in the judgment of the
Representatives, makes it impractical or inadvisable to proceed with the
public offering or purchase of the Shares as contemplated hereby.
(f) There shall have been furnished to you, as Representatives of
the Underwriters, on the First Closing Date or the Second Closing Date, as
the case may be, except as otherwise expressly provided below:
(i) An opinion of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP
("Orrick"), counsel for the Company, addressed to the Underwriters
and dated the First Closing Date or the Second Closing Date, as the
case may be, to the effect that:
(1) the Company is a corporation duly incorporated,
validly existing and in good standing under the laws of the
State of Delaware with corporate power and authority to own
its properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to do business
as a foreign corporation under the corporation law of, and is
in good standing as such in,
-15-
every jurisdiction where the ownership or leasing of property,
or the conduct of its business requires such qualification
except where the failure so to qualify would not have a
material adverse effect upon the condition (financial or
otherwise) or results of operations of the Company and the
Subsidiary taken as a whole;
(2) an opinion to the same general effect as clause (1)
of this subparagraph (i) in respect of each direct and
indirect subsidiary of the Company;
(3) the authorized capital stock of the Company, of
which there is outstanding the amount set forth in the
Registration Statement and Prospectus (except for subsequent
issuances, if any, pursuant to stock options or other rights
referred to in the Prospectus), conforms as to legal matters
in all material respects to the description thereof in the
Registration Statement and Prospectus;
(4) there are no preemptive rights or other similar
rights to subscribe for or purchase securities of the Company
created under the Company's Charter Documents, the Delaware
General Corporation Law or any other Applicable Contract;
(5) the Shares to be delivered hereunder have been duly
authorized;
(6) the issued and outstanding capital stock of the
Company has been duly authorized and validly issued and is
fully paid and nonassessable;
(7) all of the issued and outstanding capital stock of
each subsidiary of the Company has been duly authorized,
validly issued and is fully paid and nonassessable, and,
except as disclosed in the Registration Statement, the Company
owns directly or indirectly 100 percent of the outstanding
capital stock of each subsidiary, and to the best knowledge of
such counsel, such stock is owned free and clear of any
claims, liens, encumbrances or security interests;
(8) the specimen certificates attached as an exhibit to
the Company's Registration Statement on Form 8A evidencing the
Shares to be delivered hereunder are in due and proper form,
and when duly countersigned by the Company's transfer agent
and delivered to you or upon your order against payment of the
agreed consideration therefor in accordance with the
provisions of this Agreement and the Pricing Agreement, the
Shares represented thereby will be validly issued, fully paid
and nonassessable;
-16-
(9) based solely on verbal advice from the staff of the
Commission, the Registration Statement has become effective
under the 1933 Act, and, to the knowledge of such counsel, 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 contemplated under the
1933 Act.
(10) the Registration Statement (including the
information deemed to be part of the Registration Statement at
the time of effectiveness pursuant to Rule 430A(b) and/or Rule
434, if applicable), the Prospectus and each amendment or
supplement thereto (except for the financial statements and
other statistical or financial data included therein as to
which such counsel need express no opinion) comply as to form
in all material respects with the requirements of the 1933
Act.
(11) the statements in the Registration Statement and
the Prospectus summarizing statutes, rules and regulations are
accurate and fairly and correctly present the information
required to be presented by the 1933 Act or the rules and
regulations thereunder, in all material respects and such
counsel does not know of any statutes, rules and regulations
required to be described or referred to in the Registration
Statement or the Prospectus that are not described or referred
to therein as required;
(12) the statements under the captions "Management -
Limitation of Liability and Indemnification of Officers and
Directors," "Executive Compensation - Employee Benefit Plans,"
"Certain Relationships and Related Party Transactions,"
"Description of Capital Stock" and "Shares Eligible for Future
Sale" in the Prospectus, insofar as such statements constitute
a summary of documents referred to therein or matters of law,
are accurate summaries and fairly and correctly present, in
all material respects, the information called for with respect
to such documents and matters;
(13) this Agreement and the Pricing Agreement and the
performance of the Company's obligations hereunder and
thereunder have been duly authorized by all necessary
corporate action and this Agreement and the Pricing Agreement
have been duly executed and delivered by and on behalf of the
Company, and are legal, valid and binding agreements of the
Company enforceable in accordance with their terms, except as
enforceability of the same may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights and by the exercise of judicial
discretion in accordance with general principles applicable to
equitable and similar
-17-
remedies and except as to those provisions relating to
indemnities for liabilities arising under the 1933 Act as to
which no opinion need be expressed;
(14) to such counsel's knowledge, there is no litigation
or governmental proceeding before any court, public body or
board pending or threatened against, or involving the assets,
properties or business of, the Company which is required to be
disclosed in the Registration Statement which is not so
disclosed;
(15) to such counsel's knowledge, there are no leases,
indenture, instruments or other agreements required to be
filed as exhibits to, or described in, the Registration
Statement other than those filed with the Commission as
exhibits to, or described in, the Registration Statement;
(16) no consent, approval, authorization or other order
of any court, regulatory body, administrative agency or other
governmental body which has not been obtained or taken and is
not in full force and effect is required for the Company's
execution, delivery and performance of this Agreement and for
the consummation by the Company of the transactions
contemplated hereby and by the Prospectus, except as required
by the 1933 Act and applicable state or foreign securities
laws (as to which such counsel need not express any opinion),
and from the NASD Inc.;
(17) the execution and performance of this Agreement
will not contravene any of the provisions of, or result in a
default under, any agreement, filed as an exhibit to the
Registration Statement or violate any of the provisions of the
charter or bylaws of the Company or the Subsidiary or, to such
counsel's knowledge, violate any statute, order, rule or
regulation of any United States regulatory or governmental
body having jurisdiction over the Company or the Subsidiary;
and
(18) the Company is not, and immediately upon receipt of
payment for the Shares will not be, an "investment company" or
a person "controlled by" an "investment company" within the
meaning of the Investment Company Act.
(19) except as disclosed in the Prospectus, there are no
Applicable Contracts or, to the knowledge of such counsel, any
other contracts or agreements between the Company and any
other person currently in effect, granting such person the
right to have any equity or debt securities registered for
-18-
sale under the Registration Statement or included in the
offering contemplated hereby.
In addition, the Orrick opinion letter shall include a
paragraph to the effect that, in addition, such counsel has
(i) participated in conferences concerning the Registration
Statement and the Prospectus, (ii) examined copies of the
exhibits filed with the Registration Statement, copies of all
documents incorporated by reference in the Registration
Statement or Prospectus as of the date of such opinion and the
other items listed in the letter, and (iii) considered the
matters required to be stated in the Registration Statement
and the Prospectus and the statements contained therein,
although such counsel has not independently verified the
accuracy, completeness or fairness of such statements (except
to the extent otherwise stated in paragraph (__) above and
other than the procedures described above), and that, subject
to the foregoing, such counsel will confirm to us, as a matter
of fact and not opinion, that, on the basis of the information
they gained in the course of performing the services referred
to above, nothing came to their attention that caused them to
believe that the Registration Statement, as of its effective
date, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, or
that the Prospectus, as of its issue date or as of the First
Closing Date or Second Closing Date, contained or contains an
untrue statement of a material fact or omitted or omits to
state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading
(it being understood that such counsel is not requested to and
will not make any comment in this paragraph with respect to
the financial statements and schedules and other financial and
statistical data contained in the Registration Statement or
the Prospectus).
In rendering such opinion, such counsel may state that they are relying
upon the certificate of an officer of the Company, as to the number of
shares of Common Stock at any time or times outstanding, and that insofar
as their opinion under clause (9) above relates to the accuracy and
completeness of the Prospectus and Registration Statement, it is based
upon a general review with the Company's representatives and independent
accountants of the information contained therein, without independent
verification by such counsel of the accuracy or completeness of such
information. Such counsel may also rely upon the opinions of other
competent counsel and, as to factual matters, on certificates of officers
of the Company and of state officials, in which case their opinion is to
state that they are so doing and copies of said opinions or certificates
are to be attached to the opinion unless said opinions or certificates
(or, in the case of certificates,
-19-
the information therein) have been furnished to the Representatives in
other form. All such opinions, certificates, letters and documents shall
be in compliance with the provisions hereof only if they are satisfactory
to you and to ▇▇▇▇▇▇▇▇▇ Will & ▇▇▇▇▇ LLP, counsel for the Underwriters.
(ii) An opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇ LLP, special and regulatory
counsel for the Company, addressed to the Underwriters and dated the
First Closing Date or the Second Closing Date, as the case may be,
to the effect that:
(1) the statements under the captions "Risk Factors - If
we fail to obtain, or experience significant delays in
obtaining, FDA clearances or approvals for our future products
or product enhancements, our ability to commercially
distribute and market our products could suffer," "Risk
Factors - Modification to our marketed products may require
new 510(k) clearances or premarket approvals, or may require
us to cease marketing or recall the modified products until
clearances are obtained," "Risk Factors - If we or our
suppliers fail to comply with the FDA's quality system
regulations, the manufacture of our products could be
delayed," "Risk Factors - If interventionalists are unable to
obtain sufficient reimbursement for procedures performed with
our products, it is unlikely that our products will be widely
used," "Business - The Micrus Solution," "Business - Micrus
Strategy - Introduce Bioactive Cerebral Vascular Products,"
"Business - Products - Microcoils - Cerecyte," "Business -
Government Regulation" and "Business - Third Party
Reimbursement" in the Prospectus, insofar as such statements
constitute a summary of documents referred to therein, or
matters of law, are accurate summaries and fairly and
correctly present, in all material respects, the information
called for with respect to such documents and matters and all
claims in such statements relating to performance,
characteristics or uses of each product are consistent with
the regulatory status of the product under the applicable
510(k) as cleared by the FDA;
(2) to such counsel's knowledge, there is no
investigation, product recall or detention, warning letter,
seizure or other material regulatory action by FDA or by the
Department of Health and Human Services Office of Inspector
General pending or threatened against the Company;
(3) the statements under the captions "Risk Factors -
Our international operations and our relationships with
physicians and other consultants requires us to comply with a
number of U.S. and international regulations" and "Business -
Litigation - FCPA Investigation" in the Prospectus,
-20-
insofar as such statements constitute a summary of documents
referred to therein, or matters of law, are accurate summaries
and fairly and correctly present, in all material respects,
the information called for with respect to such documents and
matters;
(4) no facts have come to such counsel's attention that
causes them to believe that either the Registration Statement
(including the information deemed to be part of the
Registration Statement at the time of effectiveness pursuant
to Rule 430A(b) and/or Rule 434, if applicable) or the
Prospectus, or the Registration Statement or the Prospectus as
amended or supplemented (except as aforesaid, solely with
respect to the statements under the captions set forth in
paragraphs one and three hereof), as of their respective
effective or issue dates, contained any untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading or that the Prospectus as amended or
supplemented, if applicable, solely with respect to the
statements under the captions set forth in paragraphs one and
three hereof, as of the First Closing Date or the Second
Closing Date, as the case may be, contained any untrue
statement of a material fact or omitted to state any material
fact necessary to make the statements therein not misleading
in light of the circumstances under which they were made;
(5) the statements in the Registration Statement and the
Prospectus summarizing statutes, rules and regulations, solely
with respect to the statements under the captions set forth in
paragraphs one and three hereof, are accurate and fairly and
correctly present the information required to be presented by
the 1933 Act or the rules and regulations thereunder, in all
material respects and such counsel does not know of any
statutes, rules and regulations required to be described or
referred to in the Registration Statement or the Prospectus,
solely with respect to the statements under the captions set
forth in paragraphs one and three hereof, that are not
described or referred to therein as required; and
(6) to such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened required to be
described in the Prospectus, solely with respect to the
statements under the captions set forth in paragraphs one and
three hereof, which are not described as required, nor any
contracts or documents, solely with respect to the statements
under the captions set forth in paragraphs one and three
hereof, of a character required to be described in the
Registration Statement or Prospectus or to be filed as
exhibits to the Registration Statement which are not described
or filed, as required.
-21-
In rendering such opinion, such counsel may state that (a) insofar as
their opinion under paragraphs (4), (5) and (6) above relates to the
accuracy and completeness of the Prospectus and Registration Statement,
it is based upon a general review with the Company's representatives and
independent accountants of the information contained under the captions
set forth in paragraphs one and three above, without independent
verification by such counsel of the accuracy or completeness of such
information, (b) such counsel ceased representing the Company in
securities matters on February __, 2005, and there shall be no deemed
imputed knowledge to such counsel as a result of such prior
representation. Such counsel may also rely upon the opinions of other
competent counsel and, as to factual matters, on certificates of officers
of the Company and of state officials, in which case their opinion is to
state that they are so doing and copies of said opinions or certificates
are to be attached to the opinion unless said opinions or certificates
(or, in the case of certificates, the information therein) have been
furnished to the Representatives in other form.
(iii) An opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ and ▇▇▇▇▇▇, LLP,
intellectual property counsel for the Company, addressed to the
Underwriters and dated the First Closing Date or the Second Closing
Date, as the case may be, in form and substance acceptable to the
Underwriters.
(iv) An opinion of Weil, Gotshal & ▇▇▇▇▇▇, LLP, intellectual
property litigation counsel for the Company, addressed to the
Underwriters and dated the First Closing Date or the Second Closing
Date, as the case may be, in form and substance acceptable to the
Underwriters.
(v) An opinion of ▇▇▇▇▇▇▇▇▇▇ Law Group, LLP, special counsel
for the Company, or Orrick addressed to the Underwriters and dated
the First Closing Date or the Second Closing Date, as the case may
be, to the effect that except as disclosed in the Prospectus, to
such counsel's knowledge, all offers and sales of the Company's
capital stock since June 30, 2001 were at all relevant times exempt
from the registration requirements of the 1933 Act and were duly
registered or the subject of an available exemption from the
registration requirements of the applicable state securities or blue
sky laws.
In rendering such opinion, such counsel may state that they are
relying upon the certificate of an officer of the Company, as to the
number of shares of Common Stock at any time or times outstanding.
Such counsel may also rely upon the opinions of other competent
counsel and, as to factual matters, on certificates of officers of
the Company and of state officials, in which case their opinion is
to state that they are so doing and
-22-
copies of said opinions or certificates are to be attached to the
opinion unless said opinions or certificates (or, in the case of
certificates, the information therein) have been furnished to the
Representatives in other form. All such opinions, certificates,
letters and documents shall be in compliance with the provisions
hereof only if they are satisfactory to you and to ▇▇▇▇▇▇▇▇▇ Will &
▇▇▇▇▇ LLP, counsel for the Underwriters.
(vi) Such opinion or opinions of ▇▇▇▇▇▇▇▇▇ Will & ▇▇▇▇▇ LLP,
counsel for the Underwriters, dated the First Closing Date or the
Second Closing Date, as the case may be, with respect to the
incorporation of the Company, the validity of the Shares, the
Registration Statement and the Prospectus and other related matters
as you may reasonably require, and the Company shall have furnished
to such counsel such documents and shall have exhibited to them such
papers and records as they request for the purpose of enabling them
to pass upon such matters.
(vii) A certificate of the chief executive officer and the
principal financial officer of the Company, dated the First Closing
Date or the Second Closing Date, as the case may be, to the effect
that:
(1) the representations and warranties of the Company
set forth in Section 2 of this Agreement are true and correct
as of the date of this Agreement and as of the First Closing
Date or the Second Closing Date, as the case may be, and the
Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or
prior to such Closing Date; and
(2) the Commission has not issued an order preventing or
suspending the use of the Prospectus or any preliminary
prospectus filed as a part of the Registration Statement or
any amendment thereto; no stop order suspending the
effectiveness of the Registration Statement has been issued;
and to the best knowledge of the respective signers, no
proceedings for that purpose have been instituted or are
pending or contemplated under the 1933 Act.
The delivery of the certificate provided for in this
subparagraph shall be and constitute a representation and warranty
of the Company as to the facts required in the immediately foregoing
clauses (1) and (2) of this subparagraph to be set forth in said
certificate.
(viii) At the time the Pricing Agreement is executed and also
on the First Closing Date or the Second Closing Date, as the case
may be, there shall be delivered to you a letter addressed to you,
as Representatives of the Underwriters, from
-23-
PricewaterhouseCoopers LLP, independent accountants, the first one
to be dated the date of the Pricing Agreement, the second one to be
dated the First Closing Date and the third one (in the event of a
second closing) to be dated the Second Closing Date, in form and
substance heretofore approved by the Representatives. There shall
not have been any change or decrease specified in the letters
referred to in this subparagraph which makes it impractical or
inadvisable in the judgment of the Representatives to proceed with
the public offering or purchase of the Shares as contemplated
hereby.
(ix) Such further certificates and documents as you may
reasonably request.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are satisfactory to you and
to ▇▇▇▇▇▇▇▇▇ Will & ▇▇▇▇▇ LLP, counsel for the Underwriters, which approval
shall not be unreasonably withheld. The Company shall furnish you with such
manually signed or conformed copies of such opinions, certificates, letters and
documents as you request.
If any condition to the Underwriters' obligations hereunder to be
satisfied prior to or at the First Closing Date is not so satisfied, this
Agreement at your election will terminate upon notification to the Company
without liability on the part of any Underwriter or the Company, except for the
expenses to be paid or reimbursed by the Company pursuant to Sections 6 and 8
hereof and except to the extent provided in Section 10 hereof.
SECTION 8. Reimbursement of Underwriters' Expenses. If the sale to the
Underwriters of the Shares on the First Closing Date is not consummated because
any condition of the Underwriters' obligations hereunder is not satisfied or
because of any refusal, inability or failure on the part of the Company to
perform any agreement herein or to comply with any provision hereof, unless such
failure to satisfy such condition or to comply with any provision hereof is due
to the default or omission of any Underwriter, the Company agrees to reimburse
you and the other Underwriters upon demand for all out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
reasonably incurred by you and them in connection with the proposed purchase and
the sale of the Shares. Any such termination shall be without liability of any
party to any other party except that the provisions of this Section, Section 6
and Section 10 shall at all times be effective and shall apply.
SECTION 9. Effectiveness of Registration Statement. You and the Company
will use your and its best efforts to cause the Registration Statement to become
effective, if it has not yet become effective, and to prevent the issuance of
any stop order suspending the effectiveness of the Registration Statement and,
if such stop order be issued, to obtain as soon as possible the lifting thereof.
SECTION 10. Indemnification. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of the 1933
-24-
Act or the Exchange Act against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter or such controlling person may
become subject under the 1933 Act, the Exchange Act or other federal or state
statutory law or regulation, at common law or otherwise (including in settlement
of any litigation if such settlement is effected with the written consent of the
Company, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
including the information deemed to be part of the Registration Statement at the
time of effectiveness pursuant to Rule 430A and/or Rule 434, if applicable, any
preliminary prospectus, the Prospectus, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading; and will reimburse each Underwriter and each
such controlling person for any legal or other expenses reasonably incurred by
such Underwriter or such controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that (i) any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
the Registration Statement, any preliminary prospectus, the Prospectus or any
amendment or supplement thereto in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter through
the Representatives, specifically for use therein; or (ii) if such statement or
omission was contained or made in any preliminary prospectus and corrected in
the Prospectus and (1) any such loss, claim, damage or liability suffered or
incurred by any Underwriter (or any person who controls any Underwriter)
resulted from an action, claim or suit by any person who purchased Shares which
are the subject thereof from such Underwriter in the offering and (2) such
Underwriter failed to deliver or provide a copy of the Prospectus to such person
at or prior to the confirmation of the sale of such Shares in any case where
such delivery is required by the 1933 Act. In addition to its other obligations
under this Section 10(a), the Company agrees that, as an interim measure during
the pendency of any claim, action, investigation, inquiry or other proceeding
arising out of or based upon any statement or omission, or any alleged statement
or omission, described in this Section 10(a), it will reimburse the Underwriters
on a monthly basis for all reasonable legal and other expenses incurred in
connection with investigating or defending any such claim, action,
investigation, inquiry or other proceeding, notwithstanding the absence of a
judicial determination as to the propriety and enforceability of the Company's
obligation to reimburse the Underwriters for such expenses and the possibility
that such payments might later be held to have been improper by a court of
competent jurisdiction; provided, however, if it is held by a court of competent
jurisdiction that the matter for which such expenses were incurred and paid by
the Company is not a matter to which the Underwriters are entitled to such
expense reimbursement by the Company, the Underwriters shall promptly reimburse
the Company for any such expense previously paid or reimbursed to the
Underwriters. This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(b) Each Underwriter will severally indemnify and hold harmless the
Company, each of its directors, each of its officers who signed the Registration
Statement and each person, if any, who
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controls the Company within the meaning of the 1933 Act or the Exchange Act,
against any losses, claims, damages or liabilities to which the Company, or any
such director, officer or controlling person may become subject under the 1933
Act, the Exchange Act or other federal or state statutory law or regulation, at
common law or otherwise (including in settlement of any litigation, if such
settlement is effected with the written consent of such Underwriter), insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue or alleged untrue statement of any
material fact contained in the Registration Statement, any preliminary
prospectus, the Prospectus, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement, any preliminary prospectus, the
Prospectus, or any amendment or supplement thereto in reliance upon and in
conformity with Section 3 of this Agreement or any other written information
furnished to the Company by such Underwriter through the Representatives
specifically for use in the preparation thereof; and will reimburse any legal or
other expenses reasonably incurred by the Company, or any such director, officer
or controlling person in connection with investigating or defending any such
loss, claim, damage, liability or action. In addition to their other obligations
under this Section 10(b), the Underwriters agree that, as an interim measure
during the pendency of any claim, action, investigation, inquiry or other
proceeding arising out of or based upon any statement or omission, or any
alleged statement or omission, described in this Section 10(b), they will
reimburse the Company on a monthly basis for all reasonable legal and other
expenses incurred in connection with investigating or defending any such claim,
action, investigation, inquiry or other proceeding, notwithstanding the absence
of a judicial determination as to the propriety and enforceability of the
Underwriters' obligation to reimburse the Company for such expenses and the
possibility that such payments might later be held to have been improper by a
court of competent jurisdiction; provided, however, if it is held by a court of
competent jurisdiction that the matter for which such expenses were incurred and
paid by the Underwriters is not a matter to which the Company is entitled to
such expense reimbursement by the Underwriters, the Company shall promptly
reimburse the Underwriters for any such expense previously paid or reimbursed to
the Company. This indemnity agreement will be in addition to any liability which
such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 10
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under this
Section 10, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party except to the extent that
the indemnifying party was prejudiced by such failure to notify. In case any
such action is brought against any indemnified party, and it notifies an
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate in, and, to the extent that it may wish, jointly with
all other indemnifying parties similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party;
provided,
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however, if the defendants in any such action include both the indemnified party
and the indemnifying party and the indemnified party shall have reasonably
concluded based on the advice of counsel that there may be legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, or the indemnified and
indemnifying parties may have conflicting interests which would make it
inappropriate for the same counsel to represent both of them, the indemnified
party or parties shall have the right to select separate counsel to assume such
legal defense and otherwise to participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to assume the
defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 10 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed such counsel in connection with the
assumption of legal defense in accordance with the proviso to the next preceding
sentence (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, approved by the
Representatives in the case of paragraph (a) representing all indemnified
parties not having different or additional defenses or potential conflicting
interest among themselves who are parties to such action), (ii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release of such
indemnified party from all liability arising out of such proceeding.
(d) If the indemnification provided for in this Section 10 is unavailable
to an indemnified party under paragraphs (a) or (b) hereof in respect of any
losses, claims, damages or liabilities referred to therein, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Underwriters from the offering of the Shares or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Underwriters in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The respective relative benefits received by the Company and the
Underwriters shall be deemed to be in the same proportion in the case of the
Company as the total price paid to the Company for the Shares by the
Underwriters (net of underwriting discount but before deducting expenses), and
in the case of the Underwriters as the underwriting discount received by them
bears to the total of such amounts paid to the Company and received by the
Underwriters as underwriting discount in each case as contemplated by the
Prospectus.
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The relative fault of the Company and the Underwriters shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission to state a material fact relates to
information supplied by the Company or by the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The amount paid or payable by a party as a
result of the losses, claims, damages and liabilities referred to above shall be
deemed to include any legal or other fees or expenses reasonably incurred by
such party in connection with investigating or defending any action or claim.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 10, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 10 are several in proportion to their respective underwriting
commitments and not joint.
(e) The provisions of this Section shall survive any termination of this
Agreement.
SECTION 11. Default of Underwriters. It shall be a condition to the
agreement and obligation of the Company to sell and deliver the Shares
hereunder, and of each Underwriter to purchase the Shares hereunder, that,
except as hereinafter in this paragraph provided, each of the Underwriters shall
purchase and pay for all Shares agreed to be purchased by such Underwriter
hereunder upon tender to the Representatives of all such Shares in accordance
with the terms hereof. If any Underwriter or Underwriters default in their
obligations to purchase Shares hereunder on the First Closing Date, or the
Second Closing Date, as the case may be, and the aggregate number of Shares
which such defaulting Underwriter or Underwriters agreed but failed to purchase
does not exceed 10 percent of the total number of Shares which the Underwriters
are obligated to purchase on the First Closing Date or the Second Closing Date,
as the case may be, the Representatives may make arrangements satisfactory to
the Company for the purchase of such Shares by other persons, including any of
the Underwriters, but if no such arrangements are made by such date the
nondefaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Shares which such defaulting
Underwriters agreed but failed to purchase on such date. If any Underwriter or
Underwriters so default and the aggregate number of Shares with respect to which
such default or defaults occur is more than the above percentage and
arrangements satisfactory to the Representatives and the Company for the
purchase of such Shares by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any
nondefaulting Underwriter or the Company, except for the
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expenses to be paid by the Company pursuant to Section 6 hereof and except to
the extent provided in Section 10 hereof.
In the event that Shares to which a default relates are to be purchased by
the nondefaulting Underwriters or by another party or parties, the
Representatives or the Company shall have the right to postpone the First
Closing Date or the Second Closing Date, as the case may be, for not more than
seven business days in order that the necessary changes in the Registration
Statement, Prospectus and any other documents, as well as any other
arrangements, may be effected. As used in this Agreement, the term "Underwriter"
includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its default.
SECTION 12. Effective Date. This Agreement shall become effective
immediately as to Sections 6, 8, 10 and 13 and as to all other provisions at
10:00 A.M., Chicago Time, on the day following the date upon which the Pricing
Agreement is executed and delivered, unless such a day is a Saturday, Sunday or
holiday (and in that event this Agreement shall become effective at such hour on
the business day next succeeding such Saturday, Sunday or holiday); but this
Agreement shall nevertheless become effective at such earlier time after the
Pricing Agreement is executed and delivered as you may determine on and by
notice to the Company or by release of any Shares for sale to the public. For
the purposes of this Section, the Shares shall be deemed to have been so
released upon the release for publication of any newspaper advertisement
relating to the Shares or upon the release by you of written communications (i)
advising Underwriters that the Shares are released for public offering, or (ii)
offering the Shares for sale to securities dealers, whichever may occur first.
SECTION 13. Termination. Without limiting the right to terminate this
Agreement pursuant to any other provision hereof:
(a) This Agreement may be terminated by the Company by notice to you
or by you by notice to the Company at any time prior to the time this
Agreement shall become effective as to all its provisions, and any such
termination shall be without liability on the part of the Company to any
Underwriter (except for the expenses to be paid or reimbursed pursuant to
Section 6 hereof and except to the extent provided in Section 10 hereof)
or of any Underwriter to the Company.
(b) This Agreement may also be terminated by you prior to the First
Closing Date, and the option referred to in Section 4, if exercised, may
be cancelled at any time prior to the Second Closing Date, if (i) trading
in securities generally on the New York Stock Exchange or Nasdaq National
Market shall have been suspended or minimum prices shall have been
established on such exchange, or (ii) a banking moratorium shall have been
declared by Illinois, New York, or United States authorities, or (iii)
there shall have been a material adverse change in financial markets or in
political, economic or financial conditions which, in the opinion of the
-29-
Representatives, either renders it impracticable or inadvisable to proceed
with the offering and sale of the Shares on the terms set forth in the
Prospectus or materially and adversely affects the market for the Shares,
or (iv) there shall have been an outbreak of major armed hostilities
between the United States and any foreign power which in the opinion of
the Representatives makes it impractical or inadvisable to offer or sell
the Shares. Any termination pursuant to this paragraph (b) shall be
without liability on the part of any Underwriter to the Company or on the
part of the Company to any Underwriter (except for expenses to be paid or
reimbursed pursuant to Section 6 hereof and except to the extent provided
in Section 10 hereof).
SECTION 14. Representations and Indemnities to Survive Delivery. The
respective indemnities, agreements, representations, warranties and other
statements of the Company, of its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter
or the Company or any of its or their partners, principals, members, officers or
directors or any controlling person, as the case may be, and will survive
delivery of and payment for the Shares sold hereunder.
SECTION 15. Notices. All communications hereunder will be in writing
and, if sent to the Underwriters will be mailed, delivered or telegraphed and
confirmed to you c/o ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., ▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, with a copy
to ▇▇▇▇▇▇▇▇▇ Will & ▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.; and if sent to the Company
will be mailed, delivered or telegraphed and confirmed to the Company at its
corporate headquarters at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, to
the attention of the Chief Financial Officer, with a copy to ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇
▇. ▇▇▇ ▇▇▇▇▇▇, Esq.
SECTION 16. Successors. This Agreement and the Pricing Agreement will
inure to the benefit of and be binding upon the parties hereto and their
respective successors, personal representatives and assigns, and to the benefit
of the officers and directors and controlling persons referred to in Section 10,
and no other person will have any right or obligation hereunder. The term
"successors" shall not include any purchaser of the Shares as such from any of
the Underwriters merely by reason of such purchase.
SECTION 17. Representation of Underwriters. You will act as
Representatives for the several Underwriters in connection with this financing,
and any action under or in respect of this Agreement taken by you will be
binding upon all the Underwriters.
SECTION 18. Partial Unenforceability. If any section, paragraph or
provision of this Agreement is for any reason determined to be invalid or
unenforceable, such determination shall not affect the validity or
enforceability of any other section, paragraph or provision hereof.
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SECTION 19. Entire Agreement. This Agreement constitutes the entire
agreement among the parties relative to the subject matter hereof. Any previous
agreement among the parties concerning the subject matter hereof is superseded
by this Agreement.
SECTION 20. Applicable Law. This Agreement and the Pricing Agreement
shall be governed by and construed in accordance with the laws of the State of
Illinois.
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return this Underwriting Agreement, whereupon it will become a
binding agreement among the Company and the several Underwriters including you,
all in accordance with its terms.
Very truly yours,
MICRUS CORPORATION
By ___________________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President and Chief Executive Officer
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The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
▇▇▇▇▇▇▇ & COMPANY, LLC
Acting as Representatives of the several
Underwriters named in Schedule A.
By: ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
By: ________________________
Name:
Title:
By: ▇▇▇▇▇▇▇ & Company, LLC
By: ________________________
Name:
Title:
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SCHEDULE A
Number of Firm Shares to be
Underwriter Purchased
----------- ---------------------------
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC. ......................
▇▇▇▇▇▇▇ & COMPANY, LLC. ........................
------------
TOTAL........................
============
SCHEDULE B
Preferred Stock
Authorized and Outstanding as of ____________, 2005
EXHIBIT A
MICRUS CORPORATION
____________ Shares Common Stock(2)
PRICING AGREEMENT
____________, 2005
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
▇▇▇▇▇▇▇ & Company, LLC
As Representatives of the Several
Underwriters
c/o ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Reference is made to the Underwriting Agreement dated ____________, 2005
(the "Underwriting Agreement") relating to the sale by the Company and the
purchase by the several Underwriters for whom ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. and
▇▇▇▇▇▇▇ & Company, LLC are acting as representatives (the "Representatives"), of
the above Shares. All terms herein shall have the definitions contained in the
Underwriting Agreement except as otherwise defined herein.
Pursuant to Section 4 of the Underwriting Agreement, the Company agrees
with the Representatives as follows:
1. The initial public offering price per share for the Shares shall be
$__________.
------------------
(2) Plus an option to acquire up to _______ additional shares to cover
overallotments
2. The purchase price per share for the Shares to be paid by the
several Underwriters shall be $__________, being an amount equal to the initial
public offering price set forth above less $__________ per share.
Schedule A is amended as follows:
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company and the several
Underwriters, including you, all in accordance with its terms.
Very truly yours,
MICRUS CORPORATION
By ________________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
President and Chief Executive Officer
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The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
▇▇▇▇▇▇▇ & COMPANY, LLC
Acting as Representatives of the several
Underwriters named in Schedule A.
By: ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
By: ________________________
Name:
Title:
By: ▇▇▇▇▇▇▇ & Company, LLC
By: ________________________
Name:
Title:
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