Exhibit 1.01
2,500,000 SHARES/*/
HOLOGIC, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
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December __, 2001
▇▇▇▇▇▇▇ & COMPANY, INC.
▇▇▇▇▇▇▇▇ INC.
c/o Needham & Company, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Hologic, Inc., a Delaware corporation (the "Company"), proposes to issue
and sell 2,500,000 shares (the "Firm Shares") of the Company's Common Stock,
$.01 par value per share together with the associated stock purchase rights (the
"Common Stock"), to ▇▇▇▇▇▇▇ & Company, Inc. ("▇▇▇▇▇▇▇") and to ▇▇▇▇▇▇▇▇ Inc.
("▇▇▇▇▇▇▇▇") (collectively, the "Underwriters"). The Company has also agreed to
grant to the Underwriters an option (the "Option") to purchase up to an
additional 375,000 shares of Common Stock, on the terms and for the purposes set
forth in SECTION 1(B) (the "Option Shares"). The Firm Shares and the Option
Shares are referred to collectively herein as the "Shares."
The Company confirms as follows with the Underwriters
1. Agreement to Sell and Purchase.
(a) On the basis of the representations, warranties and agreements of the
Company herein contained and subject to all the terms and conditions of this
Agreement, (i) the Company agrees to issue and sell the Firm Shares to the
several Underwriters and (ii) each of the Underwriters, severally and not
jointly, agrees to purchase from the Company the respective number of Firm
Shares set forth opposite that Underwriter's name in Schedule I hereto, at the
purchase price of $____ for each Firm Share.
(b) Subject to all the terms and conditions of this Agreement, the Company
grants the Option to the several Underwriters to purchase, severally and not
jointly, up to 375,000 Option Shares at the same price per share as the
Underwriters shall pay for the Firm Shares. The Option may be exercised only to
cover over-allotments in the sale of the Firm Shares by the Underwriters and may
be exercised in whole or in part at any time (but not more than once) on or
before the 30th day after the date of this Agreement upon written or telegraphic
notice (the "Option Shares Notice") by the Underwriters to the Company no later
than 12:00 noon, New York City time, at least two and no more than five business
days before the date specified for closing in the Option Shares Notice (the
"Option Closing Date"), setting forth the aggregate number of Option Shares to
be purchased and the time and date for such
---------------
/*/ Plus an option to purchase up to an additional 375,000 shares to cover
over-allotments.
purchase. On the Option Closing Date, the Company will issue and sell to the
Underwriters the number of Option Shares set forth in the Option Shares Notice,
and each Underwriter shall purchase such percentage of the Option Shares as is
equal to the percentage of Firm Shares that such Underwriter is purchasing, as
adjusted by the Underwriters in such manner as they deem advisable to avoid
fractional shares.
2. Delivery and Payment.
Delivery of the Firm Shares shall be made to the Underwriters against
payment of the purchase price by wire transfer payable in same-day funds to the
order of the Company at the office of ▇▇▇▇▇▇▇ & Company, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m., New York City time, on the third (or,
if the purchase price set forth in SECTION 1(B) hereof is determined after 4:30
p.m., Washington D.C. time, the fourth) business day following the commencement
of the offering contemplated by this Agreement, or at such time on such other
date, not later than seven business days after the date of this Agreement, as
may be agreed upon by the Company and the Underwriters (such date is hereinafter
referred to as the "Closing Date").
To the extent the Option is exercised, delivery of the Option Shares
against payment by the Underwriters (in the manner specified above) will take
place at the offices specified above for the Closing Date at the time and date
(which may be the Closing Date) specified in the Option Shares Notice.
Certificates evidencing the Shares shall be in definitive form and shall be
registered in such names and in such whole share denominations as the
Underwriters shall request at least two business days prior to the Closing Date
or the Option Closing Date, as the case may be, by written notice to the
Company. For the purpose of expediting the checking and packaging of
certificates for the Shares, the Company agrees to make such certificates
available for inspection at least 24 hours prior to the Closing Date or the
Option Closing Date, as the case may be.
The cost of original issue tax stamps and other transfer taxes, if any, in
connection with the issuance and delivery of the Firm Shares and Option Shares
by the Company to the respective Underwriters shall be borne by the Company.
The Company will pay and save each Underwriter and any subsequent holder of the
Shares harmless from any and all liabilities with respect to or resulting from
any failure or delay in paying federal and state stamp and other transfer taxes,
if any, which may be payable or determined to be payable in connection with the
original issuance or sale to such Underwriter of the Shares.
3. Representations and Warranties of the Company.
The Company represents, warrants and covenants to each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 and a
registration statement (Registration No. 333-73596) on Form S-3 relating to the
Shares, including a preliminary prospectus, preliminary prospectus supplement
and such amendments to such registration statement as may have been required to
the date of this Agreement, has been prepared by the Company under the
provisions of the Securities Act of 1933, as amended (the "Act"), and the rules
and regulations (collectively referred to as the "Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") thereunder, and has been
filed with the Commission. The term "preliminary prospectus" as used herein
means a preliminary prospectus together with the preliminary prospectus
supplement, including the documents incorporated by reference therein, as
contemplated by Rule 430 or Rule 430A of the Rules and Regulations included at
any time as part of the Registration Statement. Copies of such Registration
Statement and amendments and of each related preliminary prospectus have been
delivered to the Underwriters. If such Registration Statement has not become
effective, a further amendment to such Registration Statement, including a form
of final prospectus and final prospectus supplement, necessary to permit such
Registration Statement to become effective will be filed promptly by the Company
with the Commission. If such Registration Statement has become effective, a
final prospectus and final prospectus supplement containing information
permitted to be omitted at the time of effectiveness by Rule 430A of the Rules
and Regulations will be filed promptly by the Company with the Commission in
accordance with Rule 424(b) of the Rules and Regulations. The term "Registration
Statement" means the registration statement (Registration No. 333-73596) on Form
S-3 as amended at the time it becomes or became effective (the "Effective
Date"), including all documents incorporated by reference therein, financial
statements and all exhibits and schedules thereto and any information deemed to
be included by Rule 430A, and includes any registration statement relating to
the offering contemplated by this Agreement and filed pursuant to Rule 462(b) of
the Rules and Regulations. The term "Prospectus" means the prospectus together
with the prospectus supplement, including the documents incorporated by
reference therein, as
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first filed with the Commission pursuant to Rule 424(b) of the Rules and
Regulations or, if no such filing is required, the form of final prospectus
together with the final prospectus supplement, including the documents
incorporated by reference therein, included in the Registration Statement at the
Effective Date. Any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to refer to and include the filing
of any document under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), after the Effective Date, the date of any preliminary
prospectus or the date of the Prospectus, as the case may be, and deemed to be
incorporated therein by reference.
(b) No order preventing or suspending the use of any preliminary
prospectus has been issued by the Commission, and no stop order suspending the
effectiveness of the Registration Statement (including any related registration
statement filed pursuant to Rule 462(b) under the Act) or any post-effective
amendment thereto has been issued, and no proceeding for that purpose has been
initiated or threatened by the Commission. On the Effective Date, the date the
Prospectus is first filed with the Commission pursuant to Rule 424(b) (if
required), at all times during the period through and including the Closing Date
and, if later, the Option Closing Date and when any post-effective amendment to
the Registration Statement becomes effective prior to the completion of the
distribution of the Shares or any amendment or supplement to the Prospectus is
filed with the Commission prior to the completion of the distribution of the
Shares, the Registration Statement and the Prospectus (as amended or as
supplemented if the Company shall have filed with the Commission any amendment
or supplement thereto), including the financial statements included in the
Prospectus, did and will comply with all applicable provisions of the Act, the
Exchange Act, the rules and regulations under the Exchange Act (the "Exchange
Act Rules and Regulations"), and the Rules and Regulations and will contain all
statements required to be stated therein in accordance with the Act, the
Exchange Act, the Exchange Act Rules and Regulations, and the Rules and
Regulations. On the Effective Date and when any post-effective amendment to the
Registration Statement becomes effective prior to the completion of the
distribution of the Shares, no part of the Registration Statement, the
Prospectus or any such amendment or supplement thereto did or will contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein not
misleading. At the Effective Date, the date the Prospectus or any amendment or
supplement to the Prospectus is filed with the Commission and at the Closing
Date and, if later, the Option Closing Date, the Prospectus did not and will not
contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading. The foregoing representations and
warranties in this SECTION 3(B) do not apply to any statements or omissions made
in reliance on and in conformity with information relating to any Underwriter
furnished in writing to the Company by the Underwriters expressly for inclusion
in the Registration Statement, preliminary prospectus or Prospectus or any
amendment or supplement thereto. The Company acknowledges that the statements
set forth in the second, eighth, ninth and tenth paragraphs under the heading
"Underwriting" in the Prospectus constitute the only information relating to any
Underwriter furnished in writing to the Company by the Underwriters expressly
for inclusion in the Registration Statement, preliminary prospectus or
Prospectus (the "Underwriting Information").
(c) The documents that are incorporated by reference in the preliminary
prospectus and the Prospectus or from which information is so incorporated by
reference, when they became or become effective or were or are filed with the
Commission, as the case may be, complied or will comply in all material respects
with the requirements of the Act or the Exchange Act, as applicable, and the
Rules and Regulations or the Exchange Act Rules and Regulations, as applicable;
and any documents so filed and incorporated by reference subsequent to the
Effective Date, and prior to the completion of the distribution of the Shares,
shall, when they are filed with the Commission, comply in all material respects
with the requirements of the Act or the Exchange Act, as applicable, and the
Rules and Regulations or the Exchange Act Rules and Regulations, as applicable.
(d) The Company does not own, and at the Closing Date and, if later, the
Option Closing Date, will not own, directly or indirectly, any shares of stock
or any other equity or long-term debt securities of any corporation or have any
equity interest in any corporation, firm, partnership, joint venture,
association or other entity other than the subsidiaries listed in Exhibit 21.01
to the Company's Annual Report on Form 10-K for the fiscal year ended September
29, 2001 (the "Subsidiaries") or the investments described in the consolidated
financial statements included in that report. The Company and each of its
Subsidiaries is, and at the Closing Date and, if later, the Option Closing Date,
will be, a corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation. The Company and each of its
Subsidiaries has, and at the Closing Date and, if later, the Option Closing
Date, will have, full power and authority to conduct all the activities
conducted by it, to own or
3
lease all the assets owned or leased by it and to conduct its business as
described in the Registration Statement and the Prospectus. The Company and each
of its Subsidiaries is, and at the Closing Date and, if later, the Option
Closing Date, will be, duly licensed or qualified to do business and in good
standing as a foreign corporation in all jurisdictions in which the nature of
the activities conducted by it or the character of the assets owned or leased by
it makes such license or qualification necessary, except to the extent that the
failure to be so qualified or be in good standing would not materially and
adversely affect the Company and its Subsidiaries taken as a whole, or its
consolidated business, properties, financial condition or results of operations
(such effect is referred to herein as a "Material Adverse Effect"). All of the
outstanding shares of capital stock of each Subsidiary have been duly authorized
and validly issued and are fully paid and nonassessable, and owned by the
Company (except for nominee shares or shares owned by the Company directly or
indirectly through one or more wholly-owned Subsidiaries), free and clear of all
claims, liens, charges and encumbrances (except for the pledge of shares made to
Foothill Capital Corporation in connection with the loan agreement described in
the Prospectus); there are no securities outstanding that are convertible into
or exercisable or exchangeable for capital stock of any Subsidiary. The Company
is not, and at the Closing Date and, if later, the Option Closing Date, will not
be, engaged in any discussions or a party to any agreement or understanding,
written or oral, regarding the acquisition of an interest in any corporation,
firm, partnership, joint venture, association or other entity where such
discussions, agreements or understandings would require amendment to the
Registration Statement prior to the completion of the distribution of the Shares
pursuant to applicable securities laws. Complete and correct copies of the
certificate of incorporation and of the by-laws of the Company and each of its
Subsidiaries and all amendments thereto have been delivered to the Underwriters,
and no changes therein will be made subsequent to the date hereof and prior to
the Closing Date or, if later, the Option Closing Date.
(e) The Company has authorized and issued outstanding capital stock as set
forth under the caption "Capitalization" in the Prospectus as of the date set
forth therein. The certificates evidencing the Shares are in due and proper
legal form and have been duly authorized for issuance by the Company. All of the
outstanding shares of capital stock of the Company have been duly authorized,
validly issued and are fully paid and nonassessable and were issued in
compliance with all applicable state and federal securities laws; the Shares
have been duly authorized and when issued and paid for as contemplated herein
will be validly issued, fully paid and nonassessable; no preemptive or similar
rights exist with respect to any of the Shares or the issue and sale thereof.
The description of the capital stock of the Company incorporated by reference in
the Registration Statement and the Prospectus is, and at the Closing Date and,
if later, the Option Closing Date, will be, complete and accurate in all
respects. Except as set forth in the Prospectus (including the description of
grants pursuant to the Company's existing stock option plans), the Company does
not have outstanding, and at the Closing Date and, if later, the Option Closing
Date, will not have outstanding, any options to purchase, or any rights or
warrants to subscribe for, or any securities or obligations convertible into, or
any contracts or commitments to issue or sell, any shares of capital stock, or
any such warrants, convertible securities or obligations. No further approval or
authority of stockholders or the Board of Directors of the Company will be
required for the issuance and sale of the Shares as contemplated herein.
(f) The financial statements and schedules included or incorporated by
reference in the Registration Statement or the Prospectus present fairly the
financial condition of the Company and its consolidated Subsidiaries as of the
respective dates thereof and the results of operations and cash flows of the
Company and its consolidated Subsidiaries for the respective periods covered
thereby, all in conformity with generally accepted accounting principles applied
on a consistent basis throughout the entire period involved, except as otherwise
disclosed in the Prospectus. No other financial statements or schedules of the
Company are required by the Act, the Exchange Act, the Exchange Act Rules and
Regulations or the Rules and Regulations to be included in the Registration
Statement or the Prospectus. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (the "Accountants"), who have
reported on such financial statements and schedules, are independent accountants
with respect to the Company as required by the Act and the Rules and
Regulations. The summary and selected consolidated financial and statistical
data included in the Registration Statement present fairly the information shown
therein and have been compiled on a basis consistent with the audited financial
statements presented in the Registration Statement.
(g) Subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus and prior to or on the Closing
Date and, if later, the Option Closing Date, except as set forth in or
contemplated by the Registration Statement and the Prospectus, (i) there has not
been and will not have been any change in the capitalization of the Company
(other than in connection with the exercise of options to purchase the Company's
Common Stock granted pursuant to the Company's stock option plans from the
shares reserved therefor
4
as described in the Registration Statement), or any Material Adverse Effect
arising for any reason whatsoever, (ii) neither the Company nor any of its
Subsidiaries taken as a whole has incurred nor will any of them incur, except in
the ordinary course of business as described in the Prospectus, any material
liabilities or obligations, direct or contingent, nor has the Company or any of
its Subsidiaries entered into nor will any of them enter into, except in the
ordinary course of business as described in the Prospectus, any material
transactions other than pursuant to this Agreement and the transactions referred
to herein and (iii) the Company has not and will not have paid or declared any
dividends or other distributions of any kind on any class of its capital stock.
(h) The Company is not, will not become as a result of the transactions
contemplated hereby, and will not conduct its business in a manner that would
cause it to become, an "investment company" or an "affiliated person" of, or
"promoter" or "principal underwriter" for, an "investment company," as such
terms are defined in the Investment Company Act of 1940, as amended.
(i) Except as set forth in the Registration Statement and the Prospectus,
there is no action, suit or proceeding pending or, to the best knowledge of the
Company, threatened against or affecting the Company, or any of its Subsidiaries
or any of its or their officers in their capacity as such, nor any basis
therefor, before or by any federal or state court, commission, regulatory body,
administrative agency or other governmental body, domestic or foreign, wherein
an unfavorable ruling, decision or finding would have a Material Adverse Effect.
(j) The Company and each Subsidiary has, and at the Closing Date and, if
later, the Option Closing Date, will have, performed all the obligations
required to be performed by it hereunder, and is not, and at the Closing Date,
and, if later, the Option Closing Date, will not be, in default, under any
contract or other instrument to which it is a party or by which its property is
bound or affected, which default would have a Material Adverse Effect. To the
best knowledge of the Company, no other party under any contract or other
instrument to which it or any of its Subsidiaries is a party is in default in
any respect thereunder, which default would have a Material Adverse Effect.
Neither the Company nor any of its Subsidiaries is, and at the Closing Date and,
if later, the Option Closing Date, will not be, in violation of any provision of
its certificate or articles of organization or by-laws or other organizational
documents.
(k) No consent, approval, authorization or order of, or any filing or
declaration with, any court or governmental agency or body is required for the
consummation by the Company of the transactions on its part contemplated herein,
except such as have been obtained under the Act or the Rules and Regulations and
such as may be required under state securities or Blue Sky laws or the by-laws
and rules of the National Association of Securities Dealers, Inc. (the "NASD")
in connection with the purchase and distribution by the Underwriters of the
Shares.
(l) The Company has full corporate power and authority to enter into this
Agreement. This Agreement has been duly authorized, executed and delivered by
the Company and constitutes a valid and binding agreement of the Company,
enforceable against the Company in accordance with the terms hereof except as to
(i) rights to indemnity and contribution hereunder, which may be limited under
applicable law, (ii) bankruptcy and laws relating to the rights and remedies of
creditors generally and (iii) the availability of equitable remedies. The
performance of this Agreement and the consummation of the transactions
contemplated hereby will not result in the creation or imposition of any lien,
charge or encumbrance upon any of the assets of the Company pursuant to the
terms or provisions of, or result in a breach or violation of any of the terms
or provisions of, or conflict with or constitute a default under, or give any
party a right to terminate any of its obligations under, or result in the
acceleration of any obligation under, the certificate or articles of
incorporation or by-laws of the Company or any of its Subsidiaries, any
indenture, mortgage, deed of trust, voting trust agreement, loan agreement,
bond, debenture, note agreement or other evidence of indebtedness, lease,
contract or other agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company, any of its Subsidiaries or any
of its or their properties is bound or affected, or violate or conflict with any
judgment, ruling, decree, order, statute, rule or regulation of any court or
other governmental agency or body applicable to the business or properties of
the Company or any of its Subsidiaries.
(m) Except for properties and assets disposed of in the ordinary course of
business, the Company and its Subsidiaries have good and marketable title to all
properties and assets described in the Prospectus as owned by them, free and
clear of all liens, charges, encumbrances or restrictions, except such as are
described in the Prospectus or are not material to the business of the Company
or its Subsidiaries taken as a whole. The Company
5
and its Subsidiaries have valid, subsisting and enforceable leases for the
properties described in the Prospectus as leased by them. The Company and its
Subsidiaries own or lease all such properties as are necessary to their
operations as now conducted or as proposed to be conducted, except where the
failure to so own or lease would not have a Material Adverse Effect.
(n) There is no document, contract, permit or instrument of a character
required 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. All such contracts to which the Company or any of its
Subsidiaries is a party have been duly authorized, executed and delivered by the
Company or such Subsidiary, constitute valid and binding agreements of the
Company or such Subsidiary and are enforceable against and by the Company or
such Subsidiary in accordance with the terms thereof except as to (i) rights to
indemnity and contribution hereunder, which may be limited under applicable law,
(ii) bankruptcy and laws relating to the rights and remedies of creditors
generally and (iii) the availability of equitable remedies.
(o) No statement, representation, warranty or covenant made by the Company
in this Agreement or made in any certificate or document required by SECTION 4
of this Agreement to be delivered to the Underwriters was or will be, when made,
inaccurate, untrue or incorrect.
(p) The Company has not distributed and will not distribute prior to the
later of (i) the Closing Date or, if later, the Option Closing Date, and (ii)
completion of the distribution of the Shares, any offering material in
connection with the offering and sale of the Shares other than any preliminary
prospectuses, the Prospectus, the Registration Statement and other materials, if
any, permitted by the Act and the Rules and Regulations thereunder. Neither the
Company nor any of its directors, officers or controlling persons has taken,
directly or indirectly, any action designed, or which would reasonably be
expected, to cause or result, under the Act or otherwise, in, or which has
constituted, stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares.
(q) No holder of securities of the Company has rights to the registration
of any securities of the Company because of the filing of the Registration
Statement, which rights have not been waived by the holder thereof as of the
date hereof.
(r) The Company has filed a registration statement pursuant to Section
12(g) of the Exchange Act to register the Common Stock, has filed an application
to list the Shares on the Nasdaq National Market ("NNM"), and has received
notification that the listing has been approved, subject to notice of issuance
of the Shares.
(s) Except as disclosed in or specifically contemplated by the Prospectus
(i) the Company and its Subsidiaries have sufficient rights in trademarks, trade
names, domain names, patents, patent rights, mask works, copyrights, technology,
know-how (including trade secrets and other unpatented or unpatentable
proprietary or confidential information, systems or procedures), service marks
and trade dress rights (collectively the "Intellectual Property"), licenses,
approvals and governmental authorizations which are material to the conduct of
their businesses as now conducted and have sufficient rights in such
Intellectual Property which is material to the conduct of its business as
described in the Prospectus. To the Company's and its Subsidiaries' knowledge,
none of the foregoing Intellectual Property material to the conduct of their
business owned or licensed by the Company or its Subsidiaries is invalid or
unenforceable, (ii) neither the Company nor any Subsidiary has any knowledge of
any infringement by it or any of its Subsidiaries of Intellectual Property of
others, where such infringement would have a Material Adverse Effect, (iii) the
Company is not aware of any infringement, misappropriation or violation by
others of, or conflict by others with rights of the Company with respect to, any
of the Company's or its Subsidiaries' rights in Intellectual Property which such
infringment, misappropriation or violation would have a Material Adverse Effect,
and (iv) there is no claim being made against the Company or any of its
Subsidiaries, or to the best of the Company's knowledge, any employee of the
Company or any of its Subsidiaries, regarding Intellectual Property or other
infringement which would have a Material Adverse Effect. Without limiting the
foregoing, except as disclosed in the Prospectus, there are no United States or
foreign patents known to the Company or any of its Subsidiaries which the
Company or any of its Subsidiaries infringes by its present activities or has
infringed by its past activities which infringement would have a Material
Adverse Effect in a proceeding thereon determined adversely to the Company.
Without limiting the generality of the foregoing, except as described in the
Prospectus
6
there is no pending or, to the Company's or any of its Subsidiaries' knowledge,
threatened action, suit, proceeding or claim challenging the validity,
enforceability or scope of the Company's or of any Intellectual Property owned
by or licensed to the Company or its Subsidiaries which would have a Material
Adverse Effect if determined adversely to the Company.
(t) Except as specifically set forth in the Prospectus, the Company has
not received any notice of infringement with respect to any patent or any notice
challenging the validity, scope or enforceability of any Intellectual Property
owned by or licensed to the Company, in each case the loss of which patent or
Intellectual Property (or loss of rights thereto) would have a Material Adverse
Effect.
(u) The Company and each of its Subsidiaries has filed all federal, state,
local and foreign income tax returns which have been required to be filed and
has paid all taxes and assessments received by it to the extent that such taxes
or assessments have become due, other than taxes that are being contested in
good faith by appropriate proceedings promptly instituted and diligently
pursued; provided that any reserve or other appropriate provision as is required
in conformity with generally accepted accounting principles (applied on a basis
consistent with the Company's financial statements incorporated by reference in
the Prospectus) has been made therefor. Neither the Company nor any of its
Subsidiaries has any tax deficiency which has been or, to the best knowledge of
the Company, might be asserted or threatened against any of them which would
have a Material Adverse Effect.
(v) The Company or its Subsidiaries owns or possesses all authorizations,
approvals, orders, licenses, registrations, other certificates and permits of
and from all governmental regulatory officials and bodies, necessary to conduct
their respective businesses as contemplated in the Prospectus, except where the
failure to own or possess all such authorizations, approvals, orders, licenses,
registrations, other certificates and permits would not have a Material Adverse
Effect. There is no proceeding pending or, to the best knowledge of the Company,
threatened which may cause any such authorization, approval, order, license,
registration, certificate or permit to be revoked, withdrawn, cancelled,
suspended or not renewed; and the Company and each of its Subsidiaries is
conducting its business in compliance with all laws, rules and regulations
applicable thereto (including, without limitation, all applicable federal, state
and local environmental laws and regulations) except where such noncompliance
would not have a Material Adverse Effect.
(w) The Company and each of its Subsidiaries maintains insurance of the
types and in the amounts generally deemed adequate for their business taken as a
whole, including, but not limited to, insurance covering real and personal
property owned or leased by the Company and its Subsidiaries against theft,
damage, destruction, acts of vandalism and all other risks customarily insured
against, all of which insurance is in full force and effect.
(x) Neither the Company nor any of its Subsidiaries is involved in any
labor dispute nor, to the knowledge of the Company, is any such dispute
threatened, which dispute would have a Material Adverse Effect. The Company is
not aware of any existing or imminent labor disturbance by the employees of any
of its principal suppliers or contractors, which would have a Material Adverse
Effect. The Company is not aware of any threatened or pending litigation between
the Company or its Subsidiaries and any of its executive officers which, if
adversely determined, could have a Material Adverse Effect and has no reason to
believe that such officers will not remain in the employment of the Company.
(y) Except as disclosed in the Company's Annual Report on Form 10-K for
the fiscal year ended September 29, 2001 or on a Schedule attached hereto, there
are no outstanding loans, advances (except normal advances for business expenses
in the ordinary course of business) or guarantees of indebtedness by the Company
or any of its Subsidiaries to or for the benefit of any of the officers or
directors of the Company, any of its Subsidiaries or any of the members of the
families of any of them, except as disclosed in the Registration Statement and
the Prospectus.
(z) The books, records and accounts of the Company and its Subsidiaries
accurately and fairly reflect, in reasonable detail, the transactions in, and
dispositions of, the assets of, and the results of operations of, the Company
and its Subsidiaries. The Company and each of its Subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurances that (i) transactions are executed in accordance with management's
7
general or specific authorizations, (ii) transactions are recorded as necessary
to permit preparation of the Company's consolidated financial statements in
accordance with generally accepted accounting principles and to maintain asset
accountability, (iii) access to assets is permitted only in accordance with
management's general or specific authorization and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
(aa) To the Company's knowledge, no facts currently exist that will require
the Company or its Subsidiaries to make future material capital expenditures to
comply with any rule, law or regulation relating to the use, treatment, storage
and disposal of hazardous or toxic substances and protection of health or the
environment ("Environmental Law") or expose the Company to material liability
pursuant to any Environmental Law.
(bb) Neither the Company nor any of its Subsidiaries nor, to the best
knowledge of the Company, any other person associated with or acting on behalf
of the Company or its Subsidiaries including, without limitation, any director,
officer, duly authorized agent or employee of the Company or its Subsidiaries
has, directly or indirectly, while acting on behalf of the Company or its
Subsidiaries (i) used any corporate funds for unlawful contributions, gifts,
entertainment or other unlawful expenses relating to political activity; (ii)
made any unlawful payment to foreign or domestic government officials or
employees or to foreign or domestic political parties or campaigns from
corporate funds; (iii) violated any provision of the Foreign Corrupt Practices
Act of 1977, as amended; or (iv) made any other unlawful payment.
(cc) The Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income Security Act
of 1974, as amended, including the regulations and published interpretations
thereunder ("ERISA"); neither the Company nor any subsidiary has incurred or
expects to incur liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any "pension plan" or (ii) Section 412 or
4971 of the Internal Revenue Code of 1986, as amended, including the regulations
and published interpretations thereunder (the "Internal Revenue Code"); and each
"pension plan" for which the Company would have any liability that is intended
to be qualified under Section 401(a) of the Internal Revenue Code is so
qualified in all material respects and nothing has occurred, whether by action
or by failure to act, which would cause the loss of such qualification.
4. Agreements of the Company.
The Company covenants and agrees with the several Underwriters as follows:
(a) The Company will not, either prior to the Effective Date or thereafter
during such period as the Prospectus is required by law to be delivered in
connection with sales of the Shares by an Underwriter or a dealer, file any
amendment or supplement to the Registration Statement or the Prospectus, unless
a copy thereof shall first have been submitted to the Underwriters within a
reasonable period of time prior to the filing thereof and the Underwriters shall
not have objected thereto in good faith.
(b) The Company will use its best efforts to cause the Registration
Statement to become effective, and will notify the Underwriters promptly, and
will confirm such advice in writing, (i) when the Registration Statement has
become effective and when any post-effective amendment thereto becomes effective
prior to the completion of the distribution of the Shares, (ii) of any request
by the Commission for amendments or supplements to the Registration Statement or
the Prospectus or for additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the initiation of any proceedings for that purpose or the threat
thereof, in each case prior to the completion of the distribution of the Shares,
(iv) of the happening of any event during the period mentioned in the second
sentence of SECTION 4(E) that in the judgment of the Company makes any statement
made in the Registration Statement or the Prospectus untrue or that requires the
making of any changes in the Registration Statement or the Prospectus in order
to make the statements therein, in the light of the circumstances in which they
are made, not misleading and (v) of receipt by the Company or any representative
or attorney of the Company of any other communication from the Commission
relating to the Company, the Registration Statement, any preliminary prospectus
or the Prospectus prior to the completion of the distribution of the Shares. If
at any time the Commission shall issue any order suspending the effectiveness of
the Registration Statement prior to the completion of the distribution of the
Shares, the Company will make every reasonable effort to obtain the withdrawal
of such order at the earliest possible moment. If the Company has omitted any
information
8
from the Registration Statement pursuant to Rule 430A of the Rules and
Regulations prior to the completion of the distribution of the Shares, the
Company will comply with the provisions of and make all requisite filings with
the Commission pursuant to said Rule 430A and notify the Underwriters promptly
of all such filings. If the Company elects to rely upon Rule 462(b) under the
Act, the Company shall file a registration statement under Rule 462(b) with the
Commission in compliance with Rule 462(b) by 10:00 P.M., Washington, D.C. time,
on the date of this Agreement, and the Company shall at the time of filing
either pay to the Commission the filing fee for such Rule 462(b) registration
statement, including through the application of prior account balances with the
Commission that may be properly applied to the payment of the fee, or give
irrevocable instructions for the payment of such fee pursuant to the Rules and
Regulations.
(c) The Company will furnish each Underwriter, without charge, a copy of
one signed copy of each of the Registration Statement and of any pre- or post-
effective amendment thereto, including financial statements and schedules, and
all exhibits thereto.
(d) The Company will comply with all the provisions of any undertakings
contained in the Registration Statement.
(e) On the Effective Date, and thereafter from time to time, the Company
will deliver to each of the Underwriters, without charge, as many copies of the
Prospectus or any amendment or supplement thereto as the Underwriters may
reasonably request. The Company consents to the use of the Prospectus or any
amendment or supplement thereto by the Underwriters and by all dealers to whom
the Shares may be sold, both in connection with the offering or sale of the
Shares and for any period of time thereafter during which the Prospectus is
required by law to be delivered in connection therewith. If during such period
of time any event shall occur which in the judgment of the Company or counsel to
the Underwriters should be set forth in the Prospectus in order to make any
statement therein, in the light of the circumstances under which it was made,
not misleading, or if it is necessary to supplement or amend the Prospectus to
comply with law, the Company will forthwith prepare and duly file with the
Commission an appropriate supplement or amendment thereto, and will deliver to
each of the Underwriters, without charge, such number of copies of such
supplement or amendment to the Prospectus as the Underwriters may reasonably
request. The Company will not file any document under the Exchange Act or the
Exchange Act Rules and Regulations before the termination of the offering of the
Shares by the Underwriters, if such document would be deemed to be incorporated
by reference into the Prospectus, that is not approved by the Underwriters after
reasonable notice thereof, which approval shall not be unreasonably withheld or
delayed in a manner that causes the Company to not be in compliance with its
obligations in respect of the Exchange Act or the Exchange Act Rules and
Regulations.
(f) Prior to any public offering of the Shares, the Company will cooperate
with the Underwriters and counsel for the Underwriters in connection with the
registration or qualification of the Shares for offer and sale under the
securities or Blue Sky laws of such jurisdictions as the Underwriters may
request; provided, that in no event shall the Company be obligated to qualify to
do business in any jurisdiction where it is not now so qualified or to take any
action which would subject it to general service of process in any jurisdiction
where it is not now so subject.
(g) The Company will, so long as required under the Rules and Regulations,
furnish to its stockholders as soon as practicable after the end of each fiscal
year an annual report (including a balance sheet and statements of income,
stockholders' equity and cash flow of the Company and its consolidated
Subsidiaries, if any, certified by independent public accountants) and, as soon
as practicable after the end of each of the first three quarters of each fiscal
year (beginning with the fiscal quarter ending after the effective date of the
Registration Statement), consolidated summary financial information of the
Company and its Subsidiaries, if any, for such quarter in reasonable detail. The
Company shall be deemed to have met its obligations pursuant to this SECTION
4(G) upon the timely filing of its Quarterly Reports on Form 10-Q and Annual
Report on Form 10-K with the Commission, provided such reports are publicly
available on the Commission's ▇▇▇▇▇ database.
(h) During the period of five years commencing on the Effective Date, the
Company will furnish to each Underwriter who may so request copies of such
financial statements and other periodic and special reports as the Company may
from time to time distribute generally to the holders of any class of its
capital stock, and will furnish to each Underwriter who may so request a copy of
each annual or other report it shall be required to file with the
9
Commission. The Company shall be deemed to have met its obligations pursuant to
this SECTION 4(H) upon the timely filing of such information with the
Commission, provided such reports are publicly available on the Commission's
▇▇▇▇▇ database.
(i) The Company will make generally available to holders of its securities
as soon as may be practicable but in no event later than the Availability Date
(as defined below) an earning statement (which need not be audited but shall be
in reasonable detail) covering a period of 12 months commencing after the
Effective Date which will satisfy the provisions of Section 11(a) of the Act
(including Rule 158 of the Rules and Regulations). For the purpose of the
preceding sentence, "Availability Date" means the 45th day after the end of the
fourth fiscal quarter following the fiscal quarter that includes such Effective
Date, except that if such fourth fiscal quarter is the last quarter of the
Company's fiscal year, "Availability Date" means the 90th day after the end of
such fourth fiscal quarter.
(j) Whether or not the transactions contemplated by this Agreement are
consummated or this Agreement is terminated, the Company will pay or reimburse
if paid by the Underwriters all costs and expenses incident to the performance
of the obligations of the Company under this Agreement and in connection with
the transactions contemplated hereby, including but not limited to costs and
expenses of or relating to (i) the preparation, printing and filing of the
Registration Statement and exhibits to it, each preliminary prospectus,
Prospectus and any amendment or supplement to the Registration Statement or
Prospectus, (ii) the preparation and delivery of certificates representing the
Shares, (iii) the printing of this Agreement, the Agreement Among Underwriters,
any Selected Dealer Agreements, any Underwriters' Questionnaires, any
Underwriters' Powers of Attorney and any invitation letters to prospective
Underwriters (iv) furnishing (including costs of shipping and mailing) such
copies of the Registration Statement, the Prospectus and any preliminary
prospectus, and all amendments and supplements thereto, as may be requested for
use in connection with the offering and sale of the Shares by the Underwriters
or by dealers to whom Shares may be sold, (v) the listing of the Shares on the
NNM, (vi) any filings required to be made by the Underwriters with the NASD, and
the fees, disbursements and other charges of counsel for the Underwriters in
connection therewith, (vii) the registration or qualification of the Shares for
offer and sale under the securities or Blue Sky laws of such jurisdictions
designated pursuant to SECTION 4(F), including the fees, disbursements and other
charges of counsel for the Underwriters in connection therewith, and the
preparation and printing of preliminary, supplemental and final Blue Sky
memoranda, (viii) fees, disbursements and other charges of counsel to the
Company (but not those of counsel for the Underwriters, except as otherwise
provided herein) and (ix) the transfer agent for the Shares.
(k) The Company will not at any time, directly or indirectly, take any
action designed or which might reasonably be expected to cause or result in, or
which will constitute, stabilization of the price of the shares of Common Stock
to facilitate the sale or resale of any of the Shares.
(l) The Company will apply the net proceeds from the offering and sale of
the Shares to be sold by the Company in the manner set forth in the Prospectus
under "Use of Proceeds".
(m) During the period beginning from the date hereof and continuing to and
including the date 90 days after the date of the Prospectus, without the prior
written consent of ▇▇▇▇▇▇▇, the Company will not (1) offer, sell, contract to
sell, pledge, grant options, warrants or rights to purchase, or otherwise
dispose of any equity securities of the Company or any other securities
convertible into or exchangeable for its Common Stock or other equity security
(other than pursuant to employee stock option plans disclosed in the Prospectus
or pursuant to the conversion of convertible securities or the exercise of
warrants in each case outstanding on the date of this Agreement), or (2) enter
into any swap or other derivatives transaction that transfers to another, in
whole or in part, any of the economic benefits or risks of ownership of shares
of Common Stock, whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of Common Stock or other securities, in cash
or otherwise.
(n) The Company will cause each of its executive officers, directors and
certain stockholders designated by the Underwriters to enter into lock-up
agreements with the Underwriters to the effect that they will not, without the
prior written consent of ▇▇▇▇▇▇▇, sell, contract to sell or otherwise dispose of
any shares of Common Stock or rights to acquire such shares according to the
terms set forth in Schedule II hereto.
10
5. Conditions of the Obligations of the Underwriters.
The obligations of each Underwriter hereunder are subject to the following
conditions:
(a) Notification that the Registration Statement has become effective
shall be received by the Underwriters not later than 5:00 p.m., New York City
time, on the date of this Agreement or at such later date and time as shall be
consented to in writing by the Underwriters and all filings required by Rule 424
and Rule 430A of the Rules and Regulations shall have been made. If the Company
has elected to rely upon Rule 462(b), the registration statement filed under
Rule 462(b) shall have become effective by 10:00 P.M., Washington, D.C. time, on
the date of this Agreement.
(b) (i) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall be
pending or threatened by the Commission, (ii) no order suspending the
effectiveness of the Registration Statement or the qualification or registration
of the Shares under the securities or Blue Sky laws of any jurisdiction shall be
in effect and no proceeding for such purpose shall be pending before or
threatened or contemplated by the Commission or the authorities of any such
jurisdiction, (iii) any request for additional information on the part of the
staff of the Commission or any such authorities shall have been complied with to
the satisfaction of the staff of the Commission or such authorities, (iv) after
the date hereof no amendment or supplement to the Registration Statement or the
Prospectus shall have been filed unless a copy thereof was first submitted to
the Underwriters and the Underwriters do not object thereto in good faith, and
(v) the Underwriters shall have received certificates, dated the Closing Date
and, if later, the Option Closing Date and signed by the Chief Executive Officer
and the Chief Financial Officer of the Company (who may, as to proceedings
threatened, rely upon the best of their information and belief), to the effect
of clauses (i), (ii) and (iii) of this paragraph.
(c) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, (i) there shall not have been a
material adverse change in the general affairs, business, properties,
management, financial condition or results of operations of the Company or any
of its Subsidiaries, taken as a whole, whether or not arising from transactions
in the ordinary course of business, in each case other than as described in or
contemplated by the Registration Statement and the Prospectus, and (ii) the
Company shall not have sustained any material loss or interference with its
business or properties from fire, explosion, flood or other casualty, whether or
not covered by insurance, or from any labor dispute or any court or legislative
or other governmental action, order or decree, which is not described in the
Registration Statement and the Prospectus, if in the judgment of the
Underwriters any such development makes it impracticable or inadvisable to
consummate the sale and delivery of the Shares by the Underwriters at the
initial public offering price.
(d) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there shall have been no litigation
or other proceeding instituted against the Company, any of its Subsidiaries, or
any of its or their officers or directors in their capacities as such, before or
by any federal, state or local court, commission, regulatory body,
administrative agency or other governmental body, domestic or foreign, in which
litigation or proceeding an unfavorable ruling, decision or finding would, in
the judgment of the Underwriters, have a Material Adverse Effect, and in the
judgment of the Underwriters, any such development makes it impracticable or
inadvisable to consummate the sale and delivery of the Shares by the
Underwriters at the public offering price.
(e) Each of the representations and warranties of the Company contained
herein shall be true and correct in all respects at the Closing Date and, with
respect to the Option Shares, at the Option Closing Date, except for changes
contemplated by the Registration Statement, and all covenants and agreements
contained herein to be performed on the part of the Company and all conditions
contained herein to be fulfilled or complied with by the Company at or prior to
the Closing Date and, with respect to the Option Shares, at or prior to the
Option Closing Date, shall have been duly performed, fulfilled or complied with.
(f) The Underwriters shall have received an opinion, dated the Closing
Date and, with respect to the Option Shares, the Option Closing Date,
satisfactory in form and substance to the Underwriters and counsel to the
Underwriters from Brown, Rudnick, Freed & Gesmer, P.C., counsel to the Company,
with respect to the following matters:
11
(i) Each of the Company and its U.S. Subsidiaries is a corporation
duly incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation, and has the corporate power and authority to own
or lease all the assets owned or leased by it and to conduct its business as
described in the Registration Statement and Prospectus. The Company is duly
licensed or qualified to do business as a foreign corporation in the states of
Alabama and Connecticut, and the Commonwealth of Pennsylvania and the
Commonwealth of Massachusetts. Fluoroscan is qualified to do business as a
foreign corporation in the Commonwealth of Massachusetts.
(ii) All of the outstanding shares of capital stock of the Company
have been duly authorized, validly issued and are fully paid and nonassessable,
and were not issued in violation of or subject to any preemptive or, to such
counsel's knowledge, similar rights;
(iii) The specimen certificate evidencing the Common Stock
incorporated by reference as an exhibit to the Registration Statement is in due
and proper form under Delaware law, the Shares have been duly authorized and,
when issued and paid for as contemplated by this Agreement, will be validly
issued, fully paid and nonassessable; and no preemptive, or, to such counsel's
knowledge, similar rights exist with respect to any of the Shares or the issue
and sale thereof.
(iv) All of the outstanding shares of capital stock of each U.S.
Subsidiary have been duly authorized and validly issued and are fully paid and
nonassessable, and owned of record by the Company or a wholly-owned U.S.
Subsidiary. To such counsel's knowledge, except as disclosed in Exhibit 21.01 to
the Company's Annual Report on Form 10-K for the fiscal year ended September 29,
2001, the Company has no subsidiary required to be listed in said Exhibit that
is not so listed.
(v) The authorized and outstanding capital stock of the Company is as
set forth in the Registration Statement and the Prospectus in the column
entitled "Actual" under the caption "Capitalization" as of the date set forth
therein. The description of the capital stock of the Company incorporated by
reference in the Registration Statement and the Prospectus conforms in all
material respects to the terms thereof.
(vi) To such counsel's knowledge, except as disclosed, described or
incorporated in the Registration Statement and the Prospectus, there is no legal
or governmental proceeding pending or, to our knowledge, overtly threatened to
which the Company or any of its Subsidiaries is a party or to which any of their
respective properties is subject that is required to be described in the
Registration Statement or the Prospectus.
(vii) Except for such consents, approvals, authorizations or orders
of, or any filings or declarations which may be required under state securities
or Blue Sky laws or the by-laws and rules of the NASD in connection with the
purchase and distribution by the Underwriters of the Shares (as to which such
counsel need express no opinion), no consent, approval, authorization or order
of, or any filing or declaration with, any court or governmental agency or body
is required for the consummation by the Company of the transactions on its part
contemplated under this Agreement, except such as have been obtained or made
under the Act or the Rules and Regulations.
(viii) The Company has the corporate power and authority to enter
into and perform this Agreement. This Agreement has been duly authorized,
executed and delivered by the Company.
(ix) The execution and delivery of this Agreement, the compliance by
the Company with all of the terms hereof and the consummation of the purchase
and sale of the Shares contemplated hereby (a) does not contravene any provision
of the Certificate of Incorporation or By-Laws of the Company or any of its U.S.
Subsidiaries, and to the best of such counsel's knowledge (b) will not (i)
result in the creation or imposition of any lien, charge or encumbrance upon any
of the assets of the Company or any of its U.S. Subsidiaries pursuant to the
terms and provisions of, or (ii) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under,
or (iii) give any party a right to terminate any of its obligations under, or
(iv) result in the acceleration of any obligation under, any indenture,
mortgage, deed of trust, voting trust agreement, loan agreement, bond,
debenture, note agreement or other
12
evidence of indebtedness, lease, contract or other agreement or instrument known
to such counsel to which the Company or any of its U.S. Subsidiaries is a party
or by which the Company, any of its U.S. Subsidiaries, or any of their
respective properties is bound or affected, which would have a Material Adverse
Effect or (c) violate or conflict with (i) any judgment, ruling, decree or order
naming the Company or any U.S. Subsidiary known to such counsel or (ii) any
statute, rule or regulation of any court or other governmental agency or body,
applicable to the business or properties of the Company or any of its U.S.
Subsidiaries (it being understood that such counsel need express no opinion in
this paragraph as to the matters referred to in paragraph (vi) or the antifraud
provisions of any applicable law, including without limitation any federal or
state securities or Blue Sky laws).
(x) To such counsel's knowledge, there is no document or contract of
a character required 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 or incorporated by reference as required, and each
description of such contracts and documents that is contained in the
Registration Statement and Prospectus (or incorprated by reference therein)
fairly presents in all material respects the information required under the Act
and the Rules and Regulations.
(xi) The statements under the captions "Risk Factors - Future sales
of our common stock may cause our stock price to decline," "Risk Factors -
Provisions in our Certificate of Incorporation and By-laws and our stockholder
rights plan may have the effect of discouraging advantageous offers for our
business or common stock and limit the price that investors might be willing to
pay in the future for shares of our common stock," Item 11 of the Company's
Annual Report on Form 10-K for the fiscal year ended September 29, 2001 and
"Description of Capital Stock" in the Prospectus (or incorporated by reference
therein), insofar as the statements constitute a summary of documents referred
to therein or matters of law, fairly present, in all material respects, the
information called for with respect to such documents and matters (provided,
however, that such counsel may rely on representations of the Company with
respect to the factual matters contained in such statements, and provided
further that such counsel shall state that nothing has come to the attention of
such counsel which leads them to believe that such representations are not true
and correct in all material respects).
(xii) The Company is not an "investment company" or an "affiliated
person" of, or "promoter" or "principal underwriter" for, an "investment
company," as such terms are defined in the Investment Company Act of 1940, as
amended.
(xiii) The Shares have been duly authorized for listing on the NNM,
subject to notice of issuance.
(xiv) To such counsel's knowledge, no holder of securities of the
Company has rights, which have not been waived or satisfied, to require the
Company to register with the Commission shares of Common Stock or other
securities, as part of the offering contemplated hereby.
(xv) The Registration Statement has become effective under the Act,
and to the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceeding
for that purpose has been instituted or is pending, threatened or contemplated.
Any required filing of the Prospectus and any supplement thereto pursuant to
Rule 424(b) under the Securities Act has been made in the manner and within the
time period required by such Rule 424(b).
(xvi) The Registration Statement and the Prospectus comply as to form
in all material respects with the requirements of the Act and the Rules and
Regulations (other than the financial statements, schedules and other financial
data (and statistical data derived therefrom), contained or incorporated by
reference in the Registration Statement or the Prospectus, as to which such
counsel need express no opinion).
(xvii) The documents incorporated by reference in the Prospectus
(other than the financial statements, schedules and other financial data (and
statistical data derived therefrom), contained or
13
incorporated by reference therein, as to which such counsel need express no
opinion), when they were filed with the Commission, complied as to form in all
material respects with the requirements of the Exchange Act and the Exchange Act
Rules and Regulations.
In rendering such opinion, such counsel may rely as to matters of local law
on opinions of counsel satisfactory in form and substance to the Underwriters
and counsel for the Underwriters, provided that the opinion of counsel to the
Company shall state that they are doing so, that they have no reason to believe
that they and the Underwriters are not entitled to rely on such opinions and
that copies of such opinions are to be attached to the opinion.
Such counsel shall also have furnished to the Representatives a written
statement, addressed to the Underwriters and dated as of the applicable Closing
Date, in form and substance satisfactory to the Underwriters, to the effect that
(x) such counsel has acted as counsel to the Company in connection with the
preparation of the Registration Statement, and (y) based on the foregoing, no
facts have come to the attention of such counsel which lead it to believe that
the Registration Statement, as of the Effective Date, contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein not
misleading, or that the Prospectus contains any untrue statement of a material
fact 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 in no case
will such counsel be required to express any view with respect to the financial
statements and related schedules and notes and other financial and statistical
data derived therefrom included or incorporated by reference therein). The
foregoing statement may be qualified by a statement to the effect that such
counsel does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statement or the
Prospectus except to the extent described above in SECTION 5(H).
(g) The Underwriters shall have received an opinion, dated the Closing
Date and the Option Closing Date, from Pillsbury Winthrop LLP, counsel to the
Underwriters, with respect to the Registration Statement, the Prospectus and
this Agreement, which opinion shall be satisfactory in all respects to the
Underwriters.
(h) The Underwriters shall have received on each Closing Date from ▇▇▇▇▇▇
& ▇▇▇▇▇▇ LLP, intellectual property counsel for the Company, an opinion,
addressed to the Underwriters, satisfactory in form and substance to the
Underwriters and counsel to the Underwriters, and dated such Closing Date,
stating in effect the matters set forth in Exhibit A.
(i) Concurrently with the execution and delivery of this Agreement, the
Accountants shall have furnished to the Underwriters a letter, dated the date of
its delivery, addressed to the Underwriters and in form and substance
satisfactory to the Underwriters, confirming that they are independent
accountants with respect to the Company and its Subsidiaries as required by the
Act and the Exchange Act and the Rules and Regulations and with respect to
certain financial and other statistical and numerical information contained or
incorporated by reference in the Registration Statement. At the Closing Date
and, as to the Option Shares, the Option Closing Date, the Accountants shall
have furnished to the Underwriters a letter, dated the date of its delivery,
which shall confirm, on the basis of a review in accordance with the procedures
set forth in the letter from the Accountants, that nothing has come to their
attention during the period from the date of the letter referred to in the prior
sentence to a date (specified in the letter) not more than three days prior to
the Closing Date and the Option Closing Date, as the case may be, which would
require any change in their letter dated the date hereof if it were required to
be dated and delivered at the Closing Date and the Option Closing Date.
(j) Concurrently with the execution and delivery of this Agreement and at
the Closing Date and, as to the Option Shares, the Option Closing Date, there
shall be furnished to the Underwriters a certificate, dated the date of its
delivery, signed by each of the Chief Executive Officer and the Chief Financial
Officer of the Company, in form and substance satisfactory to the Underwriters,
to the effect that:
(i) Each signer of such certificate has carefully examined the
Registration Statement and the Prospectus (including any documents filed under
the Exchange Act and deemed to be incorporated by reference into the Prospectus)
and (A) as of the date of such certificate, such documents are true and correct
in all material respects and do not omit to state a material fact required to be
stated therein or necessary in
14
order to make the statements therein not untrue or misleading and (B) in the
case of the certificate delivered at the Closing Date and the Option Closing
Date, since the Effective Date no event has occurred as a result of which it is
necessary to amend or supplement the Prospectus in order to make the statements
therein not untrue or misleading.
(ii) Each of the representations and warranties of the Company
contained in this Agreement were, when originally made, and are, at the time
such certificate is delivered, true and correct.
(iii) Each of the covenants required to be performed by the Company
herein on or prior to the date of such certificate has been duly, timely and
fully performed and each condition herein required to be satisfied or fulfilled
on or prior to the date of such certificate has been duly, timely and fully
satisfied or fulfilled.
(k) On or prior to the Closing Date, the Underwriters shall have received
the executed agreements referred to in SECTION 4(O).
(l) The Shares shall be qualified for sale in such jurisdictions as the
Underwriters may reasonably request and each such qualification shall be in
effect and not subject to any stop order or other proceeding on the Closing Date
or the Option Closing Date.
(m) Prior to the Closing Date, the Shares shall have been duly authorized
for listing on the NNM upon official notice of issuance.
(n) The Company shall have furnished to the Underwriters such
certificates, in addition to those specifically mentioned herein, as the
Underwriters may have reasonably requested as to the accuracy and completeness
at the Closing Date and the Option Closing Date of any statement in the
Registration Statement or the Prospectus, as to the accuracy at the Closing Date
and the Option Closing Date of the representations and warranties of the Company
herein, as to the performance by the Company of its obligations hereunder, or as
to the fulfillment of the conditions concurrent and precedent to the obligations
hereunder of the Underwriters.
6. Indemnification.
(a) The Company will indemnify and hold harmless each Underwriter, the
directors, officers, employees and agents of each Underwriter and each person,
if any, who controls any Underwriter within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, from and against any and all losses, claims,
liabilities, expenses and damages (including any and all investigative, legal
and other expenses reasonably incurred in connection with, and any amount paid
in settlement of, any action, suit or proceeding or any claim asserted), to
which they, or any of them, may become subject under the Act, the Exchange Act
or other federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, liabilities, expenses or damages
arise out of or are based on any untrue statement or alleged untrue statement of
a material fact contained in any preliminary prospectus, the Registration
Statement or the Prospectus or any amendment or supplement to the Registration
Statement or the Prospectus, or the omission or alleged omission to state in
such document a material fact required to be stated in it or necessary to make
the statements in it not misleading in the light of the circumstances in which
they were made, or arise out of or are based in whole or in part on any
inaccuracy in the representations and warranties of the Company contained herein
or any failure of the Company to perform its obligations hereunder or under law
in connection with the transactions contemplated hereby; provided, however, that
(i) the Company will not be liable to the extent that such loss, claim,
liability, expense or damage arises from the sale of the Shares in the public
offering to any person by an Underwriter and is based on an untrue statement or
omission or alleged untrue statement or omission made in reliance on and in
conformity with the Underwriting Information and (ii) the Company will not be
liable to any Underwriter, the directors, officers, employees or agents of such
Underwriter or any person controlling such Underwriter with respect to any loss,
claim, liability, expense, or damage arising out of or based on any untrue
statement or omission or alleged untrue statement or omission or alleged
omission to state a material fact in the preliminary prospectus which is
corrected in the Prospectus if the person asserting any such loss, claim,
liability, charge or damage purchased Shares from such Underwriter but was not
sent or given a copy of the Prospectus at or prior to the written confirmation
of the sale of such Shares to such
15
person and if copies of the Prospectus were timely delivered to such Underwriter
pursuant to SECTION 5 hereof. This indemnity agreement will be in addition to
any liability that the Company might otherwise have.
(b) Each Underwriter, severally and not jointly, will indemnify and hold
harmless the Company, each director of the Company, each officer of the Company
who signs the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, to the same extent as the foregoing indemnity from the Company to
each Underwriter, as set forth in SECTION 6(A), but only insofar as losses,
claims, liabilities, expenses or damages arise out of or are based on any untrue
statement or omission or alleged untrue statement or omission made in reliance
on and in conformity with Underwriting Information. This indemnity will be in
addition to any liability that each Underwriter might otherwise have.
(c) Any party that proposes to assert the right to be indemnified under
this SECTION 6 shall, promptly after receipt of notice of commencement of any
action against such party in respect of which a claim is to be made against an
indemnifying party or parties under this SECTION 6, notify each such
indemnifying party in writing of the commencement of such action, enclosing with
such notice a copy of all papers served, but the omission so to notify such
indemnifying party will not relieve it from any liability that it may have to
any indemnified party under the foregoing provisions of this SECTION 6 unless,
and only to the extent that, such omission results in the loss of substantive
rights or defenses by the indemnifying party. If any such action is brought
against any indemnified party and it notifies the indemnifying party of its
commencement, the indemnifying party will be entitled to participate in and, to
the extent that it elects by delivering written notice to the indemnified party
promptly after receiving notice of the commencement of the action from the
indemnified party, jointly with any other indemnifying party similarly notified,
to assume the defense of the action, with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense, the indemnifying party will not be
liable to the indemnified party for any legal or other expenses except as
provided below and except for the reasonable costs of investigation incurred by
the indemnified party in connection with the defense. The indemnified party will
have the right to employ its own counsel in any such action, but the fees,
expenses and other charges of such counsel will be at the expense of such
indemnified party unless (i) the employment of counsel by the indemnified party
has been authorized in writing by the indemnifying party, (ii) the indemnified
party has reasonably concluded (based on advice of counsel) that there may be
legal defenses available to it or other indemnified parties that are different
from or in addition to those available to the indemnifying party, (iii) a
conflict or potential conflict exists (based on advice of counsel to the
indemnified party) between the indemnified party and the indemnifying party (in
which case the indemnifying party will not have the right to direct the defense
of such action on behalf of the indemnified party) or (iv) the indemnifying
party has not in fact employed counsel reasonably satisfactory to the
indemnified party to assume the defense of such action within a reasonable time
after receiving notice of the commencement of the action, in each of which cases
the reasonable fees, disbursements and other charges of counsel will be at the
expense of the indemnifying party or parties. It is understood that the
indemnifying party or parties shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be liable for the reasonable fees,
disbursements and other charges of more than one separate firm admitted to
practice in such jurisdiction at any one time for all such indemnified party or
parties. All such fees, disbursements and other charges will be reimbursed by
the indemnifying party promptly as they are incurred. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action 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 (i) includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act by
or on behalf of an indemnified party. An indemnifying party will not be liable
for any settlement of any action or claim effected without its written consent
(which consent will not be unreasonably withheld or delayed).
(d) If the indemnification provided for in this SECTION 6 is applicable in
accordance with its terms but for any reason is held to be unavailable to or
insufficient (other than for failure to give notice if the indemnifying party is
materially prejudiced thereby) to hold harmless an indemnified party under
paragraphs (a), (b) and (c) of this SECTION 6 in respect of any losses, claims,
liabilities, expenses and damages referred to therein, then each applicable
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable (including any investigative, legal and
other expenses reasonably incurred in connection with, and any amount paid in
settlement of, any action, suit or proceeding or any claim asserted, but after
deducting any contribution received by the Company from persons other than the
Underwriters, such as persons who control the Company within the
16
meaning of the Act, officers of the Company who signed the Registration
Statement and directors of the Company, who also may be liable for contribution)
by such indemnified party as a result of such losses, claims, liabilities,
expenses and damages in such proportion as shall be appropriate to reflect the
relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand. The relative benefits received by the Company,
on the one hand, and the Underwriters, on the other hand, shall be deemed to be
in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus. If, but only if, the
allocation provided by the foregoing sentence is not permitted by applicable
law, the allocation of contribution shall be made in such proportion as is
appropriate to reflect not only the relative benefits referred to in the
foregoing sentence but also the relative fault of the Company, on the one hand,
and the Underwriters, on the other hand, with respect to the statements or
omissions which resulted in such loss, claim, liability, expense or damage, or
action in respect thereof, as well as any other relevant equitable
considerations with respect to such offering. Such relative fault shall be
determined by reference to whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by the Company or the Underwriters, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Underwriters and the Company
agree that it would not be just and equitable if contributions pursuant to this
SECTION 6(D) were to be determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take into account the equitable considerations
referred to herein. The amount paid or payable by an indemnified party as a
result of the loss claim, liability, expense or damage, or action in respect
thereof, referred to above in this SECTION 6(D) shall be deemed to include, for
purposes of this SECTION 6(D), any legal or other expenses reasonably incurred
by such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this SECTION 6(D), no
Underwriter shall be required to contribute any amount in excess of the
underwriting discounts received by such Underwriter and the Company shall be
liable and responsible for any amount in excess of such underwriting discount.
No person found guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) will be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute as provided in this SECTION 6(D) are several in
proportion to their respective underwriting obligations and not joint. For
purposes of this SECTION 6(D), any person who controls a party to this Agreement
within the meaning of the Act will have the same rights to contribution as that
party, and each officer of the Company who signed the Registration Statement
will have the same rights to contribution as the Company, subject in each case
to the provisions hereof. Any party entitled to contribution, promptly after
receipt of notice of commencement of any action against any such party in
respect of which a claim for contribution may be made under this SECTION 6(D),
will notify any such party or parties from whom contribution may be sought, but
the omission so to notify will not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have under
this SECTION 6(D). No party will be liable for contribution with respect to any
action or claim settled without its written consent (which consent will not be
unreasonably withheld).
(e) The indemnity and contribution agreements contained in this SECTION 6
and the representations and warranties of the Company contained in this
Agreement shall remain operative and in full force and effect regardless of
(i) any investigation made by or on behalf of the Underwriters, (ii) acceptance
of any of the Shares and payment therefor or (iii) any termination of this
Agreement.
7. Reimbursement of Certain Expenses.
In addition to its other obligations under SECTION 6(A) of this Agreement,
the Company hereby agrees to reimburse the Underwriters on a quarterly basis for
all reasonable legal and other expenses incurred in connection with
investigating or defending any claim, action, investigation, inquiry or other
proceeding arising out of or based upon, in whole or in part, any statement or
omission or alleged statement or omission, or any inaccuracy in the
representations and warranties of the Company contained herein or failure of the
Company to perform its obligations hereunder or under law, all as described in
SECTION 6(A), notwithstanding the absence of a judicial determination as to the
propriety and enforceability of the obligations under this SECTION 7 and the
possibility that such payment might later be held to be improper; provided,
however, that, to the extent any such payment is ultimately held to be improper,
the persons receiving such payments shall promptly refund them.
17
8. Termination.
The obligations of the several Underwriters under this Agreement may be
terminated at any time on or prior to the Closing Date (or, with respect to the
Option Shares, on or prior to the Option Closing Date), by notice to the Company
from the Underwriters, without liability on the part of any Underwriter to the
Company if, prior to delivery and payment for the Firm Shares or Option Shares,
as the case may be, in the sole judgment of the Underwriters, (i) trading in any
of the equity securities of the Company shall have been suspended or limited by
the Commission or by The Nasdaq Stock Market, (ii) trading in securities
generally on the The Nasdaq Stock Market shall have been suspended or limited or
minimum or maximum prices shall have been generally established on such
exchange, or additional material governmental restrictions, not in force on the
date of this Agreement, shall have been imposed upon trading in securities
generally by such exchange, by order of the Commission or any court or other
governmental authority, or by The Nasdaq Stock Market, (iii) a general banking
moratorium shall have been declared by either federal or New York State
authorities or any material disruption of the securities settlement or clearance
services in the United States shall have occurred, or (iv) any material adverse
change in the financial or securities markets in the United States or in
political, financial or economic conditions in the United States, any outbreak
or material escalation of hostilities involving the United States, a declaration
of national emergency or war by the United States, or other calamity or crisis
shall have occurred, the effect of which is such as to make it, in the sole
judgment of the Underwriters, impracticable or inadvisable to proceed with
completion of the public offering or the delivery of and payment for the Shares.
If this Agreement is terminated pursuant to SECTION 9 hereof, the Company
shall be under no liability to any non-defaulting Underwriter except as provided
in SECTIONS 4(J), 6 and 7 hereof; but if for any other reason the purchase of
the Shares by the Underwriters is not consummated or if for any reason the
Company shall be unable to perform its obligations hereunder, the Company will
reimburse the several Underwriters for all reasonable out-of-pocket expenses
(including the reasonable fees, disbursements and other charges of counsel to
the Underwriters) incurred by the Underwriters in connection with the offering
of the Shares, but the Company shall be under no further liability to any
Underwriter except as provided in SECTIONS 4(J), 6 and 7 hereof.
9. Substitution of Underwriters.
If any one or more of the Underwriters, absent a breach of this Agreement
by the Company, shall fail or refuse to purchase any of the Firm Shares which it
or they are obligated to purchase under the terms of this Agreement, and the
aggregate number of Firm Shares which such defaulting Underwriter or
Underwriters are obligated to, but failed or refused to, purchase is not more
than one-tenth of the aggregate number of Firm Shares, the other Underwriters
shall be obligated, severally and not jointly, to purchase the Firm Shares which
such defaulting Underwriter or Underwriters were obligated to, but failed or
refused to purchase, in the proportions which the number of Firm Shares which
they have respectively agreed to purchase pursuant to Section 1 bears to the
aggregate number of Firm Shares which all such non-defaulting Underwriters have
so agreed to purchase, or in such other proportions as the Underwriters may
specify; provided that in no event shall the maximum number of Firm Shares which
any Underwriter has become obligated to purchase pursuant to Section 1 be
increased pursuant to this Section 9 by more than one-ninth of such number of
Firm Shares without the prior written consent of such Underwriter. In any such
case either the Underwriters or the Company shall have the right to postpone the
Closing Date, but in no event for longer than seven days, in order that the
required changes, if any, in the Registration Statement and the Prospectus or in
any other documents or arrangements may be effected. If any Underwriter or
Underwriters, absent a breach of this Agreement by the Company, shall fail or
refuse to purchase any Firm Shares which it or they are obligated to purchase
under the terms of this Agreement, and the aggregate number of Firm Shares which
such defaulting Underwriter or Underwriters were obligated to, but failed or
refused to, purchase exceeds one-tenth of the aggregate number of the Firm
Shares and arrangements satisfactory to the Underwriters and the Company for the
purchase of such Firm Shares are not made within 48 hours after such default,
this Agreement will terminate without liability on the part of any non-
defaulting Underwriter and the Company for the purchase or sale of any Shares
under this Agreement. Any action taken pursuant to this Section 9 shall not
relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
10. Miscellaneous.
Notice given pursuant to any of the provisions of this Agreement shall be
in writing and, unless otherwise specified, shall be mailed or delivered (a) if
to the Company, at the office of the Company, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, with a copy to ▇▇▇▇▇▇ ▇▇▇▇▇, Esq., Brown,
Rudnick, Freed & Gesmer, P.C., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or (b) if
to the Underwriters, at the offices of Needham &
18
Company, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Corporate
Finance Department, with a copy to ▇▇▇▇▇▇▇ ▇▇▇▇, Esq., Pillsbury Winthrop LLP,
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇. Any such notice shall be effective
only upon receipt. Any notice under such SECTION 8 or 9 may be made by
telecopier or telephone, but if so made shall be subsequently confirmed in
writing.
This Agreement has been and is made solely for the benefit of the
Underwriters, the Company, and the controlling persons, directors and officers
referred to in SECTION 6, and their respective successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" as used in this Agreement shall
not include a purchaser, as such purchaser, of Shares from any of the several
Underwriters.
Any action required or permitted to be made by the Underwriters under this
Agreement may be taken by them jointly or by ▇▇▇▇▇▇▇.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York applicable to contracts made and to be performed
entirely within such State.
This Agreement may be signed in two or more counterparts with the same
effect as if the signatures thereto and hereto were upon the same instrument.
19
In case any provision in this Agreement shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
THE COMPANY AND THE UNDERWRITERS EACH HEREBY WAIVE ANY RIGHT THEY MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED UPON OR ARISING OUT OF THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Please confirm that the foregoing correctly sets forth the agreement among
the Company and the Underwriters.
Very truly yours,
HOLOGIC, INC.
By:
---------------------------------
Title:
Confirmed as of the date first
above mentioned:
▇▇▇▇▇▇▇ & COMPANY, INC.
▇▇▇▇▇▇▇▇ INC.
Acting on behalf of themselves
and the other several Underwriters
named in Schedule I hereto.
By: ▇▇▇▇▇▇▇ & COMPANY, INC.
By:
-----------------------------
Title:
20
SCHEDULE I
UNDERWRITERS
Number of
Firm
Shares
Underwriters to be Purchased
------------ ---------------
▇▇▇▇▇▇▇ & Company, Inc. .......................... 1,625,000
▇▇▇▇▇▇▇▇ Inc. .................................... 875,000
________
Total 2,500,000
=========
21
SCHEDULE II
FORM OF LOCK-UP AGREEMENT
[AND DIRECTORS, OFFICERS AND STOCKHOLDERS
OF THE COMPANY WHO SHALL SIGN SUCH AGREEMENT]
The undersigned is a holder of securities of Hologic, Inc., a Delaware
corporation (the "Company"), and wishes to facilitate the public offering of
shares of the Common Stock (the "Common Stock") of the Company (the "Offering").
The undersigned recognizes that such Offering will be of benefit to the
undersigned.
In consideration of the foregoing and in order to induce the Underwriters
to act as underwriters in connection with the Offering, the undersigned hereby
agrees that he, she or it will not, without the prior written approval of
▇▇▇▇▇▇▇ & Company, Inc., directly or indirectly, sell, contract to sell, make
any short sale, pledge, or otherwise dispose of, or enter into any hedging
transaction that is likely to result in a transfer of, any shares of Common
Stock, options to acquire shares of Common Stock or securities exchangeable for
or convertible into shares of Common Stock of the Company which he, she or it
may own, for a period commencing as of the date hereof and ending on the date
which is ninety (90) days after the date of the final Prospectus relating to the
Offering. The undersigned confirms that he, she or it understands that the
underwriters and the Company will rely upon the representations set forth in
this Agreement in proceeding with the Offering. The undersigned further
confirms that the agreements of the undersigned are irrevocable and shall be
binding upon the undersigned's heirs, legal representatives, successors and
assigns. The undersigned agrees and consents to the entry of stop transfer
instructions with the Company's transfer agent against the transfer of
securities held by the undersigned except in compliance with this Agreement.
This Agreement shall be binding on the undersigned and his, her or its
respective successors, heirs, personal representatives and assigns.
------------------------------------
22