1
EXHIBIT 1
NEOGEN CORPORATION
1,500,000 Shares of Common Stock
UNDERWRITING AGREEMENT
October __, 1996
▇▇▇▇▇ & CO., L.L.C.
THE OHIO COMPANY
As Representatives of the Several
Underwriters Named in Schedule 3
c/▇ ▇▇▇▇▇ & Co., L.L.C.
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Neogen Corporation, a Michigan corporation (the "Company"), hereby confirms
its agreement with ▇▇▇▇▇ & Co., L.L.C., The Ohio Company (the "Representatives")
and the several Underwriters named in Schedule 3 (the "Underwriters") as set
forth below.
1. Securities. Subject to the terms and conditions herein contained, the
Company proposes to issue and sell to the Underwriters an aggregate of 1,500,000
shares (the "Firm Shares") of its Common Stock (the "Common Stock"). The Company
also proposes to issue and sell to the Underwriters not more than an aggregate
of 225,000 shares of additional Common Stock if requested by the Underwriters as
provided in Section 3 of this Agreement. Any and all Common Stock to be
purchased by the Underwriters pursuant to such option are referred to in this
Agreement as the "Option Shares," and the Firm Shares and any Option Shares are
collectively referred to in this Agreement as the "Shares."
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, each of the Underwriters that:
(a) The Company meets the requirements for use of Form S-2 under the
Securities Act of 1933, as amended, and the rules and regulations of the
Securities and Exchange Commission (the "Commission") thereunder (collectively,
the "Act"). A registration statement on such Form (File No. 333-12193) with
respect to the Shares of the Company, including a prospectus subject to
completion, has been prepared and filed by the Company with the Commission in
accordance with the provisions of the Act, and one or more amendments to such
registration statement may have been so filed. As soon as practicable after the
execution of this Agreement, the Company will file with the Commission either
(1) if such registration statement, as it may have been amended, has been
declared by the Commission to be effective under the
2
Act, a prospectus in the form most recently included in an amendment to such
registration statement (or, if no such amendment shall have been filed, in such
registration statement), with such changes or insertions as are required by
Rule 430A under the Act or permitted by Rule 424(b) under the Act and as have
been provided to and approved by the Underwriters prior to the execution of
this Agreement, or (2) if such registration statement, as it may have been
amended, has not been declared by the Commission to be effective under the Act,
an amendment to such registration statement, including a form of prospectus, a
copy of which amendment has been furnished to and approved by the Underwriters
prior to the execution of this Agreement. As used in this Agreement, the term
"Registration Statement" means such registration statement, as amended at the
time when it was or is declared effective, and, in the event of any amendment
to such registration statement after the effective date and before the Firm
Closing Date and any Option Closing Date (as defined in Sections 3(a) and 3(b),
respectively), such registration statement as so amended, but only from and
after the effectiveness of such amendment, including (1) all financial
statements, schedules and exhibits thereto, (2) all documents (or portions
thereof) incorporated by reference therein filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and (3) any information omitted
therefrom pursuant to Rule 430A under the Act and included in the Prospectus
(as hereinafter defined). As used in this Agreement, the term "Preliminary
Prospectus" means each prospectus subject to completion filed with such
registration statement or any amendment thereto (including the prospectus
subject to completion, if any, included in the Registration Statement or any
amendment thereto at the time it was or is declared effective), including all
documents (or portions thereof) incorporated by reference therein filed under
the Exchange Act. As used in this Agreement, the term "Prospectus" means the
prospectus first filed with the Commission pursuant to Rule 424(b) under the
Act or, if no prospectus is required to be filed pursuant to said Rule 424(b),
such term means the prospectus included in the Registration Statement, at the
time the Registration Statement or any amendment thereto became effective, and,
in the event of any supplement or amendment to such prospectus before the Firm
Closing Date and any Option Closing Date, such prospectus as so supplemented or
amended but only from and after the filing with the Commission of such
supplement or the effectiveness of such amendment, in any case including all
documents (or portions thereof) incorporated by reference therein filed under
the Exchange Act.
(b) The Commission has not issued any order preventing or suspending
the use of any Preliminary Prospectus. When any Preliminary Prospectus was
filed with the Commission, it (1) contained all statements required to be stated
therein in accordance with, and complied in all material respects with the
requirements of, the Act, the Exchange Act and the respective rules and
regulations of the Commission thereunder and (2) did not include any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. When the Registration Statement or any
amendment thereto was or is declared effective and at all times subsequent
thereto up to and including the Firm Closing Date and any Option Closing Date,
it (1) contained or will contain all statements required to be stated therein in
accordance with, and complied or will comply in all material respects with the
requirements of, the Act, the Exchange Act and the respective rules and
regulations of the Commission thereunder and (2) did not or will not include any
untrue statement of a material fact or omit to state any material fact required
to
2
3
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. When the Prospectus
or any amendment or supplement thereto is filed with the Commission pursuant to
Rule 424(b) (or, if the Prospectus or such amendment or supplement is not
required to be so filed, when the Registration Statement or the amendment
thereto containing such amendment or supplement to the Prospectus was or is
declared effective), on the date when the Prospectus is otherwise amended or
supplemented and at all times subsequent thereto up to and including the Firm
Closing Date and any Option Closing Date (as defined in Sections 3(a) and 3(b),
respectively), the Prospectus, as amended or supplemented at any such time, (1)
contained or will contain all statements required to be stated therein in
accordance with, and complied or will comply in all material respects with the
requirements of, the Act, the Exchange Act and the respective rules and
regulations of the Commission thereunder and (2) did not or will not include
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The foregoing
provisions of this paragraph (b) do not apply to statements or omissions made
in any Preliminary Prospectus, the Registration Statement or any amendment
thereto or the Prospectus or any amendment or supplement thereto in reliance
upon, and in conformity with, written information furnished to the Company by
you specifically for use therein.
(c) The Company's only subsidiaries are listed on Schedule 1 to this
Agreement. The Company and each of its subsidiaries are validly existing as
corporations in good standing under the laws of their respective jurisdictions
of incorporation and are duly qualified to transact business as foreign
corporations and are in good standing under the laws of all other jurisdictions
where the ownership or leasing of their respective properties or the nature or
conduct of their respective businesses requires such qualification, except where
the failure to be so qualified would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(d) The Company and each of its subsidiaries have full power
(corporate and other) to own or lease their respective properties and conduct
their respective businesses as described in the Registration Statement and the
Prospectus or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus; and the Company has full power (corporate and other) to
enter into this Agreement and to carry out all the terms and provisions of this
Agreement to be carried out by it.
(e) The authorized, issued and outstanding shares of capital stock of
each of the Company's subsidiaries are set forth on Schedule 2 to this
Agreement. Such issued and outstanding shares have been duly authorized and
validly issued, are fully paid and nonassessable and are all owned beneficially
by the Company free and clear of all restrictions on transfer (other than those
imposed by the Act and the securities or Blue Sky laws of various jurisdictions)
and any security interests, liens, encumbrances, equities and claims.
3
4
(f) The Company has an authorized, issued and outstanding
capitalization as set forth in the Prospectus or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus, under the caption
"Capitalization". All of the issued and outstanding shares of capital stock of
the Company have been duly authorized and validly issued and are fully paid and
nonassessable and free of preemptive rights and contractual rights to purchase
(to the extent the Company or any of its subsidiaries is a party to such
contract). No holder of outstanding shares of capital stock of the Company is
entitled as such to any preemptive or other rights to subscribe for any of the
Shares, and no holder of securities of the Company has any right which has not
been fully exercised or waived to require the Company to register the offer or
sale of any securities owned by such holder under the Act in the public offering
contemplated by this Agreement.
(g) The capital stock of the Company conforms to the description
thereof contained in the Registration Statement and the Prospectus or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus.
(h) The consolidated financial statements and schedules of the
Company and its consolidated subsidiaries included in the Registration Statement
and the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) fairly present the financial condition of the Company
and its consolidated subsidiaries and the results of operations and cash flows
as of the dates and periods therein specified. Such financial statements and
schedules have been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved (except as
otherwise noted therein). The selected financial data set forth under the
caption "Selected Consolidated Financial Data" in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus) fairly
present, on the basis stated in the Prospectus (or such Preliminary Prospectus),
the information included therein.
(i) BDO ▇▇▇▇▇▇▇, L.L.P., which have certified certain financial
statements of the Company and its consolidated subsidiaries and delivered their
report with respect to the audited consolidated financial statements and
schedules included in the Registration Statement and the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus), are
independent public accountants as required by the Act, the Exchange Act and the
related published rules and regulations thereunder.
(j) The execution and delivery of this Agreement have been duly
authorized by the Company. This Agreement has been duly executed and delivered
by the Company, and assuming due execution by the other parties to this
Agreement, is the legal, valid and binding agreement of the Company, enforceable
by any such party against the Company in accordance with its terms, except as
(i) enforcement thereof may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting enforcement of creditors' rights generally, (ii)
enforcement thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at law), and
(iii) rights to indemnification may be limited by applicable law.
4
5
(k) No legal or governmental proceedings are pending or, to the
best of the Company's knowledge, threatened, to which the Company or any of its
subsidiaries is a party or to which the property of the Company or any of its
subsidiaries is subject that are required to be described in the Registration
Statement or the Prospectus and are not described therein (or, if the Prospectus
is not in existence, the most recent Preliminary Prospectus). No contract or
other document is required to be described in the Registration Statement or the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus) or to be filed as an exhibit to the Registration
Statement that is not described therein or filed as required.
(l) The execution and delivery of this Agreement, the issuance,
offering and sale of the Shares to the Underwriters by the Company pursuant to
this Agreement, the compliance by the Company with the other provisions of this
Agreement and the consummation of the other transactions contemplated by this
Agreement do not (1) require the consent, approval, authorization, registration
or qualification of or with any governmental authority, except such as have been
obtained, such as may be required under state securities or blue sky laws and,
if the Registration Statement (as amended) filed with respect to the Shares is
not effective under the Act as of the time of execution of this Agreement, such
as may be required (and shall be obtained as provided in this Agreement) under
the Act, or (2) conflict with or result in a breach or violation of any of the
terms and provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, lease or other agreement or instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any of its
subsidiaries or any of their respective properties are bound, or the Articles of
Incorporation or other charter documents, Code of Regulations or by-laws of the
Company or any of its subsidiaries, or any statute or any judgment, decree,
order, rule or regulation of any court or other governmental authority or any
arbitrator or any other laws applicable to the Company, any of its subsidiaries
or any of their respective properties.
(m) The Company has not, directly or indirectly, (1) taken any
action designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Shares or (2) since the filing of the registration statement originally filed
with respect to the Shares (A) sold (except for sales of Common Stock upon
exercise of stock options or warrants), bid for, purchased, or paid anyone any
compensation for soliciting purchases of, the Shares or (B) paid or agreed to
pay to any person any compensation for soliciting another to purchase any other
securities of the Company.
(n) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), (1) the Company and
its subsidiaries have not incurred any material liability or obligation, direct
or contingent, nor entered into any material transaction not in the ordinary
course of business; (2) the Company has not purchased any of its outstanding
capital stock, nor declared, paid or otherwise made any dividend or distribution
of any kind on its capital stock; and (3) there has not been any change in the
capital stock (except for sales of Common Stock upon exercise of stock options
or warrants), short-term debt (other than as
5
6
incurred or repaid in the ordinary course of business) or long-term debt of the
Company and its consolidated subsidiaries or any material loss or damage to the
property of the Company or any of its subsidiaries, any material adverse change
in the condition (financial or otherwise), business, results of operations,
cash flows or prospects of the Company and its subsidiaries, taken as a whole,
except in each case as described in or contemplated by the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus).
(o) The Company and each of its subsidiaries have good and
marketable title in fee simple to all items of real property and good and
marketable title to all personal property owned by each of them or described in
the Prospectus as owned by them, in each case free and clear of any security
interests, liens, encumbrances, equities, claims, charges, restrictions and
other defects, except for those security interests, liens or encumbrances that
exist in connection with loans made by NBD Bank or Comerica Bank and reflected
on the Company's financial statements included in the Prospectus, and except
such as do not, singly or in the aggregate, materially and adversely affect the
condition (financial or otherwise), business, prospects, net worth, results of
operations or cash flows of the Company and its subsidiaries or the value of
such property and do not interfere with the use made or proposed to be made of
such property by the Company or such subsidiary, and any real and personal
property and buildings held under lease by the Company or any such subsidiary
are held under valid, subsisting and enforceable leases, with such exceptions as
are not material and do not interfere with the use made or proposed to be made
of such property and buildings by the Company or such subsidiary, in each case
mentioned in this paragraph except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus). The Company and its subsidiaries own or lease all
properties as are necessary to their respective operations as now conducted and,
except as otherwise stated in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), as proposed to be conducted
as set forth in the Prospectus.
(p) No labor dispute with the employees of the Company or any of
its subsidiaries exists or is threatened or imminent that could result in a
material adverse change in the condition (financial or otherwise), business
prospects, net worth, results of operations or cash flows of the Company and its
subsidiaries, except as described in or contemplated by the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus).
(q) The Company and its subsidiaries own or possess, or can acquire
on reasonable terms, all material patents, patent applications, trademarks,
service marks, trade names, licenses, copyrights and proprietary or other
confidential information currently employed by them in connection with their
respective businesses, and neither the Company nor any such subsidiary has
received any notice of infringement of or conflict with asserted rights of any
third party with respect to any of the foregoing which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding, is
expected to result in a material adverse change in the condition (financial or
otherwise), business prospects, net worth, results of operations or cash flows
of the Company and its subsidiaries, except as described in or contemplated by
the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus). The expiration of any
6
7
trademarks, copyrights or patents held or used by the Company or any of its
subsidiaries would not materially adversely affect the condition (financial or
otherwise), business prospects, net worth, results of operations or cash flows
of the Company and its subsidiaries, except as described in or contemplated by
the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(r) The Company and each of its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and in such
amounts as are prudent and customary in the businesses in which they are
engaged. Neither the Company nor any such subsidiary has been refused any
insurance coverage sought or applied for, and neither the Company nor any such
subsidiary has any reason to believe that it will not be able to renew its
existing insurance coverage as and when such coverage expires or to obtain
similar coverage from similar insurers as may be necessary to continue its
business at a cost that would not materially and adversely affect the condition
(financial or otherwise), business prospects, net worth, results of operations
or cash flows of the Company and its subsidiaries, except as described in or
contemplated by the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus).
(s) Except as provided in loan agreements with the Company's
lenders, no subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on such subsidiary's capital stock, from repaying to the Company
any loans or advances to such subsidiary from the Company or from transferring
any of such subsidiary's property or assets to the Company or any other
subsidiary of the Company, except as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(t) The Company and its subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state or foreign
regulatory authorities which are material to the conduct of their respective
businesses, and neither the Company nor any such subsidiary has received any
notice of proceedings relating to the revocation or modification of any such
certificate, authorization or permit which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would result in a
material adverse change in the condition (financial or otherwise), business
prospects, net worth, results of operations or cash flows of the Company and its
subsidiaries, except as described in or contemplated by the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus).
(u) The Company will conduct its operations in a manner that will
not subject it to registration as an investment company under the Investment
Company Act of 1940, as amended, and this transaction will not cause the Company
to become an investment company subject to registration under such Act.
(v) The Company has filed all foreign, federal, state and local tax
returns that are required to be filed or has requested extensions thereof
(except in any case in which the failure so to file would not have a material
adverse effect on the Company and its subsidiaries)
7
8
and has paid all taxes required to be paid by it and any other assessment, fine
or penalty levied against it, to the extent that any of the foregoing is due
and payable, except for any such assessment, fine or penalty that is currently
being contested in good faith or as described in or contemplated by the
Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(w) Neither the Company nor any of its subsidiaries is in material
violation of any federal, state or foreign law or regulation relating to
occupational safety and health or to the storage, handling or transportation of
hazardous or toxic materials, and the Company and its subsidiaries have received
all permits, licenses or other approvals required of them under applicable
federal, state and foreign occupational safety and health and environmental laws
and regulations to conduct their respective businesses, and the Company and each
such subsidiary is in compliance with all terms and conditions of any such
permit, license or approval, except any such violation of law or regulation,
failure to receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or approvals
which would not, singly or in the aggregate, result in a material adverse change
in the condition (financial or otherwise), business prospects, net worth,
results of operations or cash flows of the Company and its subsidiaries, except
as described in or contemplated by the Prospectus (or, if the Prospectus is not
in existence, the most recent Preliminary Prospectus).
(x) Each certificate signed by any officer of the Company and
delivered to the Underwriters or counsel for the Underwriters shall be deemed to
be a representation and warranty by the Company to each Underwriter as to the
matters covered thereby.
(y) Except for the shares of capital stock of each of the
subsidiaries owned by the Company and such subsidiaries, neither the Company nor
any such subsidiary owns any shares of stock or any other equity securities of
any corporation or has any equity interest in any firm, partnership, association
or other entity, except as described in or contemplated by the Prospectus (or,
if the Prospectus is not in existence, the most recent Preliminary Prospectus).
(z) There is no holder of securities of the Company, who, by reason
of the filing of the Registration Statement, has the right to request the
Company to register under the Act, or to include in the Registration Statement,
securities held by such holder, except to the extent such holder has waived such
rights in writing.
(aa) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance that (1)
transactions are executed in accordance with management's general or specific
authorizations; (2) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (3) access to assets is
permitted only in accordance with management's general or specific
authorization; and (4) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
8
9
(bb) Except as disclosed in the Registration Statement, no default
exists, and no event has occurred which, with notice or lapse of time or both,
would constitute a default (i) in the due performance and observance of any
term, covenant or condition of any bond, debenture, indenture, note, evidence of
indebtedness, mortgage, deed of trust, lease or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries or any of their respective properties is bound or may
be affected in any material adverse respect with regard to property, business or
operations of the Company and its subsidiaries, and (ii) which has or would have
a material adverse effect on the business, operations or property of the Company
or its subsidiaries, taken as a whole. Neither the Company nor any of its
subsidiaries is in violation of its Articles of Incorporation or bylaws.
(cc) None of the Company, its subsidiaries or any employee of the
Company or its subsidiaries has made any payment of funds of the Company or its
subsidiaries prohibited by law and no funds of the Company or its subsidiaries
have been set aside to be used for any payment prohibited by law.
3. Purchase, Sale and Delivery of the Shares
(a) On the basis of the representations, warranties, agreements and
covenants contained in this Agreement and subject to the terms and conditions
set forth in this Agreement, the Company agrees to sell to each of the
Underwriters, and each of the Underwriters, individually and not jointly, agrees
to purchase from the Company, at a purchase price of $______ per Share, the
respective amount of Firm Shares set forth opposite the name of such Underwriter
in Schedule 3 to this Agreement. One or more certificates in definitive form
for the Firm Shares that the several Underwriters have agreed to purchase under
this Agreement, and registered in such name or names as you request upon notice
to the Company at least 48 hours prior to the Firm Closing Date, shall be
delivered by or on behalf of the Company to you on the Closing Date for the
respective accounts of the several Underwriters, against payment by or on behalf
of the Underwriters of the purchase price therefor by certified or official bank
checks drawn upon or by a New York Clearing House bank and payable in next-day
funds to the order of the Company or at the option of the Underwriters, by wire
transfer to the account of the Company in same-day funds. Such delivery of, and
payment for, the Firm Shares shall be made at the offices of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ and ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇., ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, at 9:30
A.M., Detroit time, on ______________, 1996, or at such other place, time or
date as you and the Company may agree upon or as you may determine pursuant to
Section 9 of this Agreement, such time and date of delivery against payment
being referred to in this Agreement as the "Firm Closing Date". The Company
will make such certificate or certificates for the Firm Shares available to you
for inspection at the offices in Detroit, Michigan of the Company's transfer
agent or registrar or of ▇▇▇▇▇ & Co., L.L.C., at least 24 hours prior to the
Firm Closing Date.
(b) For the sole purpose of covering any over-allotments in
connection with the distribution and sale of the Firm Shares as contemplated by
the Prospectus, the Company hereby grants to the Underwriters an option to
purchase, individually and not jointly, the Option
9
10
Shares. The purchase price to be paid for any Option Shares shall be the same
as the price for the Firm Shares set forth above in paragraph (a) of this
Section 3. The option granted hereby may be exercised as to all or any part of
the Option Shares from time to time within 30 days after the date of the
Prospectus (or, if such 30th day shall be a Saturday or a Sunday or a holiday,
on the next business day thereafter when The Nasdaq National Market is open for
trading). The Underwriters shall not be under any obligation to purchase any
of the Option Shares prior to the exercise of such option. The Underwriters
may from time to time exercise the option granted hereby by giving notice in
writing or by telephone (confirmed in writing) to the Company setting forth the
aggregate number of shares of Option Shares as to which the Underwriters are
then exercising the option and the date and time for delivery of and payment
for such Option Shares. Any such date of delivery shall be determined by the
Underwriters but shall not be earlier than two business days nor later than
seven business days after such exercise of the option and, in any event, shall
not be earlier than the Firm Closing Date. The time and date set forth in such
notice, or such other time, date or both as the Underwriters and the Company
may agree upon or as the Underwriters may determine pursuant to Section 9 of
this Agreement, are called the "Option Closing Date" in this Agreement with
respect to such Option Shares. Upon exercise of the option as provided in this
Agreement, the Company shall become obligated to sell to each of the
Underwriters, and, on the basis of the representations and warranties contained
in this Agreement and subject to the terms and conditions set forth in this
Agreement, each of the Underwriters, individually and not jointly, shall become
obligated to purchase from the Company, the same percentage of the total number
of Option Shares as to which the Underwriters are then exercising the options
as such Underwriter is obligated to purchase of the aggregate number of Firm
Shares (subject to such adjustments to provide for purchases of integral
amounts of Shares as you may determine). If the options are exercised as to
all or any portion of the Option Shares, one or more certificates in definitive
form for such Option Shares, and payment therefor, shall be delivered on the
related Option Closing Date in the manner, and upon the terms and conditions,
set forth in paragraph (a) of this Section 3, except that reference therein to
the Firm Shares and the Firm Closing Date shall be deemed, for purposes of this
paragraph (b), to refer to such Option Shares and Option Closing Date,
respectively.
(c) You have advised the Company that each Underwriter has
authorized you to accept delivery of its Firm Shares (and Option Shares, if the
option is exercised), to make payment and to give receipt therefor.
4. Offering by the Underwriters. Upon your authorization of the release
of the Firm Shares, the Underwriters propose to offer their respective portions
of the Firm Shares for sale to the public upon the terms set forth in the
Prospectus.
5. Covenants of the Company. The Company covenants and agrees with each
of the Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the time of execution of this Agreement, and any
amendments thereto, to become effective as promptly as possible. If required,
the Company will file the Prospectus and
10
11
any amendment or supplement thereto with the Commission in the manner and
within the time period required by Rule 424(b) under the Act. During any time
when a prospectus relating to the Shares is required to be delivered under the
Act (or until the Firm Closing Date and any Option Closing Date, if later), the
Company (1) will comply with all requirements imposed upon it by the Act, the
Exchange Act and the respective rules and regulations of the Commission
thereunder to the extent necessary to permit the continuance of sales of or
dealings in the Shares in accordance with the provisions of this Agreement and
of the Prospectus, as then amended or supplemented, and (2) will not file with
the Commission the Prospectus or the amendment referred to in the third
sentence of Section 2(a) of this Agreement, any amendment or supplement to such
Prospectus or any amendment to the Registration Statement of which the
Underwriters shall not previously have been advised and furnished with a copy a
reasonable period of time prior to the proposed filing or as to which filing
you shall not have given your consent. The Company will prepare and file with
the Commission, in accordance with the Act and the rules and regulations on the
Commission, promptly upon request by the Underwriters or counsel for the
Underwriters, any amendments to the Registration Statement or amendments or
supplements to the Prospectus that may be necessary or advisable in connection
with the distribution of the Shares by the Underwriters, and will use its best
efforts to cause any such amendment to the Registration Statement to be
declared effective by the Commission as promptly as possible. The Company will
advise you, promptly after receiving notice thereof, of the time when the
Registration Statement or any amendment thereto has been filed or declared
effective or the Prospectus or any amendment or supplement thereto has been
filed and will provide evidence satisfactory to you of each such filing or
effectiveness.
(b) The Company will advise the Underwriters, promptly after
receiving notice or obtaining knowledge thereof, of (1) the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereto or any order directed at any
document incorporated by reference in the Registration Statement or the
Prospectus or any amendment or supplement thereto or any order preventing or
suspending the use of any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto, (2) the suspension of the qualification of the
Shares for offering or sale in any jurisdiction, (3) the institution,
threatening or contemplation of any proceeding for any such purpose or (4) any
request made by the Commission for amending the Registration Statement, for
amending or supplementing any Preliminary Prospectus or the Prospectus or for
additional information. The Company will use its best efforts to prevent the
issuance of any such stop order and, if any such stop order is issued, to obtain
the withdrawal thereof as promptly as possible.
(c) The Company will arrange for the registration or qualification
of the Shares for offering and sale under the securities or blue sky laws of
such jurisdictions as you may designate and will continue such qualifications in
effect for as long as may be necessary to complete the distribution of the
Shares, provided, however, that in connection with such qualification the
Company shall not be required to qualify as a foreign corporation or to execute
a general consent to service of process in any jurisdiction.
11
12
(d) If, at any time prior to the later of (1) the final date when a
prospectus relating to the Shares is required to be delivered under the Act or
(2) the Firm Closing Date and any Option Closing Date, any event occurs as a
result of which the Prospectus, as then amended or supplemented, would include
any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, or if for any other reason it is
necessary at any time to amend or supplement the Prospectus to comply with the
Act, the Exchange Act, the respective rules or regulations of the Commission
thereunder or any other law, the Company will promptly notify the Underwriters
thereof and, subject to Section 5(a) of this Agreement, will prepare and file
with the Commission, at the Company's expense, an amendment to the Registration
Statement or an amendment or supplement to the Prospectus that corrects such
statement or omission or effects such compliance.
(e) The Company will, without charge, provide (1) to each of the
Underwriters and to counsel for the Underwriters a signed copy of the
registration statement originally filed with respect to the Shares and each
amendment thereto (in each case including exhibits thereto), and a conformed
copy of such registration statement and each amendment thereto (in each case
without exhibits thereto) and (2) so long as a prospectus relating to the Shares
is required to be delivered under the Act, as many copies of each Preliminary
Prospectus or the Prospectus or any amendment or supplement thereto as the
Underwriters, counsel for the Underwriters or any dealer may reasonably request.
(f) The Company, as soon as practicable and in any event not later
than 16 months after the effective date of the Registration Statement, will make
generally available to its security holders and to the Underwriters a
consolidated earnings statement of the Company and its subsidiaries that
satisfies the provisions of Section 11(a) of the Act and Rule 158 thereunder.
(g) The Company will apply the net proceeds from the sale of the
Shares sold by the Company as set forth under "Use of Proceeds" in the
Prospectus.
(h) The Company will not, directly or indirectly, and will cause its
directors and executive officers, as shown on the attached Schedule 4, and its
affiliates (but not including Dart Financial Corporation, as trustee of the
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Residual Trust, the ▇▇▇▇▇▇ ▇. ▇▇▇▇ Residual Trust and the ▇▇▇▇▇▇
▇. ▇▇▇▇ Residual Trust, which the Company represents is not an affiliate of the
Company) which are shareholders of the Company, to agree not to, directly or
indirectly, without your prior written consent, offer, sell, offer to sell,
contract to sell, grant any option to purchase or otherwise sell or dispose of
(or announce any offer, sale, offer of sale, contract of sale, grant of any
option to purchase or other sale or other disposition of) any Common Stock or
any securities convertible into, or exchangeable or exercisable for, Common
Stock for a period of 90 days after the date of this Agreement except for (1)
issuances pursuant to the Company's employee stock purchase plan or the exercise
of warrants outstanding on the date of this Agreement or pursuant to the
exercise of employee stock options outstanding on the date of this Agreement
(including, without limitation, the use by the holder of any such warrants or
options of Common Stock (whether outstanding or withheld by the Company from the
total
12
13
amount issued) to pay the exercise price of such warrants or options), or (2)
the grant of employee stock options pursuant to the Company's stock option
plans in effect on the date of this Agreement, provided that any employee stock
options so granted after the date of this Agreement are not exercisable prior
to 90 days after the date of this Agreement, or (3) issuances and sales of the
Shares to the Underwriters pursuant to this Agreement.
(i) The Company will not, directly or indirectly, (1) take any
action designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Shares or (2) (A) sell, bid for, purchase, attempt to induce any person to
purchase, or pay anyone any compensation for soliciting purchases of, the Shares
or (B) pay or agree to pay to any person any compensation for soliciting another
to purchase any other securities of the Company.
6. Expenses. The Company will pay all costs, expenses, fees and taxes
incident to the performance of its obligations under this Agreement, whether or
not the transactions contemplated by this Agreement are consummated or this
Agreement is terminated pursuant to Section 11 of this Agreement, including all
costs, expenses fees and taxes incident to (1) the preparing, printing or other
production and filing of documents with respect to the transactions, including
any costs of printing the registration statement originally filed with respect
to the Shares and any amendment thereto (including, without limitation, the
Registration Statement), any Preliminary Prospectus and the Prospectus and any
amendment or supplement thereto, this Agreement, the Agreement Among
Underwriters, the Selected Dealer Agreement, the Underwriters' Questionnaire and
Power of Attorney, any blue sky memoranda and all other agreements, memoranda,
correspondence and other documents printed and delivered in connection with the
offering of the Shares, (2) all arrangements relating to the delivery to the
Underwriters of copies of the foregoing documents, (3) the fees and
disbursements of the counsel, the accountants and any other experts or advisors
retained by the Company, (4) preparation, issuance and delivery to the
Underwriters of any certificates evidencing the Shares, including transfer
agent's and registrar's fees, (5) the registration or qualification of the
Shares under state securities and blue sky laws, including filing fees and the
reasonable legal fees and disbursements of counsel for the Underwriters relating
thereto or to the "Blue Sky" survey, (6) the filing fees of the Commission and
the National Association of Securities Dealers, Inc. relating to the Shares and
any listing fees relating to the Shares, and (7) advertising relating to the
offering of the Shares (other than as shall have been specifically approved by
the Underwriters to be paid for by the Underwriters). If the sale of the Shares
provided for in this Agreement is not consummated because any condition to the
obligations of the Underwriters set forth in Section 7 of this Agreement is not
satisfied, because this Agreement is terminated pursuant to Section 11 of this
Agreement, because of any failure, refusal or inability on the part of the
Company to perform all obligations and satisfy all conditions on its or their
part to be performed or satisfied under this Agreement (other than by reason of
a default by any of the Underwriters) or for any other reason (other than
because of the Underwriters' refusal (except for bona fide reasons related to
the Company, its officers, directors, employees or agents or market conditions)
or inability to perform), the Company will reimburse the Underwriters
individually upon demand for all out-of-
13
14
pocket expenses (including counsel fees and disbursements of counsel) that
shall have been incurred by them in connection with the proposed purchase and
sale of the Shares. The Company shall not in any event be liable to any of the
Underwriters for the loss of anticipated profits from the transactions covered
by this Agreement.
7. Conditions of the Underwriters' Obligations. The several obligations
of each of the Underwriters to purchase and pay for the Firm Shares shall be
subject, in the Underwriters' sole discretion, to the accuracy of the
representations and warranties of the Company contained in this Agreement as of
the date of this Agreement and as of the Firm Closing Date, as if made on and as
of the Firm Closing Date, to the accuracy of the statements of the Company's
officers made pursuant to the provisions of this Agreement, to the performance
by the Company of its covenants and agreements under this Agreement and to the
following additional conditions:
(a) If the Registration Statement or any amendment to the
Registration Statement filed prior to the Firm Closing Date has not been
declared effective as of the time of execution of this Agreement, the
Registration Statement or such amendment shall have been declared effective not
later than 11:00 A.M., New York City time, on the date on which an amendment to
the registration statement originally filed with respect to the Shares or to the
Registration Statement, as the case may be, containing information regarding the
offering price of the Shares has been filed with the Commission, or such later
time and date as shall have been consented to by you. If required, the
Prospectus and any amendment or supplement thereto shall have been filed with
the Commission in the manner and within the time period required by Rule 424(b)
under the Act. No stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment to the Registration Statement and no
order directed at any document incorporated by reference in the Registration
Statement or the Prospectus or any amendment or supplement thereto shall have
been issued and no proceedings for that purpose shall have been instituted or
threatened or, to the knowledge of the Company or the Underwriters, shall be
contemplated by the Commission. The Company shall have complied with any
request of the Commission for additional information (to be included in the
Registration Statement or the Prospectus or otherwise).
(b) You shall have received on the Firm Closing Date an opinion
addressed to the Underwriters (satisfactory to you and counsel for the
Underwriters), dated the Firm Closing Date, of Fraser ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇,
P.C., counsel for the Company, to the effect that:
(1) the Company and each of its subsidiaries listed in
Schedule 1 to this Agreement (the "Subsidiaries") are validly existing as
corporations in good standing under the laws of their respective jurisdictions
of incorporation and are duly qualified to transact business as foreign
corporations and are in good standing under the laws of all other jurisdictions
where the ownership or leasing of their respective properties or the conduct of
their respective businesses requires such qualification, except where the
failure to be so qualified would not have a material adverse effect on the
Company and its Subsidiaries, taken as a whole;
14
15
(2) the Company and each of the Subsidiaries have corporate
power to own or lease their respective properties and conduct their respective
businesses as described in the Registration Statement and the Prospectus, and
the Company has corporate power to enter into this Agreement and to carry out
all the terms and provisions of this Agreement to be carried out by it;
(3) the issued and outstanding shares of capital stock of each
of the Subsidiaries have been duly authorized and validly issued, are fully paid
and nonassessable and are owned beneficially by the Company free and clear of
any adverse claim, as defined in the applicable Uniform Commercial Code, or, to
the best knowledge of such counsel, any other security interests, liens,
encumbrances, equities or claims;
(4) the authorized, issued and outstanding capital stock of the
Company is as set forth in the Prospectus under the caption "Capitalization";
all of the issued and outstanding shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid and nonassessable,
have been issued in compliance with all applicable federal and state securities
laws and were not issued in violation of any preemptive rights or other rights
to subscribe for or purchase securities; the certificates for such outstanding
capital stock are valid and in proper legal form; no holders of the outstanding
shares of capital stock of the Company are entitled as such to any preemptive or
other rights to subscribe for any of the Shares; and no holders of securities of
the Company are entitled to have such securities registered under the
Registration Statement;
(5) the statements set forth under the headings "Business" and
"Legal Proceedings" in the Prospectus, insofar as such statements constitute a
summary of the legal matters, documents or proceedings referred to under such
headings, provide a fair summary of such legal matters, documents and
proceedings discussed under such headings;
(6) the execution and delivery of this Agreement have been duly
authorized by all necessary corporate action of the Company and this Agreement
has been duly executed and delivered by the Company;
(7) after due inquiry and to the best knowledge of such
counsel, no legal or governmental proceedings are pending to which the Company
or any of the Subsidiaries is a party or to which the property of the Company or
any of the Subsidiaries is subject that are required to be described in the
Registration Statement or the Prospectus and that are not described therein,
and, to the best knowledge of such counsel, no such proceedings have been
threatened against the Company or any of the Subsidiaries or with respect to any
of their respective properties; and no contract or other document is required to
be described in the Registration Statement or the Prospectus or to be filed as
an exhibit to the Registration Statement that is not described therein or filed
as required;
15
16
(8) the issuance, offering and sale of the Shares to the
Underwriters by the Company pursuant to this Agreement, the execution and
delivery of this Agreement, the compliance by the Company with the other
provisions of this Agreement and the consummation of the other transactions
contemplated by this Agreement do not (A) require the consent, approval,
authorization, registration or qualification of or with any governmental
authority, except such as have been obtained and such as may be required under
the Act and under state securities or blue sky laws, or (B) conflict with or
result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, lease or
other agreement or instrument, known to such counsel, to which the Company or
any of the Subsidiaries is a party or by which the Company or any of the
Subsidiaries or any of their respective properties are bound, or the charter
documents or bylaws of the Company or any of the Subsidiaries, or any statute or
any judgment, decree, order, rule, regulation or other law of any court or other
governmental authority or any arbitrator known to such counsel and applicable to
the Company or any of the Subsidiaries;
(9) the Registration Statement is effective under the Act; any
required filing of the Prospectus pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); and no stop order
suspending the effectiveness of the Registration Statement or any post-effective
amendment to the Registration Statement and no order directed at any document
incorporated by reference in the Registration Statement or the Prospectus or any
amendment or supplement thereto has been issued, and no proceedings for that
purpose have been instituted or threatened or, to the best knowledge of such
counsel, are contemplated by the Commission;
(10) the registration statement originally filed with respect
to the Shares and each amendment thereto (including, without limitation, the
Registration Statement) and the Prospectus and any supplement or amendment
thereto (in each case, including the documents incorporated by reference therein
but not including the financial statements and other financial information
contained therein, as to which such counsel need express no opinion) comply as
to form in all material respects with the applicable requirements of the Act,
the Exchange Act and the respective rules and regulations of the Commission
thereunder;
(11) the Company and the Subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state or foreign
regulatory authorities necessary to conduct their respective businesses; and
(12) this transaction will not cause the Company to become an
investment company subject to registration under the Investment Company Act of
1940.
Such counsel shall also state that, (y) in the course of preparation
of the Registration Statement and any amendment to the Registration Statement
and the Prospectus and any amendment or supplement thereto, such counsel had
conferences with officials of the Company and its independent auditors, and with
representatives of the Underwriters and their counsel at which the content of
the Registration Statement and any amendment to the Registration
16
17
Statement and the Prospectus and any amendment or supplement thereto and
related matters were discussed, and also had discussions with such officials of
the Company with a view toward a clear understanding on their part of the
requirements of the Act with reference to the preparation of registration
statements and prospectuses, although such counsel did not verify independently
the accuracy or completeness of the statements contained in the Registration
Statement and any amendment to the Registration Statement and the Prospectus
and any amendment or supplement thereto, and (z) based on such counsel's
examination of the Registration Statement and any amendment to the Registration
Statement and the Prospectus and any amendment or supplement thereto and on its
participation in the above-mentioned conferences, nothing has come to its
attention that gives it reason to believe that the Registration Statement or
any amendment to the Registration Statement, or the Prospectus or any amendment
or supplement thereto, at the time the Registration Statement became effective,
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus or any amendment or supplement
thereto, as of the date of such opinion, contained any untrue statement of a
material fact or omitted or omits to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading (except that such counsel need not express any
belief as to financial statements and notes, any related schedules and other
financial information contained in the Registration Statement or Prospectus).
In rendering any such opinion, such counsel may rely, as to matters of
fact, to the extent such counsel deems reasonable, on certificates of
responsible officers of the Company and public officials and, as to matters
involving the application of laws of any jurisdiction other than the State of
Michigan or the United States, to the extent satisfactory in form and scope to
counsel for the Underwriters, upon the opinions of local counsel reasonably
satisfactory to counsel for the Underwriters, and copies of such opinions shall
be delivered to the Underwriters and counsel for the Underwriters.
References to the Registration Statement and the Prospectus in this
paragraph (b) shall include any amendment or supplement thereto at the date of
such opinion.
(c) You shall have received on the Firm Closing Date an opinion
addressed to the Underwriters, dated the Firm Closing Date, of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ and ▇▇▇▇, counsel for the Underwriters, with respect to the issuance
and sale of the Firm Shares, the Registration Statement and the Prospectus, and
such other related matters as the Underwriters may reasonably require, and the
Company shall have furnished to such counsel such documents as they may
reasonably request for the purpose of enabling them to pass upon such matters.
In rendering such opinion, such counsel may rely as to all matters involving the
application of laws of any jurisdiction other than the State of Michigan or the
United States upon the opinion of Fraser ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
referred to in paragraph (b) above.
(d) You shall have received letters, on and as of the date of this
Agreement and on and as of the Firm Closing Date, from BDO ▇▇▇▇▇▇▇, L.L.P.,
certified public accountants for the Company, in form and substance satisfactory
to the Underwriters, to the effect that:
17
18
(1) they are independent public accountants with respect to the
Company and its consolidated subsidiaries within the meaning of the Act,
the Exchange Act and the applicable rules and regulations thereunder;
(2) in their opinion, the consolidated financial statements and
schedules of the Company and its consolidated subsidiaries examined by them
and included or incorporated by reference in the Registration Statement and
the Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Act, the Exchange Act, the
related published rules and regulations thereunder and Staff Accounting
Bulletins with respect to registration statements on Form S-2 and the
Exchange Act documents and filings incorporated by reference therein;
(3) on the basis of a reading of the August 31, 1996 unaudited
consolidated financial statements and schedules of the Company and its
consolidated subsidiaries included or incorporated by reference in the
Registration Statement and the Prospectus, a reading of the latest interim
unaudited consolidated financial statements of the Company and its
consolidated subsidiaries, a reading of the minutes of the meetings of the
shareholders, the board of directors and any committees thereof of the
Company and each of its consolidated subsidiaries, inquiries of certain
officials of the Company and its consolidated subsidiaries who have
responsibility for financial and accounting matters, such limited review
and auditing procedures and inquiries as may be in accordance with
standards for such reviews promulgated by the American Institute of
Certified Public Accountants and other specific procedures and inquiries,
nothing came to their attention that caused them to believe that:
(A) the unaudited consolidated financial statements and
schedules of the Company and its consolidated subsidiaries included or
incorporated by reference in the Registration Statement and the
Prospectus do not comply as to form in all material respects with the
applicable accounting requirements of the Act, the Exchange Act and
the related published rules and regulations thereunder and Staff
Accounting Bulletins with respect to registration statements on Form
S-2 and the Exchange Act documents and filings incorporated by
reference therein or such unaudited consolidated financial statements
are not fairly presented in conformity with generally accepted
accounting principles applied on a basis substantially consistent with
that of the audited consolidated financial statements included or
incorporated by reference in the Registration Statement and the
Prospectus or such unaudited schedules, when considered in relation to
the unaudited financial statements included or incorporated by
reference in the Prospectus, do not present fairly in all material
respects the information shown therein;
(B) at the date of the latest balance sheet read by them and
at a subsequent specific date not more than five business days prior
to the date of such letter, there were any changes in the capital
stock or long-term debt of the
18
19
Company and its consolidated subsidiaries or any decreases in net
current assets or shareholders' equity of the Company and its
consolidated subsidiaries, in each case compared with amounts shown on
the August 31, 1996 unaudited consolidated balance sheet included or
incorporated by reference in the Registration Statement and the
Prospectus, except for changes which the Prospectus discloses have
occurred or may occur or which are described in the letter;
(C) at the date of the latest consolidated balance
sheet read by them and at a subsequent specific date not more than
five business days prior to the date of such letter there were any
decreases, as compared with amounts shown in the unaudited
consolidated balance sheet as of August 31, 1996 included or
incorporated by reference in the Prospectus, in consolidated total
assets, working capital, long-term debt or shareholders' equity of the
Company and its consolidated subsidiaries, except for decreases which
the Prospectus discloses have occurred or may occur or which are
described in such letter;
(D) for the period from August 31, 1996 to the date of
the latest consolidated income statement read by them, and for the
period from August 31, 1996 to a subsequent specified date not more
than five business days prior to the date of such letter, there were
any decreases, as compared with the corresponding period of the
preceding year in consolidated revenues, gross profit, operating
income, earnings before income taxes or the total or per share amounts
of income before extraordinary items or of net income of the Company
and its consolidated subsidiaries, except for decreases which the
Prospectus discloses have occurred or may occur or which are described
in such letter; and
(4) on the basis of their examinations referred to in their
report contained or incorporated by reference in the Prospectus, the
limited procedures referred to in (3) above and the carrying out of certain
other specified procedures, not constituting an audit, they have compared
certain specified amounts, percentages and financial information included
in the Registration Statement and the Prospectus, or in the Company's
Annual and Quarterly Reports on Forms 10-K and 10-Q, respectively, for the
fiscal year ended May 31, 1996 and the fiscal quarter ended August 31,
1996, incorporated by reference in the Registration Statement and
Prospectus with the underlying accounting records of the Company and its
consolidated subsidiaries and with information derived from such records
and have found them to be in agreement, excluding any questions of legal
interpretation.
(e) If the letters referred to in paragraph (d) above set forth any
such changes, decreases or increases, it shall be a further condition to the
obligations of the Underwriters that (1) such letters shall be accompanied by a
written explanation of the Company as to the significance thereof, unless the
Underwriters deem such explanation unnecessary, and (2) such changes, decreases
or increases do not, in the sole judgment of the Underwriters, make it
19
20
impractical or inadvisable to proceed with the purchase and delivery of the
Shares as contemplated by the Registration Statement. References to the
Registration Statement and the Prospectus in paragraph (d) and this paragraph
(e) with respect to the letters referred to above shall include any amendment
or supplement thereto at the date of such letter.
(f) You shall have received on the Firm Closing Date a certificate,
dated the Firm Closing Date, of the Chief Executive Officer and the Chief
Financial Officer of the Company to the effect that:
(1) the representations and warranties of the Company in
this Agreement are true and correct as if made on and as of the Firm
Closing Date; the Registration Statement, as amended as of the Firm
Closing Date, does not include any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and the
Prospectus, as amended or supplemented as of the Firm Closing Date,
does not include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; and the Company has performed all covenants and
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Firm Closing Date;
(2) no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto and no
order directed at any document incorporated by reference in the
Registration Statement or the Prospectus or any amendment or
supplement thereto has been issued, and no proceedings for that
purpose have been instituted or threatened or, to the best of the
Company's knowledge, are contemplated by the Commission; and
(3) subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus, (i) neither the Company nor any of its subsidiaries has
sustained any material loss or interference with their respective
businesses or properties from fire, flood, hurricane, accident or
other calamity, whether or not covered by insurance, or from any labor
dispute or any legal or governmental proceeding, and (ii) there has
not been any material adverse change, or any development involving a
prospective material adverse change, in the condition (financial or
otherwise), management, business, net worth, cash flows or results of
operations of the Company or any of its subsidiaries, except in each
case as described in or contemplated by the Prospectus, and (iii)
there has not been any change in the capital stock or a material
increase in the long-term debt of the Company and its subsidiaries,
except in each case as described in or contemplated by the Prospectus,
and (iv) the Company has not incurred any liability or obligation,
direct or contingent, which is material to the Company and its
subsidiaries taken as a whole, except in each case as described in or
contemplated by the Prospectus.
20
21
(g) On or before the Firm Closing Date, the Underwriters and counsel
for the Underwriters shall have received such further certificates, documents or
other information as they may have reasonably requested from the Company.
All opinions, certificates, letters and documents delivered pursuant
to this Agreement will comply with the provisions of this Agreement only if they
are reasonably satisfactory in all material respects to the Underwriters and
counsel for the Underwriters. The Company shall furnish to the Underwriters
such conformed copies of such opinions, certificates, letters and documents in
such quantities as the Underwriters and counsel for the Underwriters shall
reasonably request.
The several obligations of each of the Underwriters to purchase and
pay for any Option Shares shall be subject, in their discretion, to each of the
foregoing conditions to purchase the Firm Shares, except that all references to
the Firm Shares and the Firm Closing Date shall be deemed to refer to such
Option Shares and the related Option Closing Date, respectively.
8. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, their respective directors, officers, partners, agents and
employees and each other person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act
(collectively, "Indemnitees") against any losses, claims, damages or
liabilities, joint or several, to which such Indemnitee may become subject under
the Act, the Exchange Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of, relate to, or are
caused by or based upon:
(1) any untrue statement or alleged untrue statement made by the
Company in this Agreement,
(2) any untrue statement or alleged untrue statement of any
material fact contained in (A) the Registration Statement or any amendment
thereto or any Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto or (B) any application or other document, or any
amendment or supplement thereto, executed by the Company or based upon
written information furnished by or on behalf of the Company filed in any
jurisdiction in order to qualify the Shares under the securities or blue
sky laws thereof or filed with the Commission or any securities association
or securities exchange (each an "Application"),
(3) any omission or alleged omission to state in the
Registration Statement or any amendment thereto, any Preliminary Prospectus
or the Prospectus or any amendment or supplement thereto, or any
Application a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading, or
21
22
(4) any untrue statement or alleged untrue statement of any
material fact contained in any audio or visual materials used in connection
with the marketing of the Shares, including, without limitation, slides,
videos, films, and tape recordings, except to the extent such materials
were prepared by the Underwriters,
and will reimburse, as incurred, each Indemnitee for any legal or other
expenses reasonably incurred by such Indemnitee in connection with
investigating, defending against, or appearing as a third-party witness in
connection with, any such loss, claim, damage, liability or action; provided,
however, that the Company will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of, is related to, or
is caused by or based upon, any untrue statement or alleged untrue statement or
omission or alleged omission made in such Registration Statement or any
amendment thereto, any Preliminary Prospectus, the Prospectus or any amendment
or supplement thereto, or any Application in reliance upon, and in conformity
with, written information furnished to the Company by any Underwriter expressly
for use therein; and provided, further, that the Company will not be liable to
any Indemnitee with respect to any such untrue statement or omission made in
any Preliminary Prospectus that is corrected in the Prospectus (or any
amendment or supplement thereto) if the person asserting any such loss, claim,
damage or liability purchased Shares from such Underwriter but was not sent or
given a copy of the Prospectus (as amended or supplemented), other than the
documents incorporated by reference therein, at or prior to the written
confirmation of the sale of such Shares to such person in any case where such
delivery of the Prospectus (as amended or supplemented) is required by the Act
and where delivery of such Prospectus (as amended or supplemented) would have
cured the defect giving rise to such loss, claim, damage or liability, unless
such failure to deliver the Prospectus (as amended or supplemented) was a
result of noncompliance by the Company with Section 5(d) or 5(e) of this
Agreement. This indemnity agreement will be in addition to any liability which
the Company may otherwise have. The Company will not, without the prior
written consent of the Underwriters, settle or compromise or consent to the
entry of any judgment in any pending or threatened claim, action, suit or
proceeding in respect of which indemnification may be sought hereunder (whether
or not any such Indemnitee is a party to such claim, action, suit or
proceeding), unless (1) such settlement, compromise or consent includes an
unconditional release of all of the Indemnitees from all liability arising out
of such claim, action, suit or proceeding and (2) the entire settlement amount
and all costs of settlement and all related costs are borne by the Company.
(b) The Company hereby expressly and irrevocably waives any and all
rights and objections which it may have against any Indemnitee in respect of any
liabilities arising out of, or relating to, this Agreement or the offering
contemplated by this Agreement, except to the extent such liabilities are
determined, by a final order of a court of competent jurisdiction, to be the
direct and primary result of the Underwriters' gross negligence or willful
misconduct. Each Underwriter, individually and not jointly, will indemnify and
hold harmless the Company, each of its directors, each of its officers who
signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act against any losses, claims, damages or liabilities to which the
Company, any such director or officer of the Company, or any such controlling
person of the Company may become
22
23
subject under the Act, the Exchange Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) are determined,
by a final order of a court of competent jurisdiction, to be the direct and
primary result of (1) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement or any amendment thereto,
any Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto, or any Application or (2) the omission or the alleged omission to
state therein a material fact required to be stated in the Registration
Statement or any amendment thereto, any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto, or any Application or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission is determined by such court to have
been made in reliance upon, and in conformity with, written information
furnished to the Company by such Underwriter expressly for use therein; and,
subject to the limitation set forth immediately preceding this clause, will
reimburse, as incurred, any legal or other expenses reasonably incurred by the
Company or any such director, officer or controlling person in connection with
investigating or defending against any such loss, claim, damage, liability or
action. This indemnity agreement will be in addition to any liability which
such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action (including any governmental
investigation), such indemnified party will, if a claim in respect thereof is to
be made against the indemnifying party under this Section 8, notify the
indemnifying party of the commencement of such action; but the omission so to
notify the indemnifying party will not relieve it from any liability which it
may have to any indemnified party otherwise than under this Section 8 and will
not relieve it from any liability under this Section 8 except to the extent the
indemnifying party is actually prejudiced by the failure to give such notice. In
case any such action is brought against any indemnified party, and it notifies
the indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party; provided, however,
that if the parties to any such action (including any impleaded parties) include
both the indemnified party and the indemnifying party or any officers, directors
or controlling persons of such indemnifying party and the indemnified party
shall have reasonably concluded that there may be one or more legal defenses
available to it and/or other indemnified parties which are different from or
additional to those available to the indemnifying party, the indemnifying party
shall not have the right to direct the defense of such action on behalf of such
indemnified party or parties and such indemnified party or parties shall have
the right to select separate counsel to defend such action on behalf of such
indemnified party or parties. After notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof and approval
by such indemnified party of counsel appointed to defend such action, the
indemnifying party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses, other than reasonable costs of
investigation, subsequently incurred by such indemnified party in connection
with the defense thereof, unless (1) the indemnified party shall have employed
separate counsel in accordance with the proviso to the next preceding sentence
(it being understood, however, that in connection with
23
24
such action the indemnifying party shall not be liable for the expenses of more
than one separate counsel (in addition to local counsel) in any one action or
separate but substantially similar actions in the same jurisdiction arising out
of the same general allegations or circumstances, which counsel shall be
designated by you in the case of indemnification under paragraph (a) of this
Section 8, representing the indemnified parties under such paragraph (a) who
are parties to such action or actions) or (2) the indemnifying party does not
promptly retain counsel reasonably satisfactory to the indemnified party or (3)
the indemnifying party has authorized the employment of counsel for the
indemnified party at the expense of the indemnifying party. After such notice
from the indemnifying party to such indemnified party, the indemnifying party
will not be liable for the costs and expenses of any settlement of such action
effected by such indemnified party without the written consent of the
indemnifying party.
(d) If the indemnity agreement provided for in the preceding
paragraphs of this Section 8 is unavailable or insufficient, for any reason, to
hold harmless an indemnified party in respect of any losses, claims, damages or
liabilities (or actions in respect thereof), each indemnifying party, in order
to provide for just and equitable contribution, shall contribute to the amount
paid or payable by such indemnified party as a result of such losses, claims,
damages or liabilities (or actions in respect thereof) in such proportion as is
appropriate to reflect (1) the relative benefits received by the indemnifying
party or parties on the one hand and the indemnified party on the other from the
offering of the Shares or (2) if the allocation provided by the foregoing clause
(1) is not permitted by applicable law, not only such relative benefits but also
the relative fault of the indemnifying party or parties on the one hand and the
indemnified party on the other in connection with the statements or omissions or
alleged statements or omissions that resulted in such losses, claims, damages or
liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total 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 on the cover page of the
Prospectus. The relative fault of the parties shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriters, the parties'
relative intents, knowledge, access to information and opportunity to correct or
prevent such statement or omission, and any other equitable considerations
appropriate in the circumstances. The Company and the Underwriters agree that
it would not be equitable if the amount of such contribution were determined by
pro rata or per capita allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation that does not take
into account the equitable considerations referred to above in this paragraph
(d). Notwithstanding any other provision of this paragraph (d), no Underwriter
shall be obligated to make contributions under this paragraph (d) that in the
aggregate exceed the total public offering price of the securities purchased by
such Underwriter under this Agreement, less the aggregate amount of any damages
that such Underwriter has otherwise been required to pay in respect of such
untrue or alleged untrue statement or omission or alleged omission, and no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to
24
25
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute under this
paragraph (d) are individual in proportion to their respective underwriting
obligations and not joint. For purposes of this paragraph (d), each person, if
any, who controls an Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act shall have the same rights to contribution as
such Underwriter, and each director of the Company, each officer of the Company
who signed the Registration Statement and each person, if any, who controls the
Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, shall have the same rights to contribution as the Company.
9. Default of Underwriters. If any one or more of the Underwriters shall
fail or refuse to purchase the Firm Shares which it or they have agreed to
purchase under this Agreement and the aggregate number of shares of Firm Shares
which such defaulting Underwriter or Underwriters agreed but failed or refused
to purchase is not more than one-tenth of the total number of shares of Firm
Shares, each non-defaulting Underwriter shall be obligated severally, in the
proportion which the number of shares of Firm Shares set forth opposite its name
in Schedule 3 bears to the total number of shares of Firm Shares which all
non-defaulting Underwriters have agreed to purchase, or in such other proportion
as you may specify, to purchase the Firm Shares which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase; provided,
however, that in no event shall the number of Firm Shares which any Underwriter
has agreed to purchase pursuant to Section 3 be increased pursuant to this
Section 9 by an amount in excess of 10% of such number of Firm Shares without
the written consent of such Underwriter. If any one or more of the Underwriters
shall fail or refuse to purchase Firm Shares or Option Shares under this
Agreement and the number of shares of Firm Shares with respect to which such
default occurs is more than 10% of the total amount of Firm Shares, and if
arrangements satisfactory to you are not made within 36 hours after such default
for the purchase by other persons (who may include the non-defaulting
Underwriters) of the Shares with respect to which such default occurs, this
Agreement will terminate without liability on the part of any non-defaulting
Underwriters or the Company other than as provided in Section 10 of this
Agreement. In any such case which does not result in the termination of this
Agreement, you shall have the right to postpone the Firm Closing Date or the
Option Closing Date, as the case may be, established as provided in Section 3 of
this Agreement for not more than seven business days in order that any necessary
changes may be made in the Registration Statement, the Prospectus, the other
documents and the arrangements for the purchase and delivery of the Firm Shares
or Option Shares, as the case may be. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 9. Nothing herein shall relieve any defaulting Underwriter from
liability for its default.
10. Survival. The respective representations, warranties, agreements,
covenants, indemnities, contribution agreements and other statements of the
Company and the several Underwriters set forth in this Agreement or made by or
on behalf of them, respectively, pursuant to this Agreement shall remain in full
force and effect, regardless of (1) any investigation made by or on behalf of
the Company, any of its officers or directors, any Underwriter or any
controlling person referred to in Section 8 of this Agreement and (2) delivery
of and payment for
25
26
the Shares. The respective agreements, covenants, indemnities and other
statements set forth in Sections 6 and 8 of this Agreement shall remain in full
force and effect, regardless of any termination or cancellation of this
Agreement.
11. Termination.
(a) This Agreement may be terminated with respect to the Firm Shares
or any Option Shares in your sole discretion by notice to the Company given
prior to the Firm Closing Date or the related Option Closing Date, respectively,
if the Company shall have failed, refused or been unable to perform all
obligations on its part to be performed under this Agreement on or before the
Firm Closing Date or the Option Closing Date, as applicable, or if any of the
conditions in Section 7 shall not have been fulfilled when and as required by
this Agreement to be fulfilled, or if, at or prior to the Firm Closing Date or
such Option Closing Date, respectively:
(1) the Company or any of its subsidiaries shall have, in
your sole judgment, sustained any material loss or interference with
their respective businesses or properties from fire, flood, hurricane,
accident or other calamity, whether or not covered by insurance, or
from any labor dispute or any legal or governmental proceeding or
there shall have been any material adverse change, or any development
involving a prospective material adverse change (including without
limitation a change in management or control of the Company), in the
condition (financial or otherwise), management, business, net worth,
cash flows or results of operations of the Company or any of its
subsidiaries, except in each case as described in or contemplated by
the Prospectus (exclusive of any amendment or supplement thereto);
(2) trading in the Common Stock shall have been suspended
by the Commission or The Nasdaq National Market or trading in
securities generally on the New York Stock Exchange or the Nasdaq
National Market shall have been suspended or minimum or maximum prices
shall have been established on such exchange or market system;
(3) a banking moratorium shall have been declared by
Michigan, New York or United States authorities;
(4) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, (B) an
outbreak or escalation of any other insurrection or armed conflict
involving the United States or (C) any other calamity or crisis or
material adverse change in the general economic, political or
financial conditions having an effect on the U.S. financial markets
that, in your sole judgment, makes it impractical or inadvisable to
proceed with the public offering or the delivery of the Shares as
contemplated by the Registration Statement, as amended as of the date
of this Agreement;
26
27
(5) there shall have been enacted, published, decreed or
promulgated any federal, state or local statute, regulation, rule or order
of any court or other governmental authority which in your opinion
materially and adversely affects or will materially and adversely affect
the business or operations of the Company; or
(6) any actions shall have been taken by any federal, state or
local government or agency in respect of its monetary or fiscal affairs
which in your opinion has a material adverse effect on the securities
markets in the United States.
(b) Termination of this Agreement pursuant to this Section 11 shall be
without liability of any party to any other party except as provided in Section
6 and Section 8 of this Agreement.
12. Information Supplied by Underwriters. The statements set forth in the
last paragraph on the front cover page and under the heading "Underwriting" in
any Preliminary Prospectus or the Prospectus (to the extent such statements
relate to the Underwriters) constitute the only information furnished by any
Underwriter to the Company for the purposes of Section 8 of this Agreement. The
Underwriters confirm that such statements (to such extent) are correct.
13. Notices. All communications under this Agreement shall be in writing
and, if sent to you or the Underwriters, shall be delivered or sent by mail,
telex or facsimile transmission and confirmed in writing to ▇▇▇▇▇ & Co., L.L.C.,
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.; and to The
Ohio Company, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇
▇. ▇▇▇▇▇▇; with a copy to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇; and if sent to the
Company, shall be delivered or sent by mail, telex or facsimile transmission and
confirmed in writing to the Company at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇-▇▇▇▇, Attention: Chief Executive Officer; with a copy to Fraser
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇, P.C., ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇.
14. Successors. This Agreement shall inure to the benefit of and shall be
binding upon the Underwriters and the Company, and their respective successors,
assigns and legal representatives, and nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person any legal
or equitable right, remedy or claim under or in respect of this Agreement, or
any provisions contained in this Agreement, this Agreement and all conditions
and provisions of this Agreement being intended to be and being for the sole and
exclusive benefit of such persons and for the benefit of no other person except
that (i) the indemnities of the Company contained in Section 8 of this Agreement
shall also be for the benefit of the Indemnitees, including, without limitation,
any person or persons who control any Underwriter within the meaning of Section
15 of the Act or Section 20 of the Exchange Act and (ii) the indemnities of the
Underwriters contained in Section 8 of this Agreement shall also be for the
benefit of the directors of the Company, the officers of the Company who have
signed the Registration Statement and any person or persons who control the
Company within the
27
28
meaning of Section 5 of the Act or Section 20 of the Exchange Act. No
purchaser of Shares from any Underwriter shall be deemed a successor because of
such purchase.
15. Applicable Law. The validity and interpretation of this Agreement,
and the terms and conditions set forth in this Agreement, shall be governed by
and construed in accordance with the laws of the State of Michigan, without
giving effect to any provisions relating to conflicts of laws.
16. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
17. Entire Agreement. This Agreement is the parties' entire agreement
concerning its subject matter, and supersedes all prior undertakings and
agreements.
If the foregoing correctly sets forth our understanding, please indicate
your acceptance of this Agreement in the space provided below for that purpose,
whereupon this letter shall constitute an agreement binding the Company and each
of the Underwriters.
Very truly yours,
NEOGEN CORPORATION
By:
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chief Executive
Officer
28
29
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
▇▇▇▇▇ & CO., L.L.C.
THE OHIO COMPANY,
As Representatives of the Several
Underwriters Named in Schedule 3
By: ▇▇▇▇▇ & CO., L.L.C.
By:
------------------
Name:
------------------
Title:
------------------
By: THE OHIO COMPANY
By:
------------------
Name:
------------------
Title:
------------------
29
30
SCHEDULE 1
SUBSIDIARIES
Jurisdiction of
Name Incorporation
Neogen Research Corporation II Michigan
Neogen Research Corporation IV - 1985 Michigan
Ideal Instruments, Inc. Michigan
AMPCOR Diagnostics, Inc. Michigan
30
31
SCHEDULE 2
SUBSIDIARY OWNERSHIP
# Shares # Shares Percent
Name Authorized Outstanding Ownership
---- ---------- ----------- ---------
Neogen Research Corporation II 250,000 128,000 90%
Neogen Research Corporation IV - 1985 50,000 500 100%
Ideal Instruments, Inc. 1,000,000 100,000 100%
AMPCOR Diagnostics, Inc. 60,000 60,000 100%
31
32
SCHEDULE 3
Number of
Firm Shares
Underwriter to be Purchased
------------ ---------------
▇▇▇▇▇ & Co, L.L.C. ----------
The Ohio Company ----------
-------------------------- ----------
-------------------------- ----------
-------------------------- ----------
-------------------------- ----------
-------------------------- ----------
-------------------------- ----------
-------------------------- ----------
-------------------------- ----------
-------------------------- ----------
-------------------------- ----------
-------------------------- ----------
1,500,000
=========
32
33
SCHEDULE 4
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Chairman and a member of the Board of Directors
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chief Execute Officer and a member of the Board of Directors
G. ▇▇▇▇▇ ▇▇▇▇▇▇, Secretary and a member of the Board of Directors
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Ph.D., member of the Board of Directors
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Ph.D., member of the Board of Directors
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, member of the Board of Directors
▇▇▇▇▇▇ ▇. ▇▇▇▇, member of the Board of Directors
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, member of the Board of Directors
▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President and Chief Financial Officer
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Ph.D., Vice President, Scientific Affairs
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President of AMPCOR Diagnostics, Inc.
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Ph.D., Vice President
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Vice President
33
