Exhibit 1.1
DRAFT 8/17/01
GIVEN IMAGING LTD.
5,000,000 ORDINARY SHARES
UNDERWRITING AGREEMENT
----------------------
[______], 2001
▇▇▇▇▇▇ BROTHERS INC.,
CREDIT SUISSE FIRST BOSTON CORPORATION, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, INC.,
FIDELITY CAPITAL MARKETS,
a division of National Financial Services Corporation,
As Representatives of the several
Underwriters named in Schedule 1 hereto,
c/▇ ▇▇▇▇▇▇ Brothers Inc.
Three World Financial Center
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Given Imaging Ltd., a company organized under the laws of the State of
Israel (the "COMPANY"), proposes to issue and sell to the underwriters named in
Schedule 1 hereto (the "UNDERWRITERS") 5,000,000 shares (the "FIRM SHARES") of
the Company's ordinary shares, having a nominal value of NIS 0.05 per share (the
"Ordinary Shares").
In addition, those shareholders of the Company named in Schedule 2
hereto (the "SELLING SHAREHOLDERS") propose to grant to the Underwriters an
option to purchase up to an aggregate of an additional 750,000 Ordinary
Shares (the "OPTION SHARES") on the terms and for the purposes set forth in
Section 3 of this Agreement. The Firm Shares and the Option Shares, if
purchased, are hereinafter collectively called the "SHARES." This is to
confirm the agreement concerning the purchase of the Shares from the Company
by the Underwriters.
It is understood and agreed that as of the First Delivery Date (as
defined below), the Company will have entered into an Ordinary Share Purchase
Agreement (the "STOCK PURCHASE AGREEMENT") with PW Juniper Crossover Fund,
LLC, pursuant to which, within five days after the First Delivery Date, the
Company shall issue and sell 460,000 Ordinary Shares (the "PRIVATE PLACEMENT
SHARES") to PW
Juniper Crossover Fund, LLC, as more fully described in the Prospectus (as
defined below) (the "PRIVATE PLACEMENT").
SECTION 1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE COMPANY.
The Company represents, warrants and agrees that:
(a) A registration statement on Form F-1 (File No. 333-[_____]) with
respect to the Shares has (i) been prepared by the Company in conformity with
the requirements of the Securities Act of 1933, as amended (the "SECURITIES
ACT"), and the rules and regulations (the "RULES AND REGULATIONS") of the
Securities and Exchange Commission (the "COMMISSION") thereunder, (ii) been
filed with the Commission under the Securities Act and (iii) become effective
under the Securities Act. The registration statement contains a prospectus to be
used in connection with the offering and sale of the Shares. Copies of such
registration statement and each of the amendments thereto have been delivered by
the Company to you as the representatives (the "REPRESENTATIVES") of the
Underwriters. As used in this Agreement, "EFFECTIVE TIME" means the date and the
time as of which such registration statement, or the most recent post-effective
amendment thereto, if any, was declared effective by the Commission; "EFFECTIVE
DATE" means the date of the Effective Time; "PRELIMINARY PROSPECTUS" means the
prospectus included in such registration statement, or amendments thereof,
before it became effective under the Securities Act and any prospectus filed
with the Commission by the Company with the consent of the Representatives
pursuant to Rule 424(a) of the Rules and Regulations, provided, however, that
the term "Preliminary Prospectus" shall not include any prospectus submitted
confidentially to (and not filed with) the Commission; "REGISTRATION STATEMENT"
means such registration statement, as amended at the Effective Time, including
all information contained in the final prospectus filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations in accordance with Section
6(a) hereof and deemed to be a part of the registration statement as of the
Effective Time pursuant to Rule 430A of the Rules and Regulations; and
"PROSPECTUS" means the prospectus in the form first filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations. If the Company has filed
an abbreviated registration statement to register additional Ordinary Shares
pursuant to Rule 462(b) under the Securities Act (the "RULE 462 REGISTRATION
STATEMENT"), then any reference herein to the term "REGISTRATION STATEMENT"
shall be deemed to include such Rule 462 Registration Statement. Subject to
compliance by the Underwriters with the provisions of the final paragraph of
Section 4 of this Agreement, the Company is not required to publish a prospectus
in Israel under the laws of the State of Israel.
(b) The Registration Statement conforms, and the Prospectus and any
further amendments or supplements to the Registration Statement or the
Prospectus
will, when they become effective or are filed with the Commission, as the case
may be, conform in all material respects to the requirements of the Securities
Act and the Rules and Regulations and do not and will not, as of the applicable
Effective Date (as to the Registration Statement and any amendment thereto) and
as of the applicable filing date (as to the Prospectus and any amendment or
supplement thereto) contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided that no representation or warranty
is made as to information contained in or omitted from the Registration
Statement or the Prospectus in reliance upon and in conformity with written
information furnished to the Company through the Representatives by or on behalf
of any Underwriter specifically for inclusion therein.
(c) Neither the Commission nor the Israel Securities Authority (the
"ISA") has issued any order preventing or suspending the use of the Preliminary
Prospectus, and no proceeding for that purpose has been initiated or, to the
Company's knowledge, threatened by either the Commission or the ISA.
(d) The Company and each of its subsidiaries (as defined in Section 17)
have been duly incorporated and are validly existing as corporations in good
standing under the laws of their respective jurisdictions of incorporation (to
the extent good standing is recognized in such jurisdictions), are duly
qualified to do business and are in good standing as foreign corporations in
each jurisdiction (to the extent good standing is recognized in such
jurisdictions) in which their respective ownership or lease of property or the
conduct of their respective businesses requires such qualification, except where
the failure to be so qualified would not reasonably be expected to have a
material adverse effect on the business, financial condition or results of
operations of the Company and its subsidiaries taken as a whole (a "MATERIAL
ADVERSE EFFECT"), and have all power and authority necessary to own or hold
their respective properties and to conduct the businesses in which they are
engaged; and none of the subsidiaries of the Company is a "significant
subsidiary," as such term is defined in Rule 405 of the Rules and Regulations.
(e) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued, are fully paid and non-assessable
and conform to the description thereof contained in the Prospectus; and all of
the issued shares of capital stock of each subsidiary of the Company have been
duly and validly authorized and issued and are fully paid and non-assessable and
are owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims.
(f) The Shares to be issued and sold by the Company to the Underwriters
hereunder and the Private Placement Shares to be issued and sold by the Company
to PW Juniper Crossover Fund, LLC pursuant to the Stock Purchase Agreement have
been duly and validly authorized and, when issued and delivered against payment
therefor in accordance with this Agreement and the Stock Purchase Agreement,
respectively, will be duly and validly issued, fully paid and non-assessable;
and the Shares and the Private Placement Shares will conform to the descriptions
thereof contained in the Prospectus. Neither the offer, issuance, sale, nor
delivery of the Private Placement Shares require registration under the
Securities Act.
(g) This Agreement has been duly authorized, executed and delivered by
the Company and constitutes a valid and binding obligation of the Company.
(h) The execution, delivery and performance by the Company of this
Agreement and the Stock Purchase Agreement and the consummation of the
transactions contemplated hereby and thereby does not and will not conflict with
or result in a breach or violation of (A) any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust, loan
agreement 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 is
bound or to which any of the property or assets of the Company or any of its
subsidiaries is subject, (B) the provisions of articles of association of the
Company or (C) any of the governing documents of any of its subsidiaries or any
statute or any order, rule or regulation of any court or governmental agency or
body having jurisdiction over the Company or any of its subsidiaries or any of
their properties or assets, except in the case of (A) and (C) above for such
conflicts, breaches or violations which, individually or in the aggregate, would
not reasonably be expected to have a Material Adverse Effect; and except for the
registration of the Shares under the Securities Act and the Rules and
Regulations and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT"), and the regulations promulgated thereunder, and
applicable state securities and "blue sky" laws and foreign securities laws, or
the National Association of Securities Dealers in connection with the purchase
and distribution of the Shares by the Underwriters and the purchase of the
Private Placement Shares by PW Juniper Crossover Fund, LLC, no consent,
approval, authorization or order of, or filing or registration with, any such
court or governmental agency or body is required for the execution, delivery and
performance by the Company of this Agreement or any of the other documents
entered or to be entered into in connection with the Private Placement and the
consummation of the transactions contemplated hereby and thereby except such as
have been obtained and made and those that are not required to have been
obtained or made prior to the Closing (which the Company hereby undertakes to
obtain or make as required).
(i) Except as described in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person granting such
person the right to require the Company to file a registration statement under
the Securities Act with respect to any securities of the Company owned or to be
owned by such person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration statement filed
by the Company under the Securities Act.
(j) The Company has not sold or issued any Ordinary Shares or any
securities convertible into or exchangeable for Ordinary Shares during the
six-month period preceding the date of the Prospectus, including any sales
pursuant to Rule 144A under, or Regulations D or S of, the Securities Act, other
than Ordinary Shares issued pursuant to employee benefit plans, qualified stock
option plans or other employee compensation plans or pursuant to outstanding
options, rights or warrants described in the Prospectus.
(k) Neither the Company nor any of its subsidiaries has sustained,
since the date of the latest audited financial statements included in the
Prospectus, any material loss or material interference with its business from
fire, explosion, flood or other calamity, whether or not covered by insurance,
or from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus; and, since such
date, there has not been any change in the capital stock of the Company or any
of its subsidiaries (other than subsequent issuances, if any, pursuant to the
Company's employee benefit plans, qualified stock option plans or other employee
compensation plans described in the Prospectus or upon exercise of outstanding
options, rights or warrants described in the Prospectus or pursuant to the share
recapitalization to be effected prior to the First Delivery as described in the
Prospectus) or the long-term debt of the Company and its subsidiaries (other
than as set forth in the consolidated financial statements filed as part of the
Registration Statement) or any Material Adverse Change or any development
involving a prospective Material Adverse Change, otherwise than as set forth or
contemplated in the Prospectus.
(l) The consolidated financial statements (including the related notes
and supporting schedules) filed as part of the Registration Statement or
included in the Prospectus present fairly in all material respects the financial
condition and results of operations of the Company and its consolidated
subsidiaries, at the dates and for the periods indicated, and have been prepared
in conformity with U.S. generally accepted accounting principles applied on a
consistent basis throughout the periods involved.
(m) KPMG Somekh ▇▇▇▇▇▇▇, a member of KPMG International, who have
certified certain financial statements of the Company, whose report appears in
the Prospectus and who have delivered the initial letter referred to in Section
9(j) hereof, are independent public accountants as required by the Securities
Act and the Rules and Regulations.
(n) Neither the Company nor any of its subsidiaries owns any real
property; the Company and each of its subsidiaries have good and marketable
title to all personal property owned by them which is material to the conduct of
the Company's business, in each case free and clear of all liens, encumbrances
and defects, except such as are described in the Prospectus or such as do not
materially affect the value of such property and do not materially interfere
with the use made and proposed to be made of such property by the Company and
its subsidiaries; and all real property and other assets held under lease by the
Company or any of its subsidiaries are held by them under valid, subsisting and
enforceable leases, with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such property and
buildings by the Company and its subsidiaries.
(o) Except as set forth or contemplated in the Prospectus, the Company
and each of its subsidiaries carry, or are covered by, insurance in such amounts
and covering such risks as would reasonably be expected to be adequate for the
conduct of their respective businesses and the value of their respective
properties and as is customary for companies engaged in similar businesses in
similar industries.
(p) To the best of the Company's knowledge, (a) neither the Company nor
any of its subsidiaries is currently infringing or has infringed any patent,
trademark or copyright rights of others, (b) all trade secrets, know how,
technical processes and procedures developed and belonging to the Company (or
any of its subsidiaries) which are material to the business of the Company (or
any of its subsidiaries) as presently conducted and which have not been patented
have been kept confidential, and (c) except as set forth or contemplated in the
Prospectus, the Company and each of its subsidiaries own or possess the right to
use, free and clear of claims or rights of others, all patents, patent
applications, trademarks, service marks, trade names, trademark registrations,
service ▇▇▇▇ registrations, copyrights, licenses, trade secrets, customer lists,
processes, and owned computer software required for their respective businesses
as presently conducted or believes that it can acquire the same on reasonable
terms. Except as set forth or contemplated in the Prospectus, neither the
Company nor any of its subsidiaries has received any notice of any claim of
conflict with any such rights of others . To the best of the Company's
knowledge, neither the Company nor any of its subsidiaries is using or has used
any confidential
information, trade secrets, or computer software (not licensed to the Company)
of any former employer of any of its past or present employees.
(q) There are no legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any property or assets
of the Company or any of its subsidiaries is the subject (including, but not
limited to, proceedings or investigations by the Israeli tax authorities, VAT
authorities, customs authorities or environmental authorities, or by the Israeli
National Insurance Institute) which, if determined adversely to the Company or
any of its subsidiaries, would reasonably be expected to have a Material Adverse
Effect; and to the Company's knowledge, except as set forth or contemplated in
the Prospectus, no such proceedings are threatened or contemplated by
governmental authorities or others.
(r) There are no contracts or other documents which are required to be
described in the Prospectus or filed as exhibits to the Registration Statement
by the Securities Act or by the Rules and Regulations which have not been
described in the Prospectus or filed as exhibits to the Registration Statement.
(s) No relationship, direct or indirect, exists between or among the
Company on the one hand, and the directors, officers, shareholders, customers or
suppliers of the Company on the other hand, which is required to be described in
the Prospectus which is not so described.
(t) No labor disturbance by the employees of the Company exists or, to
the knowledge of the Company, is imminent, which would reasonably be expected to
have a Material Adverse Effect.
(u) The Company is in compliance in all material respects with all
presently applicable provisions of the Employee Retirement Income Security Act
of 1974, as amended, including the regulations and published interpretations
thereunder ("ERISA"); no "reportable event" (as defined in ERISA) has occurred
with respect to any "pension plan" (as defined in ERISA) for which the Company
would have any liability; the Company has not incurred and does not expect to
incur liability under (i) Title IV of ERISA with respect to termination of, or
withdrawal from, any "pension plan" or (ii) Sections 412 or 4971 of the Internal
Revenue Code of 1986, as amended, including the regulations and published
interpretations thereunder (the "CODE"); and each "pension plan" for which the
Company would have any liability that is intended to be qualified under Section
401(a) of the Code is so qualified in all material respects and nothing has
occurred, whether by action or by failure to act, which would cause the loss of
such qualification.
(v) The Company has complied and is in compliance, in all material
respects, with all applicable foreign, provincial and municipal laws, rules and
regulations relating to employees and employment practices, terms and conditions
of employment, employee relations, wages and hours, civil rights and equal
employment opportunities, including, without limitation, the Hours of Work and
Rest Law of the State is Israel, except where lack of such compliance would not
reasonably be expected to have a Material Adverse Effect; and the Company (i)
has performed in all material respects all obligations required to be performed
by it under any of its employee benefit plans (including the making when due of
all contributions required by applicable law, governmental rule or regulation or
by an agreement to which the Company is a party), (ii) is not in default under
or in violation of any such employee benefit plan and (iii) is in compliance
with the requirements prescribed by statutes, orders or governmental rules or
regulations applicable to such employee benefit plans.
(w) The Company has filed with the appropriate taxing authorities all
Tax Returns (as defined below) required to be filed through the date hereof and
has paid all taxes shown as due thereon; such Tax Returns are each true, correct
and complete in all material respects; and no tax deficiency has been determined
adversely to the Company or any of its subsidiaries which has had (nor does the
Company have any knowledge of any tax deficiency which, if determined adversely
to the Company or any of its subsidiaries, would reasonably be expected to have)
a Material Adverse Effect. The term "TAX RETURN" means any return or report
regarding taxes supplied by the Company or any of its subsidiaries to a taxing
authority in Israel, the United States or elsewhere.
(x) None of the issuance, sale or delivery to the Underwriters of the
Shares is subject to any tax imposed on the Company by Israel or any political
subdivision thereof, except the Israeli stamp tax applicable to the issuance of
the Shares (which stamp tax will be paid by the Company promptly after each
Delivery Date (as hereinafter defined) in accordance with Israeli law).
(y) Since the date as of which information is given in the Prospectus
through the date hereof, and except as may otherwise be disclosed in the
Prospectus, neither the Company nor any of its subsidiaries has (i) issued or
granted any securities other than options issued pursuant to employee benefit
plans, qualified stock option plans or other employee compensation plans and
Ordinary Shares issued pursuant to such plans or pursuant to outstanding
options, rights or warrants, (ii) incurred any material liability or obligation,
direct or contingent, other than liabilities and obligations which were incurred
in the ordinary course of business, (iii) entered into any transaction not in
the ordinary course of business or (iv) declared or paid any dividend on its
capital stock.
(z) The Company (i) makes and keeps accurate books and records and (ii)
maintains internal accounting controls which provide reasonable assurance that
(A) transactions are executed in accordance with management's authorization, (B)
transactions are recorded as necessary to permit preparation of its financial
statements and to maintain accountability for its assets, and (C) access to its
assets is permitted only in accordance with management's authorization.
(aa) Neither the Company nor any of its subsidiaries (i) is in
violation of its articles of association or other governing documents, (ii) is
in default in any respect, and no event has occurred which, with notice or lapse
of time or both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which it is a party or by which it is bound or to which any of its properties or
assets is subject or (iii) is in violation in any respect of any law, ordinance,
governmental rule, regulation or court decree to which it or its property or
assets is subject, where in the case of (ii) and (iii) such default or violation
would reasonably be expected to have a Material Adverse Effect.
(bb) Except as set forth or contemplated in the Prospectus, the Company
and each of its subsidiaries has or believes that it can obtain in the ordinary
course when required all material licenses, certificates, permits, consents,
orders, approvals and authorizations from U.S. and foreign government
authorities, including, without limitation, the United States Food and Drug
Administration (the "FDA") and United States Federal Communications Commission
(the "FCC") and any agency of any foreign government and any other foreign
regulatory authority exercising authority comparable to that of the FDA or the
FCC (including any non-governmental entity whose approval or authorization is
required under foreign law comparable to that administered by the FDA or the
FCC), in each jurisdiction where the Company's current product is, or, as
described in the Prospectus, is proposed to be sold (each a "PERMIT") that are
necessary to the ownership of its property or to the conduct of its business in
the manner and to the extent now conducted, with no material restrictions or
qualifications. Each such Permit is in full force and effect, and no proceeding
has been instituted or is pending or, to the best of the Company's knowledge, is
contemplated or threatened, which in any manner affects or draws into question
the validity or effectiveness thereof or relates in any way to the revocation or
modification thereof.
(cc) There has been no storage, disposal, generation, manufacture,
refinement, transportation, handling or treatment of toxic wastes, medical
wastes, hazardous wastes or hazardous substances by the Company or any of its
subsidiaries (or, to the knowledge of the Company, any of their predecessors in
interest) at, upon or from any of the property now or previously owned or leased
by the Company or
its subsidiaries in violation of any applicable law, ordinance, rule,
regulation, order, judgment, decree or permit or which would require remedial
action under any applicable law, ordinance, rule, regulation, order, judgment,
decree or permit, except for any violation or remedial action which would not
have, or would not reasonably be expected to have, singularly or in the
aggregate with all such violations and remedial actions, a Material Adverse
Effect; there has been no material spill, discharge, leak, emission, injection,
escape, dumping or release of any kind onto such property or into the
environment surrounding such property of any toxic wastes, medical wastes, solid
wastes, hazardous wastes or hazardous substances due to or caused by the Company
or any of its subsidiaries or with respect to which the Company or any of its
subsidiaries have knowledge, except for any such spill, discharge, leak,
emission, injection, escape, dumping or release which would not have or would
not be reasonably likely to have, singularly or in the aggregate with all such
spills, discharges, leaks, emissions, injections, escapes, dumpings and
releases, a Material Adverse Effect; neither the Company nor any of its
subsidiaries has received written notice of any actual or potential liability
for the investigation or remediation of any disposal or release of hazardous
wastes, toxic wastes, hazardous substances or medical wastes, except where such
violation would not reasonably be expected to have a Material Adverse Effect;
and the terms "HAZARDOUS WASTES," "TOXIC WASTES," "HAZARDOUS SUBSTANCES," and
"MEDICAL WASTES" shall have the meanings specified in any applicable local,
state, federal and foreign laws or regulations with respect to environmental
protection.
(dd) Neither the Company nor any of it subsidiaries, nor, to the
knowledge of the Company, any director, officer, agent, employee or other person
associated with or acting on behalf of the Company or any of its subsidiaries,
has used any corporate funds for any unlawful contribution, gift, entertainment
or other unlawful expense relating to political activity; made any direct or
indirect unlawful payment to any foreign or domestic government official or
employee from corporate funds; violated or is in violation of any provision of
the Foreign Corrupt Practices Act of 1977; or made any bribe, rebate, payoff,
influence payment, kickback or other unlawful payment.
(ee) For the taxable year ended December 31, 2001, the Company is not
and, after giving effect to the offering and sale of the Shares and the
application of the proceeds thereof as described in the Prospectus, is not
expected to become a "passive foreign investment company" within the meaning of
Section 1297 of the Code.
(ff) The Company is not, nor as of the First Delivery Date after giving
effect to the Private Placement and the application of the net proceeds
therefrom as
described in the Prospectus, will be, an "investment company" as defined in the
Investment Company Act of 1940, as amended.
(gg) The Company has not taken and will not knowingly take, directly or
indirectly, any action in the United States or Israel designed to cause or
result in the stabilization or manipulation of the price of the Ordinary Shares
to facilitate the sale or resale of the Shares in violation of the Securities
Act or the Rules and Regulations (it being understood that the Company makes no
representation, warranty or undertaking regarding the Underwriters).
(hh) The Ordinary Shares have been approved for quotation on the Nasdaq
National Market, subject to notice of issuance and evidence of satisfactory
distribution.
(ii) Except for any agreement with the Underwriters and this Agreement,
there are no contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like payment in
connection with this offering.
(jj) The Registration Statement and its filing with the Commission, and
the Prospectus have been duly authorized by and on behalf of the Company, and
the Registration Statement has been duly executed pursuant to such authorization
by and on behalf of the Company.
(kk) The Company has validly appointed Given Imaging, Inc. as its
authorized agent for service of process pursuant to this Agreement and in
connection with the Registration Statement.
(ll) The Stock Purchase Agreement has been duly authorized, executed
and delivered by the Company in substantially the form attached as an exhibit to
the Registration Statement.
(mm) Neither the Company nor any of its subsidiaries does business with
the government of Cuba or with any person or affiliate located in Cuba within
the meaning of Section 517.075, Florida Statutes.
SECTION 2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE SELLING
SHAREHOLDERS. Except as otherwise specified below, each Selling Shareholder
severally and not jointly represents, warrants and agrees that:
(a) The Selling Shareholder has, and immediately prior to the Second
Delivery Date (as defined in Section 5 hereof) the Selling Shareholder will
have,
good and valid title to the Option Shares to be sold by the Selling Shareholder
hereunder on such date, free and clear of all liens, encumbrances, equities or
claims; and upon delivery of such Shares and payment therefor pursuant hereto,
good and valid title to such shares, free and clear of all liens, encumbrances,
equities or claims, will pass to the several Underwriters.
(b) The Selling Shareholder has placed in custody under a custody
agreement (the "CUSTODY AGREEMENT" and, together with each similar agreement
executed by each other Selling Shareholder, the "CUSTODY AGREEMENTS") with the
Company, as custodian (the "CUSTODIAN"), for delivery under this Agreement, one
or more certificates accompanied by a duly executed share transfer deed or deeds
bearing the signature of the undersigned (guaranteed by an Eligible Guarantor
Institution which is a member of a Medallion Signature Guarantee Program
recognized by the Stock Transfer Association (in the case that the undersigned
is a United States person) or with signatures certified by a notary public under
the Israeli Notaries Law, 1976 (in the case that the undersigned is an Israeli
person)) representing the Shares to be sold by the Selling Shareholder
hereunder.
(c) The Selling Shareholder has duly and irrevocably executed and
delivered a power of attorney (the "POWER OF ATTORNEY" and, together with each
other similar agreement executed by each other Selling Shareholder, the "POWERS
OF ATTORNEY") appointing the Company and one or more other persons, as
attorneys-in-fact, with full power of substitution, and with full authority
(exercisable by any one or more of them) to execute and deliver this Agreement
and to take such other action as may be necessary or desirable to carry out the
provisions hereof on behalf of the Selling Shareholder.
(d) The Selling Shareholder has full right, power and authority to
enter into, and to perform all of its obligations under, this Agreement, the
Custody Agreement and the Power of Attorney; each of this Agreement, the
Custody Agreement and the Power of Attorney constitutes the legal, valid and
binding obligation of the Selling Shareholder; the execution, delivery and
performance of this Agreement, the Custody Agreement and the Power of
Attorney by the Selling Shareholder and the consummation by the Selling
Shareholder of the transactions contemplated hereby and thereby will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the
Selling Shareholder is a party or by which the Selling Shareholder is bound
or to which any of the property or assets of the Selling Shareholder is
subject, nor will such actions result in any violation of the provisions of
the governing documents of the Selling Shareholder or any statute or any
order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Selling
Shareholder or the property or assets of the Selling Shareholder; and, except
for the registration of the Shares under the Securities Act and the Rules and
Regulations and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act, and the regulations
promulgated thereunder, and applicable state securities and "blue sky" laws
and foreign securities laws, or the National Association of Securities
Dealers in connection with the purchase and distribution of the Shares by the
Underwriters, no consent, approval, authorization or order of, or filing or
registration with, any such court or governmental agency or body is required
for the execution, delivery and performance of this Agreement, the Custody
Agreement and the Power of Attorney by the Selling Shareholder or the
consummation by the Selling Shareholder of the transactions contemplated
hereby and thereby except such as have been obtained and made and those that
are not required to have been obtained or made prior to the Closing (which
the Selling Shareholder hereby undertakes to obtain or make as required).
(e) (i) With respect to Thermo Electron Corporation ("THERMO"), solely
with respect to information provided by Thermo in writing specifically
for inclusion therein, which information consists solely of the
information specified in Section 10(f), the Registration Statement and
the Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus do not and will not, as of the
applicable Effective Date (as to the Registration Statement and any
amendment thereto) and as of the applicable filing date (as to the
Prospectus and any amendment or supplement thereto) contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided that no representation or warranty is made as to
information contained in or omitted from the Registration Statement or
the Prospectus in reliance upon and in conformity with written
information furnished to the Company through the Representatives by or
on behalf of any Underwriter specifically for inclusion therein.
(ii) With respect to RDC ▇▇▇▇▇▇ Development Corporation (RDC"), RDC
is familiar with the Registration Statement and the Prospectus (as
amended or supplemented), and the Registration Statement and the
Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus do not and will not, as of the
applicable Effective Date (as to the Registration Statement and any
amendment thereto) and as of the applicable filing date (as to the
Prospectus and any amendment or supplement thereto) contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided that no representation or warranty is made as to
information contained in or omitted from the
Registration Statement or the Prospectus in reliance upon and in
conformity with written information furnished to the Company through
the Representatives by or on behalf of any Underwriter specifically for
inclusion therein.
(f) (i) With respect to Thermo, the sale of Option Shares by Thermo is
not prompted by any information concerning the Company of which Thermo
is aware which is not set forth in the Registration Statement and the
Prospectus.
(ii) With respect to RDC, RDC has no reason to believe that the
representations and warranties of the Company contained in Section 1
hereof are not materially true and correct, and the sale of Option
Shares by RDC is not prompted by any information concerning the Company
which is not set forth in the Registration Statement and the
Prospectus.
(g) The Selling Shareholder has not taken and will not take, directly
or indirectly, any action which is designed to or which has constituted or which
might reasonably be expected to cause or result in the stabilization or
manipulation of the price of any security of the Company to facilitate the sale
or resale of the Shares.
SECTION 3. PURCHASE OF THE SHARES BY THE UNDERWRITERS.
On the basis of the representations and warranties contained in, and
subject to the terms and conditions of, this Agreement, the Company agrees to
sell 5,000,000 Firm Shares to the several Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase the number of Firm
Shares set forth opposite that Underwriter's name in Schedule 1 hereto, plus any
additional number of Firm Shares which such Underwriter may become obligated to
purchase pursuant to the provisions of Section 9 of this Agreement. The
respective purchase obligations of the Underwriters with respect to the Firm
Shares shall be rounded among the Underwriters to avoid fractional shares, as
the Representatives may determine.
In addition, on the basis of the representations and warranties
contained in, and subject to the terms and conditions of, this Agreement, each
of the Selling Shareholders, respectively, grant, severally and not jointly, to
the Underwriters an option to purchase up to the number of Option Shares set
forth opposite such Selling Shareholder's name on Schedule 2 hereto. Such option
is granted for the purpose of covering over-allotments in the sale of Firm
Shares and is exercisable as provided in Section 5 hereof. Option Shares shall
be purchased severally for the account of the Underwriters in proportion to the
number of Firm Shares set forth opposite the name of such Underwriters in
Schedule 1 hereto. To the extent that the Underwriters exercise the option to
purchase fewer than the total number of Option Shares offered
hereunder, the Underwriters shall purchase Option Shares from each
Selling Shareholder in the same proportion that the number of Option
Shares offered by such Selling Shareholder bears to the total number of
Option Shares offered by the Selling Shareholders hereunder. The
respective purchase obligations of each Underwriter with respect to the
Option Shares shall be adjusted by the Representatives so that no
Underwriter shall be obligated to purchase Option Shares other than in
100 share amounts.
The price of both the Firm Shares and any Option Shares shall be
$[_____] per share.
Neither the Company nor any Selling Shareholder shall be obligated to
deliver any of the Shares to be delivered on any Delivery Date (as hereinafter
defined), except upon payment to such party for all the Shares to be purchased
from such party on such Delivery Date as provided herein.
SECTION 4. OFFERING OF SHARES BY THE UNDERWRITERS.
Upon authorization by the Representatives of the release of the Firm
Shares, the several Underwriters propose to offer the Firm Shares for sale upon
the terms and conditions set forth in the Prospectus.
It is understood that approximately 250,000 Firm Shares (the "DIRECTED
SHARES") will initially be reserved by the Underwriters for offer and sale to
employees and persons having business relationships with the Company and its
subsidiaries (the "DIRECTED SHARE PARTICIPANTS") upon the terms and conditions
set forth in the Prospectus and in accordance with the rules and regulations of
the National Association of Securities Dealers, Inc. (the "DIRECTED SHARE
PROGRAM"). Under no circumstances will ▇▇▇▇▇▇ Brothers Inc. or any Underwriter
be liable to the Company or to any Directed Share Participant for any action
taken or omitted to be taken in good faith in connection with such Directed
Share Program. To the extent that any Directed Shares are not affirmatively
reconfirmed for purchase by any Directed Share Participant on or immediately
after the date of this Agreement, such Directed Shares may be offered to the
public as part of the public offering contemplated hereby.
The Underwriters undertake not to offer or sell any Shares in Israel,
except that the Underwriters may (A) offer for sale and sell Shares to
corporations which qualify under Section 15A(B)(1) of the Israeli Securities
Law, 1968, (B) offer Shares to other persons in Israel whose number (pursuant to
offers by all Underwriters) do not exceed thirty-five (35), and (C) sell Shares
to other persons in Israel whose number (pursuant to offers by all Underwriters)
do not exceed 35. The Underwriters further undertake to obtain a representation
from each purchaser of Shares offered by
the Underwriters in Israel that such purchaser is purchasing such Shares for
investment purpose and for such purchaser's own account, and not for the purpose
of resale.
SECTION 5. DELIVERY OF AND PAYMENT FOR THE SHARES.
Delivery of and payment for the Firm Shares shall be made at the
offices of White & Case LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, at 10:00 A.M., New York City time, on the fourth full business day
following the date of this Agreement or at such other date or place as shall be
determined by agreement between the Representatives and the Company. This date
and time are sometimes referred to as the "FIRST DELIVERY DATE." On the First
Delivery Date, the Company shall deliver or cause to be delivered certificates
representing the Firm Shares to the Representatives for the account of each
Underwriter against payment to or upon the order of the Company of the purchase
price by wire transfer in immediately available funds. Time shall be of the
essence, and delivery at the time and place specified pursuant to this Agreement
is a further condition of the obligation of each Underwriter hereunder. Upon
delivery, the Firm Shares shall be registered in such names and in such
denominations as the Representatives shall request in writing not less than two
full business days prior to the First Delivery Date. For the purpose of
expediting the checking and packaging of the certificates for the Firm Shares,
the Company shall make the certificates representing the Firm Shares available
for inspection by the Representatives in New York, New York, not later than 2:00
P.M., New York City time, on the business day prior to the First Delivery Date.
The option granted in Section 2 will expire 30 days after the date of
this Agreement and may be exercised in whole or in part from time to time by
written notice being given to the Company and the Selling Shareholders by the
Representatives. Such notice shall set forth the aggregate number of Option
Shares as to which the options are being exercised, the names in which the
Option Shares are to be registered, the denominations in which the Option Shares
are to be issued and the date and time, as determined by the Representatives,
when the Option Shares are to be delivered; provided, however, that this date
and time shall not be earlier than the First Delivery Date nor earlier than the
second business day after the date on which the option shall have been exercised
nor later than the fifth business day after the date on which the option shall
have been exercised. The date and time the Option Shares are delivered are
sometimes referred to as a "SECOND DELIVERY DATE" and the First Delivery Date
and any Second Delivery Date are sometimes each referred to as a "DELIVERY
DATE."
Delivery of and payment for the Option Shares shall be made at the
place specified in the first sentence of the first paragraph of this Section 5
(or at such other
place as shall be determined by agreement between the Representatives and the
Company) at 10:00 A.M., New York City time, on such Second Delivery Date. On
such Second Delivery Date, the Custodian, on behalf of each of the Selling
Shareholders, shall deliver or cause to be delivered the certificates
representing the Option Shares to the Representatives for the account of each
Underwriter against payment to or upon the order of each such Selling
Shareholder by wire transfer in immediately available funds of the respective
portion of the purchase price payable to such Selling Shareholder. Time shall be
of the essence, and delivery at the time and place specified pursuant to this
Agreement is a further condition of the obligation of each Underwriter
hereunder. Upon delivery, the Option Shares shall be registered in such names
and in such denominations as the Representatives shall request in the aforesaid
written notice. For the purpose of expediting the checking and packaging of the
certificates for the Option Shares, the Selling Shareholders shall make the
certificates representing the Option Shares available for inspection by the
Representatives in New York, New York, not later than 2:00 P.M., New York City
time, on the business day prior to such Second Delivery Date.
SECTION 6. FURTHER AGREEMENTS OF THE COMPANY. The Company agrees:
(a) To prepare the Prospectus in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under the
Securities Act not later than the Commission's close of business on the second
business day following the execution and delivery of this Agreement or, if
applicable, such earlier time as may be required by Rule 430A(a)(3) under the
Securities Act; to use reasonable best efforts to cause the Registration
Statement to become effective; to give the Representatives notice of its
intention to file any amendment to the Registration Statement or amendment or
supplement to the Prospectus; to advise the Representatives, promptly after it
receives notice thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to the
Prospectus or any amended Prospectus has been filed and to furnish the
Representatives with copies thereof; to advise the Representatives, promptly
after it receives notice thereof, of (1) the issuance by the Commission, the ISA
or any other foreign or Israeli regulatory body, of any stop order or of any
order preventing or suspending the use of any Preliminary Prospectus or the
Prospectus or of the suspension of the qualification of the Shares for offering
or sale in any jurisdiction, (2) the initiation or threatening of any proceeding
for any such purpose, or (3) any request by the Commission for the amending or
supplementing of the Registration Statement or the Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or the Prospectus
or suspending any such qualification, to use promptly its reasonable best
efforts to obtain its withdrawal;
(b) To furnish promptly to each of the Representatives and to counsel
for the Underwriters a signed copy of the Registration Statement as originally
filed with the Commission, and each amendment thereto filed with the Commission,
including all consents and exhibits filed therewith;
(c) To deliver promptly to the Representatives such number of the
following documents as the Representatives shall reasonably request: (i)
conformed copies of the Registration Statement as originally filed with the
Commission and each amendment thereto (in each case excluding exhibits) and (ii)
the Preliminary Prospectus, the Prospectus and any amended or supplemented
Prospectus; and, if the delivery of a prospectus is required at any time after
the Effective Time in connection with the offering or sale of the Shares or any
other securities relating thereto and if at such time any events shall have
occurred as a result of which the Prospectus as then amended or supplemented
would include an 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 when such Prospectus is delivered,
not misleading, or, if for any other reason it shall be necessary to amend or
supplement the Prospectus in order to comply with the Securities Act, to notify
the Representatives and, upon their request, to prepare and furnish without
charge to each Underwriter and to any dealer in securities as many copies as the
Representatives may from time to time reasonably request of an amended or
supplemented Prospectus which will correct such statement or omission or effect
such compliance.
(d) To file promptly with the Commission any amendment to the
Registration Statement or the Prospectus or any supplement to the Prospectus
that may, in the judgment of the Company or the Representatives, be required by
the Securities Act or requested by the Commission;
(e) Prior to filing with the Commission any amendment to the
Registration Statement or supplement to the Prospectus or any Prospectus
pursuant to Rule 424 of the Rules and Regulations, to furnish a copy thereof to
the Representatives and counsel for the Underwriters and not to file any such
document to which the Representatives or counsel for the Underwriters shall
reasonably object in writing;
(f) To timely file such reports pursuant to the Exchange Act as are
necessary in order to make generally available to the Company's shareholders an
earnings statement of the Company and its subsidiaries (which need not be
audited) for the purposes of, and to provide the benefits contemplated by, the
last paragraph of Section 11(a) of the Securities Act;
(g) For a period of five years following the Effective Date, to furnish
to the Representatives copies of all materials furnished by the Company to its
shareholders generally and all public reports and all reports and financial
statements furnished by the Company to the Commission, the Nasdaq Stock Market
Inc. or to any national securities exchange upon which the Ordinary Shares may
be listed pursuant to requirements of or agreements with such exchange or to the
Commission pursuant to the Exchange Act or any rule or regulation of the
Commission thereunder;
(h) Promptly from time to time to take such action as the
Representatives may reasonably request to qualify the Shares for offering and
sale under the securities laws of such jurisdictions as the Representatives may
reasonably request and to comply with such laws so as to permit the continuance
of sales and dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Shares; provided that in
connection therewith the Company shall not be required to qualify as a foreign
corporation or as a dealer in securities, to become subject to taxation or to
file a general consent to service of process in any such jurisdiction, and
provided further that in connection therewith, the Company shall not be required
to offer the Shares to the public in any jurisdiction outside of the United
States or to prepare a separate disclosure document other than the Registration
Statement or the Prospectus or such supplementary disclosure document as may be
reasonably required for use with the Prospectus to form any Canadian offering
memorandum that may be delivered in connection with the distribution of the
Shares;
(i) (A) For a period of 180 days from the date of the Prospectus, not
to, directly or indirectly, (1) offer for sale, sell, contract or grant any
option to sell, pledge, transfer or otherwise dispose of (or enter into any
transaction or device which is designed to, or could reasonably be expected to,
result in the disposition by any person at any time in the future of) any
Ordinary Shares or securities convertible into or exchangeable for Ordinary
Shares (other than (x) the Shares to be sold hereunder and the Private Placement
Shares; (y) pursuant to employee benefit plans or qualified stock option plans
which, by their terms or by other written agreement, cannot be sold, pledged or
otherwise disposed of within a period of 180 days from the date of the
Prospectus without the prior written consent of ▇▇▇▇▇▇ Brothers Inc. on behalf
of the Underwriters; or (z) other employee compensation plans existing on the
date hereof or pursuant to currently outstanding options, warrants or rights),
or sell or grant options, rights or warrants with respect to any Ordinary Shares
or securities convertible into or exchangeable for Ordinary Shares (other than
the grant of options pursuant to option plans existing on the date hereof), or
(2) enter into any swap or other derivatives transaction that transfers to
another, in whole or in part, any of the economic benefits or risks of ownership
of such Ordinary Shares, whether any such transaction described in clause (1) or
(2) above is to be settled by delivery of
Ordinary Shares or other securities, in cash or otherwise, in each case without
the prior written consent of ▇▇▇▇▇▇ Brothers Inc. on behalf of the Underwriters;
(B) to cause [each] shareholder, optionholder, officer, director and employee of
the Company to furnish to the Representatives, prior to the First Delivery Date,
a letter or letters, in a form substantially similar to that attached as Exhibit
1 hereto or as otherwise agreed with the Representatives, pursuant to which each
such person shall agree, subject to certain exceptions, not to, directly or
indirectly, (1) offer for sale, sell, contract or grant any option to sell,
pledge, transfer or otherwise dispose of (or enter into any transaction or
device which is designed to, or could reasonably be expected to, result in the
disposition by any person at any time in the future of) any Ordinary Shares or
securities convertible into or exchangeable for Ordinary Shares or (2) enter
into any swap or other derivatives transaction that transfers to another, in
whole or in part, any of the economic benefits or risks of ownership of such
Ordinary Shares, whether any such transaction described in clause (1) or (2)
above is to be settled by delivery of Ordinary Shares or other securities, in
cash or otherwise, in each case for a period of 180 days from the date of the
Prospectus, without the prior written consent of ▇▇▇▇▇▇ Brothers Inc. on behalf
of the Underwriters; provided, however, that the Company shall not be required
to cause any such letter to be furnished by any person who holds no capital
stock of the Company or right to acquire any capital stock of the Company other
than one or more options that, by their terms, cannot be exercised, in whole or
in part, prior to May 31, 2002 (each such person, a "DISTANT OPTIONHOLDER"); (C)
prior to May 31, 2002, not to sell or grant to any such Distant Optionholder any
capital stock of the Company or any option or other right to acquire any capital
stock of the Company, exercisable in whole or in part prior to such date; and
(D) not to accelerate, amend or modify in any way any option or other right to
acquire any capital stock of the Company held by any Distant Optionholder as of
the date of this Agreement or at any time prior to May 31, 2002 so as to cause
such option to become exercisable, in whole or in part, prior to May 31, 2002,
in each case unless such a letter is delivered by such person;
(j) To apply the net proceeds from the sale of the Shares and the
Private Placement Shares as set forth in the Prospectus;
(k) Subject to compliance by the Underwriters with the final paragraph
of Section 4 of this Agreement, to the extent that, and for as long as, the laws
of Israel require any permit for approval by, or exemption by the ISA of the
transaction contemplated hereby to be legally permitted and to remain effective,
the Company will obtain and maintain each such permit, approval or exemption
valid and in full force and effect;
(l) In any suit in a court of competent jurisdiction (whether in the
United States or any other jurisdiction) seeking enforcement of this Agreement
or provisions
of this Agreement, (i) if the plaintiffs therein seek a judgment in United
States dollars, the Company will not interpose any defense or objection to or
otherwise oppose judgment, if any, being awarded in such currency, and (ii) if
the plaintiffs therein seek to have any judgment (or any aspect thereof) awarded
in foreign currency linked, for the period from entry of such judgment until
actual payment thereof in full has been made, to the changes in the foreign
currency-United Sates dollar exchange rate, the Company will no interpose any
defense or objection to or otherwise oppose inclusion of such linkage in any
such judgment (except to comply with any applicable law); and the Company agrees
that it will not initiate or seek to initiate any action, suit or proceeding, in
Israel or in any other jurisdiction other than the United States, seeking
damages or for the purpose of obtaining any injunction or declaratory judgment
against the enforcement of, or a declaratory judgment concerning any alleged
breach by the Company of or other claim by you in respect of, this Agreement or
any of your rights under this Agreement, including without limitation any
action, suit or proceeding challenging the enforceability of or seeking to
invalidate in any respect the submission by the Company hereunder to the
jurisdiction of federal or New York state courts or the designation of the laws
of the State of New York as the law applicable to this Agreement;
(m) If any payment of any sum due under this Agreement from the Company
is made to or received by the Underwriters or any controlling person of any
Underwriter in a currency other than freely transferable United States dollars,
whether by judicial judgment or otherwise, the obligations of the Company under
this Agreement shall be discharged only to the extent of the net amount of
freely transferable United States dollars that the Underwriters or such
controlling persons, as the case may be, in accordance with normal bank
procedures, are able to lawfully purchase with such amount of such other
currency; and to the extent that the Underwriters or such controlling persons
are not able to purchase sufficient United States dollars with such amount of
such other currency to discharge the obligations of the Company to the
Underwriters of such controlling persons, as the case may be, the Company shall
not be discharged with respect to such difference, and any such undischarged
amount will be due as a separate obligation and shall not be affected by payment
of or judgment being obtained for any other sums due under or in respect of this
Agreement;
(n) To take such steps as shall be necessary to ensure that the Company
shall not become an "investment company" as defined in the Investment Company
Act of 1940, as amended;
(o) In connection with the Directed Share Program, to ensure that the
Directed Shares will be restricted to the extent required by the National
Association of Securities Dealers, Inc. or the rules of such association from
sale, transfer,
assignment, pledge or hypothecation for a period of three months following the
date of the effectiveness of the Registration Statement. ▇▇▇▇▇▇ Brothers Inc.
will notify the Company as to which Participants will need to be so restricted.
At the request of ▇▇▇▇▇▇ Brothers Inc., the Company will direct the transfer
agent to place stop transfer restrictions upon such Directed Shares for such
period of time.
SECTION 7. FURTHER AGREEMENTS OF THE SELLING SHAREHOLDERS. Each of the
Selling Shareholders severally and not jointly agrees:
(a) To furnish the Representatives a letter in a form substantially
similar to that attached as Exhibit 1 hereto or as otherwise agreed with the
Representatives, pursuant to which the Selling Shareholder shall agree, subject
to certain exceptions, not to, directly or indirectly, (1) offer for sale, sell,
contract or grant any option to sell, pledge, transfer or otherwise dispose of
any Ordinary Shares or securities convertible into or exchangeable for Ordinary
Shares or (2) enter into any swap or other derivatives transaction that
transfers to another, in whole or in part, any of the economic benefits or risks
of ownership of such Ordinary Shares, whether any such transaction described in
clause (1) or (2) above is to be settled by delivery of Ordinary Shares or other
securities, in cash or otherwise, in each case for a period of 180 days from the
date of the Prospectus, without the prior written consent of ▇▇▇▇▇▇ Brothers
Inc. on behalf of the Underwriters.
(b) That the Option Shares to be sold by the Selling Shareholder
hereunder, which are represented by the certificates held in custody for the
Selling Shareholder, are subject to the interest of the Underwriters, that the
arrangements made by the Selling Shareholder for such custody are to that extent
irrevocable, and that the obligations of the Selling Shareholder hereunder shall
not be terminated by any act of the Selling Shareholder.
(c) To deliver to the Representatives prior to the First Delivery Date
a properly completed and executed United States Treasury Department Form W-8 (if
the Selling Shareholder is a non-United States person) or Form W-9 (if the
Selling Shareholder is a United States person).
SECTION 8. EXPENSES. The Company agrees to pay (a) the costs incident
to the authorization, issuance, sale and delivery of the Shares and any
transfer, stamp, documentary or similar taxes payable in that connection; (b)
the costs incident to the preparation, printing and filing under the Securities
Act of the Registration Statement and any amendments and exhibits thereto; (c)
the costs of distributing the Registration Statement as originally filed and
each amendment thereto and any post-effective amendments thereof (including, in
each case, exhibits), any Preliminary Prospectus, the Prospectus and any
amendment or supplement to the Prospectus, all as provided in this Agreement;
(d) the costs of producing and distributing this
Agreement, the Agreement Among Underwriters and any Master Dealers Agreement and
any other related documents in connection with the offering, purchase, sale and
delivery of the Shares; (e) the filing fee incident to securing the required
review by the National Association of Securities Dealers, Inc. of the terms of
sale of the Shares and the related fees and expenses of counsel to the
Underwriters (which fees and expenses shall not exceed $12,500); (f) any
applicable listing, registration or other fees; (g) the fees and expenses of
qualifying the Shares under the securities laws of the several jurisdictions as
provided in Section 6(h) and of preparing, printing and distributing a Blue Sky
Memorandum (including related fees and expenses of counsel to the Underwriters,
which fees and expenses shall not exceed $7,500); (h) all costs and expenses of
or incurred by the Underwriters, including the reasonable fees and disbursements
of counsel for the Underwriters incident to the Directed Share Program described
in Section 4; (i) the costs and expenses of the Company relating to investor
presentations on any "road show" undertaken in connection with the marketing of
the offering of the Shares, including, without limitation, expenses associated
with the production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the
prior approval of the Company, travel and lodging expenses of the officers of
the Company and any such consultants, and the cost of any aircraft chartered in
connection with the road show (which amounts, for purposes of clarification,
shall not include advertising, mailing, telephone, road show, travel or other
costs incurred by the Representatives or their sales personnel in connection
with the marketing of the Offering); and (j) all other costs and expenses
incident to the performance of the obligations of the Company under this
Agreement; provided that, except as provided in this Section 8 and in Section 13
the Underwriters shall pay their own costs and expenses, including the costs and
expenses of their counsel, any transfer taxes on the Shares which they may sell
(except, for purposes of clarification, the Israeli stamp tax applicable to the
issuance of the Shares, which stamp tax will be paid by the Company promptly
after each Delivery Date in accordance with Israeli law) and the expenses of
advertising any offering of the Shares made by the Underwriters.
Each of the Selling Shareholders severally agrees with each Underwriter
to pay (directly or by reimbursement to the Company) all fees and expenses
incident to the performance of its obligations under this Agreement that are not
otherwise specifically provided herein, including but not limited to (i) fees
and expenses of counsel and advisors to the Selling Shareholder and (ii)
expenses and taxes incident to the sale and delivery of the Option Shares to be
sold by the Selling Shareholder to the Underwriters hereunder. This paragraph
shall not affect or modify any separate, valid agreement relating to the
allocation of payment of expenses between the Company, on the one hand, and any
Selling Shareholder, on the other hand.
SECTION 9. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The respective
obligations of the Underwriters hereunder are subject to the accuracy, when made
and on each Delivery Date, of the representations and warranties of the Company
and the Selling Shareholders contained herein, to the performance by the Company
and the Selling Shareholders of their respective obligations hereunder, and to
each of the following additional terms and conditions:
(a) The Prospectus shall have been timely filed with the Commission in
accordance with Section 6(a); the Registration Statement shall have been
declared effective by the Commission; no stop order suspending the effectiveness
of the Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for inclusion of additional
information in the Registration Statement or the Prospectus or otherwise shall
have been complied with.
(b) No Underwriter shall have discovered and disclosed to the Company
on or prior to such Delivery Date that the Registration Statement or the
Prospectus or any amendment or supplement thereto contains an untrue statement
of a fact which, in the reasonable opinion of ▇▇▇▇▇▇▇ ▇▇▇▇ LLP, counsel for the
Underwriters, is material or omits to state a fact which in the reasonable
opinion of such counsel, is material and is required to be stated therein or is
necessary to make the statements therein, in light of the circumstances under
which such statements were made, not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Shares, the Registration
Statement and the Prospectus, and all other legal matters relating to this
Agreement, the transactions contemplated hereby and the Private Placement shall
be reasonably satisfactory in all material respects to counsel for the
Underwriters, and the Company and each of the Selling Shareholders shall have
furnished to such counsel all documents and information that they may reasonably
request to enable them to pass upon such matters.
(d) Zellermayer, Pelossof & Co. shall have furnished to the
Representatives its written opinion, as Israeli counsel to the Company,
addressed to the Underwriters and dated such Delivery Date, substantially in the
form attached hereto as Exhibit 2.
(e) White & Case LLP shall have furnished to the Representatives its
written opinion, as U.S. counsel to the Company, addressed to the Underwriters
and dated such Delivery Date, substantially in the form attached hereto as
Exhibit 3.
(f) Eitan, Pearl, ▇▇▇▇▇▇ & ▇▇▇▇▇-▇▇▇▇▇ shall have furnished to the
Representatives its written opinion, as intellectual property counsel to the
Company, addressed to the Underwriters and dated such Delivery Date,
substantially in the form attached hereto as Exhibit 4.
(g) ▇▇▇▇▇ & ▇▇▇▇▇▇▇ L.L.P. shall have furnished to the Representatives
its written opinion, as regulatory counsel to the Company, addressed to the
Underwriters and dated such Delivery Date, substantially in the form attached
hereto as Exhibit 5.
(h) Each of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, PC and
Zellermayer, Pelossof & Co. shall have furnished to the Representatives its
written opinion, as counsel to Thermo Electron Corporation and RDC ▇▇▇▇▇▇
Development Corporation, respectively, addressed to the Underwriters and dated
such Delivery Date, substantially in the form attached hereto as Exhibit 6 and
7, respectively.
(i) The Representatives shall have received from ▇▇▇▇▇▇▇ ▇▇▇▇ LLP and
Meitar, Liquornik, Geva & Co., counsel for the Underwriters, such opinion or
opinions, dated such Delivery Date, with respect to the issuance and sale of the
Shares, the Registration Statement, the Prospectus and other related matters as
the Representatives may reasonably require, and the Company shall have furnished
to such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters, provided that such counsel has given
reasonable notice of such request for documents in light of the nature and
source of the documents.
(j) At the time of execution of this Agreement, the Representatives
shall have received from KPMG Somekh ▇▇▇▇▇▇▇, a member of KPMG International, a
letter, in form and substance reasonably satisfactory to the Representatives,
addressed to the Underwriters and dated the date hereof (i) confirming that they
are independent public accountants within the meaning of the Securities Act and
are in compliance with the applicable requirements relating to the qualification
of accountants under Rule 2-01 of Regulation S-X of the Commission and (ii)
stating, as of the date hereof (or, with respect to matters involving changes or
developments since the respective dates as of which specified financial
information is given in the Prospectus, as of a date not more than five days
prior to the date hereof), the conclusions and findings of such firm with
respect to the financial information and other matters ordinarily covered by
accountants "comfort letters" to underwriters in connection with registered
public offerings.
(k) With respect to the letter of KPMG Somekh ▇▇▇▇▇▇▇ referred to in
the preceding paragraph and delivered to the Representatives concurrently with
the
execution of this Agreement (the "INITIAL LETTERS"), the Company shall have
furnished to the Representatives a letter (the "BRING-DOWN LETTER") of such
accountants, addressed to the Underwriters and dated such Delivery Date (i)
confirming that they are independent public accountants within the meaning of
the Securities Act and are in compliance with the applicable requirements
relating to the qualification of accountants under Rule 2-01 of Regulation S-X
of the Commission, (ii) stating, as of the date of the bring-down letter (or,
with respect to matters involving changes or developments since the respective
dates as of which specified financial information is given in the Prospectus, as
of a date not more than five days prior to the date of the bring-down letter),
the conclusions and findings of such firm with respect to the financial
information and other matters covered by the initial letter and (iii) confirming
in all material respects the conclusions and findings set forth in the initial
letter.
(l) The Company shall have furnished to the Representatives a
certificate, dated such Delivery Date, of its Chief Executive Officer and its
Chief Financial Officer stating that:
(i) The representations, warranties and agreements of the
Company in Section 1 (A) if qualified in Section 1 as to materiality or
material adverse effect, are true and correct and (B) in all other
cases, are true and correct in all material respects, in both cases as
of such Delivery Date; the Company has complied in all material
respects with all its agreements contained herein; and the conditions
set forth in Sections 7(a) and 7(n) have been fulfilled; and
(ii) They have carefully examined the Registration
Statement and the Prospectus and, to their knowledge (A) as of the
Effective Date, the Registration Statement and Prospectus did not
include any untrue statement of a material fact and did not omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, and (B) since the Effective
Date no event has occurred which should have been set forth in a
supplement or amendment to the Registration Statement or the
Prospectus.
(m) On each Delivery Date on which Option Shares are sold, each Selling
Shareholder shall have furnished to the Representatives a certificate, dated
such Delivery Date, stating that:
(i) The representations, warranties and agreements of the
Selling Shareholder in Section 2 (A) if qualified in Section 2 as to
materiality or material adverse effect, are true and correct and (B) in
all other cases, are
true and correct in all material respects, in both cases as of such
Delivery Date; and
(ii) the Selling Shareholder has complied in all material
respects with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to such Delivery
Date.
(n) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Prospectus any loss or interference with its business from fire, explosion,
flood or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus and (ii) since such date there shall not
have been any change in the capital stock of the Company or any of its
subsidiaries (other than subsequent issuances, if any, pursuant to the Company's
employee benefit plans, qualified stock option plans or other employee
compensation plans described in the Prospectus or upon exercise of outstanding
options, rights or warrants described in the Prospectus or pursuant to the share
recapitalization to be effected prior to the Delivery Date as described in the
Prospectus) or long-term debt of the Company and its subsidiaries (other than as
set forth in the consolidated financial statements filed as part of the
Registration Statement) or any change, or any development involving a
prospective change, in or affecting the general affairs, management, financial
position, stockholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the Prospectus, the
effect of which, in any such case described in clause (i) or (ii), is, in the
reasonable judgment of a majority in interest of the Representatives, so
material and adverse as to make it impracticable or inadvisable to proceed with
the public offering or the delivery of the Shares being delivered on such
Delivery Date on the terms and in the manner contemplated in the Prospectus.
(o) Subsequent to the execution and delivery of this Agreement there
shall not have occurred any of the following: (i) trading in securities
generally on the New York Stock Exchange or the Nasdaq National Market or in the
over-the-counter market, or trading in any securities of the Company on any
exchange or in the over-the-counter market, shall have been suspended or minimum
prices shall have been established on any such exchange or such market by the
Commission, by such exchange or by any other regulatory body or governmental
authority having jurisdiction, (ii) a banking moratorium shall have been
declared by Federal or state authorities of the United States or by Israeli
authorities, (iii) the United States shall have become engaged in hostilities,
there shall have been a significant escalation in hostilities involving the
United States or Israel or there shall have been a declaration of a national
emergency or war by the United States or Israel or (iv) there shall have
occurred such a material adverse change in general economic, political or
financial conditions (or the effect of international conditions on the financial
markets in the United States or Israel shall be such) as to make it, in the
reasonable judgment of a majority in interest of the Representatives,
impracticable or inadvisable to proceed with the public offering or delivery of
the Shares being delivered on such Delivery Date on the terms and in the manner
contemplated in the Prospectus.
(p) The Nasdaq Stock Market Inc. shall have approved the Shares for
listing on the Nasdaq National Market, subject only to official notice of
issuance.
(q) You shall have received evidence satisfactory to you that the Stock
Purchase Agreement has been executed and delivered by the parties thereto, as
described in the Prospectus without modification, change or waiver, except for
such modifications, changes or waivers as have been specifically identified to
the Underwriters and which in the reasonable judgment of the Underwriters do not
make it impracticable or inadvisable to proceed with the offering and delivery
of the Shares on the Delivery Date on the terms and in the manner contemplated
in the Prospectus.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance reasonably satisfactory
to counsel for the Underwriters.
SECTION 10. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company and each Selling Shareholder, jointly and severally,
shall indemnify and hold harmless each Underwriter, its officers, directors and
employees and each person, if any, who controls any Underwriter within the
meaning of the Securities Act, from and against any loss, claim, damage or
liability, joint or several, or any action in respect thereof (including, but
not limited to, any loss, claim, damage, liability or action relating to
purchases and sales of Shares), to which that Underwriter, or its officers,
directors, employees or controlling persons may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, (i) any untrue statement or alleged
untrue statement of a material fact contained in (A) any Preliminary Prospectus,
the Registration Statement or the Prospectus or in any amendment or supplement
thereto, or (B) any materials or information provided to investors by, or with
the approval of, the Company in connection with the marketing of the offering of
the Shares ("MARKETING MATERIALS"), including any roadshow or investor
presentations made to investors by the Company (whether in person or
electronically), (ii) the omission or alleged omission to state in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or in any
amendment or supplement thereto, or in any Marketing
Materials, any material fact required to be stated therein or necessary to make
the statements therein not misleading or (iii) any act or failure to act or any
alleged act or failure to act by any Underwriter in connection with, or relating
in any manner to, the Shares or the offering contemplated hereby, and which is
included as part of or referred to in any loss, claim, damage, liability or
action arising out of or based upon matters covered by clause (i) or (ii) above
(provided that neither the Company nor the Selling Shareholders shall be liable
under this clause (iii) to the extent that it is determined in a final judgment
by a court of competent jurisdiction that such loss, claim, damage, liability or
action resulted directly from any such acts or failures to act undertaken or
omitted to be taken by such Underwriter through its bad faith, gross negligence
or willful misconduct), and shall reimburse, jointly and severally, each
Underwriter and each of its officers, directors, employees and controlling
persons promptly upon demand for any legal or other expenses reasonably incurred
by that Underwriter, officer, director, employee or controlling person in
connection with investigating or defending or preparing to defend against any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that (i) neither the Company nor the Selling Shareholders
shall be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement or the Prospectus, or in
any such amendment or supplement, in reliance upon and in conformity with
written information concerning such Underwriter furnished to the Company through
the Representatives by or on behalf of any Underwriter specifically for
inclusion therein, which information consists solely of the information
specified in Section 10(g), and (ii) with respect to any untrue statement or
omission of material fact made in any Preliminary Prospectus, the indemnity
agreement contained in this section shall not inure to the benefit of any
Underwriter from whom the person asserting any such loss, claim, damage,
liability or action purchased the securities concerned, to the extent that any
such loss, claim, damage, liability or action of such Underwriter occurs under
the circumstance where it shall have been determined by a court of competent
jurisdiction that (w) the Company had furnished copies of the Prospectus, as
amended or supplemented, to the Representatives prior to the time at which
written confirmation of the sale of such securities was delivered by the
Underwriter, (x) delivery of the Prospectus, as amended or supplemented, was
required by the Securities Act to be made to such person at such time, (y) the
untrue statement or omission of a material fact contained in the Preliminary
Prospectus was corrected in the Prospectus as amended or supplemented, and (z)
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such securities to such person, a copy of the
Prospectus as amended or supplemented. The foregoing indemnity agreement is in
addition to any liability which the Company or any Selling Shareholder may
otherwise have to any Underwriter or to any officer, director, employee or
controlling person of that Underwriter.
The Company agrees to indemnify and hold harmless ▇▇▇▇▇▇ Brothers Inc.
(including its officers, directors and employees) and each person, if any, who
controls ▇▇▇▇▇▇ Brothers Inc. within the meaning of the Securities Act ("▇▇▇▇▇▇
BROTHERS ENTITIES") and the other Underwriters, from and against any loss,
claim, damage, expense or liability or any action in respect thereof to which
any of the ▇▇▇▇▇▇ Brothers Entities or any Underwriter may become subject, under
the Securities Act or otherwise, insofar as such loss, claim, damage, expense,
liability or action arises out of, or is based upon (i) any untrue statement or
alleged untrue statement of a material fact contained in any material prepared
by or with the approval of the Company for distribution to Directed Share
Participants in connection with the Directed Share Program or any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, (ii) the failure of
any Directed Share Participant to pay for and accept delivery of Directed Shares
that the Directed Share Participant agreed to purchase pursuant to the Directed
Share Program or (iii) the Directed Share Program, provided that, the Company
shall not be responsible under clauses (ii) or (iii) for any loss, claim,
damage, expense, liability or action that is finally judicially determined to
have resulted from the bad faith, gross negligence or willful misconduct of the
▇▇▇▇▇▇ Brothers Entities. The Company shall reimburse the ▇▇▇▇▇▇ Brothers
Entities and any other Underwriter promptly upon demand for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, each Selling Shareholder, and their respective
officers, directors and employees, and each person, if any, who controls the
Company or Selling Shareholder within the meaning of the Securities Act, from
and against any loss, claim, damage or liability, joint or several, or any
action in respect thereof, to which the Company, any Selling Shareholder, or any
of their respective officers, directors, employees or controlling persons may
become subject, under the Securities Act or otherwise, insofar as such loss,
claim, damage, liability or action arises out of, or is based upon, (i) any
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus or in any
amendment or supplement thereto, or (ii) the omission or alleged omission to
state in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or in any amendment or supplement thereto, any material fact
required to be stated therein or necessary to make the statements therein not
misleading, but in each case only to the extent that the untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information concerning such Underwriter
furnished to the Company through the Representatives by or on behalf of that
Underwriter
specifically for inclusion therein (which information consists solely of the
information specified in Section 10(g)), and shall reimburse the Company, each
such Selling Shareholder, and any such officer, director, employee or
controlling person for any legal or other expenses reasonably incurred by the
Company, such Selling Shareholder, or any such officer, director, employee or
controlling person in connection with investigating or defending or preparing to
defend against any such loss, claim, damage, liability or action as such
expenses are incurred. The foregoing indemnity agreement is in addition to any
liability which any Underwriter may otherwise have to the Company, the Selling
Shareholders, or any such director, officer, employee or controlling person.
(c) Each Selling Shareholder, severally and not jointly, shall
indemnify and hold harmless the Company, its officers, directors and employees
and each person, if any, who controls the Company within the meaning of the
Securities Act, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof (including, but not limited to, any
loss, claim, damage, liability or action relating to purchases and sales of
Shares), to which the Company or its officers, directors, employees or
controlling persons may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, (i) any untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus or in any amendment or supplement thereto, or (ii) the omission or
alleged omission to state in any Preliminary Prospectus, the Registration
Statement or the Prospectus, or in any amendment or supplement thereto, any
material fact required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that the untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information concerning such
Selling Shareholder furnished to the Company by or on behalf of that Selling
Shareholder specifically for inclusion therein, which information consists
solely of the information specified in Section 10(f), and shall reimburse,
jointly and severally, the Company and its officers, directors and employees and
controlling persons promptly upon demand for any legal or other expenses
reasonably incurred by the Company and its officers, directors, employees or
controlling persons in connection with investigating or defending or preparing
to defend against any such loss, claim, damage, liability or action as such
expenses are incurred; provided, however, that each Selling Shareholder shall
not be liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or in any such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company through the Representatives by or on behalf
of any Underwriter specifically
for inclusion therein, which information consists solely of the information
specified in Section 10(g). The foregoing indemnity agreement is in addition to
any liability which the Selling Shareholder may otherwise have to the Company
and its officers, directors and employees and each person, if any, who controls
the Company.
(d) Promptly after receipt by an indemnified party under this Section
10 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 10, notify the indemnifying party in
writing of the claim or the commencement of that action; provided, however, that
the failure to notify the indemnifying party shall not relieve it from any
liability which it may have under this Section 10 except to the extent it has
been materially prejudiced by such failure and, provided further, that the
failure to notify the indemnifying party shall not relieve it from any liability
which it may have to an indemnified party otherwise than under this Section 10.
If any such claim or action shall be brought against an indemnified party, and
it shall notify the indemnifying party thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it wishes, jointly with
any other similarly notified indemnifying party, to assume the defense thereof
with counsel reasonably satisfactory to the indemnified party. After notice from
the indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable to
the indemnified party under this Section 10 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that
the Representatives shall have the right to employ counsel to represent jointly
the Representatives and those other Underwriters and their respective officers,
directors, employees and controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
Underwriters against the Company or any Selling Shareholder under this Section
10 if, in the reasonable judgment of the Representatives, it is advisable for
the Representatives and those Underwriters, officers, directors, employees and
controlling persons to be jointly represented by separate counsel, and in that
event the fees and expenses of such separate counsel shall be paid by the
Company and the Selling Shareholders. Notwithstanding anything contained herein
to the contrary, if indemnity may be sought pursuant to Section 10(a) hereof in
respect of such claim or action, then in addition to such separate firm for the
indemnified parties, the indemnifying party shall be liable for the fees and
expenses of not more than one separate firm (in addition to any local counsel)
for the ▇▇▇▇▇▇ Brothers Entities for the defense of any loss, claim, damage,
liability or action arising out of the Directed Stock Program. No indemnifying
party shall (i) without the prior written consent of the indemnified parties
(which consent shall not be unreasonably withheld), settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be
sought hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding, or (ii) be liable for any
settlement of any such action effected without its written consent (which
consent shall not be unreasonably withheld), but if settled with the consent of
the indemnifying party or if there be a final judgment of the plaintiff in any
such action, the indemnifying party agrees to indemnify and hold harmless any
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
(e) If the indemnification provided for in this Section 10 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 10(a), 10(b) or 10(c) in respect of any loss, claim, damage
or liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, claim, damage or liability, or action in respect thereof, (i) in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company and each Selling Shareholder, severally, on the one hand
and the Underwriters on the other from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
each Selling Shareholder, severally, on the one hand and the Underwriters on the
other with respect to the statements or omissions which resulted in such loss,
claim, damage or liability, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits received by the Company
and each Selling Shareholders on the one hand and the Underwriters on the other
with respect to such offering shall be deemed to be in the same proportion as
the total net proceeds from the offering of the Shares purchased under this
Agreement (before deducting expenses) received by the Company and each Selling
Shareholder, respectively, on the one hand, and the total underwriting discounts
and commissions received by the Underwriters with respect to the Shares
purchased under this Agreement, on the other hand, bear to the total gross
proceeds from the offering of the Shares under this Agreement, in each case as
set forth in the table on the cover page of the Prospectus. The relative fault
of the Company and each Selling Shareholder on the one hand and the Underwriters
on the other shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the Company, each Selling
Shareholder or the Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company, each Selling Shareholder and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 10 were to be determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take into
account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or
liability, or action in respect thereof, referred to above in this Section 10
shall be deemed to include, for purposes of this Section 10(e), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 10(e), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public was offered to the public
exceeds the amount of any damages which such Underwriter has otherwise paid or
become liable to pay by reason of any untrue or alleged untrue statement or
omission or alleged omission and no Selling Shareholder shall be required to
contribute an amount in excess of the total net proceeds from the offering of
the Option Shares received by each Selling Shareholder. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations to
contribute as provided in this Section 10(e) are several in proportion to their
respective underwriting obligations and not joint.
(f) Each Selling Shareholder severally confirms and the Company
acknowledges that the name, address and share ownership of such Selling
Shareholder and other information with respect to such Selling Shareholder set
forth under the caption "Principal and Selling Shareholders" and the information
contained in the representations and warranties given by such Selling
Shareholder in this Agreement and the Custody Agreement constitute the only
information concerning such Selling Shareholder furnished in writing to the
Company by or on behalf of each Selling Shareholder.
(g) The Underwriters severally confirm and the Company and the Selling
Shareholders acknowledge that the statements with respect to the public offering
of the Shares by the Underwriters set forth on the cover page of the Prospectus,
in the statements set forth in the table in the first paragraph under the
subcaption "-General," in the fourth and fifth paragraphs under that subcaption,
in the second paragraph under the subcaption "-Commissions and Expenses," in the
third sentence under the subcaption "-Offering Price Determination," in the
first two paragraphs under the subcaption "-Stabilization, Short Positions and
Penalty Bids," under the subcaption "-Discretionary Sales" and under the
subcaption "Underwriter's Stock Ownership" in each case under the caption
"Underwriting" in the Prospectus are correct and constitute the only information
concerning such Underwriters furnished
in writing to the Company by or on behalf of the Underwriters specifically for
inclusion in the Registration Statement and the Prospectus.
(h) The liability of each Selling Shareholder pursuant to Section 10(a)
and Section 10(c) and, with respect to RDC, for any breach of representation
contained in Section 2(e)(ii) or 2(f)(ii), shall not exceed the total net
proceeds from the offering of the Option Shares received by such Selling
Shareholder; provided that such limitation shall not apply in the event of a
commission of fraud hereunder on the part of such Selling Shareholder.
SECTION 11. DEFAULTING UNDERWRITERS.
If, on either Delivery Date, any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting Underwriters shall be obligated to purchase the Shares which the
defaulting Underwriter agreed but failed to purchase on such Delivery Date in
the respective proportions which the number of Firm Shares set opposite the name
of each remaining non-defaulting Underwriter in Schedule 1 hereto bears to the
total number of Firm Shares set opposite the names of all the remaining
non-defaulting Underwriters in Schedule 1 hereto; provided, however, that the
remaining non-defaulting Underwriters shall not be obligated to purchase any of
the Shares on such Delivery Date if the total number of Shares which the
defaulting Underwriter or Underwriters agreed but failed to purchase on such
date exceeds 9.09% of the total number of Shares to be purchased on such
Delivery Date, and any remaining non-defaulting Underwriter shall not be
obligated to purchase more than 110% of the number of Shares which it agreed to
purchase on such Delivery Date pursuant to the terms of Section 4. If the
foregoing maximums are exceeded, the remaining non-defaulting Underwriters, or
those other underwriters satisfactory to the Representatives who so agree, shall
have the right, but shall not be obligated, to purchase, in such proportion as
may be agreed upon among them, all the Shares to be purchased on such Delivery
Date. If the remaining Underwriters or other underwriters satisfactory to the
Representatives do not elect to purchase the Shares which the defaulting
Underwriter or Underwriters agreed but failed to purchase on such Delivery Date,
this Agreement (or, with respect to the Second Delivery Date, the obligation of
the Underwriters to purchase, and of [the Company and] the Selling Shareholders
to sell, the Option Shares) shall terminate without liability on the part of any
non-defaulting Underwriter, the Company or any Selling Shareholder, except that
the Company and Selling Shareholders will continue to be liable for the payment
of expenses to the extent set forth in Sections 8 and 13. As used in this
Agreement, the term "UNDERWRITER" includes, for all purposes of this Agreement
unless the context requires otherwise, any party not listed in Schedule 1 hereto
who, pursuant to this Section 11, purchase Shares which a defaulting Underwriter
agreed but failed to purchase.
Nothing contained herein shall relieve a defaulting Underwriter of any
liability it may have to the Company or any Selling Shareholder for damages
caused by its default. If other underwriters are obligated or agree to purchase
the Shares of a defaulting or withdrawing Underwriter, either the
Representatives or the Company may postpone the Delivery Date for up to seven
full business days in order to effect any changes that in the opinion of counsel
for the Company or counsel for the Underwriters may be necessary in the
Registration Statement, the Prospectus or in any other document or arrangement.
SECTION 12. TERMINATION. The obligations of the Underwriters hereunder
may be terminated by the Representatives by notice given to and received by the
Company and the Selling Shareholders prior to delivery of and payment for the
Firm Shares if, prior to that time, any of the events described in Sections 9(n)
or 9(o) shall have occurred or if the Underwriters shall decline to purchase the
Shares for any reason permitted under this Agreement.
SECTION 13. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the Company or
any Selling Shareholder shall fail to tender the Shares for delivery to the
Underwriters by reason of any failure, refusal or inability on the part of the
Company or such Selling Shareholder to perform any agreement on its part to be
performed, or because any other condition of the Underwriters' obligations
hereunder required to be fulfilled by the Company or such Selling Shareholder is
not fulfilled, the Company and such defaulting Selling Shareholder shall
reimburse the Underwriters for all reasonable out-of-pocket expenses (including
fees and disbursements of counsel) incurred by the Underwriters in connection
with this Agreement and the proposed purchase of the Shares, and upon demand the
Company and, in the case of a defaulting Selling Shareholder, such defaulting
Selling Shareholder, shall pay the full amount thereof to the Representatives.
If this Agreement is terminated pursuant to Section 9 by reason of the default
of one or more Underwriters, neither the Company nor the Selling Shareholders
shall be obligated to reimburse any defaulting Underwriter on account of those
expenses.
SECTION 14. NOTICES, ETC. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriters, shall be delivered or sent by mail, telex
or facsimile transmission to ▇▇▇▇▇▇ Brothers Inc., Three World Financial Center,
New York, New York 10285, Attention: Syndicate Department (Fax: ▇▇▇-▇▇▇-▇▇▇▇),
with a copy, in the case of any notice pursuant to Section 8(c), to the Director
of Litigation, Office of the General Counsel, ▇▇▇▇▇▇ Brothers Inc., Three World
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇; provided, however, that any
notice to an Underwriter pursuant to Section 8(c) shall be delivered or sent by
mail,
telex or facsimile transmission to such Underwriter at its address set forth in
its acceptance telex to the Representatives, which address will be supplied to
any other party hereto by the Representatives upon request.
(b) if to the Company, shall be delivered or sent by mail, telex or
facsimile transmission to the address of the Company set forth in the
Registration Statement, Attention: ▇▇▇ ▇▇▇ ▇▇▇▇▇ (Fax: ▇▇▇-▇-▇▇▇-▇▇▇▇).
(c) if to any Selling Shareholder, shall be delivered or sent by mail,
telex or facsimile transmission to the address of such Shareholder set forth on
Schedule 2 hereto.
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof. The Company and the Selling Shareholders shall be
entitled to act and rely upon any request, consent, notice or agreement given or
made on behalf of the Underwriters by ▇▇▇▇▇▇ Brothers Inc. on behalf of the
Representatives; and the Underwriters and the Company shall be entitled to act
and rely upon any request, consent, notice or agreement given or made on behalf
of any Selling Shareholder by any or all of the attorneys-in-fact for such
Selling Shareholder.
SECTION 15. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement
shall inure to the benefit of and be binding upon the Underwriters, the Company,
the Selling Shareholders and their respective successors. This Agreement and the
terms and provisions hereof are for the sole benefit of only those persons,
except that (A) the representations, warranties, indemnities and agreements of
the Company and the representations, warranties, indemnities and agreements of
the Selling Shareholders contained in this Agreement shall also be deemed to be
for the benefit of the person or persons, if any, who control any Underwriter
within the meaning of Section 15 of the Securities Act and (B) the indemnity
agreement of the Underwriters contained in Section 8(b) of this Agreement shall
be deemed to be for the benefit of directors of the Company, officers of the
Company who have signed the Registration Statement, the Selling Shareholders and
any person controlling the Company or a Selling Shareholder within the meaning
of Section 15 of the Securities Act. Nothing in this Agreement is intended or
shall be construed to give any person, other than the persons referred to in
this Section 13, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
SECTION 16. SURVIVAL. The respective indemnities, representations,
warranties and agreements of the Company, the Selling Shareholders and the
Underwriters contained in this Agreement or made by or on behalf on them,
respectively, pursuant to this Agreement, shall survive the delivery of and
payment for the Shares and shall remain in full force and effect, regardless of
any investigation made by or on behalf of any of them or any person controlling
any of them.
SECTION 17. DEFINITION OF THE TERMS "BUSINESS DAY" AND "SUBSIDIARY."
For purposes of this Agreement, (a) "BUSINESS DAY" means each Monday, Tuesday,
Wednesday, Thursday or Friday which is not a day on which banking institutions
in New York are generally authorized or obligated by law or executive order to
close and (b) "SUBSIDIARY" has the meaning set forth in Rule 405 of the Rules
and Regulations.
SECTION 18. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the internal laws of New York (without giving
effect to conflict of laws provisions thereof).
SECTION 19. CONSENT TO JURISDICTION. Each party irrevocably agrees that
any legal suit, action or proceeding arising out of or based upon this Agreement
or the transactions contemplated hereby ("RELATED PROCEEDINGS") may be
instituted in the federal courts of the United States of America located in the
City of New York or the courts of the State of New York in each case located in
the Borough of Manhattan in the City of New York (collectively, the "SPECIFIED
COURTS"), and irrevocably submits to the exclusive jurisdiction (except for
proceedings instituted in regard to the enforcement of a judgment of any such
court (a "RELATED JUDGMENT"), as to which such jurisdiction is non-exclusive) of
such courts in any such suit, action or proceeding. The parties further agree
that service of process, summons, notice or document by mail to such party's
address set forth above shall be effective service of process for any lawsuit,
action or other proceeding brought in any such court. The parties hereby
irrevocably and unconditionally waive any objection to the laying of venue of
any lawsuit, action or other proceeding in the Specified Courts, and hereby
further irrevocably and unconditionally waive and agree not to plead or claim in
any such court that any such lawsuit, action or proceeding brought in any such
court has been brought in an inconvenient forum. Each party not located in the
United States hereby irrevocably appoints Given Imaging, Inc., which currently
maintains an office at Oakbrook Technology Center, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ of America, as its agent to receive
service of process or other legal summons for purposes of any such action or
proceeding that may be instituted in any state or federal court in the City and
State of New York.
SECTION 20. WAIVER OF IMMUNITY. With respect to any Related Proceeding,
each party irrevocably waives, to the fullest extent permitted by applicable
law, all immunity (whether on the basis of sovereignty or otherwise) from
jurisdiction, service of process, attachment (both before or after judgment) and
execution to which it might otherwise be entitled in the Specified Courts, and
with respect to any Related Judgment of any Specified Court, each party waives
any such immunity in the Specified Courts or any other court of competent
jurisdiction, and will not raise or claim or cause to be pleaded any such
immunity at or with respect of any such
Related Proceeding or Related Judgment, including, without limitation, any
immunity pursuant to the United States Foreign Sovereign Immunities Act of
1976, as amended.
SECTION 21. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original but all such counterparts
shall together constitute one and the same instrument.
SECTION 22. HEADINGS. The headings herein are inserted for convenience
of reference only and are not intended to be part of, or to affect the meaning
or interpretation of, this Agreement.
If the foregoing correctly sets forth the agreement between the
Company, the Selling Shareholders and the Underwriters, please indicate your
acceptance in the space provided for that purpose below.
Very truly yours,
GIVEN IMAGING LTD.
BY
---------------------------------
Name:
Title:
THERMO ELECTRON CORPORATION
RDC ▇▇▇▇▇▇ DEVELOPMENT CORPORATION
BY
---------------------------------
Name:
As Attorney-in-Fact acting on
behalf of each of the Selling
Shareholders named in
Schedule 2 to this Agreement
Accepted:
▇▇▇▇▇▇ BROTHERS INC.
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, INC.
FIDELITY CAPITAL MARKETS
a division of National Financial
Services Corporation,
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
By ▇▇▇▇▇▇ BROTHERS INC.
By
---------------------------------------
Authorized Representative
SCHEDULE 1
Number of
Underwriters Firm Shares
------------ -----------
▇▇▇▇▇▇ Brothers Inc....................................................
Credit Suisse First Boston Corporation.................................
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Inc................................................
[Names of other Underwriters]
Total.............................................................
SCHEDULE 2
Number of
Selling Shareholder Address Option Shares
------------------- ------- -------------
Thermo Electron Corporation.......................
RDC ▇▇▇▇▇▇ Development Corporation................
Total........................................
EXHIBIT 1
LOCK-UP LETTER AGREEMENT
▇▇▇▇▇▇ BROTHERS INC.
CREDIT SUISSE FIRST
BOSTON CORPORATION
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INC.
As Representatives of the
several underwriters
c/▇ ▇▇▇▇▇▇ BROTHERS INC.
Three World Financial Center
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs:
The undersigned understands that you and certain other firms propose to
enter into an
Underwriting Agreement (the "
Underwriting Agreement") providing
for the purchase by you and such other firms (the "Underwriters") of ordinary
shares (the "Ordinary Shares"), of
Given Imaging Ltd. (the "Company") and that
the Underwriters propose to reoffer the Shares to the public (the "Offering").
In consideration of the execution of the
Underwriting Agreement by the
Underwriters, and for other good and valuable consideration, the undersigned
hereby irrevocably agrees that, without the prior written consent of ▇▇▇▇▇▇
Brothers Inc., on behalf of the Underwriters, the undersigned will not, directly
or indirectly, (1) offer for sale, sell, pledge, or otherwise dispose of (or
enter into any transaction or device that is designed to, or could be expected
to, result in the disposition by any person at any time in the future of) any
Ordinary Shares (including, without limitation, Ordinary Shares that may be
deemed to be beneficially owned by the undersigned in accordance with the rules
and regulations of the Securities and Exchange Commission and Ordinary Shares
that may be issued upon exercise of any option or warrant) or securities
convertible into or exchangeable for Ordinary Shares (other than the Shares)
owned by the undersigned on the date of execution of this Lock-Up Letter
Agreement or on the date of the completion of the Offering, or (2) enter into
any swap or other derivatives transaction that transfers to another, in whole or
in part, any of the economic benefits or risks of ownership of such Ordinary
Shares, whether any
1
such transaction described in clause (1) or (2) above is to be settled by
delivery of Ordinary Shares or other securities, in cash or otherwise, for a
period of 180 days after the date of the final prospectus relating to the
Offering.
In furtherance of the foregoing, the Company and its Transfer Agent,
acting at the direction of the Company, are hereby authorized to decline to make
any transfer of securities if such transfer would constitute a violation or
breach of this Lock-Up Letter Agreement.
It is understood that, if the Company notifies you that it does not
intend to proceed with the Offering, if the
Underwriting Agreement does not
become effective, or if the
Underwriting Agreement (other than the provisions
thereof which survive termination) shall terminate or be terminated prior to
payment for and delivery of the Shares, we will be released from our obligations
under this Lock-Up Letter Agreement.
The undersigned understands that the Company and the Underwriters will
rely on this Lock-Up Letter Agreement in proceeding with the Offering.
Whether or not the Offering actually occurs depends on a number of
factors, including market conditions. Any Offering will only be made pursuant to
the
Underwriting Agreement, the terms of which are subject to negotiation
between the Company and the Underwriters.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to enter into this Lock-Up Letter Agreement and that,
upon request, the undersigned will execute any additional documents necessary in
connection with the enforcement hereof. Any obligations of the undersigned shall
be binding upon the heirs, personal representatives, successors and assigns of
the undersigned.
Very truly yours,
IF AN INDIVIDUAL:
--------------------------------
Name:
IF ON BEHALF OF A CORPORATION,
PARTNERSHIP, LIMITED LIABILITY
COMPANY, TRUST OR OTHER ENTITY:
--------------------------------
[Name of entity]
2
By:
-----------------------------
Name:
Title:
Dated:
-----------------
3
EXHIBIT 2
OPINION OF ZELLERMAYER, PELOSSOF & CO.
ISRAELI COUNSEL TO THE COMPANY
Ladies and Gentlemen,
We have acted as Israel counsel for
Given Imaging Ltd., a company duly
incorporated, organized and validly existing under the laws of the State of
Israel (the "Company"), in connection with the preparation and filing under the
United States Securities Act of 1993, as amended (the "Act"), of a registration
statement on Form F-1 (the "Registration Statement") with the Securities and
Exchange Commission in connection with the offer and sale by the Company of
Ordinary Shares nominal value NIS 0.05 per share of the Company ("Ordinary
Shares") in an aggregate number of up to 5,000,000 (the "Shares") (not including
up to an additional 750,000 Ordinary Shares offered by certain shareholders of
the Company to cover over-allotments). This opinion is furnished pursuant to the
Underwriting Agreement, dated [___], 2001 between the Company and yourselves
(the "
Underwriting Agreement") Capitalized terms not otherwise defined herein
shall have the meaning ascribed thereto in the
Underwriting Agreement.
In so acting, and as a basis for the opinions herein set forth, we have
examined original, photocopied, facsimiled copies or electronically transmitted
versions of the Registration Statement, the Underwriting Agreement, the Stock
Purchase Agreement, the Company's Memorandum and Articles of Association and all
corporate minutes, records and other documents of the Company provided to us by
the Company which we have deemed as necessary or relevant as a basis for the
opinions hereinafter expressed. In such examination we have assumed the due
authorization, execution and delivery of the Underwriting Agreement and any part
thereof, by all parties thereto other than the Company, due compliance with the
laws of the State of New York and all other relevant laws (other than the laws
of the State of Israel), the genuineness of all signatures (other than those on
behalf of the Company), that each such party has entered into the Underwriting
Agreement in good faith and without notice of any adverse fact, that the
Underwriting Agreement constitutes the legal, valid and binding obligation of
each such party (other than the Company), enforceable against it in accordance
with its terms, and that each such party has and shall have complied with and
punctually performed all its covenants, undertakings and agreements thereunder.
We have further assumed, without any investigation, the legal capacity of
natural persons, the corporate power of legal persons (other than the Company)
and the authority of the individuals acting on their behalf, actual compliance
of all parties with their covenants and agreements and with all relevant laws,
the authenticity of all documents submitted to us as originals, the conformity
to original documents of all documents submitted, facsimiled or
4
electronically transmitted to us as copies and that such documents as examined
by us are true, complete and correct, are in full force and effect and have not
been amended, rescinded, supplemented or otherwise modified. As to various
questions of fact relevant to the opinions expressed herein, we have relied
exclusively upon and assumed the completeness and accuracy of, without any
independent investigation or verification, the certificates of officers of the
Company and RDC ▇▇▇▇▇▇ Development Corporation, public officials and others,
including, without limitations, the documents delivered on the date hereof
pursuant to the Underwriting Agreement, and the representations, warranties and
other statements of fact contained therein, assuming, that there are no other
records or facts that may be relevant to our opinions. With your permission, all
other assumptions and statements of reliance as indicated herein have been made
without any independent investigation or verification on our part except to the
extent otherwise expressly stated in this opinion, and we express no opinion
with respect to the subject matter or accuracy of such assumptions or items
relied upon.
We do not opine as to the laws of all jurisdictions other than the
State of Israel as the same are in force on the date hereof, such opinions being
based on current law, therefore there can be no assurance that the views
expressed in such opinions will be accepted by the relevant administrative or
judicial authorities. Further excluded from our opinion are any matters relating
to intellectual property laws, and regulatory requirements for the sale or use
of any products of the Company. We do not express any opinion herein concerning
any legal conclusions derived from any law, as set forth in the two preceding
sentences, as to which we otherwise do not express any opinion herein. Our
opinion shall be governed by and construed in accordance with the internal laws
of the State of Israel, without giving effect to its rules of choice of laws.
The opinions set forth herein as to the enforceability of any documents
are subject to any limitation of enforceability that may be imposed by
applicable bankruptcy, insolvency, fraudulent conveyance, composition,
reorganization, moratorium or other similar laws affecting creditor's rights and
remedies generally and by the application by a court of equitable principles
(regardless of whether such enforceability is considered in proceeding in equity
or in law).
As used in this opinion, any use of the term "knowledge" or similar
language means that, after an examination of documents made available by the
Company to attorneys of this firm in connection with the Underwriting Agreement,
but without any further independent factual investigation, we find no reason to
believe that the factual basis for any opinions expressed herein is incorrect in
any material respect.
5
With your permission, we have further assumed that no state or federal
securities laws in the United States which is applicable to the offering of the
Ordinary Shares pursuant the Registration Statement or any subsequent dealings
therein, nor the Nasdaq rules, limits the acquisition of any degree of control
over the Company nor requires the acquirer of any degree of control to make a
bid to purchase any Ordinary Shares from the public shareholders.
Furthermore, we have relied upon the representations of the Company to
us that (i) (i) the Company currently intends to reinvest any income derived
from the "Approved Enterprise" programs and not to distribute the income as a
dividend, (ii) the Company's manufacturing facility is located in Yoqneam, (iii)
the period of tax benefits for the Company's "Approved Enterprise" programs has
not yet commenced, since the Company has yet to realize taxable income, (iv) the
Company expects to derive a substantial portion of its income from its "Approved
Enterprise" program, and (v) the Company applied to the Income Tax Commission
for an approval as an industrial company for the purpose of exemption from
capital gains tax on sales of ordinary shares offered to the public pursuant to
the Prospectus and cannot be certain that it will obtain such approval or that
it will continue to maintain this qualification or its status as an industrial
company or that the tax benefits described in Prospectus will be available to
the Company in the future.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Company has been duly incorporated and is validly existing as a
company under the laws of the State of Israel and has all corporate power and
authority necessary to own or hold its properties and conduct the businesses as
described in the Registration Statement.
2. The Company has the corporate power and authority to own, lease and
operate its properties, as the case may be, and to conduct its business as
described in the Prospectus.
3. Ordinary Shares:
(a) The Company has the authorized capitalization as set forth in the
Prospectus, and all of the issued shares of the Company outstanding prior to the
issuance of the Shares and the issuance of the Private Placement Shares have
been duly and validly authorized and issued, are fully paid and non-assessable
and conform in all material respects to the description thereof contained in the
Prospectus; and the share split and conversion of all outstanding preferred
shares have been duly and validly authorized and completed by the Company in
accordance with its articles of association and all applicable Israeli corporate
laws.
6
(b) The rights attached to the Ordinary Shares of the Company conform
in all material respects to the description thereof contained in the Prospectus.
The Shares are duly and validly authorized and, when the Shares are issued and
delivered against payment therefor as contemplated by the Underwriting Agreement
(and when the Private Placement Shares are issued and delivered against payment
therefor as contemplated by the Stock Purchase Agreement), such Shares (and such
Private Placement Shares) will be fully paid and non-assessable, and, to our
knowledge, free and clear of all liens, encumbrances, preemptive rights and
other claims under the Articles of Association of the Company or other
instruments to which the Company is party or under the laws of the State of
Israel.
(c) No further approval or authority of the shareholders or the Board
of Directors of the Company is required for the issuance and sale of the Shares
as contemplated by the Underwriters Agreement.
(d) There are no preemptive or other rights to subscribe for or to
purchase, nor any restriction upon the voting or transfer of, any of the Shares
pursuant to the Company's articles of association or other governing documents
or, to our knowledge, any agreement or other instrument to which the Company is
a party or by which it is bound.
(e) The form of certificates used to evidence the Shares complies with
any applicable requirements of the articles of association of the Company and
under all applicable Israeli corporate laws.
(f) Except as described in the Prospectus, to our knowledge, there are
no contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the Company
owned or to be owned by such person or to require the Company to include such
securities in the securities registered pursuant to the Registration Statement
or in any securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act; and neither the filing
of the Registration Statement, nor the offering or sale of the Shares as
contemplated by the Underwriting Agreement gives rise to any rights under the
laws of the State of Israel (the "Applicable Laws") for or relating to the
registration of any Ordinary Shares or other securities of the Company.
4. The Transaction and the Underwriting Agreement:
(a) The Company has full power and authority to enter into each of the
Underwriting Agreement and the Stock Purchase Agreement under applicable Israeli
law, and each of the Underwriting Agreement and the Stock Purchase Agreement has
been duly authorized, executed and delivered by the Company. All
7
corporate action required by the Applicable Laws and the articles of association
of the Company to be taken by the Company for the due and proper authorization,
issuance, offering, sale and delivery of the Shares has been validly and
sufficiently taken.
(b) The filing of the Registration Statement and the Prospectus with
the Securities and Exchange Commission has been duly authorized by and on behalf
of the Company and the Registration Statement has been duly executed pursuant to
such authorization in accordance with the Applicable Laws.
(c) The issuance, delivery and sale to the Underwriters of the Shares
to be issued and sold by the Company to the Underwriters are not subject to any
tax imposed on the Company by any Israeli court or government agency or body
(each a "Governmental Authority"), except the Israeli stamp duty.
(d) To our knowledge, other than as set forth in the Prospectus, there
is no legal or governmental proceeding pending or threatened in writing to which
the Company is a party or of which any property or assets of the Company is the
subject, which seeks to restrain, enjoin or prevent the execution and delivery
of the Underwriting Agreement or the consummation of the transactions
contemplated thereby.
(e) The issue and sale of the Shares being delivered on the Delivery
Date by the Company pursuant to the Underwriting Agreement, and the execution,
delivery and compliance by the Company with all of the provisions of the
Underwriting Agreement and the consummation of the transactions contemplated
thereby will not conflict with or result in a breach or violation of any of the
terms or provisions of, or constitute a default under, any indenture, mortgage,
deed of trust, loan agreement or other agreement or instrument known to us to
which the Company or any of its subsidiaries is a party or by which the Company
or any of its subsidiaries is bound or to which any of the property or assets of
the Company or any of its subsidiaries is subject, nor will such actions result
in any violation of the provisions of the articles of association of the Company
or any statute or any order, rule or regulation known to us of any Israeli
Governmental Authority having jurisdiction over the Company or any of its
subsidiaries or any of their properties or assets; and subject to Underwriters'
full compliance with their undertakings in the Underwriting Agreement, no
consent, approval, authorization or order of, or filing or registration with,
any such authority is required for the execution, delivery and performance of
the Underwriting Agreement by the Company and the consummation of the
transactions contemplated thereby, except for such consents, approvals,
authorizations, orders, filings or registrations as have been obtained or made.
8
(f) The statements in the Registration Statement and the Prospectus,
insofar as statements refer to the Company's articles of association or
resolutions of the shareholders and board of directors of the Company or to
material contracts, indentures, mortgages, loan agreements, notes, leases, plans
pertaining to option arrangements, employment agreements and other agreements,
arrangements or instruments to which the Company is a party, which are governed
by the laws of the State of Israel, are accurate and adequate in all material
respects insofar as such statements refer to statements of the Applicable Laws
or legal conclusions relating 'to matters of the Applicable Laws except such
statements which relate to intellectual property rights.
(g) Under the laws of Israel, the submission by the Company to the
jurisdiction of any federal or state court sitting in the county of New York and
the designation of the law of the State of New York to apply to the Underwriting
Agreement is binding upon the Company and, if properly brought to the attention
of the court in accordance with the laws of Israel, would be enforceable in any
judicial proceedings in Israel subject to the exercise of judicial discretion or
the existence of special circumstances or considerations, such as differences in
the provision of the statutes of limitation in the two jurisdictions,
reciprocity agreement as to enforceability between the two jurisdictions, or if
enforcement of such submission clause would be contrary to the interest of
justice or the public good;
5. The Affairs of the Company:
(a) To our knowledge, except as set forth in the Prospectus, there are
no legal or governmental proceedings before any Israeli Governmental Authority
pending or threatened in writing to which the Company or any of its subsidiaries
is a party or of which any property or assets of the Company or any of its
subsidiaries is the subject, which if determined adversely to the Company or any
of its subsidiaries, would have a Material Adverse Effect.
(b) To our knowledge, the Company is not in violation of its articles
or memorandum of association.
(c) To our knowledge, the Company is not in violation in respect of any
of the Applicable Laws known to us to which it or its property or assets are
subject or has failed to obtain or violated any approval of an Israeli
Governmental Authority necessary in the State of Israel to the ownership of its
property or to the conduct of its business as described in the Prospectus,
except for such defaults, violations or failures that, individually or in the
aggregate, would not be reasonably likely to have a Material Adverse Effect and
except in relation to its "Approved Enterprise" status under the Law of the
Encouragement of Capital Investments, 1959.
9
(d) To our knowledge, the Company has not received any notice of
proceedings relating to the revocation or modification of any such Governmental
Approvals that, if determined adversely to the Company, would individually or in
the aggregate have a Material Adverse Effect.
6. The statements made (a) in the Prospectus under the captions "Risk
Factors - Risks relating to our location in Israel, "Private Placement",
"Dividend Policy," "Management's Discussion and Analysis of Financial Condition
and Results of Operations," "Business," "Management," "Certain Relationships and
Related Party Transactions," "Background Information," "Description of Share
Capital," "Conditions in Israel," "Israeli Taxation and Government Programs,"
and "Enforceability of Civil Liabilities" and (b) in Item 6 of the Registration
Statement, in each case to the extent that such statements constitute Israeli
legal matters or relate to the provisions of the Company's articles of
association, have been reviewed by us and fairly reflect the matters purported
to be summarized and are correct in all material respects. Our opinion filed as
Exhibit 8.1 to the Registration Statement is hereby confirmed, and the
Underwriters may rely upon such opinion as if it were addressed to them.
Representatives of our firm participated in conferences with officers
and other representatives of the Company, representatives of U.S. counsel for
the Company, representatives of the independent public accountants for the
Company, representatives of the Underwriters and representatives of counsel for
the Underwriters, at which conferences the contents of the Registration
Statement and the Prospectus, and any supplements or amendments thereto, and
related matters were discussed and, although we have not verified the accuracy
and completeness of the statements contained in the Registration Statement or
the Prospectus and we are not passing upon, and do not assume any responsibility
for, the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus (except as specified in paragraphs
3(a), 3(b) and 6 above) and our judgments as to materiality are, to the extent
we deem appropriate, based in part upon the views of appropriate officers and
other representatives of the Company and on the basis of the foregoing but
without independent check or verification, no facts have come to our attention
that have caused us to believe that (i) at the time the Registration Statement
became effective, the Registration Statement or any amendment thereto made by
the Company prior to such Delivery Date (other than the financial statements,
financial schedules and other financial and accounting data included therein or
incorporated by reference therein or omitted therefrom, as to which we express
no view) contained an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein not misleading or, (ii)
as of its date, the Prospectus (other than the financial statements, financial
schedules and other financial and accounting data included therein or
incorporated by reference therein or omitted therefrom, as to which we express
no
10
view) contained an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, (iii) as of the date
hereof, the Registration Statement, the Prospectus and any amendment or
supplement made thereto prior to such dates (other than the financial
statements, financial schedules and other financial and accounting data included
therein, as to which we express no view) contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein (in the case of the Prospectus and any amendments or
supplements thereto, in light of the circumstances in which they were made) not
misleading.
In rendering the opinions set forth in the preceding paragraph, we are
not passing on the adequacy or accuracy of the derivation or compilation from
the Company's accounting records, results of clinical or other trials, or other
sources of data, of the financial, statistical, clinical or other trial data, or
technical specifications, included in the Registration Statement or the
Prospectus.
This opinion is issued solely to you and for the purpose of
consummating the transactions contemplated under the Underwriting Agreement. You
may not rely on it for any other purpose, and no other person or entity may rely
on it for any purpose. We assume no obligation to update this opinion or to
advise you of any events that occur subsequent to the date of this opinion.
Very truly yours,
11
EXHIBIT 3
OPINION OF WHITE & CASE LLP
U.S. COUNSEL TO THE COMPANY
Ladies and Gentlemen:
We have acted as United States counsel for
Given Imaging Ltd. (the
"Company"), a company organized under the laws of the State of Israel, in
connection with the transactions contemplated by the underwriting agreement (the
"Underwriting Agreement") dated , 2001, between the Company and ▇▇▇▇▇▇ Brothers
Inc., as representative of the several underwriters (the "Underwriters") named
in Schedule 1 to the Underwriting Agreement. This opinion is delivered to you
pursuant to Section 7(e) of the Underwriting Agreement. Capitalized terms used
herein and not otherwise defined are used herein as defined in the Underwriting
Agreement.
In so acting, we have examined certificates of officers of the Company,
and the originals (or copies thereof, certified to our satisfaction) of such
corporate documents and records of the Company, and such other documents,
records and papers as we have deemed relevant in order to give the opinions
hereinafter set forth. In this connection, we have assumed the genuineness of
signatures, the authenticity of all documents submitted to us as originals and
the conformity to authentic original documents of all documents submitted to us
as certified, conformed, facsimile or photostatic copies. In addition, we have
relied, to the extent that we deem such reliance proper, upon such certificates
of officers of the Company with respect to the accuracy of factual matters
contained therein which were not independently established. We have also assumed
that under Israeli law, the Company has full power, authority and legal right to
enter into and perform its obligations under the Underwriting Agreement and that
there has been due authorization, issuance and delivery of the Shares by the
Company. Our opinion in paragraph 1 below as to the valid existence and good
standing of the Given Imaging, Inc. (the "U.S. Subsidiary") is based solely upon
the good standing certificates obtained by us from the Office of the Secretary
of State of the State of Delaware. Our opinion in paragraph 5 below as to the
effectiveness of the Registration Statement is based solely upon telephonic
confirmation received by us from [▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇], who we believe to be a
member of the Staff of the Office of Corporate Finance of the Commission.
Based upon the foregoing, it is our opinion that:
1. The U.S. Subsidiary has been duly incorporated and is validly
existing as a company under the laws of the State of Delaware, is duly qualified
to do business and is in good standing as a foreign corporation in each
jurisdiction in
12
which its ownership or lease of property or the conduct of its business requires
such qualification except where the failure to be so qualified would not
reasonably be expected to have a Material Adverse Effect and has all corporate
power and authority necessary to own or hold its properties and conduct its
business as described in the Registration Statement.
2. All of the issued shares of the U.S. Subsidiary have been duly
authorized and validly issued and are fully paid, non-assessable and are owned
directly or indirectly by the Company.
3. No consent, approval, authorization or order of, or qualification,
filing or registration with any New York State or U.S. Federal governmental
agency or body or any New York State or U.S. Federal court is required to be
obtained or made by the Company or its subsidiaries for the issuance and sale of
the Shares and the issuance and sale of the Private Placement Shares, except (i)
in the case of the Shares, such as have been obtained or made under the
Securities Act, (ii) such as may be required under U.S. state securities blue
sky laws or securities laws of any foreign jurisdiction in connection with the
purchase and distribution of the Shares by the Underwriters in the manner
contemplated herein and in the Prospectus (as to which we express no opinion),
and (iii) in the case of the Shares, such as may be required by the National
Association of Securities Dealers, Inc.
4. The statements set forth in the Prospectus under "Taxation and
Government Programs - United States Federal Income Tax Considerations," insofar
as such statements constitute matters of U.S. federal income tax law or legal
conclusions with respect thereto, are accurate in all material respects. We
hereby confirm our opinion filed as Exhibit 8.2 to the Registration Statement.
5. The Registration Statement was declared effective by the Commission
under the Securities Act as of [___], Washington, D.C. time, on [____], 2001 and
the Prospectus was filed with the Commission pursuant to Rule 424(b)(4) on
[____], 2001. To our knowledge, no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for such purpose
have been instituted or are pending or are contemplated or threatened by the
Commission.
6. Each of the Registration Statement at the time of effectiveness and
the Prospectus as of its date (except for the financial statements and other
financial and accounting data included or incorporated by reference therein or
omitted therefrom, as to which we express no opinion) complies as to form in all
material respects with the requirements of the Securities Act and the Rules and
Regulations.
13
7. To our knowledge, there is no contract or other document required by
the Securities Act or by the Rules and Regulations to be described in the
Prospectus or filed as an exhibit to the Registration Statement that is not
described in the Prospectus or filed as an exhibit to the Registration
Statement.
8. The Company is not, nor will become as a result of the consummation
of the transactions contemplated by the Underwriting Agreement and the
application of the net proceeds from the sale of the Shares and the Private
Placement Shares as described in the Prospectus, an "investment company" as
defined in the Investment Company Act of 1940, as amended.
9. To our knowledge, there is no legal or governmental proceeding
threatened in writing or pending in any state or federal court located in the
County of New York, State of New York, to which the Company is a party or to
which any property of the Company is subject, which seeks to restrain, enjoin or
prevent the execution and delivery of the Underwriting Agreement or the
consummation of the transactions contemplated thereby.
In the course of preparation by the Company of the Registration
Statement, we have participated in conferences with officers and other
representatives of the Company, with representatives of Zellermayer, Pelossof &
Co., Israeli counsel to the Company, with representatives of the independent
auditors of the Company, and with you and your counsel. We are not passing upon
and do not assume any responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement or the Prospectus
(except to the extent stated in paragraph 4 above), and our judgments as to
materiality are, to the extent we deem appropriate, based in part upon the views
of appropriate officers and other representatives of the Company.
Based upon such participation in the preparation of the Registration
Statement, but without independent check or verification, and subject to the
preceding paragraph and the final paragraph hereof nothing has come to our
attention which causes us to believe that (a) as of its effective date the
Registration Statement (other than the financial statements and related
schedules and other financial and accounting data included or incorporated by
reference therein or omitted therefrom, as to which we express no belief)
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, (b) as of its date the Prospectus (other than the financial
statements and related schedules and other financial and accounting data
included or incorporated by reference therein or omitted therefrom, as to which
we express no belief) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which they
were made, not misleading, or (c) as of the date hereof either the Registration
Statement or the
14
Prospectus (other than the financial statements and related schedules and other
financial and accounting data included or incorporated by reference therein or
omitted therefrom, as to which we express no belief), contains an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein (in the case of the
Prospectus, in the light of the circumstances under which they were made) not
misleading.
In rendering the opinions set forth in the preceding paragraph, we are
not passing on the adequacy or accuracy of the derivation or compilation from
the Company's accounting records, results of clinical or other trials, or other
sources of data, of the financial, statistical, clinical or other trial data, or
technical specifications, included in the Registration Statement or the
Prospectus.
The phrase, "to our knowledge," or words of similar import, means the
actual knowledge (without independent investigation except as otherwise stated)
of lawyers at White & Case LLP who have been principally involved in negotiating
and reviewing the Underwriting Agreement and in the preparation and review of
the Registration Statement and the Prospectus.
We do not express or purport to express any opinions with respect to
laws other than the laws of the State of New York and the Federal laws of the
United States. This opinion is given solely for your use in connection with the
Underwriting Agreement and may not be relied on by any other person or for any
other purpose. We do not undertake to advise you of any changes in our opinions
expressed herein resulting from matters that may hereafter arise or that
hereafter may be brought to our attention.
Very truly yours,
15
EXHIBIT 4
OPINION OF EITAN, PEARL, ▇▇▇▇▇▇ & ▇▇▇▇▇-▇▇▇▇▇
INTELLECTUAL PROPERTY COUNSEL TO THE COMPANY
This opinion is delivered in connection with the Underwriting
Agreement, dated [___________] (the "Underwriting Agreement") relating to the
offering of 5,000,000 Ordinary Shares, par value NIS 0.05 each, of the Company,
pursuant to the registration statement on Form F-1 filed with the United States
Securities and Exchange Commission (File No. [_________]) on [_______]. Unless
otherwise defined herein, capitalized terms used herein shall have the meanings
ascribed to them in the Underwriting Agreement.
Whenever our opinions herein are qualified by the phrase, "to the best
of our knowledge," such language means that based upon the actual knowledge of
attorneys presently within our firm and all knowledge that would have been
gained upon the reasonable investigation of our files.
We have read the Registration Statement and the Prospectus, including
particularly the portions of the Registration Statement and the Prospectus
referring to the patents, patent applications, trademarks, trademark
applications, designs and design applications as set forth in Appendix A,
attached hereto (the patents, patent applications, trademarks, trademark
applications, designs and design applications described in Appendix A shall be
collectively referred to as the "IP Rights")
Based on the foregoing, we are of the opinion that:
1. As to the statements in the Registration Statement and any further
amendment thereto made by the Company prior to the Delivery Date and in the
Prospectus or any further amendment or supplement thereto made by the Company
prior to the Delivery Date under the captions "Risk Factors - Because of the
importance of our patent portfolio to our business, we may lose market share to
our competitors if we fail to protect our intellectual property rights," "Risk
Factors - Because the medical device industry is litigious, we are susceptible
to intellectual property suits that could cause us to pay substantial damages or
prohibit us from selling our product" and "Business - Intellectual Property,"
insofar as such statements constitute matters of U.S or Israeli patent,
trademark, copyright or design laws or legal conclusions with respect thereto,
are accurate in all material respects and complete statements or summaries of
the matters set forth therein.
2. To the best of our knowledge, (i) the Registration Statement and any
further amendment thereto made by the Company prior to the Delivery Date, at the
time such Registration Statement or amendment became effective, did not
16
contain an untrue statement of a material fact with respect to the IP Rights or
omit to state a material fact relating to the IP Rights required to be stated
therein or necessary to make the statements therein not misleading, (ii) the
Prospectus and any further amendment or supplement thereto made by the Company
prior to the Delivery date, as of its date, did not contain an untrue statement
of a material fact with respect to the IP Rights or omit to state a material
fact relating to the IP Rights required to be stated therein or necessary to
make the statements therein not misleading, and (iii) at the Delivery date, the
Registration Statement, the Prospectus and any further amendment or supplement
thereto made by the Company prior to the Delivery date did not contain an untrue
statement of a material fact with respect to the IP Rights or omit to state a
material fact relating to the IP Rights required to be stated therein or
necessary to make the statements therein not misleading.
3. Except to the extent described in the Prospectus, the Company is
listed in the records of the United State Patent and Trademark Office and in the
records of the appropriate foreign offices as the holder of holder of record of
the IP Rights. To the best of our knowledge, except for the Patent Applications
specified in Appendix A, which are jointly owned by the Company and by Yissum,
Research Development Company of the Hebrew University of Jerusalem, the Company
is the sole owner of the IP Rights. To the best of our knowledge, except as
described in the Registration Statement, there is no pending or threatened
action, suit proceeding or claim challenging the validity or scope of any of the
IP Rights.
4. To the best of our knowledge, the Company has taken such steps as
are required, including the payment of all necessary maintenance fees, to
maintain the enforceability of the IP Rights and to maintain the pendency of the
Patent Applications, Trademark Applications and Design Applications, specified
in Appendix A, attached hereto.
Yours faithfully,
17
EXHIBIT 5
OPINION OF ▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P.
REGULATORY COUNSEL TO THE COMPANY
Ladies and Gentlemen:
This letter is furnished to you pursuant to Section 9(g) of the
Underwriting Agreement dated [_________], 2001 (the "Underwriting Agreement")
between you and
Given Imaging Ltd. (the "Company"), relating to the sale by the
Company and purchase by you as Representatives of the several Underwriters of
5,000,000 ordinary shares (the "Shares").
This firm serves as special regulatory counsel to the Company only with
respect to the U.S. Food and Drug Administration ("FDA") and Federal
Communications Commission ("FCC"), and European Conference of Postal and
Telecommunications Administrations ("CEPT") areas. In addition, for purposes of
this offering only, the firm served as special regulatory counsel with respect
to certain Medicare, Medicaid, and third-party reimbursement matters. In such
capacity, we have reviewed certain information under the following captions in
the Company's final Prospectus dated [_________], 2001 (the "Prospectus"),
forming a part of the Company's Registration Statement on Form F-1, as amended
(Registration No. [_________]):
o "Risk Factors--If physicians, hospitals and other healthcare providers are
unable to obtain coverage and reimbursement from third-party healthcare
payors for procedures using the Given System, or if reimbursement is
insufficient to cover the costs of purchasing the Given System, we may be
unable to generate sufficient sales to support our business,"
o "Risk Factors--We are subject to extensive regulation by the U.S. Food and
Drug Administration, or FDA, which could delay or prevent our entry into
the United States market, could restrict the sales and marketing of the
Given System and could cause us to incur significant costs,"
o "Risk Factors--If we do not obtain and maintain the necessary regulatory
approvals in a specific country or region, we will not be able to market
and sell the Given System in that country or region,"
o "Risk Factors--Our failure to obtain necessary U.S. Federal Communications
Commission, or FCC, authorizations could impair our ability to commercially
distribute and market the Given System in the United States,"
18
o "Risk Factors--The duty cycle at which the Given System currently operates
does not meet new European technical standards for radio frequencies which
have been implemented by certain European governments and may be
implemented by others. If the technical standards are not changed, our
failure to obtain a waiver or separate authorization could prevent use of
the Given System in countries which have adopted these standards,"
o "Business--FDA and Other Government Regulation," and "Business--Third-Party
Reimbursement"
We have not been retained or engaged by the Company to perform, nor have we
performed, any review of any other information in the Prospectus, nor have we
acted as the Company's corporate or securities counsel in connection with the
sale of the Shares, and we express no opinion with respect to the offering or
any information in the Prospectus except as set forth in Paragraphs (i) and (ii)
below. Terms used herein that are defined in the Underwriting Agreement shall
have the respective meanings set forth in the Underwriting Agreement, unless
otherwise defined herein.
For purposes of the Opinion (as defined below), we have examined copies
of the following:
1. An executed copy of the Underwriting Agreement.
2. The information contained in the Prospectus under the captions
"Risk Factors--If physicians, hospitals and other healthcare providers are
unable to obtain coverage and reimbursement from third-party healthcare
payors for procedures using the Given System, or if reimbursement is
insufficient to cover the costs of purchasing the Given System, we may be
unable to generate sufficient sales to support our business," "Risk
Factors--We are subject to extensive regulation by the U.S. Food and Drug
Administration, or FDA, which could delay or prevent our entry into the
United States market, could restrict the sales and marketing of the Given
System and could cause us to incur significant costs," "Risk Factors--If
we do not obtain and maintain the necessary regulatory approvals in a
specific country or region, we will not be able to market and sell the
Given System in that country or region," "Risk Factors - Our failure to
obtain necessary U.S. Federal Communications Commission, or FCC,
authorizations could impair our ability to commercially distribute and
market the Given System in the United States," "Risk Factors--The duty
cycle at which the Given System currently operates does not meet new
European technical
19
standards for radio frequencies which have been implemented by certain
European governments and may be implemented by others. If the technical
standards are not changed, our failure to obtain a waiver or separate
authorization could prevent use of the Given System in countries which
have adopted these standards," " Business--FDA and Other Government
Regulation," and "Business--Third-Party Reimbursement."
3. A certificate dated as of [_________], 2001 of certain officers
of the Company as to certain facts relating to the Company.
For purposes of the Opinion, we have not made any independent review or
investigation of factual or other matters, including the assets, business or
affairs of the Company. We have assumed the authenticity, accuracy and
completeness of the foregoing documents, certification and statements of fact,
on which we are relying, and have made no independent investigations thereof.
Further, for purposes of the Opinion, we have not independently verified, nor do
we take any responsibility for nor are we addressing in any way any statements
of fact, any statements concerning state or foreign national law, any legal
conclusions or any statements of belief attributable to the Company or whether
or not the Company is in compliance with applicable FDA, FCC, CEPT or Medicare,
Medicaid, or third-party reimbursement requirements. The Opinion is given in the
context of the foregoing.
This letter is based as to matters of law solely on the Federal Food,
Drug, and Cosmetic Act, as amended (the "FDC Act") and the regulations
promulgated thereunder, the Communications Act of 1934, as amended (the
"Communications Act") and the regulations promulgated thereunder, and the
Medicare and Medicaid reimbursement, anti-kickback, and false claims provisions
of the Social Security Act as amended (the "Social Security Act Provisions"),
and the regulations promulgated thereunder, and the constituent documents of the
CEPT and its committees, and we express no view as to any other laws, statutes,
regulations or ordinances, including without limitation any foreign, federal or
state licensing, tax or securities laws or regulations.
Nothing herein shall be construed to cause us to be considered
"experts" within the meaning of Section 11 of the Securities Act of 1933, as
amended.
With respect to the CEPT area, we have not confirmed with any foreign
national agency that it has implemented CEPT measures, which are not
independently legally binding, or has plans to do so. We have relied upon review
of CEPT documents that are publicly available and could be changed at any time.
20
Based upon, subject to and limited by the foregoing, we are of the
opinion that the statements in the Prospectus under the captions "Risk
Factors--If physicians, hospitals and other healthcare providers are unable to
obtain coverage and reimbursement from third-party healthcare payors for
procedures using the Given System, or if reimbursement is insufficient to cover
the costs of purchasing the Given System, we may be unable to generate
sufficient sales to support our business," "Risk Factors--We are subject to
extensive regulation by the U.S. Food and Drug Administration, or FDA, which
could delay or prevent our entry into the United States market, could restrict
the sales and marketing of the Given System and could cause us to incur
significant costs," "Risk Factors--If we do not obtain and maintain the
necessary regulatory approvals in a specific country or region, we will not be
able to market and sell the Given System in that country or region," "Risk
Factors--Our failure to obtain necessary U.S. Federal Communications Commission,
or FCC, authorizations could impair our ability to commercially distribute and
market the Given System in the United States," "Risk Factors--The duty cycle at
which the Given System currently operates does not meet new European technical
standards for radio frequencies which have been implemented by certain European
governments and may be implemented by others. If the technical standards are not
changed, our failure to obtain a waiver or separate authorization could prevent
use of the Given System in countries which have adopted these standards,"
"Business--FDA and Other Government Regulation," "Business--Third-Party
Reimbursement" insofar as such statements purport to summarize applicable
provisions of the FDC Act and the regulations promulgated thereunder, the
Communications Act and the regulations promulgated thereunder, the Social
Security Act Provisions and the regulations promulgated thereunder, or CEPT
standards are accurate summaries in all material respects of the provisions
purported to be summarized under such captions in the Prospectus (the
"Opinion").
* * * * *
We assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this letter. This letter has been prepared solely
for your use in connection with the Closing under the Underwriting Agreement on
the date hereof, and should not be quoted in whole or in part or otherwise be
referred to, nor be filed with or furnished to any governmental agency or other
person or entity, without the prior written consent of this firm.
Very truly yours,
21
EXHIBIT 6
OPINION OF MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C
Ladies and Gentlemen:
We have acted as special counsel to Thermo Electron Corporation, a
Delaware corporation ("Thermo Electron") in connection with its sale of _______
shares of the ordinary shares, nominal value NIS 0.05 per share, of
Given
Imaging Ltd., a company organized under the laws of the State of Israel (the
"Company"), upon the exercise of the over-allotment option granted to the
Underwriters pursuant to the terms and conditions of the Underwriting Agreement
dated _______, 2001 (the "Underwriting Agreement"), by and among the Company,
the underwriters listed on Schedule 1 thereto (the "Underwriters") for whom you
serve as representatives, and the shareholders of the Company listed on Schedule
2 thereto. As used herein, the term "Selling Shareholder" refers to Thermo
Electron. Capitalized terms used herein and not otherwise defined shall have the
meanings ascribed to them in the Underwriting Agreement. This opinion is
furnished to you pursuant to Section 9(h) of the Underwriting Agreement.
In arriving at the opinions expressed below, we have examined and
relied upon, among other things, copies of the Underwriting Agreement, the Power
of Attorney signed by the Selling Shareholder and the Custody Agreement signed
by the Selling Shareholder and the Company, as custodian; and copies of all
closing certificates and other documents delivered in connection with the
closing of the sale of the Option Shares on _______, 2001, pursuant to the terms
and conditions of the Underwriting Agreement.
In rendering these opinions, as to the factual matters not directly
within our actual knowledge, we have relied upon, and have assumed the accuracy,
completeness and genuineness of, certificates of and oral confirmation by public
officials, certificates of the Selling Shareholder and oral and written
representations made to us by the Selling Shareholder. We have assumed the
genuineness of all signatures and documents submitted to us as originals, that
all copies submitted to us conform to the originals, the legal capacity of all
natural persons, and, as to documents executed by entities other than the
Selling Shareholder, that such documents have been duly authorized, executed and
delivered by, and are binding upon and enforceable against, such entities. We
have also assumed that all parties to the Underwriting Agreement, the Custody
Agreement and the Power of Attorney, other than the Selling Shareholder, possess
the requisite power and authority to enter into such agreements and instruments
and the transactions contemplated thereby, and that such agreements and
instruments have been duly executed and delivered by such parties.
We express no opinion herein as to the laws of any jurisdiction other
than the Commonwealth of Massachusetts, the General Corporation Law of the State
of Delaware, and the federal law of the United States.
On the basis of the foregoing, we are of the opinion that:
1. The Selling Shareholder has been duly incorporated and is validly
existing as a corporation under the laws of Delaware and has full right, power
and authority to enter into the Underwriting Agreement, the Custody Agreement
and the Power of Attorney.
2. The execution, delivery and performance of the Underwriting
Agreement, the Custody Agreement and the Power of Attorney by the Selling
Shareholder and the consummation by the Selling Shareholder of the transactions
contemplated by the Underwriting Agreement, the Custody Agreement and the Power
of Attorney will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any statute, any
material indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument known to us to which the Selling Shareholder is a party or by
which the Selling Shareholder is bound or to which any of the material property
or assets of the Selling Shareholder is subject, nor will such actions result in
any violation of the governing documents of the Selling Shareholder or any
statute or any order, rule or regulation known to us of any court or
governmental agency or body having jurisdiction over the Selling Shareholder or
the property or assets of the Selling Shareholder.
3. Except for the registration of the Shares under the Securities Act
and the Rules and Regulations and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange Act, and
the regulations promulgated thereunder, and applicable state securities and
"blue sky" laws and foreign securities laws, or the National Association of
Securities Dealers in connection with the purchase and distribution of the
Shares by the Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any court or governmental agency or body is
required for the execution, delivery and performance of the Underwriting
Agreement, the Custody Agreement and the Power of Attorney by the Selling
Shareholder or the consummation by the Selling Shareholder of the transactions
contemplated thereby.
4. Each of the Underwriting Agreement, the Custody Agreement and the
Power of Attorney has been duly authorized, executed and delivered by or on
behalf of the Selling Shareholder and constitutes a valid and binding agreement
of the Selling Shareholder, enforceable in accordance with its terms, except as
rights to indemnity and contribution under the Underwriting Agreement may be
limited by applicable law, and except as the enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles.
5. Immediately prior to the Delivery Date, the Selling Shareholder had
good and valid title to the Option Shares to be sold by the Selling Shareholder
under the Underwriting Agreement, free and clear of all liens, encumbrances,
equities or claims, and full right, power and authority to sell, assign,
transfer and deliver such shares to be sold by the Selling Shareholder under the
Underwriting Agreement.
6. Assuming that the Underwriters purchase the Option Shares that are
sold by the Selling Shareholder pursuant to the Underwriting Agreement, and
further assuming that they purchase such Option Shares in good faith and without
notice of any adverse claim, and that there are no events or circumstances
peculiar to any individual Underwriter which might result in such a defect, upon
the consummation of such purchase, the Underwriters will acquire good and valid
title to such Option Shares, free and clear of all liens, encumbrances, equities
or claims.
This opinion is furnished by us as special counsel for the Selling
Shareholder to you as the Underwriters, is solely for the benefit of the
Underwriters, and may not be given to any third party without our express prior
written consent.
Very truly yours,
EXHIBIT 7
OPINION OF ZELLERMAYER, PELOSSOF & CO.
Ladies and Gentlemen:
We have acted as Israel counsel for RDC ▇▇▇▇▇▇ Development Corporation
Ltd., a company duly incorporated, organized and validly existing under the laws
of the State of Israel (the "RDC"), in connection with its sale of _______
Ordinary Shares, nominal value NIS 0.05 per share, of
Given Imaging Ltd., a
company organized under the laws of the State of Israel (the "Company"), upon
the exercise of the over-allotment option granted to the Underwriters pursuant
to the terms and conditions of the Underwriting Agreement dated _______, 2001
(the "Underwriting Agreement"), by and among the Company, the underwriters
listed on Schedule 1 thereto (the "Underwriters") for whom you serve as
Representatives, and the shareholders of the Company listed on Schedule 2
thereto. As used herein, the term "Selling Shareholder" refers solely to RDC.
Capitalized terms used herein and not otherwise defined shall have the meanings
ascribed to them in the Underwriting Agreement. This opinion is furnished to you
pursuant to Section 9(h) of the Underwriting Agreement.
In so acting, and as a basis for the opinions herein set forth, we have
examined original, photocopied, facsimiled copies or electronically transmitted
versions of the Underwriting Agreement, the Power of Attorney signed by the
Selling Shareholder and the Custody Agreement signed by the Selling Shareholder
and the Company, as Custodian; the Selling Shareholder's Memorandum and Articles
of Association and all corporate minutes, records and other documents of the
Selling Shareholder provided to us by the Selling Shareholder which we have
deemed as necessary or relevant as a basis for the opinions hereinafter
expressed. In such examination we have assumed the due authorization, execution
and delivery of the Underwriting Agreement, the Custodian Agreement and any part
thereof, by all parties thereto other than the Selling Shareholder, due
compliance with the laws of the State of New York and all other relevant laws
(other than the laws of the State of Israel), the genuineness of all signatures
(other than those on behalf of the Selling Shareholder), that each such party
has entered into the Underwriting Agreement and the Custodian Agreement in good
faith and without notice of any adverse fact, that the Underwriting Agreement
constitutes the legal, valid and binding obligation of each such party (other
than the Selling Shareholder), enforceable against it in accordance with its
terms, and that each such party has and shall have complied with and punctually
performed all its covenants, undertakings and agreements thereunder. We have
further assumed, without any investigation, the legal capacity of natural
persons, the corporate power of legal persons (other than the Selling
Shareholder) and the authority of the individuals acting on their behalf, actual
compliance of all parties with their covenants and agreements and with all
relevant laws, the authenticity of all documents submitted to us as originals,
the conformity to original documents of all documents submitted, facsimiled or
electronically transmitted to us
as copies and that such documents as examined by us are true, complete and
correct, are in full force and effect and have not been amended, rescinded,
supplemented or otherwise modified. As to various questions of fact relevant to
the opinions expressed herein, we have relied exclusively upon and assumed the
completeness and accuracy of, without any independent investigation or
verification, the certificates of officers of the Selling Shareholder, public
officials and others, including, without limitations, the documents delivered on
the date hereof pursuant to the Underwriting Agreement and the Custodian
Agreement, and the representations, warranties and other statements of fact
contained therein, assuming, that there are no other records or facts that may
be relevant to our opinions. With your permission, all other assumptions and
statements of reliance as indicated herein have been made without any
independent investigation or verification on our part except to the extent
otherwise expressly stated in this opinion, and we express no opinion with
respect to the subject matter or accuracy of such assumptions or items relied
upon.
We do not opine as to the laws of all jurisdictions other than the
State of Israel as the same are in force on the date hereof, such opinions being
based on current law, therefore there can be no assurance that the views
expressed in such opinions will be accepted by the relevant administrative or
judicial authorities. We do not express any opinion herein concerning any legal
conclusions derived from any law, as set forth above, as to which we otherwise
do not express any opinion herein. Our opinion shall be governed by and
construed in accordance with the internal laws of the State of Israel, without
giving effect to its rules of choice of laws.
As used in this opinion, any use of the term "knowledge" or similar
language means that, after an examination of documents made available by the
Selling Shareholder to attorneys of this firm in connection with the
Underwriting Agreement, the Custodian Agreement and the Power of Attorney but
without any further independent factual investigation, we find no reason to
believe that the factual basis for any opinions expressed herein is incorrect in
any material respect.
Based upon and subject to the foregoing, we are of the opinion that:
1. The Selling Shareholder has been duly incorporated and is validly
existing as a corporation under the laws of Israel and has full right, power and
authority to enter into the Underwriting Agreement, the Custody Agreement and
the Power of Attorney.
2. The execution, delivery and performance of the Underwriting
Agreement, the Custody Agreement and the Power of Attorney by the Selling
Shareholder and the consummation by the Selling Shareholder of the transactions
contemplated by the Underwriting Agreement, the Custody Agreement and the Power
of Attorney will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any statute, any
material indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument known
to us to which the Selling Shareholder is a party or by which the Selling
Shareholder is bound or to which any of the material property or assets of the
Selling Shareholder is subject, nor will such actions result in any violation of
the governing documents of the Selling Shareholder or any statute or any order,
rule or regulation known to us of any court or governmental agency or body
having jurisdiction over the Selling Shareholder or the property or assets of
the Selling Shareholder.
3. Except for the registration of the Shares under the Securities
Act and the Rules and Regulations and such consents, approvals, authorizations,
registrations or qualifications as may be required under the Exchange Act, and
the regulations promulgated thereunder, and applicable state securities and
"blue sky" laws and foreign securities laws, or the National Association of
Securities Dealers in connection with the purchase and distribution of the
Shares by the Underwriters, no consent, approval, authorization or order of, or
filing or registration with, any court or governmental agency or body is
required under the laws of the State of Israel for the execution, delivery and
performance of the Underwriting Agreement, the Custody Agreement and the Power
of Attorney by the Selling Shareholder or the consummation by the Selling
Shareholder of the transactions contemplated thereby, except such as have been
obtained and made and those that are not required to have been obtained or made
prior to the Closing.
4. Each of the Underwriting Agreement, the Custody Agreement and the
Power of Attorney has been duly authorized, executed and delivered by or on
behalf of the Selling Shareholder and constitutes a valid and binding agreement
of the Selling Shareholder, enforceable in accordance with its terms, except as
rights to indemnify and contribution under the Underwriting Agreement may be
limited by applicable law, and except as the enforcement thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles.
5. Immediately prior to the Second Delivery Date, the Selling
Shareholder had good and valid title to the Option Shares to be sold by the
Selling Shareholder under the Underwriting Agreement, and to our knowledge free
and clear of all liens, encumbrances, equities or claims, and full right, power
and authority to sell, assign, transfer and deliver such shares to be sold by
the Selling Shareholder under the Underwriting Agreement.
6. Assuming that the Underwriters purchase the Option Shares that
are sold by the Selling Shareholder pursuant to the Underwriting Agreement, and
further assuming that they purchase such Option Shares in good faith and without
notice of any adverse claim, and there are no events or circumstances peculiar
to any individual Underwriter which might result in such a defect, upon the
consummation of such purchase, the Underwriters will acquire good and valid
title to such Option
Shares, and to our knowledge free and clear of all liens, encumbrances, equities
or claims.
This opinion is furnished by us, as counsel to the Selling
Shareholder, to you as the Underwriters, is solely for the benefit of the
Underwriters, and may not be given to or relied by any third party without our
express written consent.
Very truly yours,
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