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2,000,000 SHARES
SELFCARE, INC.
COMMON STOCK
($.001 PAR VALUE)
UNDERWRITING AGREEMENT
----------------------
, 1997
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇▇, READ & CO. INC.
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
As Representatives of the several
Underwriters named in Schedule 1,
C/▇ ▇▇▇▇▇▇ BROTHERS INC.
Three World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Selfcare, Inc., a Delaware corporation (the "Company"), proposes to issue
and sell to the several underwriters named in Schedule 1 hereto (the
"Underwriters") 2,000,000 shares (the "Firm Shares") of the Company's Common
Stock, $.001 par value per share (the "Common Stock"). In addition, the Company
proposes to grant to the Underwriters an option to purchase up to an additional
300,000 shares of Common Stock on the terms and for the purposes set forth in
Section 2 (the "Option Shares"). 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.
1. Representations, Warranties and Agreements of the Company. The Company
represents, warrants and agrees that:
(a) A registration statement on Form SB-2 (File No. 333- )
with respect to the Shares has (i) been prepared by the Company in conformity
with the requirements of the United States Securities Act of 1933, as amended
(the "Securities Act"), and the rules and regulations (the "Rules and
Regulations") of the United States 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. If any
post-effective amendment to such registration statement has been filed with the
Commission prior to the execution and delivery of this
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Agreement, the most recent such amendment has been declared effective by the
Commission. Copies of such registration statement and all amendments thereto,
including post-effective amendments, if any, 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 each
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; "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 5 hereof
and deemed to be a part of the registration statement as of the Effective Time
pursuant to paragraph (b) of Rule 430A of the Rules and Regulations; if the
Company has filed or files a registration statement under Rule 462(b) of the
Rules and Regulations ("Rule 462(b)") to register additional shares (a "Rule
462(b) Registration Statement"), then the term "Registration Statement" shall be
deemed to include such registration statement; and "Prospectus" means such final
prospectus, as first filed with the Commission pursuant to paragraph (1) or (4)
of Rule 424(b) of the Rules and Regulations. The Commission has not issued any
order preventing or suspending the use of any Preliminary Prospectus or
Prospectus or the effectiveness of the Registration Statement, and no proceeding
for any such purpose has been initiated or, to the best of the Company's
knowledge, threatened by the Commission.
(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) contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading and as of the applicable filing date (as to a prospectus
and any amendment or supplement thereto) include an untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading; provided that the Company makes no representation or warranty 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. There is no contract or document required to
be described in the Registration Statement or the Prospectus or to be filed as
an exhibit to the Registration Statement which is not described or filed as
required.
(c) The Company has no subsidiaries (as defined in Section 15
hereof) other than Selfcare Europe, Ltd., Selfcare Benelux, Selfcare Europe,
GmbH, Cambridge Diagnostics Ireland Limited, Cambridge Affiliate Corporation,
Selfhelp Israel, Ltd., Selfcare International GmbH, Inverness Medical Limited,
Orgenics Ltd., Orgenics International Holdings B.V. and Selfcare Acquisition
Corp. The Company and each of its subsidiaries have been duly incorporated and
are validly existing as corporations in good standing under the laws of their
respective jurisdictions of incorporation, are duly qualified to do business and
are in good standing
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as foreign corporations in each jurisdiction in which their respective ownership
or leasing of property or the conduct of their respective businesses requires
such qualification, except where the failure to be so qualified would not have a
material adverse effect on the consolidated financial position, stockholders'
equity, results of operations, business or prospects of the Company and its
subsidiaries, considered as a single enterprise (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; none of the
subsidiaries (other than Cambridge Diagnostics Ireland Limited) is a
"significant subsidiary", as such term is defined in Rule 405 of the Rules and
Regulations.
(d) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the outstanding shares of capital stock of the
Company have been duly authorized and validly issued, are fully paid and
non-assessable and conform to the description thereof contained in the
Prospectus; and all of the outstanding shares of capital stock of each
subsidiary have been duly and validly authorized and issued and are fully paid
and non-assessable and, except as described in the Prospectus, are owned
directly by the Company, free and clear of all liens, encumbrances, equities or
claims. There are no preemptive rights or other rights to subscribe for or to
purchase, or, upon consummation of the offering to which this Agreement relates,
any restriction upon the voting or transfer of, any shares of capital stock
pursuant to the Company's Articles of Incorporation, By-laws or other governing
documents or any agreement or other instrument to which the Company is a party
or by which it may be bound, except pursuant to the Company's stock option and
employee stock purchase plans described in the Prospectus and except with
respect to the voting of any shares of capital stock pursuant to that certain
voting agreement among ▇▇▇ ▇▇▇▇▇▇▇▇▇ and certain stockholders of the Company
dated May 13, 1996 (the "Voting Agreement").
(e) The Shares to be issued and sold by the Company to the
Underwriters hereunder have been duly and validly authorized and, when issued
and delivered against payment therefor as provided herein, will be duly and
validly issued, fully paid and non-assessable and not be subject to any
preemptive rights; and the Shares will conform to the description thereof
contained in the Prospectus.
(f) The Company has full right, corporate power and authority to
enter into this Agreement and to perform and discharge its obligations
hereunder, and this Agreement has been duly authorized, executed and delivered
by the Company and constitutes the valid and legally binding agreement of the
Company, except as rights to indemnification may be limited by federal or state
securities laws and except for the effect of bankruptcy, insolvency,
reorganization, moratorium and other similar laws relating to or affecting the
rights of creditors generally.
(g) The execution, delivery and performance of this Agreement by
the Company and the consummation of the transactions contemplated hereby 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 Company or
its subsidiaries is a party or by which the Company or its subsidiaries is bound
or to which any of the property or assets of the Company or its subsidiaries is
subject and which, in any such case, is material to the Company and its
subsidiaries (taken as a whole), nor will such actions result in any violation
of the provisions of the Certificate of Incorporation or By-laws or other
organizational documents of the Company or its subsidiaries, as amended, or any
statute or
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any order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or its subsidiaries or any of their properties or
assets; and except for the registration of the Shares under the Securities Act
and such consents, approvals, authorizations, registrations or qualifications as
may be required under the Exchange Act and applicable blue sky, state or foreign
securities laws 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 by the Company and
the consummation of the transactions contemplated hereby.
(h) 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 include such securities for
registration in a registration statement filed by the Company under the
Securities Act; and the Company is not required to include any such securities
in the securities being registered pursuant to the Registration Statement, nor
is it required to file any registration statement for the registration of any
securities of any person or register any such securities pursuant to any other
registration statement filed by the Company under the Securities Act for a
period of at least 120 days after the Effective Date.
(i) Except as described in the Prospectus, the Company has not
sold or issued any shares of Common Stock 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 shares issued pursuant to
the Amended and Restated 1996 Stock Option and Grant Plan and the Employee Stock
Purchase Plan (collectively, the "Stock Option and Purchase Plans").
(j) Neither the Company nor any of its subsidiaries have
sustained, since the date of the latest audited financial statements included in
the Prospectus, any material 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, since such date, there
has not been any change in the capital stock or long-term debt of the Company or
its subsidiaries or any material adverse change, or any development involving a
prospective material adverse 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.
(k) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or included in
the Prospectus present fairly the financial condition and results of operations
of the entities purported to be shown thereby, at the dates and for the periods
indicated, and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved.
(l) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, 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 7(g) hereof, are independent
public accountants as required by the Securities Act and the Rules and
Regulations.
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(m) The Company and each of its subsidiaries have good and
marketable title to all personal property owned by them, 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. All real property and buildings
held under lease by the Company and 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.
(n) The Company and its subsidiaries carry, or are covered by,
insurance in such amounts and covering such risks as is required by their
respective contractual relations, or as is adequate for the conduct of their
respective businesses and the value of their respective properties and, to the
Company's knowledge, as is customary for companies engaged in similar businesses
in similar industries.
(o) Except as described in the Prospectus, the Company and its
subsidiaries own or possess adequate rights to use all material patents (or
foreign equivalents), patent applications, trademarks, service marks, trade
names, trademark registrations, service ▇▇▇▇ registrations, copyrights and
licenses, both in the United States and outside the United States, necessary for
the conduct of their respective businesses as currently conducted and as
contemplated in the Prospectus and have no reason to believe that the conduct of
their respective businesses will conflict in any material respect with, and have
not received any notice of any material claim of conflict with, any such rights
of others.
(p) Except as described in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or its subsidiaries are a
party or of which any property or assets of the Company or its subsidiaries are
the subject which, if determined adversely to the Company or its subsidiaries,
could have a Material Adverse Effect, and to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by governmental
authorities or threatened by others.
(q) 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.
(r) No relationship, direct or indirect, exists between or among
the Company or its subsidiaries on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or its subsidiaries on the
other hand, which is required to be described in the Prospectus but is not so
described.
(s) No labor disturbance by the employees of the Company exists
or, to the knowledge of the Company, is imminent which could be expected to have
a Material Adverse Effect.
(t) The Company does not maintain any "pension plan" as defined
in the Employee Retirement Income Security Act of 1974, as amended, including
the regulations and
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published interpretations thereunder ("ERISA").
(u) The Company and its subsidiaries have filed all federal,
state and material local income and franchise tax returns (or the foreign
equivalents thereof) required to be filed through the date hereof or have
requested extensions thereof and have paid all taxes due thereon, and no tax
deficiency has been determined adversely to the Company or its subsidiaries
which has had (nor does the Company have any knowledge of any tax deficiency
which, if determined adversely to the Company or its subsidiaries, could have) a
Material Adverse Effect.
(v) 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, the Company has not (i) issued or granted any securities (except
pursuant to the exercise of any options or warrants that are disclosed in the
Prospectus), (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.
(w) The Company (i) makes and keeps accurate books and financial
records in all material respects 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 financial and corporate books and records and financial
accounts, (C) access to its assets is permitted only in accordance with
management's authorization and (D) the reported accountability for its assets is
compared with existing assets at reasonable intervals.
(x) Neither the Company nor any of its subsidiaries (i) is in
violation of its Certificate of Incorporation or By-laws or other organizational
documents, as amended, (ii) is in default in any material 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 material 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 material respect of any law, ordinance, governmental rule,
regulation or court decree to which it or its property or assets may be subject
or has failed to obtain any material license, permit, certificate, franchise or
other governmental authorization or permit necessary to the ownership of its
property or to the conduct of its business.
(y) Neither the Company nor any of its subsidiaries, nor 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 unlawful bribe, rebate, payoff, influence payment,
kickback or other payment.
(z) 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
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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 any of 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,
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,
singularly or in the aggregate with all such spills, discharges, leaks,
emissions, injections, escapes, dumpings and releases, 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.
(aa) Neither the Company nor any of its subsidiaries is an
"investment company" within the meaning of such term under the United States
Investment Company Act of 1940 and the rules and regulations of the Commission
thereunder.
(ab) Except as disclosed in the Prospectus, there are no business
relationships or related-party transactions of the nature required to be
disclosed in the Prospectus pursuant to Item 404 of Regulation S-K under the
Securities Act.
(ac) The Company is a "small business issuer" as defined by
Regulation S-B under the Securities Act and qualifies for use of Form SB-2 for
registration of its securities under the Securities Act.
(ad) Neither the Company nor any of its subsidiaries or
affiliates have taken, directly or indirectly, any action designed to cause or
result in, or which has constituted or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of the shares of
Common Stock to facilitate the sale or resale of the Shares.
(ae) The Common Stock is listed on the AMEX, and the Company
meets or exceeds the listing requirements of the AMEX. The Shares are approved
for listing on the AMEX, subject only to official notice of issuance.
2. 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 2,000,000 Firm Shares
to the several Underwriters, and each of the Underwriters, severally and not
jointly, agrees to purchase the number of the Firm Shares appearing opposite
that Underwriter's name in Schedule 1 hereto. 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, the Company hereby grants to the Underwriters an option to
purchase
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up to 300,000 Option Shares. Such option is granted solely for the purpose of
covering over-allotments in the sale of Firm Shares and is exercisable as
provided in Section 4 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. 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 quantities. The price of both the
Firm Shares and any Option Shares shall be $ per share.
The Company shall not be obligated to deliver any of the Shares to be
delivered on the First Delivery Date or the Second Delivery Date (as hereinafter
defined), as the case may be, except upon payment for all of the Shares to be
purchased on such Delivery Date as provided herein.
3. 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 [__________] shares of the Firm Stock will initially
be reserved by the several Underwriters for offer and sale 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. to employees
and persons having business relationships with the Company and its subsidiaries
who have heretofore delivered to the Representatives offers to purchase shares
of Firm Stock in form satisfactory to the Representatives, and that any
allocation of such Firm Stock among such persons will be made in accordance with
timely directions received by the Representatives from the Company; provided,
that under no circumstances will the Representatives or any Underwriter be
liable to the Company or to any such person for any action taken or omitted in
good faith in connection with such offering to employees and persons having
business relationships with the Company and its subsidiaries. It is further
understood that any shares of such Firm Stock which are not purchased by such
persons will be offered by the Underwriters to the public upon the terms and
conditions set forth in the Prospectus.]
4. Delivery of and Payment for the Shares. Delivery of and payment for
the Firm Shares shall be made at the offices of ▇▇▇▇▇▇ Brothers Inc., Three
World ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00 A.M., New York time,
on the third full business day following the date of this Agreement (or on the
fourth full business day if the pricing of the Firm Shares should take place
after 4:30 P.M., New York time) 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 certified or official bank check or checks payable in New York Clearing
House (next-day) 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
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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.
At any time on or before the thirtieth day after the date of this
Agreement, the option granted in Section 2 may be exercised by written notice
being given to the Company by the Representatives. Such notice shall set forth
the aggregate number of Option Shares as to which the option is 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 the "Second Delivery Date" and
the First Delivery Date and the 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 4 (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 the Second Delivery Date.
On the Second Delivery Date, the Company 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 the Company
of the purchase price by certified or official bank check or checks payable in
New York Clearing House (next-day) 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
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 Company 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 the Second
Delivery Date.
5. Further Agreements of the Company. The Company hereby covenants and
agrees:
(a) To prepare the Prospectus in the form required by the Securities
Act and reasonably acceptable to the Representatives and to file such Prospectus
pursuant to Rule 424(b) under the Securities Act not later than 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 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 file, if the Company elects
to rely upon Rule 462(b), a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) and to pay the applicable fees in
accordance with
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Rules 111 and 3(a) of the Rules and Regulations by the earlier of (i) 10.00
P.M., New York time on the date of this Agreement or (ii) the time confirmations
are sent or given, as specified by Rule 462(b); to advise the Representatives,
promptly after it receives notice thereof, of the issuance by the Commission of
any stop order or of any order preventing or suspending the use of any
Preliminary Prospectus or the Prospectus, of the suspension of the qualification
of the Shares for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of 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 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; and (ii) each 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 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, Rule 462(b) 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 obtain the consent of the Representatives to the filing, which
consent shall not be unreasonably withheld;
(f) As soon as practicable after the Effective Date (provided that the
Company shall have until at least 45 days after the end of the fiscal quarter in
which the first anniversary of the Effective Date occurs), to make generally
available to the Company's shareholders and to deliver to the Representatives in
accordance with Rule 158 of the Rules and
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Regulations an earnings statement of the Company and its subsidiaries (which
need not be audited) complying with Section 11(a) of the Securities Act and the
Rules and Regulations and covering a period of at least twelve consecutive
months beginning after the Effective Date;
(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 and all public reports and all reports and financial
statements furnished by the Company to the principal national securities
exchange upon which the Common Stock 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, except for any
portion of such report furnished to such exchange or to the Commission for which
Confidential Treatment has been requested;
(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
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 to file
a general consent to service of process in any jurisdiction;
(i) For a period of 120 days from the date of the Prospectus, not to,
directly or indirectly, offer for sale, sell or otherwise dispose of (or enter
into any transaction or device which is designed to, or could be expected to,
result in the disposition by any person at any time in the future of) any shares
of Common Stock (other than the Shares, shares issued pursuant to the Stock
Option and Purchase Plans, shares issued in connection with the LifeScan
Alliance, shares issued in connection with the Orgenics Acquisition, shares
issued in connection with the cancellation of the CDIL Warrants, shares issued
in connection with the conversion of the Cambridge Diagnostic Notes, shares
issued in connection with conversion of the Series A Preferred Stock and shares
issued in connection with the acquisition of a business or businesses by the
Company, provided that the total number of shares, including securities
convertible into shares, shall not exceed 50% of the actual number of shares of
Common Stock outstanding on the date hereof), or sell or grant options, rights
or warrants with respect to any shares of Common Stock (other than the grant of
options pursuant to the Stock Option and Purchase Plans), without the prior
written consent of ▇▇▇▇▇▇ Brothers Inc.; and to cause each officer, director and
certain shareholders of the Company, including all 5% or greater shareholders,
to furnish to the Representatives, prior to the First Delivery Date, a letter or
letters, in form and substance satisfactory to counsel for the Underwriters,
pursuant to which each such person shall agree not to, directly or indirectly,
offer for sale, sell or otherwise dispose of (or enter into any transaction or
device which is designed to, or could be expected to, result in the disposition
by any person at any time in the future of) any shares of Common Stock or other
securities of the Company for a period of 120 days from the date of the
Prospectus, without the prior written consent of ▇▇▇▇▇▇ Brothers Inc.;
(j) Prior to the Effective Date, to apply for the listing of the
Shares on the American Stock Exchange and to complete the listing prior to the
First Delivery Date;
(k) To apply the net proceeds from the sale of the Shares being sold
by the
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Company as set forth in the Prospectus;
(l) To take such steps as shall be necessary to ensure that neither
the Company nor any of its subsidiaries shall become an "investment company"
within the meaning of such term under the United States Investment Company Act
of 1940 and the rules and regulations of the Commission thereunder.
6. Expenses. The Company agrees to pay (a) the costs incident to the
authorization, issuance, sale and delivery of the Shares and any 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 other related documents in connection with
the offering, purchase, sale and delivery of the Shares; (e) the filing fees
incident to securing any required review by the National Association of
Securities Dealers, Inc. of the terms of sale of the Shares; (f) any applicable
American Stock Exchange listing or other fees; (g) the fees and expenses of
qualifying the Shares under the securities laws of the several jurisdictions as
provided in Section 5(h) and of preparing, printing and distributing a Blue Sky
Memorandum (including related fees and expenses of counsel to the Underwriters
related thereto); [(h) all costs and expenses of the Underwriters, including the
fees and disbursements of counsel for the Underwriters, incident to the offer
and sale of Shares by the Underwriters to employees and persons having business
relationships with the Company and its subsidiaries, as described in Section 3;]
and (i) 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 6 and in Section 11, 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 and the expenses of advertising
any offering of the Shares made by the Underwriters.
7. Conditions of the 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 to each of the following additional terms and conditions:
(a) The Prospectus shall have been filed in a timely manner with the
Commission in accordance with Section 5(a); the Registration Statement and all
post-effective amendments thereto shall have become effective, all filings
required by Rule 424 and Rule 430A of the Rules and Regulations shall have been
made, and no such filings shall have been made without the consent of the
Representatives, which consent shall not have been unreasonably withheld; if the
Company has elected to rely on Rule 462(b), the Rule 462(b) Registration
Statement shall have become effective not later than the earlier of (i) 10:00
P.M., New York Time on the date of this Agreement or (ii) the time confirmations
are sent or given as specified in Rule 462(b); 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 disclosed to you and
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complied with to your satisfaction.
(b) No Underwriter shall have been advised by the Company or 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 fact which, in your opinion or in the
opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the
Underwriters, is material or omits to state a fact which, in your opinion or the
opinion of such counsel, is material and is required to be stated therein or is
necessary to make the statements therein 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 and the transactions contemplated hereby shall be reasonably
satisfactory in all material respects to you and your counsel, and the Company
shall have furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) On each Delivery Date, there shall have been furnished to you the
written opinion of ▇▇▇▇▇▇▇, Procter & ▇▇▇▇ LLP, counsel to the Company,
addressed to the Underwriters and dated such Delivery Date, in form and
substance reasonably satisfactory to the Representatives and their counsel, to
the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, is qualified to do business and is in good standing as a
foreign corporation in the Commonwealth of Massachusetts and has all
corporate power and authority necessary to own or hold its properties
and conduct the businesses in which it is engaged;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the outstanding shares of capital stock of
the Company have been, and the Shares, upon issuance and delivery and
payment therefore in the manner provided for herein, will be, duly and
validly authorized and issued, fully paid and non-assessable and
conform in all material respects to the description thereof contained
in the Prospectus; and, except as described in the Prospectus, all of
the outstanding shares of capital stock of the subsidiaries of the
Company which have material assets or business operations are owned
directly by the Company, free and clear of all liens, encumbrances,
equities or claims, other than one share in each of Cambridge
Diagnostics Ireland Ltd. and Inverness Medical Limited held by
officers of the Company, and 1,000,000 shares of 6% Cumulative
Redeemable Preference Shares in Inverness Medical Limited held by
Inverness & Nairn Local Enterprise Company; and there are no
preemptive or other rights to subscribe for or to purchase, nor, upon
consummation of the offering to which this Agreement relates, any
restriction upon the voting or transfer of, any of the Shares pursuant
to the Company's Certificate of Incorporation or By-laws, as amended,
or any agreement or other instrument known to such counsel except with
respect to the Voting Agreement;
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(iii) To such counsel's knowledge and other than as set forth in
the Prospectus, 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 its subsidiaries is the
subject which, if determined adversely to the Company or its
subsidiaries, would be reasonably likely to have a Material Adverse
Effect; and, to such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or threatened
by others;
(iv) The Registration Statement and all post effective amendments
thereto, if any, have been declared effective (or in the case of any
Rule 462(b) Registration Statement, has become effective) under the
Securities Act, the Prospectus has been filed with the Commission
pursuant to the subparagraph of Rule 424(b) of the Rules and
Regulations specified in such opinion on the date specified therein;
(v) The Registration Statement and the Prospectus and any further
amendments or supplements thereto made by the Company (other than the
financial statements and related schedules therein, as to which such
counsel need express no opinion) comply as to form in all material
respects with the requirements of the Securities Act and the Rules and
Regulations;
(vi) The statements made in the Prospectus under the headings
"Description of Capital Stock" and "Business -- Strategic
Transactions" and in the Registration Statement in Items 24 and 26
insofar as such statements are, or refer to statements of law or legal
conclusions, are true and correct in all material respects;
(vii) To such counsel's knowledge, 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 or
filed as exhibits to the Registration Statement or incorporated
therein by reference as permitted by the Rules and Regulations;
(viii) This Agreement has been duly authorized, executed and
delivered by the Company;
(ix) The issue and sale of the Shares being delivered on such
Delivery Date by the Company and the compliance by the Company with
all of the provisions of this Agreement and the consummation of the
transactions contemplated hereby will not to such counsel's knowledge
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 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 Certificate of Incorporation or By-laws or
other organizational documents of the Company or, to such counsel's
knowledge, any of its subsidiaries, as such documents may be amended
from time to time, or to such counsel's knowledge any statute or any
order, rule or regulation
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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; and, except for the registration of the Shares under the
Securities Act and such consents, approvals, authorizations,
registrations or qualifications as may be required and have been
obtained under the Exchange Act and applicable blue sky, state or
foreign securities laws 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 by the Company and the
consummation of the transactions contemplated hereby;
(x) Except as described in the Prospectus, to such counsel's
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 include such securities for
registration in a registration statement filed by the Company under
the Securities Act; and the Company is not required to include any
such securities in the securities being registered pursuant to the
Registration Statement, nor is it required to file any registration
statement for the registration of any securities of any person or
register any such securities pursuant to any other registration
statement filed by the Company under the Securities Act for a period
of 120 days after the Effective Date; and
In rendering such opinion, such counsel may state that its opinion is
limited to matters governed by the Federal laws of the United States of America,
the laws of The Commonwealth of Massachusetts and the General Corporation Law of
the State of Delaware. Such counsel shall also have furnished to the
Representatives a written statement, addressed to the Underwriters and dated
such Delivery Date, in form and substance reasonably satisfactory to the
Representatives, to the effect that (x) such counsel has acted as counsel to the
Company on a regular basis in connection with securities laws matters and
certain other matters, including the preparation of the Registration Statement
and (y) based on the foregoing, no facts have come to the attention of such
counsel which lead them to believe that the Registration Statement, as of the
Effective Date, or any amendment thereto, contains or contained any untrue
statement of a material fact or omits or omitted to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or that the Prospectus, or any amendment or supplement thereto,
contains or contained any untrue statement of a material fact or omits or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
(e) On each Delivery Date, counsel to Cambridge Diagnostics Ireland
Ltd., Cambridge Affiliate Corporation, Inverness Medical Limited, Orgenics Ltd.,
Orgenics International Holdings, B.V. and Selfcare Acquisition Corp.
(collectively, the "Significant Subsidiaries"), acceptable to the
Representatives and their counsel, shall have furnished to you their written
opinions, as counsel to the Significant Subsidiaries, addressed to the
Underwriters and dated such Delivery Date, in form and substance reasonably
satisfactory to the Representatives and their counsel, to the effect that:
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(i) The Significant Subsidiaries have been duly incorporated or
organized and are validly existing as corporations or limited
liability companies, as the case may be, in good standing under the
laws of their respective jurisdictions of incorporation or
organization, are duly qualified to do business and are in good
standing in each jurisdiction in which their respective ownership or
leasing of property or the conduct of their respective businesses
requires such qualification and have all power and authority necessary
to own or hold their respective properties and conduct the businesses
in which they are engaged;
(ii) All of the issued shares of capital stock of each
Significant Subsidiary have been duly and validly authorized and
issued and are fully paid, non-assessable and, except as set forth in
the Prospectus, are owned directly or indirectly by the Company, free
and clear of all liens, encumbrances, equities or claims;
(iii) All real property and buildings held under lease by the
Significant 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 them.
(iv) The issue and sale of the shares of Stock being delivered on
such Delivery Date by the Company and the compliance by the Company
with all of the provisions of this Agreement and the consummation of
the transactions contemplated hereby 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 such counsel
to which any Significant Subsidiary is a party or by which any
Significant Subsidiary is bound or to which any of the property or
assets of any Significant Subsidiary is subject, nor will such actions
result in any violation of the provisions of the charter or by-laws or
other organizational documents of any Significant Subsidiary or any
statute or any order, rule or regulation known to such counsel of any
court or governmental agency or body having jurisdiction over the [the
applicable] Significant Subsidiary or any of its properties or assets.
(f)(I) On each delivery date, the Company shall have furnished to the
Representatives an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, United States patent counsel
for the Company, addressed to the Underwriters and dated such Delivery Date in
form and substance reasonably satisfactory to the Representatives to the effect
that:
(i) The statements in the Registration Statement and Prospectus
under the caption "Risk Factors -- Dependence on Patents and
Proprietary Technology" insofar as such statements constitute
summaries of matters of law, are accurate statements or summaries of
the matters set forth therein.
(ii) The statements in the Registration Statement and Prospectus
under the caption "Business - Patents and Proprietary Rights," insofar
as those statements relate to pending U.S. patent applications of the
Company, to licenses for non-invasive blood glucose monitoring systems
and a near infrared technique, or to trademark registrations and
applications filed by the Company are accurate
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statements or summaries of the matters set forth therein, and that
such counsel is not aware of any facts which would form a basis for a
belief that any of the other statements in this section are untrue or
misleading.
(iii) No facts have come to the attention of such counsel which
would form a basis for the belief that (a) the Registration Statement
or any amendment thereto or (b) the Prospectus, as amended or
supplemented, contain any untrue statement of a material fact with
respect to the patent position of the Company or any of its
subsidiaries, or omit to state any material fact relating to the
patent position of the Company or any of its subsidiaries, which is
necessary to make the statements contained therein not misleading.
(iv) The Company has obtained assignment documents from the named
inventors for each of its United States patent applications, and to
the inventions described and claimed therein and foreign applications
filed for such inventions, and has caused these assignments to be
recorded in the United States Patent and Trademark Office.
(iv) The Company has valid license rights to the patents and
patent applications listed in Schedule A to such counsel's opinion.
(vi) No facts have come to the attention of such counsel that
would form a basis for the belief that any of the United States
patents owned by the Company is unenforceable or invalid.
(vii) Such counsel is not aware of any US patents of others which
are or would be infringed by the specific current or proposed products
or processes for monitoring of blood glucose referred to in the
Prospectus in such manner as to materially and adversely affect the
Company or any of its subsidiaries; such counsel has no knowledge of
any pending or threatened action, suit, proceeding or claim by others
that the Company or any of its subsidiaries is infringing any patent
which could result in any material adverse effect on the Company.
(viii) Such counsel does not know of any contracts or other
documents relating to the proprietary information of the Company or
its subsidiaries or United States patents or patent applications other
than those described in the Registration Statement and the Prospectus
or identified on Schedule A.
(II) On each delivery Date, the Company shall have furnished to the
Representatives an opinion of Lahive & ▇▇▇▇▇▇▇▇▇, special patent counsel for the
Company, addressed to the Underwriters and dated such Delivery Date in form and
substance reasonably satisfactory to the Representatives and with respect to
patent matters relating to the Company's exclusive worldwide alliance with
LifeScan, Inc., a subsidiary of ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, to the effect that:
(i) The statements in the Registration Statement and Prospectus,
insofar as such statements constitute summaries of matters of law, are
accurate statements or summaries of the matters set forth therein.
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(ii) No facts have come to the attention of such counsel which
would form a basis for the belief that (a) the Registration Statement
or any amendment thereto or (b) the Prospectus, as amended or
supplemented, contain any untrue statement of a material fact, or omit
to state any material fact, which is necessary to make the statements
contained therein not misleading.
(iii) Such counsel is not aware of any patents of others which
are or would be infringed by specific, current or proposed products or
processes referred to in the Prospectus in such manner as to adversely
affect the Company or any of its subsidiaries; such counsel has no
knowledge of any pending or threatened action, suit, proceeding or
claim by others that the Company or any of its subsidiaries is
infringing any patent which could result in any material adverse
effect on the Company.
(g) The Representatives shall have received from Mintz, Levin, Cohn,
Ferris, Glovsky and Popeo, P.C., 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.
(h) At the time of execution of this Agreement, the Representatives
shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a letter, in form and substance
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, (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.
(i) With respect to the letter of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP referred to in
the preceding paragraph and delivered to the Representatives concurrently with
the execution of this Agreement (the "initial letter"), on each Delivery Date
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.
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(j) On each Delivery Date, the Company shall have furnished to the
Representatives a certificate, dated such Delivery Date, of its Chairman of the
Board, its President or a Vice President and its Chief Financial Officer stating
that:
(i) The representations and warranties of the Company contained
in this Agreement are true and correct as of such Delivery Date, and
the Company has complied with all agreements and satisfied all
conditions on its part to be complied with or satisfied prior to such
Delivery Date; and the conditions set forth in Sections 7(a) and 7(m)
have been fulfilled; and
(ii) They have carefully examined the Registration Statement and
the Prospectus and, in their opinion (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.
(k) You shall have been furnished such additional documents and
certificates as you or counsel for the Underwriters may reasonably request.
(l) The letter agreements among you and officers, directors and
certain stockholders of the Company relating to restrictions on sales of the
Company's securities, delivered to you on or prior to the date hereof, shall be
in full force and effect on such Delivery Date.
(m) (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 or (ii) since such date there shall not
have been any change in the capital stock or long-term debt of the Company or
any of its subsidiaries 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
judgment 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.
(n) 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 American Stock 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, (iii) the United States shall have become engaged in
hostilities, there shall have been an escalation in hostilities involving the
United States or there shall have been a declaration of a national emergency or
war by the United States or (iv) there shall have occurred such a material
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adverse change in general economic, political or financial conditions (or the
effect of international conditions on the financial markets in the United States
shall be such) as to make it, in the judgment of a majority in interest of the
Underwriters, 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.
(o) The American Stock Exchange shall have approved the Shares for
listing, subject only to official notice of issuance.
All such opinions, letters, evidence, certificates and documents shall be
in compliance with the provisions of this Agreement only if they are
satisfactory in form and substance to you and counsel for the Underwriters. The
Company shall furnish to you conformed copies of such opinions, letters,
evidence, certificates and documents in such number as you shall reasonably
request. If any of the conditions specified in this Section 7 shall not have
been fulfilled when and as required by this Agreement, the Agreement and all
obligations of the Underwriters hereunder may be canceled at, or prior to, each
Delivery date, by you. Any such cancellation shall be without liability of the
Underwriters to the Company. Notice of such cancellation shall be given to the
Company in writing, or by telecopy or telephone confirmed in writing.
8. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless each Underwriter
(including any Underwriter in its role as a qualified independent underwriter
pursuant to the rules of the National Association of Securities Dealers, Inc.),
its officers 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, officer,
employee or controlling person 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 (A) in any Preliminary Prospectus, the Registration
Statement or the Prospectus or in any amendment or supplement thereto or (B) in
any blue sky application or other document prepared or executed by the Company
(or based upon any written information furnished by the Company) specifically
for the purpose of qualifying any or all of the Shares under the securities laws
of any state or other jurisdiction (any such application, document or
information being hereinafter called a "Blue Sky Application"), (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 Blue Sky Application 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 the Company shall not 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 gross
negligence or willful misconduct), and shall reimburse each Underwriter and each
such officer, employee or controlling person promptly upon demand for any
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legal or other expenses reasonably incurred by that Underwriter, officer,
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 the Company 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, or in any Blue Sky Application, 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; and provided further, that the foregoing
indemnity agreement is subject to the condition that, insofar as it relates to
any untrue statement, alleged untrue statement, omission or alleged omission
made in any Preliminary Prospectus but eliminated or remedied in the Prospectus,
such indemnity agreement shall not inure to the benefit of any Underwriter from
whom the person asserting any loss, claim, damage or liability purchased the
Shares which are the subject thereof (or to the benefit of any person who
controls such Underwriter) if a copy of the Prospectus was not sent or given to
such person with or prior to the written confirmation of the sale of such Shares
to such person. The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have to any Underwriter or to any
officer, employee or controlling person of that Underwriter.
(b) Each Underwriter, severally and not jointly, shall indemnify and
hold harmless the Company, its officers and employees, each of its directors
(including any person who, with his or her consent, is named in the Registration
Statement as about to become a director of the Company), and each person, if
any, who controls the Company within the meaning of the Securities Act or
otherwise, from and against any loss, claim, damage or liability, joint or
several, or any action in respect thereof, to which the Company or any such
director, officer or controlling person 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 (A) in any Preliminary Prospectus, the
Registration Statement or the Prospectus or in any amendment or supplement
thereto, or (B) in any Blue Sky Application 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, or in any Blue Sky
Application 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, and shall
reimburse the Company and any such director, officer or controlling person for
any legal or other expenses reasonably incurred by the Company or any such
director, officer 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 or any such director, officer, employee or controlling person.
(c) Promptly after receipt by an indemnified party under this Section
8 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 8, notify the
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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 8 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 8. 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 8 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, 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 under this
Section 8 if, in the reasonable judgment of the Representatives, it is advisable
for the Representatives and those Underwriters, officers, 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. 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.
(d) If the indemnification provided for in this Section 8 shall for
any reason be unavailable to or insufficient to hold harmless an indemnified
party under Section 8(a) or 8(b) 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 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 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 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
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(before deducting expenses) received by the Company on the one hand, and the
total underwriting discounts and commissions received by the Underwriters with
respect to the shares of the Shares purchased under this Agreement, on the other
hand, bear to the total gross proceeds from the offering of the shares 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 shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by the
Company or the Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would not
be just and equitable if contributions pursuant to this Section 8 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 8
shall be deemed to include, for purposes of this Section 8(d), any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8(d), no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise paid or
become liable to pay by reason of any untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 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 8(d) are several in proportion to their respective underwriting
obligations and not joint.
(e) The Underwriters severally confirm and the Company acknowledges
that the statements with respect to the public offering of the Shares by the
Underwriters set forth on the cover page of, the legend concerning
over-allotments on the inside front cover page of and the concession and
reallowance figures appearing 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.
9. 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 the Firm Shares set
opposite the name of each remaining non-defaulting Underwriter in Schedule 1
hereto bears to the total number of the 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 2.
If the foregoing maximums are exceeded, the remaining non-defaulting
Underwriters,
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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 non-defaulting 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 to sell, the Option Shares) shall terminate without liability on the
part of any non-defaulting Underwriter or the Company, except that the Company
will continue to be liable for the payment of expenses to the extent set forth
in Sections 6 and 11. 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 9, purchases Firm 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 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.
10. Termination. The obligations of the Underwriters hereunder may be
terminated by the Representatives by notice given to and received by the Company
prior to delivery of and payment for the Firm Shares if, prior to that time, any
of the events described in Sections 7(m) or 7(n), shall have occurred or if the
Underwriters shall decline to purchase the Shares for any reason permitted under
this Agreement.
11. Reimbursement of Underwriters' Expenses. If the Company 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 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 is not fulfilled,
the Company will 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 (accompanied by reasonable documentation of such
expenses) the Company 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, the Company shall not be obligated to reimburse any
defaulting Underwriter on account of those expenses.
12. 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
Financial ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇;
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(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: ▇▇▇-▇▇▇-▇▇▇▇); 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. Any such statements, requests, notices or agreements shall take effect
at the time of receipt thereof. The Company shall be entitled to act and rely
upon any request, consent, notice or agreement given or made on behalf of the
Underwriters by the Representatives.
13. Persons Entitled to Benefit of Agreement. This Agreement shall inure
to the benefit of and be binding upon the Underwriters, the Company 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 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 and any person controlling the Company 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.
14. Survival. The respective indemnities, representations, warranties and
agreements of the Company 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.
15. Definition of the Terms "Business Day" and "Subsidiary". For purposes
of this Agreement, (a) "business day" means any day on which the New York Stock
Exchange, Inc. is open for trading and (b) "subsidiary" has the meaning set
forth in Rule 405 of the Rules and Regulations.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of New York.
17. 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.
18. 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.
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If the foregoing correctly sets forth the agreement between the Company and
the Underwriters, please indicate your acceptance in the space provided for that
purpose below.
Very truly yours,
SELFCARE, INC.
By
--------------------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇, Chairman and
Chief Executive Officer
Accepted:
▇▇▇▇▇▇ BROTHERS INC.
▇▇▇▇▇▇, READ & CO. INC.
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
For themselves and as Representatives
of the several Underwriters named
in Schedule 1 hereto
By ▇▇▇▇▇▇ BROTHERS INC.
By
------------------------------
Authorized Representative
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SCHEDULE 1
----------
Number of
Underwriters Firm Shares
------------ -----------
▇▇▇▇▇▇ Brothers Inc.........................................................
▇▇▇▇▇▇, Read & Co. Inc......................................................
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc....................................................
TOTAL 2,000,000
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