Exhibit 1
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1,900,000 Shares
Common Stock
($.01 Par Value)
UNDERWRITING AGREEMENT
April , 2001
UNDERWRITING AGREEMENT
April , 2001
UBS Warburg LLC
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Organogenesis Inc., a Delaware corporation (the "Company"), proposes to
issue and sell to UBS Warburg LLC, as underwriter ("you" or the "Underwriter"),
from time to time in the manner described below, up to an aggregate of 1,900,000
shares (the "Maximum Number of Shares") of Common Stock, $.01 par value (the
"Common Stock") of the Company. Such shares are hereinafter collectively
referred to as the "Shares." The Shares are described in the Prospectus referred
to below.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-93629) for the
registration of 3,000,000 shares of its Common Stock, including Shares up to the
Maximum Number of Shares, under the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder (collectively, the "Act"),
and the offering thereof from time to time in accordance with Rule 415 under the
Act, and the Company has filed such post-effective amendments thereto as may be
required prior to any sale by the Company of Shares. Such registration statement
(as so amended, if applicable) has been declared effective by the Commission and
is referred to herein as the "Registration Statement." The final prospectus and
all applicable amendments or supplements thereto (including any pricing
supplements relating to the sale of Shares from time to time), in the form first
furnished to the Underwriter, are collectively referred to herein as the
"Prospectus." All references to the "Registration Statement" and the
"Prospectus" shall also be deemed to include all documents incorporated therein
by reference pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act"), prior to any delivery by the Company of any Purchase Notice (as
defined herein); provided, that if the Company files a registration statement
with the Commission pursuant to Rule 462(b) under the Act (the "Rule 462(b)
Registration Statement"), then, after such filing, all references to the
"Registration Statement" shall also be deemed to include the Rule 462(b)
Registration Statement. A "preliminary prospectus" shall be deemed to refer to
any prospectus used before the registration statement became effective and any
prospectus furnished by the Company after the registration statement became
effective and prior to any delivery by the Company of any Purchase Notice
referred to below which omitted information to be included in a form of
prospectus filed with the Commission pursuant to Rule 424(b) under the Act. For
purposes of this Agreement, all references to the Registration Statement,
Prospectus or preliminary prospectus or to any amendment or supplement thereto
shall be deemed to include any copy filed with the Commission pursuant to its
Electronic Data Gathering, Analysis and Retrieval system ("▇▇▇▇▇").
The Company and the Underwriter agree as follows:
1. Sale and Purchase.
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(a) Upon the basis of the representations and warranties and subject to
the terms and conditions herein set forth, on any Exchange Business Day selected
by the Company from the date hereof until the earlier of the second anniversary
of the date hereof and the termination of this Agreement pursuant to Section 7
or 8 (the "Termination Date"), the Company shall sell to the Underwriter, and
the Underwriter agrees to purchase from the Company, the number of Shares
determined in the manner and on the terms set forth below. The Underwriter
intends to resell Shares purchased under this Agreement in transactions at
prices related to the prevailing market price of the Common Stock or in such
other manner as may be provided in the Prospectus and may engage in sales of
Common Stock, including short sales, in advance of or on the Purchase Date for
any Shares deliverable pursuant to a Purchase Notice.
(b) The Company may exercise its right to sell Shares hereunder by
delivering (in accordance with Section 10 hereof) on any Exchange Business Day a
written notice to the Underwriter of its election to sell Shares (each such
notice, a "Purchase Notice"). Each Purchase Notice shall specify:
(i) the number of Shares that the Company intends to sell to the
Underwriter (the "Specified Number of Shares"), which shall be no less than
5% and no more than 25% of the average daily trading volume in the Common
Stock on the Exchange for the five Exchange Business Days preceding the
date of delivery of the Purchase Notice, except as otherwise agreed in
writing by the Underwriter in its sole discretion;
(ii) the minimum sale price per Share before deducting underwriting
discount or expenses (the "Limit Price"), if any, at which the Company
wishes to complete the sale of Shares pursuant to the Purchase Notice; and
(iii) whether or not the Company elects to give the Underwriter the option
to increase the number of Shares to be sold by the Company and purchased by
the Underwriter on such Purchase Date.
(iv) A Purchase Notice shall not set forth a Specified Number of Shares
that, when added to the aggregate number of Shares previously purchased and
to be purchased pursuant to pending Purchase Notices (if any) hereunder,
results in a total that exceeds the Maximum Number of Shares. The Company
may deliver only one Purchase Notice with respect to any Purchase Date. A
Purchase Notice conforming to the foregoing requirements, once given, shall
be irrevocable, and the Company shall be obligated to sell to the
Underwriter the Specified Number of Shares (subject to increase pursuant to
paragraph (d) below) and the Underwriter shall be obligated, subject to the
satisfaction of the conditions set forth in this Agreement, to purchase
such Shares in accordance with the Purchase Notice.
(c) The "Purchase Date" in respect of the Shares deliverable pursuant to
any Purchase Notice shall be the Exchange Business Day next following the day on
which such Purchase Notice is delivered; provided that if a Purchase Notice is
delivered prior to 8:30 a.m. on an Exchange Business Day, the Purchase Date in
respect of such Shares shall be such date of delivery. The price per Share for
the sale of any Shares pursuant to this Agreement shall be equal to the volume-
weighted average price per share at which shares of the Common Stock traded on
the Exchange during regular trading hours on the Purchase Date, as reported on
Bloomberg LP, page VAP (the "Gross Sale Price"), less the Underwriter's
commission of (i) 4.5 percent of the Gross Sales Price, if the Company shall
have granted, and the Underwriter shall have exercised, in whole or in part, an
option pursuant to paragraph (d) below to increase the number of Shares sold and
purchased on such Purchase Date, and (ii) 6 percent of the Gross Sale Price, in
any other case (the Gross Sale Price less the Underwriter's commission is
referred to herein as the "Net Sale Price").
(d) If the Company shall have so specified in the Notice of Purchase
delivered in respect of a Purchase Date, the Underwriter will have the option to
elect, by notice to the Company delivered not later than 4:30 p.m. on such
Purchase Date, to increase the number of Shares to be sold by the Company and
purchased by the Underwriter on such Purchase Date, provided that such number of
Shares to be sold by the Company shall not exceed two times the Specified Number
of Shares; and provided further that such number of Shares to be sold by the
Company, when added to the aggregate number of Shares previously purchased and
to be purchased pursuant to pending Purchase Notices (if any) hereunder, shall
not exceed the Maximum Number of Shares. The number of Shares to be sold by the
Company on any Purchase Date, as it may be increased pursuant to this paragraph
(d), is hereinafter referred to as the "Purchased Number of Shares" in respect
of such Purchase Date.
(e) If the Purchased Number of Shares for any Purchase Date exceeds 50%
of the total number of shares of Common Stock traded on the Exchange during
regular trading hours on the Purchase Date, the Purchased Number shall be
reduced to 50% of such total number of shares traded unless, in its sole
discretion, the Underwriter waives this condition in writing as to any Purchase
Date.
(f) As used herein:
"Exchange Business Day" means any day that is a trading day for the
Exchange other than a day on which trading on the Exchange is scheduled to close
prior to its regular weekday closing time.
"Exchange" means the American Stock Exchange.
(g) Payment of the purchase price for Shares sold by the Company on any
Purchase Date pursuant to a Purchase Notice shall be made to the Company by
federal funds wire transfer against delivery of such Shares to the Underwriter
through the facilities of the Depository Trust Company. Such payment and
delivery shall be made at or about 10:00 a.m., local time in New York, New York,
on the third Exchange Business Day following the Purchase Date (the "Closing
Date"). If the Company fails for any reason to make timely delivery of such
Shares, the Company shall indemnify the Underwriter and its successors and
assigns and hold them harmless from and against any loss, damage, expense,
liability or claim which the Underwriter may incur as a result of such failure.
2. Representations and Warranties of the Company. The Company
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represents and warrants to the Underwriter, on and as of (i) the date hereof,
(ii) each date on which the Company delivers a Purchase Notice to the
Underwriter, (iii) each Purchase Date, (iv) each Closing Date, and (v) each date
on which the Registration Statement or the Prospectus is amended or supplemented
that (each such date listed in (i) through (v), a "Representation Date"):
(a) the Company meets the requirements for use of Form S-3 under the Act;
the Registration Statement (including any Rule 462(b) Registration Statement)
has become effective under the Act and no stop order suspending the
effectiveness of the Registration Statement (including any Rule 462(b)
Registration Statement) has been issued under the Act and no proceedings for
that purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with; the Registration
Statement (including any Rule 462(b) Registration Statement) and any amendments
thereto (including the filing of the Company's most recent Annual Report on Form
10-K with the Commission (the "Annual Report on Form 10-K")) comply in all
material respects with the requirements of the Act and do not 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; each
preliminary prospectus and prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Act, complied when so filed in all material
respects with the Act; each preliminary prospectus and the Prospectus delivered
to the Underwriter for use in connection with the offering of Shares are
identical to any electronically transmitted copies thereof filed with the
Commission pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T;
and neither the Prospectus nor any amendment or supplement thereto includes an
untrue statement of a material fact or omits to state a material fact necessary
in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
representations and warranties in this subsection shall not apply to statements
in or omissions from the Registration Statement or the Prospectus made in
reliance upon and in conformity with information furnished to the Company in
writing by the Underwriter expressly for use in the Registration Statement or
the Prospectus;
(b) the documents incorporated or deemed to be incorporated by reference
in the Prospectus, at the time they were or hereafter are filed with the
Commission, complied and will comply in all material respects with the
requirements of the 1934 Act and, when read together with the other information
in the Prospectus, at the date of the Prospectus and at each Representation
Date, did not and will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
(c) as of the date of this Agreement the Company has, and as of each
representation date the Company will have, an authorized capitalization as set
forth in the Registration Statement and the Prospectus; all of the issued and
outstanding shares of capital stock of the Company, including the Common Stock,
have been duly and validly authorized and issued and are fully paid and non-
assessable, have been issued in compliance with all federal and state securities
laws and were not issued in violation of any preemptive right, resale right,
right of first refusal or similar right;
(d) the Maximum Number of Shares is less than 10% of the aggregate market
value of the Company's outstanding voting stock held by non-affiliates of the
Company (calculated as of a date within 60 days prior to the date of the filing
of the Registration Statement);
(e) the Common Stock is an "actively-traded security" excepted from the
requirements of Rule 101 of Regulation M under the Exchange Act by subsection
(c)(1) of such Rule;
(f) the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, with
corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Registration Statement and to enter
into this Agreement and consummate the transactions contemplated in the
Prospectus;
(g) the Company is duly qualified to do business as a foreign corporation
in good standing in each jurisdiction where the ownership or leasing of its
properties or the conduct of its business requires such qualification, except
where the failure to so qualify would not have a material adverse effect on the
business, properties, financial condition or results of operation of the Company
and the Subsidiaries (as hereinafter defined) taken as a whole (a "Material
Adverse Effect"); the Company has no subsidiaries other than ▇▇▇ Capital Corp.,
a Delaware corporation, and ECM Pharma, Inc., a Delaware corporation,
(collectively, the "Subsidiaries"); neither of which is a significant subsidiary
(as defined in Rule 1-02 of Regulation S-X under the Act), the Company does not
own, directly or indirectly, any shares of stock or any other equity or long-
term debt securities of any corporation or have any equity interest in any firm,
partnership, joint venture, association or other entity; complete and correct
copies of the certificates of incorporation and of the bylaws of the Company and
the Subsidiaries and all amendments thereto have been delivered to the
Underwriter, and except as set forth in the exhibits to the Registration
Statement no changes therein will be made during the term of this Agreement;
each Subsidiary has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, with full corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Registration
Statement; each of the Subsidiaries is duly qualified to do business as a
foreign corporation in good standing in each jurisdiction where the ownership or
leasing of the properties or the conduct of its business requires such
qualification, except where the failure to so qualify would not have a Material
Adverse Effect; all of the outstanding shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are fully paid and
non-assessable and (except as otherwise described in this Section 2(g)) are
owned by the Company subject to no security interest, other encumbrance or
adverse claims; no options, warrants or other rights to purchase, agreements or
other obligations to issue or other rights to convert any obligation into shares
of capital stock or ownership interests in the Subsidiaries are outstanding; and
the Company and each of the Subsidiaries are in compliance in all material
respects with the laws, orders, rules, regulations and directives issued or
administered by such jurisdictions;
(h) neither the Company nor any of the Subsidiaries is in breach of, or
in default under (nor has any event occurred which with notice, lapse of time,
or both would result in any breach of, or constitute a default under), its
respective charter or by-laws; neither the Company nor any of the Subsidiaries
is in breach of, or in default in the performance or observance of (nor has any
event occurred which with notice, lapse of time, or both would result in any
breach of, or constitute a default under) any obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, bank loan or
credit agreement or other evidence of indebtedness, or any lease, contract or
other agreement or instrument to which the Company or any of the Subsidiaries is
a party or by which any of them or any of their properties is bound, except
where such breach or default, individually or in the aggregate with all other
such breaches or defaults, would not have a Material Adverse Effect; and the
execution, delivery and performance of this Agreement, the issuance and sale of
the Shares and the consummation of the transactions contemplated hereby will not
conflict with, or result in any breach of or constitute a default under (nor
constitute any event which with notice, lapse of time, or both would result in
any breach of, or constitute a default under), any provisions of the charter or
by-laws of the Company or any of the Subsidiaries or under any provision of any
license, indenture, mortgage, deed of trust, bank loan or credit agreement or
other evidence of indebtedness, or any lease, contract or other agreement or
instrument to which the Company or any of the Subsidiaries is a party or by
which any of them or their respective properties may be bound or affected, or
under any federal, state, local or foreign law, regulation or rule or any
decree, judgment or order applicable to the Company or any of the Subsidiaries
except where such conflict, breach or default, individually or in the aggregate
with all other such conflicts, breaches or defaults, would not have a Material
Adverse Effect;
(i) this Agreement has been duly authorized, executed and delivered by
the Company;
(j) the capital stock of the Company, including the Shares, conforms in
all material respects to the description thereof contained in the Registration
Statement and Prospectus, and the certificates for the Shares are in due and
proper form and the holders of the Shares will not be subject to personal
liability by reason of being such holders;
(k) the Shares have been duly and validly authorized by the Company for
offer, sale, issuance and delivery pursuant to this Agreement and, when issued
and delivered against payment therefor as provided herein, will be duly and
validly issued and fully paid and non-assessable;
(l) no approval, authorization, consent or order of or filing with any
national, state or local governmental or regulatory commission, board, body,
authority or agency is required in connection with the issuance and sale of the
Shares or the consummation by the Company of the transactions as contemplated
hereby other than registration of the Shares under the Act and any necessary
qualification under the securities or blue sky laws of the various jurisdictions
in which the Shares are being offered by the Underwriter or under the rules and
regulations of the National Association of Securities Dealers, Inc. ("NASD");
(m) no person has the right, contractual or otherwise, to cause the
Company to issue to it, or register pursuant to the Act, any shares of capital
stock of the Company upon the issue and sale of the Shares to the Underwriter
hereunder, nor does any person have preemptive rights, co-sale rights, rights of
first refusal or other rights to purchase any of the Shares other than those
that have been expressly waived before the date hereof;
(n) PricewaterhouseCoopers LLP, whose report on the consolidated
financial statements of the Company and the Subsidiaries is filed with the
Commission as part of the Registration Statement and Prospectus, are independent
public accountants as required by the Act;
(o) each of the Company and the Subsidiaries has all necessary licenses,
authorizations, consents and approvals and has made all necessary filings
required under any federal, state, local or foreign law, regulation or rule, and
has obtained all necessary authorizations, consents and approvals from other
persons, in order to conduct its respective business, except where the failure
to obtain any such license, consent or approval or to make any necessary filing,
individually or in the aggregate with all other such failures, would not have a
Material Adverse Effect; neither the Company nor any of the Subsidiaries is in
violation of, or in default under, any such license, authorization, consent or
approval or any federal, state, local or foreign law, regulation or rule or any
decree, order or judgment applicable to the Company or any of the Subsidiaries
the effect of which could have a Material Adverse Effect;
(p) all legal or governmental proceedings, contracts, leases or documents
of a character required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement have been
so described or filed as required;
(q) there are no actions, suits, claims, investigations or proceedings
pending or, to the Company's knowledge, threatened to which the Company or any
of the Subsidiaries or any of their respective officers is a party or of which
any of their respective properties is subject at law or in equity, or before or
by any federal, state, local or foreign governmental or regulatory commission,
board, body, authority or agency which could result in a judgment, decree or
order having a Material Adverse Effect or prevent consummation of the
transactions contemplated hereby;
(r) the consolidated financial statements of the Company and the
Subsidiaries included in the Registration Statement and the Prospectus present
fairly the consolidated financial position of the Company and the Subsidiaries
as of the dates indicated and the consolidated results of operations and cash
flows of the Company and the Subsidiaries for the periods specified; such
financial statements have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis during the periods involved;
Any pro forma financial statements and other pro forma financial information
included in the Registration Statement and the Prospectus present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines for pro forma financial statements, have been
properly compiled on the pro forma bases set forth therein and, in the opinion
of the Company, the assumptions used in the preparation thereof are reasonable
and the adjustments used therein are appropriate to reflect the transaction or
circumstances referred to therein;
(s) subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has not been (i) any
material adverse change in the business, properties or assets described or
referred to in the Registration Statement, or the results of operations,
condition (financial or otherwise), business or operations of the Company and
the Subsidiaries taken as a whole, (ii) any transaction which is material to the
Company or the Subsidiaries, except transactions in the ordinary course of
business, (iii) any obligation, direct or contingent, which is material to the
Company and the Subsidiaries taken as a whole, incurred by the Company or the
Subsidiaries, except obligations incurred in the ordinary course of business,
(iv) any change in the capital stock or outstanding indebtedness of the Company
or the Subsidiaries or (v) any dividend or distribution of any kind declared,
paid or made on the capital stock of the Company. Neither the Company nor the
Subsidiaries has any material contingent obligation which is not disclosed in
the Registration Statement;
(t) the Company is not and, after giving effect to the offering and sale
of the Shares, will not be an "investment company" or an entity "controlled" by
an "investment company," as such terms are defined in the Investment Company Act
of 1940, as amended (the "Investment Company Act");
(u) the Company and its Subsidiaries own, or are licensed pursuant to
valid and enforceable licenses under, all material patents, patent applications,
trade secrets, know how, copyrights, service marks, service ▇▇▇▇ applications,
trademarks, trademark applications, and trade names ("Intellectual Property")
necessary to conduct their business as presently conducted and as it is proposed
to be conducted as described in the Registration Statement; to the Company's and
its Subsidiaries' knowledge, the Company and its Subsidiaries have conducted,
are presently conducting, their business, and will conduct their business as it
is proposed to be conducted as described in the Registration Statement, without
infringing any Intellectual Property right of others so as to result in a
Material Adverse Effect; to the Company's and its Subsidiaries' knowledge, no
claim of infringement has been made or is presently expected to be made by
others with respect to any Intellectual Property of others which, if
successfully asserted, would result in a Material Adverse Effect; to the
Company's and its Subsidiaries' knowledge there is no present infringement of
the Company's or its Subsidiaries' Intellectual Property and no future
infringement contemplated by others which would result in a Material Adverse
Effect;
(v) the Company and its Subsidiaries are, and the products manufactured by
the Company and its Subsidiaries are, in compliance in all material respects
with all applicable statutes, rules, regulations and guidance documents
administered or issued by the U.S. Food and Drug Administration ("FDA"); the
Company and its Subsidiaries have no reason to believe that the FDA is
considering limiting, suspending or revoking the approval of any premarket
approval application (PMA) or clearance of any premarket notification (510(k)),
or initiating any regulatory action against the Company, its Subsidiaries or any
of their products, or taking any other action that would have a material adverse
effect on the ability of the Company and its Subsidiaries or Novartis (as
defined below) to continue to sell or market any such products as they are
currently sold or marketed; all pre-clinical studies have been conducted
according to current good laboratory practices and all clinical studies have
been conducted according to current good clinical practices in all material
respects; the Company and its Subsidiaries or Novartis have obtained all
necessary regulatory approvals from foreign regulatory agencies in those foreign
countries in which the Company or its Subsidiaries' products are marketed; the
Company and its Subsidiaries have no reason to believe that the FDA or any
foreign regulatory agency will not grant such approvals or clearances as may be
necessary to conduct their business as it is contemplated to be conducted as
described in the Registration Statement;
(w) (i) the Company is not in violation of any applicable federal, state
and local law, ordinance, rule or regulation that regulates, fixes liability
for, or otherwise relates to, the handling, use (including use in industrial
processes, in construction, as building materials, or otherwise), treatment,
storage and disposal of Hazardous Materials (as hereinafter defined), and to the
discharge, leakage, presence, migration, actual Release (as hereinafter defined)
or threatened Release (whether by disposal, a discharge into any water source or
system or into the air, or otherwise) of any pollutant or effluent (an
"Environmental Law") except where such violation has not had and would not have
a Material Adverse Effect and, to its knowledge, no material expenditures are or
will be required in order to comply with any Environmental Law;
(ii) the Company has not used, generated, manufactured, refined, treated,
transported, stored, handled, disposed, transferred, produced, processed or
released (hereinafter together defined as "Release") any Hazardous
Materials (as hereinafter defined) on, from or affecting any Property (as
hereinafter defined) in any manner or by any means in violation of any
Environmental Laws and to the best of the Company's knowledge, there is no
threat of such Release; as used herein, the term "Property" shall include,
without limitation, land, buildings and laboratory facilities owned or
leased by the Company or as to which the Company now has any duties,
responsibilities (for cleanup, remedy or otherwise) or liabilities under
any Environmental Law, or as to which the Company or any Subsidiary may
have such duties, responsibilities or liabilities because of past acts or
omissions of the Company or any such Subsidiary or their predecessors, or
because the Company or any such Subsidiary or their predecessors in the
past was such an owner or operator of, or bore some other relationship
with, such land, buildings or laboratory facilities; the term "Hazardous
Materials" shall include, without limitation, any flammable explosives,
petroleum products, petroleum by-products, radioactive materials, hazardous
wastes, medical waste, hazardous substances, toxic substances or related
materials as defined by Environmental Laws; the Company has obtained and is
in compliance with all permits required under Environmental Law
("Environmental Permits") and all such Environmental Permits are in good
standing, except where the failure to obtain or be in compliance with any
such Environmental Permit or to maintain such Environmental Permit in good
standing, individually or in the aggregate with all other such failures,
has not had and would not have a Material Adverse Effect;
(iii) the Company has not received written notice that the Company is a
party potentially responsible for costs incurred at a cleanup site or
corrective action under any Environmental Laws; the Company has not
received any written requests for information in connection with any
inquiry by any Governmental Authority (as hereinafter defined) concerning
disposal sites or other environmental matters; as used herein,
"Governmental Authority" shall mean any nation or government, any federal,
state, municipal, local, provincial, regional or other political
subdivision thereof, and any entity or person exercising executive,
legislative, judicial regulatory or administrative functions of or
pertaining to government; and
(x) the (i) License and Supply Agreement, dated as of January 17, 1996, as
amended and supplemented to date, including without limitation the Amendment to
the License and Supply Agreement, dated January 22/February 4, 1998, Addendum to
the License and SupplyAgreement, dated March 23, 1998, Addendum II to the
License and Supply Agreement, dated September 4, 1998, Addendum, dated March 15,
2000, to the License and Supply Agreement and Amendment V to the License and
Supply Agreement, dated as of January 2, 2001, between the Company and Novartis
Pharma AG (formerly Sandoz Pharma Ltd.) ("Novartis") and (ii) the Securities
Purchase Agreement, dated as of February 23, 2001, between the Company and
Novartis each constitutes a valid and binding obligation of each of the Company
and, to the Company's knowledge, Novartis and each is in full force and effect
as of the date hereof; neither the Company nor, to the Company's knowledge,
Novartis is in material default in the performance of its obligations
thereunder.
3. Certain Covenants of the Company. The Company hereby agrees:
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(a) (i) to make no amendment or supplement to the Registration Statement
or the Prospectus which shall have been disapproved by the Underwriter by notice
in writing to the Company after notice thereof and reasonable opportunity to
review and comment thereon;
(ii) to prepare, with respect to any shares sold by the Company to the
Underwriter pursuant to this Agreement, a pricing supplement with respect
to such Shares in a form previously approved by the Underwriter and to file
such pricing supplement pursuant to Rule 424(b) under the Act not later
than the close of business of the Commission on the second business day
after the date on which such pricing supplement is first used;
(iii) to timely file all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the offering or
sale of the Shares, and during such same period to advise the Underwriter,
promptly after the Company receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or has become
effective or any supplement to the Prospectus or any amended Prospectus has
been filed with the Commission, or the issuance by the Commission of any
stop order or of any order preventing or suspending the use of any
prospectus relating to the Shares, or 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 amendment or supplementation of the Registration
Statement or Prospectus or for additional information; and
(iv) in the event of the issuance of any such stop order or of any such
order preventing or suspending the use of any such prospectus or suspending
any such qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) to furnish such information as may be required and otherwise to
cooperate in qualifying the Shares for offering and sale under the securities or
blue sky laws of such states as you may designate and to maintain such
qualifications in effect so long as required for the distribution of the Shares;
provided that the Company shall not be required to qualify as a foreign
corporation or to consent to the service of process under the laws of any such
state (except service of process with respect to the offering and sale of the
Shares); and to promptly advise you of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Shares
for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose;
(c) to make available to the Underwriter in Stamford, Connecticut, as soon
as practicable after the Registration Statement becomes effective, and
thereafter from time to time to furnish to the Underwriter, as many copies of
the Prospectus (or of the Prospectus as amended or supplemented if the Company
shall have made any amendments or supplements thereto after the effective date
of the Registration Statement) as the Underwriter may request for the purposes
contemplated by the Act; and for so long as this agreement is in effect, the
Company will prepare and file promptly, subject to Section 3(a) hereof, such
amendment or amendments to the Registration Statement and the Prospectus as may
be necessary to comply with the requirements of Section 10(a)(3) of the Act;
(d) to furnish to you for a period of five years from the date of this
Agreement (i) copies of any reports or other communications which the Company
shall send to its stockholders or shall from time to time publish or publicly
disseminate, (ii) copies of all annual, quarterly and current reports filed with
the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form as may be
designated by the Commission, (iii) copies of documents or reports filed with
any national securities exchange on which any class of securities of the Company
is listed, and (iv) such other information as you may reasonably request
regarding the Company or the Subsidiaries, including without limitation,
information to enable you to update from time to time, as you deem necessary or
appropriate, your due diligence investigation of the Company and its
Subsidiaries, in each case as soon as such reports, communications, documents or
information becomes available;
(e) to advise the Underwriter promptly of the happening of any event known
to the Company within the time during which a Prospectus relating to the Shares
is required to be delivered under the Act which would require the making of any
change in the Prospectus then being used, or in the information incorporated
therein by reference, so that the Prospectus would not include an untrue
statement of material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they are
made, not misleading, and, during such time, to prepare and furnish, at the
Company's expense, to the Underwriter promptly such amendments or supplements to
such Prospectus as may be necessary to reflect any such change and to furnish
you a copy of such proposed amendment or supplement before filing any such
amendment or supplement with the Commission;
(f) to timely file such reports pursuant to the Exchange Act as are
necessary in order to make generally available to its security holders as soon
as practicable earnings statements of the Company satisfying the provisions of
Section 11(a) of the Act;
(g) to furnish to you two signed copies of the Registration Statement, as
initially filed with the Commission, and of all amendments thereto, including
all exhibits thereto and all documents incorporated by reference therein;
(h) to apply the net proceeds from the sale of the Shares in the manner set
forth under the caption "Use of Proceeds" in the Prospectus;
(i) to pay all costs, expenses, fees and taxes in connection with (i) the
preparation and filing of the Registration Statement, each Preliminary
Prospectus, the Prospectus, and any amendments or supplements thereto, and the
printing and furnishing of copies of each thereof to the Underwriter and to
dealers (including costs of mailing and shipment), (ii) the registration, issue,
sale and delivery of the Shares, (iii) the producing, word processing and/or
printing of this Agreement, any powers of Attorney and any closing documents
(including compilations thereof) and the reproduction and/or printing and
furnishing of copies of each thereof to the Underwriter (including costs of
mailing and shipment), (iv) the qualification of the Shares for offering and
sale under state laws and the determination of their eligibility for investment
under state law as aforesaid (including the legal fees and filing fees and other
disbursements of counsel for the Underwriter) and the printing and furnishing of
copies of any blue sky surveys or legal investment surveys to the Underwriter,
(v) the listing of the Shares on the Exchange and any registration thereof under
the Exchange Act, (vi) any filing for review of the public offering of the
Shares by the NASD, including the fees and disbursements of counsel to the
Underwriter in connection therewith, (vii) the fees and disbursements of counsel
for the Underwriter in connection with the registration and offering of the
Shares and the other matters contemplated by this Agreement; and (viii) the
performance of the Company's other obligations hereunder; provided that the
Underwriter shall be responsible for any transfer taxes on resale of Shares by
it;
(j) to furnish to you, before filing with the Commission subsequent to the
effective date of the Registration Statement and during the period referred to
in paragraph (c) above, a copy of any document proposed to be filed pursuant to
Section 13, 14 or 15(d) of the Exchange Act;
(k) not to sell, offer or agree to sell, contract to sell, grant any option
to sell or otherwise dispose of, directly or indirectly, any shares of Common
Stock or securities convertible into or exchangeable or exercisable for Common
Stock or warrants or other rights to purchase Common Stock or any other
securities of the Company that are substantially similar to Common Stock or
permit the registration under the Act of any shares of Common Stock, except for
the registration of the Shares and the sales to the Underwriter pursuant to this
Agreement and except for grants of options under Company stock option or similar
plans and issuances of Common Stock upon the exercise of outstanding options,
warrants and debentures, for a period of 10 days after any Purchase Date,
without your prior written consent;
(l) to use its best efforts to cause the Shares to be listed on the
Exchange; and
(m) to use its best efforts to satisfy, or cause to be satisfied, the
conditions set forth in Section 6 on or in respect of each Closing Date
hereunder.
4. Execution of Agreement. In connection with, and on the intended
-----------------------
date of, the execution of this Agreement the following events shall have
occurred:
(a) the Company shall have delivered to the Underwriter:
(i) an officer's certificate signed by two of its executive officers
certifying as to the matters set forth in Exhibit A hereto;
(ii) an opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.,
counsel for the Company, addressed to the Underwriter and dated such date,
in the form of Exhibit B1 hereto, and opinions of ▇▇▇▇ and ▇▇▇▇ LLP and
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, intellectual property counsel for the Company, each
addressed to the Underwriter and dated such date, in the form of Exhibits
B2 and B3 hereto, respectively, with only such departures from such form as
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, shall
have approved;
(iii) a letter of PricewaterhouseCoopers LLP dated such date and addressed
to the Underwriter, in the form heretofore approved by ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriter;
(iv) evidence reasonably satisfactory to the Underwriter and its counsel
that the Registration Statement, and Post-Effective Amendment No. 2
thereto, has become effective;
(v) evidence reasonably satisfactory to the Underwriter and its counsel
that the Shares have been approved for listing on the Exchange, subject
only to notice of issuance at or before the time of purchase on the
relevant Purchase Date; and
(vi) such other documents as the Underwriter shall reasonably request;
(b) The Underwriter shall have received the favorable opinion of ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Underwriter, as to the matters set
forth in Exhibit C hereto.
5. Additional Covenants of the Company.
-----------------------------------
The Company further covenants and agrees with the Underwriter as follows:
(a) Each delivery of a Purchase Notice by the Company to the Underwriter
shall be deemed to be an affirmation that the representations and warranties of
the Company herein contained and contained in any certificate delivered to the
Underwriter pursuant hereto are true and correct at the time of such delivery,
and an undertaking that such representations and warranties will be true and
correct at the time of the consummation of the purchase by the Underwriter, and
at the time of delivery to the Underwriter of Shares pursuant to the Purchase
Notice, as though made at and as of each such time (it being understood that
such representations and warranties shall relate to the Registration Statement
and Prospectus as amended and supplemented to the time of such Purchase Notice).
(b) Each time that the Registration Statement or the Prospectus shall be
amended or supplemented (including by the filing of any document incorporated by
reference therein, but excluding any prospectus supplement relating solely to
the offering of Shares pursuant to a Purchase Notice), the Company shall furnish
or cause to be furnished to the Underwriter forthwith a certificate, dated the
date of filing with the Commission or the date of effectiveness of such
amendment or supplement, as applicable, in form satisfactory to the Underwriter,
to the effect that the statements contained in the certificate referred to in
Section 4(a)(i) hereof are true and correct at the time of the filing or
effectiveness of such amendment or supplement, as applicable, as though made at
and as of such time (except that such statements shall be deemed to relate to
the Registration Statement and the Prospectus as amended and supplemented to
such time) or, in lieu of such certificate, a certificate of the same tenor as
the certificate referred to Section 4(a)(i) hereof, modified as necessary to
relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such certificate. Any such certificate
shall also include a certification that there has been no material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise since the date of the last such certificate previously delivered
to the Underwriter.
(c) Each time that the Registration Statement or the Prospectus shall be
amended or supplemented (including by the filing of any document incorporated by
reference therein, but excluding any prospectus supplement relating solely to
the offering of Shares pursuant to a Purchase Notice), the Company shall furnish
or cause to be furnished forthwith to the Underwriter and to counsel for the
Underwriter the written opinions of Mintz, Levin, Cohn, Ferris, Glovsky & Popeo
PC, ▇▇▇▇ and ▇▇▇▇ LLP, and ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, or other counsel satisfactory to
the Underwriter, dated the date of filing with the Commission or the date of
effectiveness of such amendment or supplement, as applicable, in form and
substance satisfactory to the Underwriter, of the same tenor as the respective
opinions of such counsel referred to in Section 4(a)(ii) hereof, but modified as
necessary to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such opinion or, in lieu of such
opinion, counsel last furnishing such opinion to the Underwriter shall furnish
the Underwriter with a letter substantially to the effect that the Underwriter
may rely on such last opinion to the same extent as though it was dated the date
of such letter authorizing reliance (except that statements in such last opinion
shall be deemed to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such letter authorizing
reliance).
(d) On or prior to May 11, 2001, the Company shall cause
PricewaterhouseCoopers LLP to furnish to the Underwriter a letter, dated the
date of delivery thereof, in the form heretofore approved by ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP. Each time that the Registration Statement or the
Prospectus shall be amended or supplemented to include additional financial
information (including by the filing of any document incorporated by reference
therein), the Company shall cause PricewaterhouseCoopers LLP forthwith to
furnish to the Underwriter a letter, dated the date of filing with the
Commission or the date of effectiveness of such amendment or supplement, as
applicable, of the same tenor as the letter referred to in Section 4(a)(iii)
hereof, but modified to relate to the Registration Statement and Prospectus as
amended and supplemented to the date of such letter. Without limiting the
generality of the foregoing, in the event that any such amendment or supplement
(including any document incorporated by reference) contains unaudited quarterly
financial statements, such letter shall address such unaudited financial
statements in the manner heretofore approved by ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
LLP.
6. Conditions of Underwriter's Obligation to Purchase Shares. The
---------------------------------------------------------
Company's right to deliver a Purchase Notice and the Underwriter's obligation to
consummate a purchase of Shares pursuant to a Purchase Notice shall be subject
to the satisfaction of the following conditions at the time of delivery of the
Purchase Notice, the time of the commencement of trading on the Exchange on the
Purchase Date and at the time of closing on the Closing Date:
(a) the representations and warranties on the part of the Company herein
contained or contained in any certificate of an officer or officers of the
Company delivered pursuant to the provisions hereof shall be true and correct;
(b) the Company shall have performed and observed its covenants and other
obligations hereunder;
(c) from the date of delivery of the Purchase Notice until the Closing
Date, trading in the Common Stock on the Exchange shall not have been suspended;
and
(d) the Shares to be issued pursuant to the Purchase Notice shall have
been approved for listing on the Exchange, subject only to notice of issuance.
7. Termination by Underwriter. (a) The Underwriter may terminate this
--------------------------
Agreement in its absolute discretion if, (i) since the time of execution of this
Agreement or if later, the respective dates as of which information is given in
the Registration Statement, there has been any material adverse change,
financial or otherwise, in the operations, business, condition or prospects of
the Company and the Subsidiaries taken as a whole, which would, in the
Underwriter's judgment, make it impracticable or inadvisable to market the
Shares, or (ii) there shall have occurred any downgrading, or any notice shall
have been given of (x) any intended or potential downgrading or (y) any review
or possible change that does not indicate an improvement, in the rating accorded
any securities of or guaranteed by the Company or any Subsidiary by any
"nationally recognized statistical rating organization," as that term is defined
in Rule 436(g)(2) under the Act, or (iii) at any time (x) trading in securities
on the New York Stock Exchange, the American Stock Exchange or the Nasdaq
National Market shall have been suspended or limitations or minimum prices shall
have been established on any such exchange or market, (y) a banking moratorium
shall have been declared either by the United States or New York State
authorities, or (z) there shall have been a declaration of national emergency or
war by or involving the United States or there shall have occurred any material
outbreak or escalation of hostilities or other national or international
calamity or crisis of such magnitude in its effect on the financial markets of
the United States as, in the Underwriter's judgment, to make it impracticable or
inadvisable to market the Shares in the manner contemplated by this Agreement,
or (iv) the Common Stock shall have ceased to be registered under the Exchange
Act or listed on the Exchange, or the Commission, the Exchange or the Company
shall have initiated proceedings for such deregistration or delisting, or (v) at
or prior to any Closing Date, the Company shall have failed, refused or been
unable to perform any agreement on its part to be performed hereunder, or any
other condition of the Underwriter's obligations hereunder in respect of such
Closing Date is not fulfilled. If the Underwriter elects to terminate this
Agreement pursuant to this Section 7(a), the Underwriter shall notify the
Company promptly of such termination. Such termination shall be effective upon
the Company's receipt of such notice.
(b) In addition to the Underwriter's right to terminate this Agreement
pursuant to Section 7(a), the Underwriter may terminate this Agreement, in its
absolute discretion, for any reason, by notifying the Company of such
termination during the ten-day period commencing on the first Exchange Business
Day following October --, 2001, April __, 2002 and October __, 2002,
respectively. Termination pursuant to this Section 7(b) shall be effective upon
the Company's receipt of such notice.
(c) If a Purchase Notice is pending at the time of termination pursuant to
Section 7(a) or (b) hereof, the Underwriter may declare such Purchase Notice
void or may require the Company to complete the sale of Shares as specified in
the Purchase Notice, in the Underwriter's sole discretion.
(d) If a sale of the Shares to the Underwriter, as contemplated by this
Agreement, is not consummated by the Underwriter for any reason permitted under
this Agreement or if such sale is not consummated because the Company is unable
to comply with any of the terms of this Agreement, the Company shall reimburse
the Underwriter for all out-of-pocket expenses, including the fees and
disbursements of its counsel, in connection with this Agreement and the
transactions contemplated hereby, but the Company shall not be under any other
obligation or liability under this Agreement (except to the extent provided in
Sections 3(i) and 9 hereof), and the Underwriter shall be under no obligation or
liability to the Company under this Agreement (except to the extent provided in
Section 9 hereof).
8. Termination by Company. Subject to Sections 6 and 7, if the
----------------------
Underwriter defaults in its obligation to consummate a purchase of Shares to be
purchased by it hereunder (otherwise than for a reason sufficient to justify the
termination of this Agreement under the provisions of Section 7(a) hereof) and
does not cure such default within five Exchange Business Days, the Company may
terminate this Agreement by notice to the Underwriter. In addition to the
Company's right to terminate this Agreement pursuant to the immediately
preceding sentence, the Company may terminate this Agreement, in its absolute
discretion, for any reason, by notifying you of such termination during the ten-
day period commencing on the first Exchange Business Day following October __,
2001, April __, 2002 and October __, 2002, respectively. Termination pursuant to
this Section 8 shall be effective upon your receipt of such notice.
9. Indemnity and Contribution.
---------------------------
(a) The Company agrees to indemnify, defend and hold harmless the
Underwriter, its directors and officers and any person who controls the
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, and the successors and assigns of all of the foregoing persons
from and against any loss, damage, expense, liability or claim (including the
reasonable cost of investigation) which, jointly or severally, the Underwriter
or any such person may incur under the Act, the Exchange Act, the common law or
otherwise, insofar as such loss, damage, expense, liability or claim arises out
of or is based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or in the Registration
Statement as amended by any post effective amendment thereof by the Company) or
in a Prospectus (the term "Prospectus" for the purpose of this Section 9 being
deemed to include any preliminary prospectus, the Prospectus and the Prospectus
as it may be amended or supplemented by the Company), or arises out of or is
based upon any omission or alleged omission to state a material fact required to
be stated in either such Registration Statement or Prospectus or necessary to
make the statements made therein not misleading, except insofar as any such
loss, damage, expense, liability or claim arises out of or is based upon any
untrue statement or alleged untrue statement of a material fact contained in and
in conformity with information furnished in writing by the Underwriter to the
Company expressly for use with reference to the Underwriter in such Registration
Statement or such Prospectus or arises out of or is based upon any omission or
alleged omission to state a material fact in connection with such information
required to be stated in such Registration Statement or such Prospectus or
necessary to make such information not misleading. The Company and the
Underwriter acknowledge and agree that the only information furnished in writing
by the Underwriter to the Company expressly for use with reference to the
Underwriter in the Registration Statement or the Prospectus is the information
contained in the first two sentences of the third paragraph under the caption
"Underwriting."
If any action, suit or proceeding (together, a "Proceeding") is brought
against the Underwriter or any such person in respect of which indemnity may be
sought against the Company pursuant to the foregoing paragraph, the Underwriter
or such person shall promptly notify the Company in writing of the institution
of such Proceeding and the Company shall assume the defense of such Proceeding,
including the employment of counsel reasonably satisfactory to such indemnified
party and payment of all fees and expenses; provided, however, that the omission
to so notify the Company shall not relieve the Company from any liability which
the Company may have to the Underwriter or any such person or otherwise. The
Underwriter or such person shall have the right to employ its or their own
counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such Underwriter or of such person unless the employment of such
counsel shall have been authorized in writing by the Company in connection with
the defense of such Proceeding or the Company shall not have, within a
reasonable period of time in light of the circumstances, employed counsel to
have charge of the defense of such Proceeding or such indemnified party or
parties shall have reasonably concluded that there may be defenses available to
it or them which are different from, additional to or in conflict with those
available to the Company, in which case the Company shall not have the right to
direct the defense of such Proceeding on behalf of the indemnified party or
parties, in any of which events such fees and expenses shall be borne by the
Company and paid as incurred, it being understood, however, that the Company
shall not be liable for the expenses of more than one separate counsel, in
addition to any local counsel, in any one Proceeding or series of related
Proceedings in the same jurisdiction representing the indemnified parties who
are parties to such Proceeding. The Company shall not be liable for any
settlement of any Proceeding effected without its written consent but if settled
with the written consent of the Company, the Company agrees to indemnify and
hold harmless the Underwriter and any such person from and against any loss or
liability by reason of such settlement. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second sentence of this paragraph, then the indemnifying
party agrees that it shall be liable for any settlement of any Proceeding
effected without its written consent if (i) such settlement is entered into more
than 60 Exchange Business Days after receipt by such indemnifying party of the
aforesaid request, (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request before the date of such
settlement and (iii) such indemnified party shall have given the indemnifying
party at least 30 days' prior notice of its intention to settle. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened Proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such Proceeding and does not include an admission
of fault, culpability or a failure to act, by or on behalf of such indemnified
party.
(b) The Underwriter agrees to indemnify, defend and hold harmless the
Company, its directors and officers, and any person who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
and the successors and assigns of all of the foregoing persons from and against
any loss, damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, the Company or any such person may
incur under the Act, the Exchange Act, the common law or otherwise, insofar as
such loss, damage, expense, liability or claim arises out of or is based upon
any untrue statement or alleged untrue statement of a material fact contained in
and in conformity with information furnished in writing by the Underwriter to
the Company expressly for use with reference to the Underwriter in the
Registration Statement, as amended by any post effective amendment thereof by
the Company, or in a Prospectus, or arises out of or is based upon any omission
or alleged omission to state a material fact in connection with such information
required to be stated in such Registration Statement or such Prospectus or
necessary to make such information not misleading.
If any Proceeding is brought against the Company or any such person in
respect of which indemnity may be sought against the Underwriter pursuant to the
foregoing paragraph, the Company or such person shall promptly notify the
Underwriter in writing of the institution of such Proceeding and the Underwriter
shall assume the defense of such Proceeding, including the employment of counsel
reasonably satisfactory to such indemnified party and payment of all fees and
expenses; provided, however, that the omission to so notify the Underwriter
shall not relieve the Underwriter from any liability which the Underwriter may
have to the Company or any such person or otherwise. The Company or such person
shall have the right to employ its own counsel in any such case, but the fees
and expenses of such counsel shall be at the expense of the Company or such
person unless the employment of such counsel shall have been authorized in
writing by the Underwriter in connection with the defense of such Proceeding or
the Underwriter shall not have, within a reasonable period of time in light of
the circumstances, employed counsel to have charge of the defense of such
Proceeding or such indemnified party or parties shall have reasonably concluded
that there may be defenses available to it or them which are different from or
additional to or in conflict with those available to such Underwriter (in which
case the Underwriter shall not have the right to direct the defense of such
Proceeding on behalf of the indemnified party or parties, but the Underwriter
may employ counsel and participate in the defense thereof but the fees and
expenses of such counsel shall be at the expense of the Underwriter), in any of
which events such fees and expenses shall be borne by the Underwriter and paid
as incurred (it being understood, however, that the Underwriter shall not be
liable for the expenses of more than one separate counsel (in addition to any
local counsel) in any one Proceeding or series of related Proceedings in the
same jurisdiction representing the indemnified parties who are parties to such
Proceeding). The Underwriter shall not be liable for any settlement of any such
Proceeding effected without the written consent of the Underwriter but if
settled with the written consent of the Underwriter, the Underwriter agrees to
indemnify and hold harmless the Company and any such person from and against any
loss or liability by reason of such settlement. Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by the second sentence of this paragraph, then the
indemnifying party agrees that it shall be liable for any settlement of any
Proceeding effected without its written consent if (i) such settlement is
entered into more than 60 Exchange Business Days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
not have reimbursed the indemnified party in accordance with such request before
the date of such settlement and (iii) such indemnified party shall have given
the indemnifying party at least 30 days' prior notice of its intention to
settle. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened Proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such Proceeding.
(c) If the indemnification provided for in this Section 9 is unavailable
to an indemnified party under subsections (a) and (b) of this Section 9 in
respect of any losses, damages, expenses, liabilities or claims referred to
therein, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, damages, expenses, liabilities or
claims (i) in such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriter on the other hand
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 of the Underwriter on
the other in connection with the statements or omissions which resulted in such
losses, damages, expenses, liabilities or claims, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and the Underwriter on the other shall be deemed to be in the same
respective proportions as the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received
by the Company and the total underwriting discounts and commissions received by
the Underwriter, bear to the aggregate public offering price of the Shares. The
relative fault of the Company on the one hand and of the Underwriter on the
other shall be determined by reference to, among other things, whether the
untrue statement or alleged untrue statement of a material fact or omission or
alleged omission relates to information supplied by the Company or by the
Underwriter and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The amount
paid or payable by a party as a result of the losses, damages, expenses,
liabilities and claims referred to in this subsection shall be deemed to include
any legal or other fees or expenses reasonably incurred by such party in
connection with investigating, preparing to defend or defending any Proceeding.
(d) The Company and the Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro rata
allocation or by any other method of allocation that does not take account of
the equitable considerations referred to in subsection (c) above.
Notwithstanding the provisions of this Section 9, the Underwriter shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by such Underwriter and distributed to
the public were offered to the public exceeds the amount of any damage which the
Underwriter has otherwise been required to pay by reason of such untrue
statement or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this Section 9 and
the covenants, warranties and representations of the Company contained in this
Agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of the Underwriter, its directors or officers or any person
(including each officer or director of such person) who controls the Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
or by or on behalf of the Company, its directors or officers or any person who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, and shall survive any termination of this Agreement or the
issuance and delivery of the Shares. The Company and the Underwriter agree
promptly to notify each other of the commencement of any Proceeding against it
and, in the case of the Company, against any of the Company's officers or
directors in connection with the issuance and sale of the Shares, or in
connection with the Registration Statement or Prospectus.
10. Notices. All notices hereunder shall be in writing and delivered
-------
by hand, overnight courier, mail or facsimile, and if to the Underwriter, shall
be sufficient in all respects if delivered to UBS Warburg LLC, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇., ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, with separate copies to the attention of: Equity Risk
Management Department, Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇; Operations - Corporate
Action Department, Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇; Corporate Finance Department,
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇; and Legal Affairs (Equities Group), Facsimile No.
(▇▇▇) ▇▇▇-▇▇▇▇, and if to the Company, shall be sufficient in all respects if
delivered or sent to the Company at the offices of the Company at ▇▇▇ ▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇, Chief Financial Officer,
with a copy of Mintz ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇. Notwithstanding
the foregoing, Purchase Notices shall be delivered to the Underwriter by
facsimile to the attention of ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ at (▇▇▇) ▇▇▇-▇▇▇▇ and to the
attention of ▇▇▇▇ ▇▇▇ at (▇▇▇) ▇▇▇-▇▇▇▇ and receipt confirmed by telephone to
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ at (▇▇▇) ▇▇▇-▇▇▇▇ or to ▇▇▇▇ ▇▇▇ at (▇▇▇) ▇▇▇-▇▇▇▇, and notices
to the Company pursuant to Section 1(d) shall be delivered to the Company by
facsimile at (▇▇▇) ▇▇▇-▇▇▇▇ and receipt confirmed by telephone at (781) 401-
1002. A Purchase Notice received by the Underwriter after 4:30 p.m. on an
Exchange Business Day or on a day that is not an Exchange Business Day shall be
deemed to have been delivered on the next following Exchange Business Day.
11. Governing Law; Construction. This Agreement and any claim,
----------------------------
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement ("Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of New
York, other than rules governing choice of applicable law. The Section headings
in this Agreement have been inserted as a matter of convenience of reference and
are not a part of this Agreement.
12. Submission to Jurisdiction. Except as set forth below, no Claim
--------------------------
may be commenced, prosecuted or continued in any court other than the courts of
the State of New York located in the City and County of New York or in the
United States District Court for the Southern District of New York, which courts
shall have jurisdiction over the adjudication of such matters, and the Company
consents to the jurisdiction of such courts and personal service with respect
thereto. The Company hereby consents to personal jurisdiction, service and venue
in any court in which any Claim arising out of or in any way relating to this
Agreement is brought by any third party against UBS Warburg LLC or any
indemnified party. Each of UBS Warburg LLC and the Company, on its behalf and,
to the extent permitted by applicable law, on behalf of its stockholders and
affiliates, waives all right to trial by jury in any action, proceeding or
counterclaim, whether based upon contract, tort or otherwise, in any way arising
out of or relating to this Agreement. The Company agrees that a final judgment
in any such action, proceeding or counterclaim brought in any such court shall
be conclusive and binding upon the Company and may be enforced in any other
courts in the jurisdiction of which the Company is or may be subject, by suit
upon such judgment.
13. Parties in Interest. The Agreement herein set forth has been and
-------------------
is made solely for the benefit of the Underwriter and the Company and to the
extent provided in Section 10 hereof the controlling persons, directors and
officers referred to in such section, and their respective successors, assigns,
heirs, personal representatives and executors and administrators. No other
person, partnership, association or corporation (including a purchaser, as such
purchaser, from the Underwriter) shall acquire or have any right under or by
virtue of this Agreement.
14. Counterparts. This Agreement may be signed by the parties in one
------------
or more counterparts, which together shall constitute one and the same agreement
among the parties.
15. Successors and Assigns. This Agreement shall be binding upon the
Underwriter and the Company and their successors and assigns and any successor
or assign of any substantial portion of the Company's and the Underwriter's
respective businesses and/or assets.
16. Miscellaneous. UBS Warburg LLC, an indirect, wholly owned
--------------
subsidiary of UBS AG, is not a bank and is separate from any affiliated bank,
including any U.S. branch or agency of UBS AG. Because UBS Warburg LLC is a
separately incorporated entity, it is solely responsible for its own contractual
obligations and commitments, including obligations with respect to sales and
purchases of securities. Securities sold, offered or recommended by UBS Warburg
LLC are not deposits, are not insured by the Federal Deposit Insurance
Corporation, are not guaranteed by a branch or agency of UBS AG, and are not
otherwise an obligation or responsibility of a branch or agency of UBS AG.
A lending affiliate of UBS Warburg LLC may have lending relationships with
issuers of securities underwritten or privately placed by UBS Warburg LLC. To
the extent required under the securities laws, prospectuses and other disclosure
documents for securities underwritten or privately placed by UBS Warburg LLC
will disclose the existence of any such lending relationships and whether the
proceeds of the issue will be used to repay debts owed to affiliates of UBS
Warburg LLC.
UBS Warburg LLC and one or more of its affiliates may make markets in the
Common Stock or other securities of the Company, in connection with which they
may buy and sell, as agent or principal, for long or short account, shares of
Common Stock or other securities of the Company, at the same time that UBS
Warburg LLC is acting as Underwriter pursuant to this Agreement.
If the foregoing correctly sets forth the understanding among the Company
and the Underwriter, please so indicate in the space provided below for the
purpose, whereupon this letter and your acceptance shall constitute a binding
agreement between the Company and the Underwriter.
Very truly yours,
ORGANOGENESIS INC.
By:
-------------------
Name:
Title:
Accepted and agreed to as of the
date first above written:
UBS WARBURG LLC
By:
-----------------------------
Name:
Title:
By:
-----------------------------
Name:
Title:
Exhibit A
---------
Officers' Certificate
---------------------
1. The representations and warranties of the Company in the Underwriting
Agreement are true and correct as of the date hereof as though made on and as of
this date;
2. The Company has performed all obligations and satisfied all conditions
on its part to be performed or satisfied pursuant to the Underwriting Agreement
at or prior to the date hereof;
3. The Company's Registration Statement (File No. 333-93629) under the
Securities Act of 1933 is effective; no stop order suspending the effectiveness
of such Registration Statement has been issued and no proceeding for that
purpose has been initiated or threatened by the Securities and Exchange
Commission; and all requests for additional information on the part of the
Securities and Exchange Commission have been complied with; and
4. Subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, there has not been (i) any
material adverse change, or any development involving a prospective material
adverse change, in the business, properties or assets described or referred to
in the Registration Statement, or the results of operations, condition
(financial or otherwise), business or operations of the Company and the
Subsidiaries taken as a whole, (ii) any transaction which is material to the
Company or the Subsidiaries, except transactions in the ordinary course of
business, (iii) any obligation, direct or contingent, which is material to the
Company and the Subsidiaries taken as a whole, incurred by the Company or the
Subsidiaries, except obligations (including grants, and issuances of Common
Stock upon exercise of, stock options) incurred in the ordinary course of
business, (iv) any change in the capital stock or outstanding indebtedness of
the Company or the Subsidiaries or (v) any dividend or distribution of any kind
declared, paid or made on the capital stock of the Company; and neither the
Company nor the Subsidiaries has any material contingent obligation which is not
disclosed in the Registration Statement which is required to be disclosed under
the Securities Act of 1933.
Exhibit B1
----------
Form of Opinion of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo PC
-------------------------------------------------------------------
(i) The Company has been duly incorporated and is validly existing
as a corporation in corporate good standing under the laws of
the State of Delaware and has the corporate power and authority
to own, lease and operate its properties and conduct its
business as described in the Registration Statement, and to
enter into this Agreement, to issue, sell and deliver the Shares
and consummate the transactions contemplated in the Prospectus;
(ii) The capital stock of the Company, including the Shares, conforms
in all material respects to the description thereof contained in
the Registration Statement and Prospectus;
(iii) The Shares have been duly and validly authorized by the Company
for offer, sale, issuance and delivery pursuant to this
Agreement and, when issued and delivered against payment
therefor as provided in the Underwriting Agreement, will be duly
and validly issued and fully paid and non-assessable;
(iv) To such counsel's knowledge, the Company is duly qualified to do
business as a foreign corporation and in good standing in each
jurisdiction where the ownership or leasing of its properties or
the conduct of its business requires such qualification, except
where the failure to so qualify would not have a material
adverse effect on the business, properties, financial condition
or results of operation of the Company and the Subsidiaries (as
hereinafter defined) taken as a whole (a "Material Adverse
Effect");
(v) Each Subsidiary has been duly incorporated and is validly
existing as a corporation in corporate good standing under the
laws of its jurisdiction of its incorporation; and all of the
outstanding shares of capital stock of each of the Subsidiaries
have been duly authorized and validly issued, are fully paid and
non-assessable, and (except for directors' qualifying shares and
except as otherwise set forth in the Prospectus) are owned by
the Company subject to no security interest, other encumbrance
or adverse claim);
(vi) To such counsel's knowledge and other than as set forth in the
Prospectus, there are no actions, suits, claims, investigations
or proceedings pending or threatened to which the Company or any
of the Subsidiaries is a party or of which any of their
respective properties is subject at law or in equity, or before
or by any federal, state or local governmental or regulatory
commission, board, body, authority or agency, which could
prevent consummation of the transactions contemplated hereby or
which are required to be described in the Registration Statement
or the Prospectus but are not so described;
(vii) This Agreement has been duly authorized, executed and delivered
by the Company;
(viii) The execution, delivery and performance of this Agreement, the
issuance and sale of the Shares and the consummation of the
transactions contemplated hereby will not conflict with, or
result in any breach of or constitute a default under (nor
constitute any event which with notice, lapse of time, or both
would result in any breach of, or constitute a default under),
any provisions of the charter or by-laws of the Company or any
of the Subsidiaries or, to such counsel's knowledge, under any
provision of any license, indenture, mortgage, deed of trust,
bank loan or credit agreement or other evidence of
indebtedness, or any lease, contract or other agreement or
instrument to which the Company or any of the Subsidiaries is a
party or by which any of them or their respective properties may
be bound or affected and which have been filed by the Company
with the Commission under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and are listed in the exhibit
index to the Company's most recent Annual Report on Form 10-K or
are subsequently filed under the Exchange Act, or under any
decree, judgment or order known to such counsel to be applicable
to the Company or any of the Subsidiaries or under any federal,
state or local law, regulation or rule;
(ix) No approval, authorization, consent or order of or filing with
any national, state or local governmental or regulatory
commission, board, body, authority or agency is required in
connection with the issuance and sale of the Shares or the
consummation by the Company of the transactions as contemplated
hereby except such as may be required by the Act and the
applicable rules and regulations thereunder, the securities or
blue sky laws of the various jurisdictions in which the Shares
are being offered by the Underwriter (as to which such counsel
expresses no opinion) or under the rules and regulations of the
National Association of Securities Dealers, Inc. ("NASD") (as to
which such counsel expresses no opinion);
(x) The statements set forth in the Prospectus under the caption
"Description of Capital Stock--Common Stock; Shareholder Rights;
and Delaware Law and Our Charter and By-law Provisions; Anti-
Takeover Effects"; in the fourth sentence of the third paragraph
under the caption "The Company", under the caption "Risk
Factors--Our Ability to Commercialize Our Products Depends Upon
Our Compliance with Government Regulations; in the second
paragraph under "Risk Factors--We Must Be Able to Manufacture
Our Products Successfully," "Risk Factors--We Must Be Able to
Obtain Adequate Sources of Supply", "Risk Factors--Our Business
Is Subject to the Uncertainty of Third-Party Reimbursement and
Health Care Reform Measures Which May Limit Market Acceptance",
"Risk Factors--Our Anti-Takeover Measures May Affect the Value
of Our Stock" and Item 15 of the Registration Statement, insofar
as they purport to describe the provisions of the laws and
documents referred to therein, fairly summarize the matters
referred to therein in all material respects;
(xi) The Company is not and, after giving effect to the offering and
sale of the Shares, will not be required to register as an
"investment company" as such term is defined in the Investment
Company Act of 1940, as amended (the "Investment Company Act");
(xii) The documents incorporated by reference in the Prospectus or any
further amendment or supplement thereto made by the Company
prior to the date of delivery of such opinion (other than the
financial statements and related schedules therein, as to which
such counsel need express no opinion), when they became
effective or were filed with the Commission, as the case may be,
complied as to form in all material respects with the
requirements of the Act or the Exchange Act, as applicable, and
the rules and regulations of the Commission thereunder;
(xiii) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to
the date of delivery of such opinion (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 Act and the rules
and regulations of the Commission thereunder;
Such counsel shall also state that, although they do not assume
any responsibility for the accuracy, completeness or fairness of
the statements contained in the Registration Statement or the
Prospectus, except for those referred to in the opinion in
paragraphs (ii) and (x) above, nothing has come to their
attention that has led them to believe (a) that, as of its
effective date, the Registration Statement or, as of its date,
any further amendment thereto made by the Company prior to the
date of delivery of such opinion (other than the financial
statements and related schedules therein, as to which such
counsel need
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 or (b) that, as of its date, the Prospectus and
documents incorporated by reference therein or any further
amendment or supplement to the Prospectus (and documents
incorporated by reference therein) made by the Company prior to
the time and date of delivery of such opinion (other than the
financial statements and related schedules therein, as to which
such counsel need express no belief) 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 or (c)
that, as of the date of delivery of such opinion, either the
Registration Statement or the Prospectus or any further
amendment or supplement thereto made by the Company prior to the
time and date of delivery of such opinion (other than the
financial statements and related schedules therein, as to which
such counsel need express no belief) contains an untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and
they do not know of any amendment to the Registration Statement
required to be filed or of any contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required to be incorporated by reference into the
Prospectus or required to be described in the Registration
Statement or the Prospectus which are not filed or incorporated
by reference or described as required.
Exhibit B2
----------
Form of Opinion of ▇▇▇▇ and ▇▇▇▇ LLP
1. Such counsel has limited representation of the Company with respect
to certain patents and patent applications described on Schedule A to this
Opinion ("Patents") for which such counsel's services have been retained by the
Company.
2. To such counsel's knowledge and based upon such counsel's inquiry of
the Company's representatives responsible for patent matters, the Patents for
which such counsel has been retained by the Company have either (i) been validly
assigned to the Company or (ii) all Company inventors on such Patents are under
an obligation to assign all of their rights in such Patents to the Company or
(iii) the Company has title to the Patents herein either through co-ownership of
the Patents with a third party or through agreement with a third party. Such
counsel knows of no claim of an unknown third party to any ownership interest
in, or to any lien with respect to, any of the Patents.
3. To such counsel's knowledge and based upon inquiry of the Company's
representatives responsible for patent matters, (i) there is no infringement or
other violation by third parties of any of the Patents; (ii) there is no
infringement or other violation by the Company of any patents of others; and
(iii) there is no pending or threatened action, suit, proceeding or claim by
governmental authorities or others challenging the rights of the Company in or
to, or challenging the scope of, any Patents, but without inquiring into the
dockets of any court, commission, administrative agency, or other government
body, and such counsel is unaware of any facts which would form a reasonable
basis for any such claim. None of the Patents has been abandoned, lapsed, or
been finally determined to be unpatentable, invalid, or unenforceable by any
court or administrative tribunal having jurisdiction over such matter.
4. To such counsel's knowledge and based upon inquiry of the Company's
representatives responsible for patent matters, the patent applications of the
Company presently on file disclose patentable subject matter, and no fact has
come to such counsel's attention of any inventorship challenges, any
interference which has been declared or provoked, or any other material fact
with respect to the patent applications of the Company presently on file that
would lead such counsel to conclude that such patent applications, when issued,
would not be valid and enforceable in accordance with applicable regulations.
5. Without limiting the foregoing, such counsel has not undertaken an
independent investigation into every area mentioned in paragraphs 3 to 4, above,
to determine the existence or absence of such facts, and no inference as to our
knowledge of the existence or absence of such fact, should be drawn from the
fact of such counsel's representation of the Company in its patent matters.
6. The statements in the Registration Statement and the Prospectus
under "Risk Factors--We Rely Heavily Upon Our Patents and Proprietary Technology
and Any Future Claims that Our Patents Are Invalid Or Infringe Rights of Third
Parties Could Seriously Harm Our Business", insofar as such statements
constitute summaries of legal matters, contracts, agreements, documents or
proceedings referred to therein, or refer to statements of law or legal
conclusions, are in all material respects accurate and complete statements or
summaries of the matters therein set forth and no facts have come to such
counsel's attention which cause such counsel to believe that such above
described portion of the Registration Statement, at the time Post Effective
Amendment No. 2 to the Registration Statement
become effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, or that, as of the date of delivery of such
opinion, either the above-described portion of the Registration Statement or the
Prospectus or any further amendment or supplement thereto made by the Company
prior to the time and date of delivery of such opinion, contains an untrue
statement of a material fact or omits to state a material fact necessary to make
the statements therein, in the light of the circumstances under which they were
made, not misleading.
B-3
FORM OF OPINION OF ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
1. This opinion is being furnished at the request of the Company pursuant to
Section 4(a)(ii) of the Underwriting Agreement. We act in a limited
capacity as patent counsel for the Company, and as such are familiar only
with those patent matters as to which we have been engaged by the Company.
2. We have conducted neither searches nor independent assessment to determine
whether third parties may be infringing patent rights of the Company. We
have conducted no independent investigation as to the existence of third
party documents affecting title of patents or patent applications listed in
Appendix A hereto.
3. In rendering this opinion, as to all matters of fact relevant to this
opinion, in the absence of actual knowledge to the contrary, we have
assumed the completeness and accuracy of, and are relying solely upon, the
representations and warranties of the Company set forth in the Underwriting
Agreement, and the statements set forth in certificates of (i) public
officials and (ii) officers of the Company, without making any independent
investigation or inquiry with respect to the completeness or accuracy of
such representations, warranties or statements, other than such review as
is specifically described herein.
4. Any reference herein to "our knowledge" or to matters "known to us" or "of
which we have knowledge," or any variation thereof, shall mean the
knowledge of attorneys in our firm who regularly perform services for the
Company without any independent investigation or inquiry, except for such
investigation as is specifically described herein and inquiry of officers
of the Company.
5. We have assumed the genuineness of all signatures and the authenticity of
all documents submitted to us as originals and the conformity to original
documents of all documents submitted to us as copies, whether certified or
not. We have also assumed that all natural persons who are signatories to
any documents are competent.
6. We are members only of the bar of the Commonwealth of Massachusetts and
therefore do not hold ourselves out as experts in, and express no opinion
as to, the laws of any other state or jurisdiction other than the
Commonwealth of Massachusetts and the United States. We have not verified
and are not passing upon and do not assume any responsibility for the
accuracy, completeness or fairness of the Registration Statement or the
Prospectus (as defined in the Underwriting Agreement).
7. All opinions herein contained with respect to the enforceability of
documents and instruments, including instruments of assignment of
inventions, patent applications and patents, are qualified to the extent
that: (a) the availability of equitable remedies, including without
limitation, specific enforcement and injunctive relief, is subject to the
discretion of the court before which any proceedings therefor may be
brought; and (b) the enforceability of such documents and instruments may
be limited by (i) applicable bankruptcy, reorganization, fraudulent
conveyance or transfer, arrangement, insolvency, moratorium or similar laws
affecting the enforcement of creditors' rights generally as at the time in
effect and (ii) general principles of equity and the discretion of a court
in granting equitable remedies (whether enforceability is considered in a
proceeding at law or in equity).
8. Subject to the foregoing, we are of the opinion that:
(i) To our knowledge, there are no pending legal or governmental
proceedings involving the Company's patent rights material to the
Company's business, other than customary Patent Office review of
pending applications for patent, and, to our knowledge, no such
proceedings are threatened or contemplated by government authorities
or others.
(ii) Except as described in the Prospectus, if at all, we know of no
pending or threatened action, suit, proceeding or claim by any third
party that the Company is infringing any patent which, if determined
adversely to the Company could result in any material adverse effect
on the Company ("Material Adverse Effect") and to the best of our
knowledge there is no infringement by the Company of any patents of
third parties which could result in a Material Adverse Effect.
(iii) We are familiar with the technology described in patents or patent
applications that we filed on behalf of the Company. A list of such
issued patents and pending applications is provided in Appendix A
hereto. To our knowledge, there are no facts which would lead us to
reasonably conclude that such patents and patent applications, when
issued, as described in Appendix A would not be valid and enforceable
in accordance with applicable regulations. We have no knowledge of
any facts which would preclude the Company from having clear title to
such patents and patent applications. Without limiting the foregoing,
as indicated on Appendix A some such patents are no longer being
handled by us on behalf of the Company and we have made no independent
investigation of the present status of such patents.
(iv) No on-going infringement by others of any of the Company's patents has
been brought to our attention.
(v) No facts have come to our attention which would cause us to reasonably
conclude that the statements in the Registration Statement relating to
patent matters under the caption "We Rely
Heavily Upon Our Patents and Proprietary Technology and Any Claim that
Our Patents Are Invalid or Infringe Rights of Third Parties Could
Seriously Harm Our Business," insofar as such statements constitute
summaries of law or of documents referred to therein, are not in all
material respects accurate and complete statements or summaries of the
matters therein set forth. No facts have come to our attention that
would cause us to reasonably conclude (a) that the statements in the
above-described portion of the Registration Statement, at the time
that Post-Effective Amendment No. 2 to the Registration Statement
became effective, result in the Registration Statement containing an
untrue statement of a material fact required to be stated therein or
omitting to state a material fact necessary to make the statements
therein not misleading, or (b) that, as of the date of delivery of
this opinion, the statements in either the above-described portion of
the Registration Statement or the Prospectus or any further amendment
or supplement to such above-described portion, result in the
Registration Statement or the Prospectus containing an untrue
statement of a material fact or omitting to state a material fact
necessary to make the statements therein not misleading. We can make
no assurance that all materials facts have been disclosed to us, or
that our knowledge of the Company is sufficient that we have
necessarily recognized the materiality of those facts disclosed to us,
and we have primarily relied upon statements of representatives of the
Company as to the materiality of the facts disclosed to us.
This opinion is solely for the information of the addressees and to assist
the underwriters in conducting and documenting their investigation of the
affairs of the Company in connection with the offering of the securities
covered by the Registration Statement, and it is not to be used,
circulated, quoted, or otherwise referred to within or without the
underwriting group for any purpose, including but not limited to the
registration, purchase or sale of securities, nor is it to be filed with or
referred to in whole or in part in the Registration Statement or any other
document, except that reference may be made to it in the Underwriting
Agreement or in any list of closing documents pertaining to the offering of
the securities covered by the Registration Statement.