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EXHIBIT 1.1
4,500,000 Shares of Common Stock
Women First HealthCare, Inc.
UNDERWRITING AGREEMENT
June [ ], 1999
▇▇▇▇▇ & Company Incorporated
▇▇▇▇▇▇▇ & Company, Inc.
as Representatives of the
several Underwriters named in
Schedule I attached hereto
c/o Allen & Company Incorporated
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Women First HealthCare, Inc., a corporation organized and existing
under the laws of Delaware (the "Company"), proposes, subject to the terms and
conditions stated herein, that the Company issue and sell to the underwriters
named in Schedule I hereto (the "Underwriters"), acting severally and not
jointly, an aggregate of 4,500,000 shares (the "Firm Shares") of its common
stock, par value $0.001 per share (the "Common Stock"), and, for the sole
purpose of covering over-allotments in connection with the sale of the Firm
Shares, at the option of the Underwriters, up to an additional 675,000 shares
(the "Additional Shares") of Common Stock. The Firm Shares and any Additional
Shares purchased by the Underwriters are referred to herein as the "Shares." The
Shares are more fully described in the Registration Statement referred to below.
1. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a
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registration statement, and may have filed an amendment or amendments thereto,
on Form S-1 (No. 333-74367), for the registration of the Shares under the
Securities Act of 1933, as amended (the "Act"). Such registration statement,
including the prospectus, financial statements and schedules, exhibits and all
other documents filed as a part thereof, as amended at the time of effectiveness
of the registration statement, including any information deemed to be a part
thereof as of the time of effectiveness pursuant to paragraph (b) of Rule 430A
or Rule 434 of the Rules and Regulations of the Commission under the Act (the
"Regulations"), is herein called the "Registration Statement." Any registration
statement filed pursuant to Rule 462(b) of the Regulations is herein called the
"462(b) Registration Statement," and after such filing the term "Registration
Statement" shall include the Rule 462(b) Registration Statement. The prospectus,
in the form first filed with the Commission pursuant to Rule 424(b) of the
Regulations or filed as part of the Registration Statement at the time of
effectiveness if no Rule 424(b) or Rule 434 filing is required, is herein called
the "Prospectus." The term "preliminary prospectus" as used herein means a
preliminary prospectus as described in Rule 430 of the Regulations. For purposes
of this Agreement, all references to the Registration Statement, any preliminary
prospectus, the Prospectus or any amendment, supplement or term sheet with
respect to any of the foregoing shall be deemed to include the copy such
documents filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("▇▇▇▇▇"). Neither the Commission nor the Blue Sky
or securities authority of any state or other jurisdiction has issued a stop
order suspending the effectiveness of the Registration Statement, preventing or
suspending the use of any preliminary prospectus, the Prospectus, the
Registration Statement or any amendment or supplement or term sheet thereto,
refusing to permit the effectiveness of the Registration Statement or suspending
the registration or qualification of the Shares, nor has any of such authorities
instituted or threatened to institute nor, to the Company's knowledge,
contemplated instituting, any proceedings with respect to a stop order.
(b) At the respective time of the effectiveness of the Registration
Statement or any
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462(b) Registration Statement or the effectiveness of any post-effective
amendment to the Registration Statement, when the Prospectus is first filed with
the Commission pursuant to Rule 424(b) or Rule 434 of the Regulations, when any
supplement to or amendment of the Prospectus is filed with the Commission and at
the Closing Date and the Additional Closing Date, if any (as hereinafter
respectively defined), the Registration Statement and the Prospectus and any
amendments thereof and supplements thereto complied or will comply in all
material respects with the applicable provisions of the Act and the Regulations
and do not or will not contain an untrue statement of a material fact and do not
or will not omit to state any material fact required to be stated therein or
necessary in order to make the statements therein (i) in the case of the
Registration Statement, not misleading and (ii) in the case of the Prospectus,
in light of the circumstances under which they were made, not misleading. When
any related preliminary prospectus was first filed with the Commission (whether
filed as part of the registration statement for the registration of the Shares
or any amendment thereto or pursuant to Rule 424(a) of the Regulations) and when
any amendment thereof or supplement thereto was first filed with the Commission,
such preliminary prospectus and any amendments thereof and supplements thereto
complied in all material respects with the applicable provisions of the Act and
the Regulations and did not contain an untrue statement of a material fact and
did not omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading. In addition, each preliminary
prospectus and the Prospectus delivered to the Underwriters for use in
connection with this offering was identical to the electronically transmitted
copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T. No representation and warranty is made in this
subsection (b), however, with respect to any information contained in or omitted
from the Registration Statement or the Prospectus or any related preliminary
prospectus or any amendment thereof or supplement thereto in reliance upon and
in conformity with information furnished in writing to the Company by or on
behalf of any Underwriter through you as herein stated expressly for use in
connection with the
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preparation thereof. If Rule 434 is used, the Company will comply with the
requirements of Rule 434 and the Prospectus shall not be "materially different,"
as such term is used in Rule 434, from the Prospectus included in the
Registration Statement at the time it became effective.
(c) Ernst & Young LLP, who have certified the financial statements
and supporting schedules included in the Registration Statement, are independent
public accountants as required by the Act and the Regulations.
(d) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as set forth in
the Registration Statement and the Prospectus, (A) there has been no material
adverse change or any development involving a prospective material adverse
change in the business, prospects, properties, operations, condition (financial
or other) or results of operations of the Company and its subsidiaries,
individually or in the aggregate, including but not limited to relationships
with customers and suppliers of the Company; (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than those in the
ordinary course of business, which are material with respect to the Company and
its subsidiaries individually or in the aggregate; (C) there has been no
dividend or distribution of any kind declared, paid or made by the Company on
any class of its capital stock; and (D) since the date of the latest balance
sheet presented in the Registration Statement and the Prospectus, neither the
Company nor any of its subsidiaries has incurred or undertaken any liabilities
or obligations, direct or contingent, which are material to the Company and its
subsidiaries, individually or in the aggregate, except for liabilities or
obligations which are reflected in the Registration Statement and the
Prospectus.
(e) This Agreement and the transactions contemplated herein have
been duly and validly authorized by all necessary corporate action, and this
Agreement has been duly and validly executed and delivered by the Company.
Assuming due authorization, execution and delivery by the Representatives, this
Agreement constitutes a valid and binding obligation of
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the Company, enforceable in accordance with its terms, except as enforceability
(i) may be limited by applicable bankruptcy, insolvency, reorganization,
arrangement, moratorium, fraudulent conveyance or other similar laws relating to
or affecting the rights of creditors generally, (ii) is subject to general
principles of equity and similar principles, including, without limitation,
concepts of materiality, reasonableness, unconscionability, good faith and fair
dealing, and the possible unavailability of specific performance, injunctive
relief or other equitable remedies, regardless of whether considered in a
proceeding in equity or at law.
(f) The execution, delivery, and performance of this Agreement and
the consummation of the transactions contemplated hereby do not and will not (i)
conflict with or result in a breach of any of the terms and provisions of, or
constitute a default (or an event which with notice or lapse of time, or both,
would constitute a default) under, or result in the creation or imposition of
any lien, charge or encumbrance upon any property or assets of the Company or
any of its subsidiaries pursuant to, any material debenture, note, contract,
indenture, mortgage, deed of trust, lease, joint venture or other material
agreement, instrument, franchise, license or permit to which the Company or any
of its subsidiaries is a party or by which any of their respective properties or
assets may be bound or (ii) violate or conflict with any provision of the
certificate of incorporation or by-laws of the Company, or any of its
subsidiaries, or any material judgment, writ, decree, order, law, statute, rule
or regulation of any court or any public, governmental or regulatory agency or
body having jurisdiction over the Company or any of its subsidiaries or any of
their respective properties, assets or operations. No consent, approval,
authorization, order, registration, filing, qualification, license or permit of
or with any court or any public, governmental or regulatory agency or body
having jurisdiction over the Company or any of its subsidiaries or any of their
respective properties or assets is necessary or required for the execution,
delivery and performance of this Agreement or the consummation of the
transactions contemplated hereby, including the issuance, sale and delivery of
the Shares to be issued, sold and delivered by the Company
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hereunder, except the registration under the Act of the Shares and such
consents, approvals, authorizations, orders, registrations, filings,
qualifications, licenses and permits as may be required under state securities
or Blue Sky laws or such as may be required by the National Association of
Securities Dealers in connection with the purchase and distribution of the
Shares by the Underwriters.
(g) All of the outstanding shares of capital stock of the Company
are duly and validly authorized and issued, fully paid and nonassessable, and
none of such shares was issued in violation of or is now subject to any
preemptive rights, co-sale rights, registration rights, rights of first refusal
or similar rights. All of the outstanding shares of capital stock and all other
outstanding securities of the Company have been issued in compliance in all
material respects with applicable Federal and state laws. The Shares have been
duly authorized for issuance and sale to the Underwriters pursuant to this
Agreement and, when issued, delivered and sold in accordance with this
Agreement, will be duly and validly issued and outstanding, fully paid and
nonassessable, free and clear of all liens, encumbrances or claims, will not
have been issued in violation of or be subject to any preemptive rights, co-sale
rights, registration rights, rights of first refusal or similar rights and no
holder of Shares will be subject to personal liability by reason of being such a
holder. The authorized, issued and outstanding capital stock of the Company as
of March 31, 1999 was as set forth in the Prospectus in the column entitled
"Actual" under the caption "Capitalization", and, after giving effect to the
offering will be as set forth in the column entitled "Pro Forma, As Adjusted"
and the number of authorized, issued and outstanding options and other rights is
set forth in the footnotes under such caption as of the date set forth therein.
Since that date, none of the Company or its subsidiaries have issued any
securities other than (i) Common Stock of the Company pursuant to the exercise
of previously granted and privately granted options pursuant to the Women First
HealthCare Long-Term Incentive Plan (the "Plan"), and (ii) options granted in
the ordinary course of business pursuant to the Plan, none of which are
currently exercisable. The authorized capital stock of the Company, including
the Common
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Stock, the Firm Shares and the Additional Shares, conforms to the descriptions
thereof contained in the Registration Statement and the Prospectus and such
descriptions conform to the rights set forth in the instruments defining the
same. Except as disclosed in the Registration Statement and the Prospectus,
there are no outstanding shares of capital stock, options, warrants or other
securities or other rights calling for the issuance of, and no commitments,
obligations, plans or arrangements to issue, any securities of the Company or
any of its subsidiaries. The outstanding stock options relating to the Common
Stock have been duly authorized and validly issued and each of the Plan and
stock options granted by the Company conform to the descriptions thereof
contained in the Registration Statement and the Prospectus.
(h) Each of the Company and each of its subsidiaries has been duly
organized and is validly existing as a corporation or limited liability company,
as the case may be, in good standing under the laws of its jurisdiction of
incorporation. Each of the Company and its subsidiaries is duly qualified and in
good standing as a foreign corporation in each jurisdiction in which the
character or location of its properties (owned, leased or licensed) or the
nature or conduct of its business makes such qualification necessary as set
forth on Exhibit 1(h) hereto (collectively, the "Material Jurisdictions"),
except for those failures to be so qualified or in good standing which could not
in the aggregate have a material adverse effect on the business, prospects,
results of operations or financial condition of the Company and its
subsidiaries, taken as a whole (a "Material Adverse Effect"). All of the
outstanding capital stock or membership interests, as the case may be, of each
of the Company's subsidiaries has been duly authorized and validly issued, is
fully paid and nonassessable and is owned by the Company free and clear of any
liens, mortgages, pledges, charges, security interests, claims, encumbrances or
other defects in title whatsoever and none of the outstanding shares of capital
stock or membership interests, as the case may be, of any of the Company's
subsidiaries was issued in violation of the preemptive rights, co-sale rights,
registration rights, rights of first refusal or similar rights of any security
holder of any such subsidiary or other party. Except as described in the
Prospectus, the Company has
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no agreements, commitments, or understandings with respect to acquiring or
selling the business, stock or material assets, except those assets acquired in
the ordinary course of business, of the Company, its subsidiaries or any other
person or entity. The only subsidiaries of the Company are the subsidiaries
listed on Exhibit 21.1 to the Registration Statement, and none of the Company or
its subsidiaries owns capital stock or any other interest in any other
corporation or entity other than such subsidiaries.
(i) Each of the Company and its subsidiaries has all requisite power
and authority, and all necessary consents, approvals, authorizations, orders,
registrations, qualifications, licenses and permits (collectively, "Governmental
Licenses") of and from all appropriate Federal, state, local or foreign public,
regulatory or governmental agencies and bodies, to own, lease and operate its
properties and conduct its business as now being conducted, or as proposed to be
conducted, and as described in the Registration Statement and the Prospectus,
except for such Government Licenses which if not held by the Company or one of
its subsidiaries would not have a Material Adverse Effect. Each such
Governmental License is valid and in full force and effect, the Company and its
subsidiaries are in material compliance with the terms and conditions of all
such Governmental Licenses, and no such Governmental License contains a
materially burdensome restriction not disclosed in the Registration Statement
and the Prospectus, and neither the Company nor any of its subsidiaries has
received any notice of proceedings relating to the revocation or modification of
any such Governmental Licenses, the revocation or modification of which would
have a Material Adverse Effect.
(j) Neither the Company nor any of its subsidiaries is in violation
of any provision of its charter or by-laws, as the case may be, or in breach of
any of the terms or provisions of or in default (or would be in default with
notice or lapse of time, or both) under any debenture, note, contract,
indenture, mortgage, deed of trust, lease, joint venture or other agreement,
instrument, franchise, license or permit to which the Company or any of its
subsidiaries is a party or by which any of their respective properties, assets
or operations may be bound, which default or defaults
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could have a Material Adverse Effect or in violation of any judgment, writ,
decree, order, law, statute, rule or regulation of any court or any public,
governmental or regulatory agency or body having jurisdiction over the Company
or any of its subsidiaries or any of their respective properties, assets or
operations, the violation of which could have, individually or in the aggregate,
a Material Adverse Effect.
(k) Each of the Company and each of its subsidiaries is in
compliance with the requirements of the Federal Food, Drug, and Cosmetic Act
(the "FDC Act") and have submitted to the Food and Drug Administration all
reports and listing information for products required to be submitted under the
FDC Act; all products that the Company or any of its subsidiaries market are the
subject of all approvals required under the FDC Act and are manufactured in
compliance with the applicable Good Manufacturing Practice regulations; all drug
samples that are provided by the Company or its subsidiaries are provided in
compliance with the FDC Act; and each of the Company and its subsidiaries have
promoted its products in compliance with the FDC Act, except, in each case,
where the failure to comply would not have a Material Adverse Effect. The
Company has promoted all products subject to the jurisdiction of the Federal
Trade Commission (the "FTC") in material compliance with the requirements of the
FTC. The Company's pharmacy subsidiary possesses all licenses required under
state laws and regulations, complies with all applicable state pharmacy
requirements, and complies with all requirements under the FDC Act applicable to
compounding pharmacies, except where the failure to comply would not have a
Material Adverse Effect.
(l) Except as set forth in the Prospectus, there is no litigation,
action, suit, proceeding, inquiry or governmental proceeding or investigation to
which the Company or any of its subsidiaries is a party or to which any property
of the Company or any of its subsidiaries is subject or which is pending or
threatened, or, to the best knowledge of the Company, contemplated against the
Company or any of its subsidiaries.
(m) Neither the Company nor any of its directors, officers or
affiliates (as defined in the
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Regulations) has taken or will take, directly or indirectly, any action designed
to cause or result in, or which constitutes or which might reasonably be
expected to constitute, the stabilization or manipulation of the price of the
shares of Common Stock in violation of Regulation M under the 1934 Act.
(n) The financial statements, including the notes thereto, and
supporting schedules included in the Registration Statement and the Prospectus
present fairly the consolidated financial position of the Company and its
subsidiaries and MenoMorphosis LLC as of the dates indicated and the results of
their operations, stockholders' equity and cash flows for the periods specified;
said financial statements have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a consistent basis through
the periods involved, except as may be expressly stated in the related notes
thereto; the supporting schedules included in the Registration Statement present
fairly the information required to be stated therein; and the selected
consolidated financial data, the summary consolidated financial information and
the capitalization information included in the Registration Statement and the
Prospectus present fairly in accordance with GAAP the information shown therein
and have been compiled on a basis consistent with that of the financial
statements included in the Registration Statement and the Prospectus. The pro
forma stockholders' equity and the pro forma data which reflect the combined
results of operations of the Company and MenoMorphosis LLC included in the
Registration Statement and the Prospectus present fairly, in all material
respects, the information shown therein, have been prepared in accordance with
the Commission's rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described therein, and
the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions and
circumstances referred to therein. No financial statements are required to be
included in the Registration Statement that have not been so included.
(o) All material Federal, state and local tax returns required to be
filed by the Company
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and its subsidiaries have been filed and all such returns are true, complete,
and correct in all material respects. All material taxes that are due or claimed
to be due from the Company and its subsidiaries have been paid other than those
(i) currently payable without penalty or interest or (ii) being contested in
good faith and by appropriate proceedings and for which adequate reserves have
been established in accordance with GAAP. Except as disclosed in the
Registration Statement and the Prospectus, there is no material tax deficiency
that has been, to the best knowledge of the Company proposed to be, asserted
against the Company or any of its subsidiaries.
(p) Each of the Company and its subsidiaries maintains insurance
with insurers of recognized financial responsibility of the types and in the
amounts generally deemed adequate for its respective business, including,
without limitation, insurance coverage for real and personal property owned or
leased by them against theft, damage, destruction, acts of vandalism; products
liability insurance; professional liability insurance for Women First Pharmacy
Services, Inc.'s pharmacy operations; and all other material risks customarily
insured against, all of which insurance is in full force and effect. Neither the
Company nor any of its subsidiaries has any reason to believe that it will not
be able to renew existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary to
continue its respective business. The officers and directors of the Company are
insured by insurers of recognized financial responsibility against such losses
and risks and in such amounts as are prudent and customary for officers and
directors liability insurance of a public company and as would cover claims
which could be made in connection with the issuance of the Shares; and the
Company has no reason to believe that it will not be able to renew its existing
directors and officers liability insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be necessary
to cover its officers and directors.
(q) Each of the Company and its subsid iaries has good and
marketable title to all personal property and assets owned by it, free and clear
of all
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mortgages, pledges, security interests, claims, restrictions, liens,
encumbrances and defects except as do not, individually or in the aggregate,
materially affect the value of such property and do not interfere in any
material respect with the use made or proposed to be made of such property by
the Company or its sub sidiaries, as the case may be. Any real property and
buildings held under lease by the Company or any of its subsidiaries are held
under valid, existing and enforce able leases in full force and effect with such
excep tions as are not material and do not interfere with the use made or
proposed to be made of such property and buildings by the Company or its
subsidiaries, as the case may be, and neither the Company nor any of its
subsidiaries has any notice of any claims of any sort that has been asserted by
anyone adverse to the rights of the Company or any subsidiary under any such
leases.
(r) Each of the Company and its subsid iaries owns or possesses
legal and valid rights to use all patents, inventions, copyrights, software,
databases, know-how, Internet domain names, trade ▇▇ ▇▇▇▇▇ and other unpatented
and/or unpatentable propri etary or confidential information, systems or proce
dures, trademarks, service marks, trade names, rights of publicity pertaining to
the name, likeness, voice, signatures, and/or biographical information of real
persons and other intellectual property (collectively, "Intellectual Property")
necessary to carry on the business as currently conducted, and as proposed to be
conducted and described in the Prospectus, free and clear of all liens, claims
and encumbrances (except for those that could not have a Material Adverse
Effect). Neither the Company nor any of its subsidiaries has received any notice
or is otherwise aware of (i) any claim, action or demand of any person in the
United States or elsewhere or any proceeding in the United States or elsewhere,
pending or threatened, that (A) challenges the ownership of the Company or any
of its subsidiaries in or its right to use any Intellectual Property or (B)
alleges that any product or service of the Company or any of its subsidiaries
infringes or mis appropriates the Intellectual Property rights of others or
constitutes unfair competition or (ii) any facts or circumstances that would
render any Intellectual Prop erty owned or used by the Company or any
Intellectual Property license agreement to which the Company or any
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of its subsidiaries is a party, invalid or inadequate to protect the interest of
the Company or any of its subsidiaries therein or thereunder, subject, with
respect to (i) or (ii), to such exceptions, individually or in the aggregate, as
could not have a Material Adverse Effect. The Company has taken all reasonable
steps to protect, maintain and safeguard its rights in all Intellectual Property
owned or used by the Company or its subsidiaries and to maintain the secrecy of
all such Intellectual Property as to which improper or unauthorized disclosure
would impair its value or validity, including the execution of appropriate
nondisclosure and confidentiality agreements.
(s) No relationship, direct or indirect, exists between or among the
Company or any of its affiliates, on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any of its subsidiaries,
on the other hand, that is required by the Act to be described in the
Registration Statement and the Prospectus that is not so described. Except as
disclosed in the Registration Statement and the Prospectus, there are no
outstanding loans, advances, or guarantees or indebtedness by the Company to or
for the benefit of any of the executive officers or directors of the Company or
any of the members of the families of any of them.
(t) The Shares have been duly approved for quotation and trading on
the Nasdaq National Market, subject to official notice of issuance.
(u) No holder of securities of the Company has any rights to the
registration of securities of the Company because of the filing of the
Registration Statement or otherwise in connection with the sale of the Shares
contemplated hereby.
(v) The Company is not an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act"), and after giving effect to the sale of the Shares and the
application of the net proceeds therefrom as described in the Prospectus will
not be an investment company subject to registration under the Investment
Company Act.
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(w) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent, and the
Company is not aware of any existing or imminent labor disturbance by the
employees of any of its or any subsidiary's principal suppliers, manufacturers,
customers or contractors that are likely, individually or in the aggregate, to
have a Material Adverse Effect.
(x) Each of the Company and each of its subsidiaries (i) is in
compliance with any and all applicable foreign, federal, state and local laws
and regulations relating to the protection of human health and safety, the
environment or hazardous or toxic substances or wastes, pollutants or
contaminants ("Environmental Laws"), (ii) has received all permits, licenses or
other approvals required of it under applicable Environmental Laws to conduct
its respective business and (iii) is in compliance with all terms and conditions
of any such permit, license or approval, except where such noncompliance with
environmental laws, failure to receive required permits, licenses or other
approvals, or failure to comply with the terms and conditions of such permits,
licenses or approvals will not in the aggregate have a Material Adverse Effect.
(y) There are no contracts or documents which are required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits thereto which have not been so described and filed as required. The
descriptions of contracts in the Registration Statement and the Prospectus are
accurate and complete in all material respects; all contracts described in the
Registration Statement and the Prospectus are valid, binding and enforceable and
are in full force and effect, and neither the Company nor any of its
subsidiaries or, to the Company's best knowledge, any other party is in material
breach of or default under any provisions of such contracts. Neither the Company
nor any of its subsidiaries has experienced a material adverse change in its
business relationships with its material suppliers, including without
limitation, Ortho-▇▇▇▇▇▇ Pharmaceutical, Inc., Bristol-▇▇▇▇▇▇-▇▇▇▇▇▇ U.S.
Pharmaceuticals Group, Price Ivena ApS, Cosmederm Technologies, Inc. and
BioFilm, Inc.
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(z) Each employee benefit plan, within the meaning of Section 3(3)
of the Employee Retirement Income Securities Act of 1974, as amended ("ERISA"),
that is maintained, administered or contributed to by the Company or any of its
subsidiaries for employees or former employees of the Company or any of its
subsidiaries has been maintained in compliance in all material respects with its
respective terms and the requirements of any applicable statutes, order, rules
and regulations, including but not limited to ERISA and the Internal Revenue
Code of 1986, as amended (the "Code"). No prohibited transaction, within the
meaning of Section 406 of ERISA or Section 4975 of the Code, has occurred with
respect to any such plan, excluding transactions effected pursuant to a
statutory or administrative exemption. For each such plan that is subject to the
funding rules of Section 412 of the Code or Section 302 of ERISA, (i) no
"accumulated funding deficiency", as defined in Section 412 of the Code, has
been incurred, whether or not waived, and (ii) the fair market value of the
assets of each such plan (excluding for these purposes accrued but unpaid
contributions) exceeded the present value of all benefits accrued under such
plan determined using reasonable actuarial assumptions. The description of the
Company's Plan and the options or other rights granted thereunder set forth in
the Registration Statement and the Prospectus accurately and fairly describe, in
all material respects, the information required to be shown with respect to such
Plan, options and rights.
(aa) The Company and each of its subsidiaries maintain a system of
internal accounting controls that are sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain asset accountability; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences.
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(ab) The statistical and market-related data included in the
Registration Statement and the Prospectus are derived from sources which the
Company reasonably and in good faith believes as of the date hereof to be
accurate, reasonable and reliable and such data agrees with the sources from
which they were derived.
(ac) Neither the Company nor its subsidiaries has at any time during
the last five (5) years in any jurisdiction (i) made any unlawful contribution
to any candidate for office, or failed to disclose fully any contribution in
violation of law, or (ii) made any payment to any governmental officer or
official, or other person charged with similar public or quasi-public duties,
other than payments required or permitted by the laws of the United States.
Any certificate signed by any director or officer of the Company or
any of its subsidiaries delivered to the Representatives or to Skadden, Arps,
Slate ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
("Underwriters' Counsel") at or in connection with the Closing shall be deemed a
representation and warranty by the Company to each Underwriter as the matters
covered thereby.
2. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties, covenants and
agreements herein contained, but subject to the terms and conditions herein set
forth, the Company agrees to sell to the Underwriters and the Underwriters,
severally and not jointly, agree to purchase from the Company, at a purchase
price per share of $[ ], the number of Firm Shares set forth opposite the
respective names of the Underwriters in Schedule I hereto plus any additional
number of Shares which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 9 hereof.
(b) Payment of the purchase price for, and delivery of certificates
for, the Shares shall be made at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Company Counsel"), or at such other place as
shall be agreed upon by you and the Company, at 7:00 A.M. on the third or fourth
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Business Day (as permitted under Rule 15c6-1 under the Exchange Act) (unless
postponed in accordance with the provisions of Section 9 hereof) following the
date of the effectiveness of the Registration Statement (or, if the Company has
elected to rely upon Rule 430A of the Regulations, the third or fourth business
day (as permitted under Rule 15c6-1 under the Exchange Act) after the
determination of the initial public offering price of the Shares), or such other
time not later than ten Business Days (as hereinafter defined) after such date
as shall be agreed upon by you and the Company (such time and date of payment
and delivery being herein called the "Closing Date"). It is understood that each
Underwriter has authorized you for its account, to accept delivery of, receipt
for, and make payment of the purchase price for, the Firm Shares and the
Additional Shares, if any, which it has agreed to purchase. As used herein, the
term "Business Day" means any day other than a day on which banks are permitted
or required to be closed in California. Payment shall be made to the Company by
wire transfer in same day funds, against delivery to you at the offices of
Company Counsel or such other location as may be mutually acceptable, for the
respective accounts of the Underwriters of certificates for the Shares to be
purchased by them. Certificates for the Shares shall be registered in such name
or names and in such authorized denominations as you may request in writing at
least two full Business Days prior to the Closing Date. The Company will permit
you to examine and package such certificates for delivery at least one full
Business Day prior to the Closing Date.
(c) In addition, on the basis of the representations, warranties,
covenants and agreements herein contained, but subject to the terms and
conditions herein set forth, the Company hereby grants to the Underwriters the
option to purchase, severally and not jointly, up to 675,000 Additional Shares
at the same purchase price per share to be paid by the Underwriters to the
Company for the Firm Shares as set forth in this Section 2, for the purpose of
covering over-allotments, if any, in the sale of Firm Shares by the
Underwriters. This option may be exercised at any time, or from time to time, in
whole or in part, on or before the thirtieth day following the date of the
Prospectus, by written notice by you to the Company.
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Such notice shall set forth the aggregate number of Additional Shares as to
which the option is being exercised and the date and time, as reasonably
determined by you, when the Additional Shares are to be delivered (such date and
time being herein sometimes referred to as the "Additional Closing Date");
provided, however, that the Additional Closing Date shall not be earlier than
the Closing Date or earlier than the second full Business Day after the date on
which the option shall have been exercised nor later than the eighth full
Business Day after the date on which the option shall have been exercised
(unless such time and date are postponed in accordance with the provisions of
Section 9 hereof). Certificates for the Additional Shares shall be registered in
such name or names and in such authorized denominations as you may request in
writing at least two full Business Days prior to the Additional Closing Date.
The Company will permit you to examine and package such certificates for
delivery at least one full Business Day prior to the Additional Closing Date.
The number of Additional Shares to be sold to each Underwriter shall be
the number which bears the same ratio to the aggregate number of Additional
Shares being purchased as the number of Firm Shares set forth opposite the name
of such Underwriter in Schedule I hereto (or such number increased as set forth
in Section 9 hereof) bears to the total number of Firm Shares subject, however,
to such adjustments to eliminate any fractional shares as you in your sole
discretion shall make.
Payment of the purchase price for the Additional Shares shall be made
to the Company by wire transfer in same day funds to such account as specified
by the Company to the Representatives in writing at least two full Business Days
prior to the Additional Closing Date against delivery to you at the offices of
Company Counsel, or such other location as may be mutually acceptable, of the
certificates for the Additional Shares to you for the respective accounts of the
Underwriters.
3. Offering. Upon your delivery of the Firm Shares, the Underwriters
propose to offer the Shares for sale to the public upon the terms set forth in
the Prospectus.
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4. Covenants of the Company. The Company covenants and agrees with the
Underwriters that:
(a) If the Registration Statement has not yet been declared
effective, the Company will use its best efforts to cause the Registration
Statement and any amendments thereto to become effective as promptly as
possible, and if Rule 430A is used or the filing of the Prospectus is otherwise
required under Rule 424(b) or Rule 434, the Company will file the Prospectus
(properly completed if Rule 430A has been used) pursuant to and in compliance
with Rule 424(b) or Rule 434 within the prescribed time period and will provide
evidence satisfactory to you of such timely filing. If, with your consent, the
Company elects to rely on Rule 434, the Company will prepare and file a term
sheet that complies with the requirements of Rule 434.
The Company will notify you immediately (and, if requested by you,
will confirm such notice in writing) (i) when the Registration Statement and any
amendments thereto become effective, (ii) of any request by the Commission for
any amendment of or supplement to the Registration Statement or the Prospectus
or for any additional information, (iii) of the mailing or the delivery to the
Commission for filing of any amendment of or supplement to the Registration
Statement or the Prospectus, (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or any
post-effective amendment thereto or any order preventing or suspending the use
of any preliminary prospectus, or of the initiation, or the threatening, of any
proceedings with respect to any of the foregoing, (v) of the receipt of any
comments from the Commission, and (vi) 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 that purpose. If the Commission shall propose or enter a stop order at any
time, the Company will make every reasonable effort to prevent the issuance of
any such stop order and, if issued, to obtain the lifting of such order as soon
as possible. The Company will not file any amendment to the Registration
Statement, make any filing under Rule 462(b) of the Regulations, or file any
amendment of or supplement to the Prospectus (including the prospectus
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required to be filed pursuant to Rule 424(b)or Rule 434 of the Regulations)
before or after the effective date of the Registration Statement to which you
shall reasonably object in writing after being timely furnished in advance a
copy thereof.
(b) The Company will comply with the Act and the Regulations so as
to permit the completion of the distribution of the Shares as contemplated in
this Agreement and the Prospectus. If at any time when a prospectus relating to
the Shares is required to be delivered under the Act any event shall have
occurred or a condition shall exist as a result of which the Prospectus as then
amended or supplemented would, in the judgment of the Underwriters' Counsel or
the Company, include an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it shall be necessary at any time to amend or supplement the
Prospectus or Registration Statement to comply with the Act or the Regulations,
the Company will notify you promptly and prepare and file with the Commission an
appropriate amendment or supplement (in form and substance satisfactory to you)
which will correct such statement or omission and will use its best efforts to
have any amendment to the Registration Statement declared effective as soon as
possible and the Company will furnish to the Underwriters such number of copies
of such amendment or supplement as the Underwriters may reasonably request.
(c) The Company will promptly deliver to you one signed copy of the
Registration Statement, including exhibits and all amendments thereto, and
signed copies of all consents, and will maintain in the Company's files signed
copies of such documents for at least five years after the date of filing, and
the Company will promptly deliver to each of the Underwriters, without charge,
during the period when the Prospectus is required to be delivered under the Act,
such number of copies of any preliminary prospectus, the Prospectus, the
Registration Statement, and all amendments of and supplements to such documents,
if any, as you may reasonably request, and the Company hereby consents to the
use of such copies for purposes permitted by the Act. The copies of the
Registration
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Statement and Prospectus and each amendment thereto furnished to the
Underwriters will be identical to the electronically transmitted copies thereof
filed with the Commission pursuant to ▇▇▇▇▇, except to the extent permitted by
Regulation S-T.
(d) The Company will endeavor in good faith, in cooperation with
you, at or prior to the time of effectiveness of the Registration Statement, to
qualify the Shares for offering and sale under the securities laws relating to
the offering or sale of the Shares of such jurisdictions, domestic or foreign,
as you may designate and to maintain such qualification in effect for so long as
required for the distribution thereof; except that in no event shall the Company
be obligated in connection therewith to qualify as a foreign corporation or to
execute a general consent to service of process in any jurisdiction where it is
not so qualified or subject.
(e) The Company will make generally available (within the meaning of
Section 11(a) of the Act) to its security holders and to you as soon as
practicable, but not later than 45 days after the end of its fiscal quarter in
which the first anniversary date of the effective date of the Registration
Statement occurs, an earnings statement (in form complying with the provisions
of Rule 158 of the Regulations) covering a period of at least twelve consecutive
months beginning after the effective date of the Registration Statement.
(f) During the period of 180 days from the date of the Prospectus,
each of the Company and its subsidiaries will not, without the prior written
consent of ▇▇▇▇▇ & Company Incorporated, (which consent may be withheld at the
sole discretion of ▇▇▇▇▇ & Company Incorporated), directly or indirectly (i)
issue, offer to sell, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant for the sale of, or otherwise dispose of or transfer any shares
of the Company's Common Stock or any securities convertible into or exchangeable
or exercisable for such Common Stock or any other securities of the Company or
its subsidiaries, whether now owned or hereafter acquired by such person or with
respect to which such person has or hereafter acquires the power of disposition;
or
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(ii) enter into any swap or any other agreement or any transaction that
transfers, in whole or in part, directly or indirectly, the economic consequence
of ownership of the Common Stock or convertible into or exchangeable for Common
Stock whether any such swap transaction is to be settled by delivery of Common
Stock or other securities, in cash or otherwise; provided that none of the
foregoing shall apply to (A) the issuance of Shares to be sold hereunder; (B)
the issuance of Common Stock upon conversion of the Series A Preferred Stock and
Series B Convertible Preferred Stock on the Closing Date; (C) the issuance of
Common Stock upon the exercise of any option or warrant outstanding on the date
hereof and disclosed in the Prospectus; (D) the grant of options to purchase
shares of Common Stock in the ordinary course of business pursuant to the Women
First HealthCare Long-Term Incentive Plan described in the Prospectus; or (E)
the issuance of up to 500,000 shares of Common Stock in connection with
acquisitions by the Company, to the extent the recipients of shares in
connection with the transactions set forth in (B), (C), and (E)agree in writing
not to offer to sell, pledge, sell, contract to sell, sell any option or
contract to purchase, purchase any option or contract to sell, grant any option,
right or warrant for the sale of, or otherwise dispose of or transfer any shares
of Common Stock or any securities convertible into or exchangeable or
exercisable for shares of Common Stock during such 180 day period (or, in the
case of shares purchased in this offering by directors and employees of the
Company not otherwise subject to the provisions of Rule 144(c) of the Act, a 90
day period following the offering) without the prior written consent of ▇▇▇▇▇ &
Company Incorporated.
(g) During a period of three years from the effective date of the
Registration Statement, the Company will furnish to you copies of (i) all
reports to its stockholders; and (ii) all reports, financial statements and
proxy or information statements filed by the Company with the Commission or any
national securities exchange. The Company, during the period when the
Prospectuses are required to be delivered under the Act, will file all documents
required to be filed with the Commission pursuant to the 1934 Act within the
time periods required by the 1934 Act and the rules and regulations of the
Commission thereunder.
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(h) The Company will apply the proceeds from the sale of the Shares
as set forth under "Use of Proceeds" in the Prospectus and file with the
Commission such reports and report such use of proceeds as may be required
pursuant to Rule 463 of the Regulations.
(i) The Company will use its best efforts to cause the Shares to
remain approved for quotation and trading on the Nasdaq National Market.
(j) The Company will use its best efforts to do and perform all
things required or necessary to be done and performed under this Agreement by
the Company prior to or after the Closing Date or any Additional Closing Date,
as the case may be, and to satisfy all conditions precedent to the delivery of
the Shares.
5. Payment of Expenses. Whether or not the transactions contemplated in
this Agreement are consummated or this Agreement is terminated, the Company
hereby agrees to pay all costs and expenses incident to the performance of the
obligations of the Company hereunder, including those in connection with (i)
preparing, printing, duplicating, filing and distributing the Registration
Statement, as originally filed and all amendments thereof (including all
financial statements and exhibits thereto), any preliminary prospectus, the
Prospectus and any amendments or supplements thereto (including, without
limitation, fees and expenses of the Company's accountants and counsel), the
underwriting documents (including this Agreement and the Agreement Among
Underwriters) and all other documents related to the public offering of the
Shares (including those supplied to the Underwriters in quantities as
hereinabove stated), (ii) the issuance, transfer and delivery of the Shares to
the Underwriters, including any transfer or other taxes or duties payable
thereon, (iii) the qualification of the Shares under state or foreign securities
or Blue Sky laws, including the costs of printing and mailing a preliminary and
final "Blue Sky Survey" and any supplements thereto and the filing fees and the
fees the Underwriters' Counsel and such counsel's disbursements in relation
thereto, (iv) quotation of the Shares on the Nasdaq National Market, (v) filing
fees of the Commission and the National Association of Securities Dealers, Inc.
and the fees and disbursements of the
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Underwriters' Counsel in connection with the review by the NASD of the terms of
the sale of the Shares; (vi) the transportation and other expenses incurred by
the Company in connection with presentations to prospective purchasers of the
Shares (vii) the cost of preparing, printing, and delivering certificates
representing the Shares and (viii) the fees and expenses of any transfer agent
or registrar.
6. Conditions of Underwriters' Obligations. The obligations of the
Underwriters to purchase and pay for the Firm Shares and the Additional Shares,
as provided herein, shall be subject to (i) the accuracy of the representations
and warranties of the Company herein contained, as of the date hereof and as of
the Closing Date (for purposes of this Section 6 "Closing Date" shall refer to
the Closing Date for the Firm Shares and any Additional Closing Date, if
different, for the Additional Shares), (ii) the absence from any certificates,
opinions, written statements or letters furnished to you or to Underwriters'
Counsel pursuant to this Section 6 of any misstatement or omission, (iii) the
performance by the Company of its covenants and other obligations hereunder, and
(iv) the following additional conditions:
(a) The Registration Statement, including any Rule 462(b)
Registration Statement, shall have become effective and all necessary approvals
of the Nasdaq National Market shall have been received not later than 5:30 P.M.,
New York time, on the date of this Agreement, or at such later time and date as
shall have been consented to in writing by you; if the Company shall have
elected to rely upon Rule 430A or Rule 434 of the Regulations, the Prospectus
shall have been filed with the Commission in a timely fashion in accordance with
Section 4(a) hereof; and at or prior to the Closing Date, no stop order
suspending the effectiveness of the Registration Statement or any post-effective
amendment thereof shall have been issued and no proceedings therefor shall have
been initiated or threatened by the Commission or any state securities authority
and any request on the part of the Commission for additional information shall
have been complied with to the reasonable satisfaction of the Underwriters'
Counsel.
(b) At the Closing Date you shall have received the opinion of
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the
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Company, dated the Closing Date, addressed to the Underwriters and in form and
substance satisfactory to Underwriters' Counsel, to the effect that:
(i) Each of the Company and Women First Pharmacy
Services, Inc. has been duly incorporated and is validly existing
and in good standing under the laws of the State of Delaware. As We
Change, LLC has been duly formed as a limited liability company and
is validly existing and in good standing under the laws of the State
of Delaware. Based solely on certificates from public officials,
such counsel shall confirm that each of the Company and each of its
subsidiaries is qualified to do business and in good standing as a
foreign corporation in the Material Jurisdictions. All of the issued
and outstanding shares of capital stock of Women First Pharmacy
Services, Inc. and all of the membership interest in As We Change,
LLC have been duly authorized and validly issued, are fully paid and
nonassessable, are owned of record by the Company, and, to the best
of such Counsel's knowledge, are free from any lien, mortgage,
pledge, security interest, claim, encumbrances or, except as
described in the Prospectus, and, to the best of such Counsel's
knowledge, were not issued in violation of preemptive rights,
co-sale rights, or rights of first offer of any security holder of
any such subsidiary or other party.
(ii) Each of the Company and Women First Pharmacy
Services, Inc. has all requisite corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus. As We
Change, LLC has all requisite power and authority to own, lease and
operate its properties and to conduct its business as described in
the Registration Statement and the Prospectus.
(iii) The authorized, issued and outstanding capital
stock, of the Company is set forth in the Registration Statement and
the
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26
Prospectus under the caption "CAPITALIZATION." Since the date of the
table set forth in under such caption, none of the Company or its
subsidiaries have issued any securities other than (i) Common Stock
of the Company pursuant to the exercise of previously outstanding
and privately granted options pursuant to the Women First HealthCare
Long-Term Incentive Plan (the "Plan"), and (ii) to the best of such
counsel's knowledge options granted in the ordinary course of
business pursuant to the Plan, none of which are currently
exercisable. All of the outstanding shares of capital stock of the
Company are duly and validly authorized and issued, are fully paid
and nonassessable and to the best of such counsel's knowledge were
not issued in violation of or subject to any preemptive right,
co-sale right or right of first offer. The Shares to be issued and
sold by the Company pursuant to the Agreement have been duly
authorized and, when issued to and paid for by you and the other
Underwriters in accordance with the terms of the Agreement, will be
validly issued, fully paid and non-assessable and, to the best of
such counsel's knowledge, and assuming you have purchased the Shares
without notice of any adverse claims, and that you have not created
any liens with respect to the Shares, free and clear of all liens,
encumbrances or claims, and, to the best of such counsel's
knowledge, will not have been issued in violation of or be subject
to any preemptive rights, co-sale rights or rights of first offer.
The description of the Common Stock contained in the Prospectus is
complete and accurate in all material respects.
(iv) The Agreement has been duly authorized, executed
and delivered by the Company.
(v) To the best of such counsel's knowledge, based
solely on docket searches in the Material Jurisdictions and
certificates from officers of the Company, there are no actions,
suits, proceedings or investigations pending or threatened against
the Company or
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any of its subsidiaries before or by any court, governmental agency
or arbitrator.
(vi) The execution, delivery and performance by the
Company of its obligations under, and the issuance and sale of the
Shares by the Company pursuant to, the Agreement will not (i) to the
best of such counsel's knowledge, breach or result in a default
under, cause the time for performance of any obligation to be
accelerated under, or result in the creation or imposition of any
lien, charge or encumbrance upon any of the assets of the Company
pursuant to the terms of any document filed as an exhibit to the
Registration Statement; (ii) violate the Certificate of
Incorporation or Bylaws of the Company or any of its subsidiaries;
(iii) breach or otherwise violate any existing obligation of the
Company or any of its subsidiaries under any court or administrative
order, judgment or decree of which such counsel have knowledge; or
(iv) violate applicable provisions of the General Corporation Law of
the State of Delaware or any statute or regulation of the State of
California or of the United States known to such counsel to be
applicable to the Company (other than federal or state securities
laws, which are specifically addressed elsewhere herein). To the
best of such counsel's knowledge, no consent, approval,
authorization or order of or any filing with, any court or
governmental agency or body is required for the consummation of the
issuance and sale of the Shares by the Company pursuant to the
Agreement, except such as have been obtained under the Act an the
Regulations and such as may be required under state securities or
Blue Sky laws (as to which we express no opinion) or by the bylaws
and rules of the NASD in connection with the purchase and
distribution by the Underwriters of the Shares.
(vii) The Company is not, and upon consummation of the
transactions contemplated hereby and the application of the net
proceeds
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of the offering of the Shares as described in the Prospectus will
not be, subject to registration as an "investment company" or an
entity "controlled" by an "investment company" under the Investment
Company Act of 1940, as amended.
(viii) The Registration Statement and the Prospectus
comply as to form in all material respects with the requirements for
registration statements on Form S-1 under the Act and the
Regulations; it being understood, however, that such counsel need
not express any opinion with respect to the financial statements,
schedules another financial and statistical data derived therefrom
and included in, or omitted from, the Registration Statement or the
Prospectus. In passing upon the compliance as to form of the
Registration Statement and the Prospectus, such counsel may assume
that the statements made therein are correct and complete.
(ix) The Registration Statement has become effective
under the Act and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration Statement has
been issued under the Act and no proceedings therefor have been
initiated or threatened by the Commission; and any required filing
of the Prospectus pursuant to Rule 424(b) under the Act has been
made in accordance with rule 424(b) and 430A under the Act.
(x) Except as described in the Registration Statement or
the Prospectus to the best of such counsel's knowledge, there is no
commitment or arrangement to issue, and there are no outstanding
options, warrants or other rights calling for the issuance of, any
shares of capital stock of the Company or any security or other
instrument that by its terms is convertible into, exercisable for,
or exchangeable for capital stock of the Company or any of its
subsidiaries. The outstanding
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stock options relating to the Common Stock have been duly
authorized.
(xi) The statements set forth in the Registration
Statement and the Prospectus under the captions "Shares Eligible for
Future Sale"; "Description of Capital Stock"; "Business - Licensing
and Co-Promotion Agreements"; "Management - Long-Term Incentive
Plan"; and in Item 15 of Part II of the Registration Statement
insofar as such statements constitute a summary of legal matters,
documents or proceedings, are accurate in all material respects.
(xii) The form of certificate used to evidence the
Shares is in due and proper form and complies with all statutory
requirements under the laws of the State of Delaware.
(xiii) To the best of such counsel's knowledge, there
are no contracts or other documents required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits
thereto other than those described or filed as required.
(xvi) To the best of such counsel's knowledge, all
holders of securities of the Company having rights to the
registration of shares of Common Stock because of the filing of the
Registration Statement by the Company have waived such rights or
such rights have expired
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by the reason of lapse of time following notification of the
Company's intent to file the Registration Statement.
In rendering such opinion, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ may rely (A) as to
matters involving the application of laws other than the laws of the United
States and jurisdictions in which they are admitted, to the extent such counsel
deems proper and to the extent specified in such opinions, if at all, upon an
opinion or opinions (in form and substance reasonably satisfactory to
Underwriters' Counsel) of other counsel reasonably acceptable to Underwriters'
Counsel, familiar with the applicable laws; (B) as to facts material to the
opinions, statements and assumptions expressed in their opinion, to the extent
they deem proper, on written statements and representations of officers and
other representatives of the Company and others and upon such certificates and
assurances from public officials as they deem necessary, provided that copies of
any such statements or certificates shall be delivered to and deemed acceptable
by Underwriters' Counsel. The opinions of such counsel for the Company shall
state that the opinion of any such other counsel is in form satisfactory to such
counsel and, in their opinion, you and they are justified in relying thereon.
(c) At the Closing Date you shall have received the opinion of Fox,
Bennett & ▇▇▇▇▇▇, special regulatory counsel for the Company, dated the Closing
Date, addressed to the Underwriters and in form and substance satisfactory to
Underwriters' Counsel, to the effect that there are no statutes or regulations
that are required to be described in the Prospectus that are not described as
required and such other matters as are customary and appropriate.
In addition, the opinions of each of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ and ▇▇▇, ▇▇▇▇▇▇▇
& ▇▇▇▇▇▇ set forth in (b) and (c) above shall also contain a statement that, as
applicable, such counsel has participated in conferences with officers and other
representatives of the Company, representatives of the independent public
accountants for the Company, and your representatives, at which the contents of
the Registration Statement and the Prospectus and related matters were discussed
and, although such counsel is not passing upon, and does not assume any
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31
responsibility for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement and the Prospectus and has not made any
independent check or verification thereof during the course of such
participation, no facts came to such counsel's attention that caused them to
believe that the Registration Statement, at the time it became effective and as
of the date hereof 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 the Prospectus as of its date and as
of the date hereof contained or contains an untrue statement of a material fact
or omitted or omits to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; it being understood that such counsel need not express any belief
with respect to the financial statements, schedules and other financial and
statistical data derived therefrom included in, or omitted from, the
Registration Statement or the Prospectus.
(d) All proceedings taken in connection with the sale of the Firm
Shares and the Additional Shares as herein contemplated shall be satisfactory in
form and substance to you and to Underwriters' Counsel, and the Underwriters
shall have received from said Underwriters' Counsel and from the Underwriters'
regulatory counsel, ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.C., a favorable opinion, dated
as of the Closing Date in customary form and covering such matters as you may
reasonably request, and the Company shall have furnished to Underwriters'
Counsel such documents as they request for the purpose of enabling them to pass
upon such matters. In giving such opinion Underwriters' Counsel may rely, as to
all matters governed by the laws of jurisdictions other than the law of the
State of California, the Federal law of the United States and the General
Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to the Representatives. Underwriters' Counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company and its
subsidiaries and certificates of public officials.
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(e) At the Closing Date you shall have received a certificate of
each of the Chief Executive Officer and Chief Financial Officer of the Company,
dated the Closing Date to the effect that (i) the conditions set forth in
subsection (a) of this Section 6 have been satisfied, (ii) as of the date hereof
and as of the Closing Date, the representations and warranties of the Company
set forth in Section 1 hereof are accurate, (iii) as of the Closing Date, the
obligations of the Company to be performed hereunder on or prior thereto have
been duly performed, and (iv) subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus, the
Company and its subsidiaries have not sustained any material loss or
interference with their respective businesses or properties from fire, flood,
hurricane, accident or other calamity, whether or not covered by insurance, or
from any labor dispute or any legal or governmental proceeding, and there has
not been any material adverse change, or any development involving a material
adverse change, in the business prospects, properties, operations, condition
(financial or otherwise), or results of operations of the Company and its
subsidiaries taken as a whole, except in each case as described in or
contemplated by the Prospectus.
(f) At the time this Agreement is executed and at the Closing Date,
you shall have received a letter from Ernst & Young LLP, independent public
accountants for the Company and MenoMorphosis LLC, dated, respectively, as of
the date of this Agreement and as of the Closing Date addressed to the
Underwriters and in form and substance satisfactory to you, stating that, among
other things: (i) they are independent certified public accountants with respect
to the Company within the meaning of the Act and the Regulations and stating
that the information provided in response to Item 10 of the Registration
Statement is correct insofar as it relates to them; (ii) in their opinion, the
financial statements and schedules of the Company and MenoMorphosis LLC included
in the Registration Statement and the Prospectus and covered by their opinion
therein comply as to form in all material respects with the applicable
accounting requirements of the Act and the applicable published rules and
regulations of the Commission thereunder; (iii) on the basis of procedures
consisting of a reading of the latest available unaudited interim consolidated
financial
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statements of the Company and its subsidiaries, a reading of the minutes of
meetings and consents of the stockholders and boards of directors of the Company
and its subsidiaries and the committees of such boards subsequent to December
31, 1998, inquiries of officers and other employees of the Company and its
subsidiaries who have responsibility for financial and accounting matters of the
Company and its subsidiaries with respect to transactions and events subsequent
to December 31, 1998, a review of interim financial information in accordance
with the standards established by the American Institute of Certified Public
Accountants in Statement of Auditing Standards No. 71, Interim Financial
Information with respect to the three-month period ended March 31, 1999 and
other specified procedures and inquiries to a date not more than five days prior
to the date of such letter, nothing has come to their attention that would cause
them to believe that: (A) the unaudited consolidated financial statements of the
Company presented in the Registration Statement and the Prospectus do not comply
as to form in all material respects with the applicable accounting requirements
of the Act and, if applicable, the Exchange Act and the applicable published
rules and regulations of the Commission thereunder or that such unaudited
consolidated financial statements are not fairly presented in conformity with
generally accepted accounting principles applied on a basis substantially
consistent with that of the audited consolidated financial statements included
in the Registration Statement and the Prospectus; (B) with respect to the period
subsequent to March 31, 1999, there were, as of the date of the most recently
available monthly consolidated financial statements of the Company and its
subsidiaries, if any, and as of a specified date not more than five days prior
to the date of such letter, any changes in the capital stock or long-term
indebtedness of the Company or any decrease in the net current assets or
stockholders' equity of the Company, in each case as compared with the amounts
shown in the most recent balance sheet presented in the Registration Statement
and the Prospectus, except for changes or decreases which the Registration
Statement and the Prospectus disclose have occurred or may occur or which are
set forth in such letter or (C) during the period from April 1, 1999 to the date
of the most recent available monthly consolidated financial statements of the
Company and its subsidiaries, if any, and to a
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specified date not more than five days prior to the date of such letter, there
was any decrease, as compared with the corresponding period in the prior fiscal
year, in total revenues, or increase in total net losses, except for decreases
which the Registration Statement and the Prospectus disclose have occurred or
may occur or which are set forth in such letter; and (iv) they have compared
specific dollar amounts, numbers of shares, percentages of revenues and
earnings, and other financial information pertaining to the Company and its
subsidiaries set forth in the Registration Statement and the Prospectus, which
have been specified by you prior to the date of this Agreement, to the extent
that such amounts, numbers, percentages, and information may be derived from the
general accounting and financial records of the Company and its subsidiaries or
from schedules furnished by the Company, and excluding any questions requiring
an interpretation by legal counsel, with the results obtained from the
application of specified readings, inquiries, and other appropriate procedures
specified by you set forth in such letter, and found them to be in agreement.
(g) Prior to the Closing Date, the Company shall have furnished to
you such further information, certificates and documents as you or Underwriters'
Counsel may reasonably request.
(h) At the Closing Date, the Shares shall have been approved for
quotation and trading on the Nasdaq National Market, subject to official notice
of issuance.
If any of the conditions specified in this Section 6 shall not have been
fulfilled when and as required by this Agreement, or if any of the certificates,
opinions, written statements or letters furnished to you or to Underwriters'
Counsel pursuant to this Section 6 shall not be in all material respects
satisfactory in form and substance to you and to Underwriters' Counsel, all
obligations of the Underwriters hereunder may be canceled by you at, or at any
time prior to, the Closing Date, and the obligations of the Underwriters to
purchase the Additional Shares may be canceled by you at, or at any time prior
to, the Additional Closing Date. Notice of such cancellation shall be given to
the Company in writing, or by
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telephone, facsimile, telex or telegraph, confirmed in writing.
7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20(a) of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), against any and all losses,
liabilities, claims, damages and expenses whatsoever as incurred (including but
not limited to attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim or inquiry whatsoever, and any and all amounts paid in
settlement of any claim or litigation), joint or several, to which they or any
of them may become subject under the Act, the Exchange Act, the common law,
state law or otherwise, insofar as such losses, liabilities, claims, damages or
expenses (or actions in respect thereof) arise out of, relate to or are based
upon (i) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any amendment thereof, or arise out
of, relate to or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading; or (ii) any untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus or
the Prospectus or in any supplement thereto or amendment thereof or the omission
or alleged omission to state therein a material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that the Company will not be liable in
any such case to the extent but only to the extent that (A) any such loss,
liability, claim, damage or expense arises out of, relates to or is based upon
any such untrue statement or alleged untrue statement or omission or alleged
omission made therein in reliance upon and in conformity with written
information furnished to the Company relating to any Underwriter through you
expressly for use therein, or (B) if the Company sustains the burden of proving
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in any preliminary prospectus
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(which untrue statement or alleged untrue statement or omission or alleged
omission was corrected in the Prospectus or in any supplement thereto or
amendment thereof), to the extent that (i) the Company previously furnished
copies of the Prospectus and any supplements thereto or amendments thereof on a
timely basis to the Underwriters, and (ii) a prospectus relating to such Shares
was required to be delivered by the Underwriters to the purchaser of such Shares
under the Act, and any such loss, liability, claim, damage or expense resulted
from the fact that there was not sent or given to the purchaser in question, at
or prior to the written confirmation of the sale of such Shares to such person,
a copy of the Prospectus and any supplements thereto or amendments thereof. This
indemnity agreement will be in addition to any liability which the Company may
otherwise have including under this Agreement.
(b) Each Underwriter severally, and not jointly, agrees to indemnify
and hold harmless the Company, each of the directors of the Company, each of the
officers of the Company who shall have signed the Registration Statement, and
each other person, if any, who controls the Company within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act, against any losses,
liabilities, claims, damages and expenses whatsoever as incurred (including but
not limited to attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation), joint or several, to which they or any of them may
become subject under the Act, the Exchange Act, the common law, state law or
otherwise, insofar as such losses, liabilities, claims, damages or expenses (or
actions in respect thereof) arise out of, relate to or are based upon (i) any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; or (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus or the Prospectus or in any supplement thereto or
amendment thereof or the omission or alleged omission to state therein a
material fact necessary in order to make the
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statements therein, in light of the circumstances under which they were made,
not misleading; in each case to the extent, but only to the extent, that any
such loss, liability, claim, damage or expense arises out of, relates to or is
based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with written
information furnished to the Company relating to any Underwriter through you
expressly for use therein; provided, however, that in no case shall any
Underwriter be liable or responsible for any amount in excess of the
underwriting discount applicable to the Shares purchased by such Underwriter
hereunder. This indemnity will be in addition to any liability which any
Underwriter may otherwise have including under this Agreement. The Company
acknowledges that the last paragraph on the cover page of the Prospectus and the
statements set forth in the fourth, fifth, seventh, ninth and eleventh
paragraphs and the third sentence of the tenth paragraph under the caption
"Underwriting" in the Prospectus constitute the only information furnished in
writing by or on behalf of any Underwriter expressly for use in the Registration
Statement or in any amendment thereof, any related preliminary prospectus or the
Prospectus or in any amendment thereof or supplement thereto, as the case may
be.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such subsection, notify each party against whom
indemnification is to be sought in writing of the commencement of such action
(but the failure so to notify an indemnifying party shall not relieve it from
any liability which it may have under this Section 7). In case any such action
is brought against any indemnified party, and it notifies an indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent it may elect by written notice delivered
to the indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel satisfactory to
such indemnified party. Notwithstanding the foregoing, the indemnified party or
parties shall have the right to employ its or their own
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counsel in any such case, but the fees and expenses of such counsel shall be at
the expense of such indemnified party or parties unless (i) the employment of
such counsel shall have been authorized in writing by one of the indemnifying
parties in connection with the defense of such action, (ii) the indemnifying
parties shall not have employed counsel to have charge of the defense of such
action within a reasonable time after notice of commencement of the action, or
(iii) 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 those available to one or all of the indemnifying parties (in
which case the indemnifying parties shall not have the right to direct the
defense of such action on behalf of the indemnified party or parties), in any of
which events such fees and expenses shall be borne by the indemnifying parties;
provided that, unless the indemnified party or parties shall have reasonably
concluded that there may be defenses available to it or them which are different
from or in addition to those available to one or all of the other indemnified
parties, the indemnifying party shall not, in respect of the legal expenses of
any indemnified party in connection with any proceeding or related proceedings
in the same jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all such indemnified
parties and all such fees and expenses shall be reimbursed as they are incurred.
Such firm shall be designated in writing by ▇▇▇▇▇ & Company Incorporated, in the
case of parties indemnified pursuant to Section 7(a), and by the Company, in the
case of parties indemnified pursuant to Section 7(b). Anything in this
subsection to the contrary notwithstanding, an indemnifying party shall not be
liable for any settlement of any claim or action effected without its written
consent; provided, however, that such consent was not unreasonably withheld.
8. Contribution. In order to provide for contribution in circumstances
in which the indemnification provided for in Section 7 hereof is for any reason
held to be unavailable from any indemnifying party or is insufficient to hold
harmless a party indemnified thereunder, the Company and the Underwriters shall
contribute to the aggregate losses, claims, damages, liabilities and expenses of
the nature contemplated by such indemnification provision (including
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any investigation, legal and other expenses incurred in connection with, and any
amount paid in settlement of, any action, suit or proceeding or any claims
asserted, but after deducting in the case of losses, claims, damages,
liabilities and expenses suffered by the Company, any contribution received by
the Company from persons, other than the Underwriters, who may also be liable
for contribution, including persons who control the Company within the meaning
of Section 15 of the Act or Section 20(a) of the Exchange Act, officers of the
Company who signed the Registration Statement and directors of the Company) as
incurred to which the Company and one or more of the Underwriters may be
subject, in such proportions as is appropriate to reflect the relative benefits
received by the Company and the Underwriters from the offering of the Shares or,
if such allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to above but also
the relative fault of the Company and the Underwriters in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Underwriters shall be
deemed to be in the same proportion as (x) the total proceeds from the offering
(net of underwriting discounts and commissions but before deducting expenses)
received by the Company and (y) the underwriting discounts and commissions
received by the Underwriters, respectively, in each case as set forth in the
table on the cover page of the Prospectus. The relative fault of the Company and
of the Underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 8 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above. Notwithstanding the
provisions of this Section 8, (i) in no case shall any Underwriter be liable or
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responsible for any amount in excess of the underwriting discount applicable to
the Shares purchased by such Underwriter hereunder, and (ii) 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. Notwithstanding the provisions of this Section 8
and the preceding sentence, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages that such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. For purposes of this Section 8, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act shall have the same rights to contribution as such
Underwriter, and each person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to clauses (i) and (ii) of this Section 8. Any
party entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against such party in respect of
which a claim for contribution may be made against another party or parties,
notify each party or parties from whom contribution may be sought, but the
omission to so notify such party or parties shall not relieve the party or
parties from whom contribution may be sought from any obligation it or they may
have under this Section 8 or otherwise. No party shall be liable for
contribution with respect to any action or claim settled without its consent;
provided, however, that such consent was not unreasonably withheld.
9. Default by an Underwriter.
(a) If any Underwriter or Underwriters shall default in its or their
obligation to purchase Firm Shares or Additional Shares hereunder, and if the
Firm Shares or Additional Shares with respect to which such default relates do
not (after giving effect to arrangements, if any, made by you pursuant to
subsection
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(b) below) exceed in the aggregate 10% of the number of Firm Shares or
Additional Shares, as the case may be, the Firm Shares or Additional Shares to
which the default relates shall be purchased by the non-defaulting Underwriters
in proportion to the respective proportions which the numbers of Firm Shares set
forth opposite their respective names in Schedule I hereto bear to the aggregate
number of Firm Shares set forth opposite the names of the non-defaulting
Underwriters.
(b) In the event that such default relates to more than 10% of the
total number of Firm Shares or Additional Shares, as the case may be, you may in
your discretion arrange for yourself or for another party or parties (including
any non-defaulting Underwriter or Underwriters who so agree) to purchase such
Firm Shares or Additional Shares, as the case may be, to which such default
relates on the terms contained herein. In the event that within 5 calendar days
after such a default you do not arrange for the purchase of the Firm Shares or
Additional Shares, as the case may be, to which such default relates as provided
in this Section 9, this Agreement or, in the case of a default with respect to
the Additional Shares, the obligations of the Underwriters to purchase and of
the Company to sell the Additional Shares shall thereupon terminate, without
liability on the part of the Company(except in each case as provided in Section
5, 7(a) and 8 hereof) or the Underwriters, but nothing in this Agreement shall
relieve a defaulting Underwriter or Underwriters of its or their liability, if
any, to the other Underwriters and the Company for damages occasioned by its or
their default hereunder.
(c) In the event that the Firm Shares or Additional Shares to which
such default relates are to be purchased by the non-defaulting Underwriters, or
are to be purchased by another party or parties as aforesaid, you or the Company
shall have the right to postpone the Closing Date or Additional Closing Date, as
the case may be, for a period not exceeding five Business Days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statement or the Prospectus or in any other documents and arrangements, and the
Company agrees to file promptly any amendment or supplement to the Registration
Statement or the Prospectus which, in the opinion of Underwriters'
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Counsel, may thereby be made necessary or advisable. The term "Underwriter" as
used in this Agreement shall include any party substituted under this Section 9
with like effect as if it had originally been a party to this Agreement with
respect to such Firm Shares and Additional Shares, as the case may be.
10. Survival of Representations and Agreements. All representations and
warranties, covenants and agreements of the Underwriters and the Company
contained in this Agreement, including the agreements contained in Section 5
hereof, the indemnity agreements contained in Section 7 hereof and the
contribution agreements contained in Section 8 hereof, and in certificates of
officers of the Company provided pursuant hereto shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of
any Underwriter or any controlling person thereof or by or on behalf of the
Company or any of its officers and directors or any controlling person thereof
and shall survive delivery of and payment for the Shares to and by the
Underwriters. The representations contained in Section 1 and the agreements
contained in Sections 5, 7, 8, 10 and 11(d) hereof shall survive the termination
of this Agreement, including termination pursuant to Section 9 or 11 hereof.
11. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective upon the later of (i)
such time as you and the Company shall have received notification of the
effectiveness of the Registration Statement and (ii) the execution of this
Agreement. Until this Agreement becomes effective as aforesaid, it may be
terminated by the Company by notifying you or by you notifying the Company.
Notwithstanding the foregoing, the provisions of this Section 11 and of Sections
1, 5, 7, 8 and 10 hereof shall at all times be in full force and effect.
(b) You shall have the right to terminate this Agreement at any
time prior to the Closing Date or the obligations of the Underwriters to
purchase the Additional Shares at any time prior to the Additional Closing Date,
as the case may be (i) if any domestic or international event or act or
occurrence has materially disrupted, or in your opinion will in the immediate
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future materially disrupt, the market for the Company's securities or securities
in general; (ii) if trading on the New York or American Stock Exchanges or the
Nasdaq National Market (collectively the "Exchanges") shall have been suspended,
or minimum or maximum prices for trading shall have been fixed, or maximum
ranges for prices for securities shall have been required, on any of the
Exchanges by the authorities of such Exchanges or by order of the Commission or
any other governmental authority having jurisdiction; or (iii) if a banking
moratorium has been declared by a state or federal authority or if any new
restriction materially adversely affecting the distribution of the Firm Shares
or the Additional Shares, as the case may be, shall have become effective; or
(iv)(A) if the United States becomes engaged in hostilities or there is an
escalation of hostilities involving the United States or there is a declaration
of a national emergency or war by the United States or (B) if there shall have
been such change in political, financial or economic conditions, if the effect
of any such event in (A) or (B) as in your judgment makes it impracticable or
inadvisable to proceed with the offering, sale and delivery of the Firm Shares
or the Additional Shares, as the case may be, on the terms contemplated by the
Prospectus.
(c) Any notice of termination pursuant to this Section 11 shall be
by telephone, facsimile, telex, or telegraph, confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to any of the
provisions hereof (otherwise than pursuant to (i) notification by you as
provided in Section 11(a) hereof or (ii) Section 9(b) or 11(b) hereof), or if
the sale of the Shares provided for herein is not consummated because any
condition to the obligations of the Underwriters set forth herein is not
satisfied or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof, the
Company will, subject to demand by you, reimburse the Underwriters for all
out-of-pocket expenses (including the fees and expenses of their counsel),
incurred by the Underwriters in connection herewith.
12. Notice. All communications hereunder, except as may be otherwise
specifically provided herein,
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shall be in writing and, if sent to any Underwriter, shall be mailed, delivered,
sent by facsimile, telex or telegraph and confirmed in writing by letter, to
such Underwriter c/o Allen & Company Incorporated, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇, fax no. (▇▇▇) ▇▇▇-▇▇▇▇, with a copy to ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇, Esq., Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, fax no. (▇▇▇) ▇▇▇-▇▇▇▇; if sent to the
Company shall be mailed, delivered, or sent by facsimile, telex or telegraph and
confirmed in a letter to the Company, Women First HealthCare, Inc., ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, fax no.
(▇▇▇)▇▇▇-▇▇▇▇, with a copy to ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ "▇"
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, fax no. (▇▇▇) ▇▇▇-▇▇▇▇.
13. Parties. This Agreement shall insure solely to the benefit of, and
shall be binding upon, the Underwriters and the Company and the controlling
persons, directors, officers, employees and agents referred to in Sections 7 and
8, and their respective successors and assigns, and no other person shall have
or be construed to have any legal or equitable right, remedy or claim under or
in respect of or by virtue of this Agreement or any provision contained herein.
The term "successors and assigns" shall not include a purchaser, in its capacity
as such, of Shares from any of the Underwriters.
14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, BUT WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
15. Counterparts. This Agreement may be executed in counterparts, each
of which shall be an orig inal and all of which together shall constitute one
and the same instrument.
If the foregoing correctly sets forth the understanding between you and
the Company, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement among us.
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Very truly yours,
WOMEN FIRST HEALTHCARE, INC.
By:
-------------------------------
Name:
Title:
Accepted as of the date first above written
▇▇▇▇▇ & COMPANY INCORPORATED
▇▇▇▇▇▇▇ & COMPANY, INC.
By: ▇▇▇▇▇ & COMPANY INCORPORATED
By:
-------------------------------
Name:
Title:
On behalf of themselves and the other Underwriters named in Schedule I hereto.
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SCHEDULE I
Number of Firm
Name of Underwriter Shares to be Purchased
-------------------------------------------------------------------------
▇▇▇▇▇ & Company Incorporated.......
▇▇▇▇▇▇▇ & Company, Inc.............
Total.......... __________
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