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Exhibit 1.1
BONE CARE INTERNATIONAL, INC.
2,300,000 Shares/1/
Common Stock
UNDERWRITING AGREEMENT
December 11, 2000
PRUDENTIAL SECURITIES INCORPORATED
U.S. BANCORP PIPER JAFFRAY INCORPORATED
ROBERT W. BAIRD & CO. INCORPORATED
As Representatives of the several Underwriters
c/o Prudential Securities Incorporated
One New York Plaza
New York, New York 10292
Ladies and Gentlemen:
Bone Care International, Inc., a Wisconsin corporation (the
"Company"), hereby confirms its agreement with the several underwriters named in
Schedule I hereto (the "Underwriters"), for whom you have been duly authorized
to act as representatives (in such capacities, the "Representatives"), as set
forth below. If you are the only Underwriters, all references herein to the
Representatives shall be deemed to be to the Underwriters.
1. Securities. Subject to the terms and conditions herein contained, the
Company proposes to issue and sell to the several Underwriters an aggregate of
2,300,000 shares (the "Firm Securities") of the Company's common stock, without
par value ("Common Stock"). The Company also proposes to issue and sell to the
several Underwriters, solely to cover over-allotments, not more than 345,000
additional shares of Common Stock if requested by the Representatives as
provided in Section 3 of this Agreement. Any and all shares of Common Stock to
be purchased by the Underwriters pursuant to such option are referred to herein
as the "Option Securities", and the Firm Securities and any Option Securities
are collectively referred to herein as the "Securities".
2. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, each of the several Underwriters that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933, as amended (the "Act"). A registration statement on
such Form (File No. 333-45662) with respect to the Securities, including a
prospectus subject to completion, has been
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/1/ Plus an option to purchase from Bone Care International, Inc., up to 345,000
additional shares to cover over-allotments.
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filed by the Company with the Securities and Exchange Commission (the
"Commission") under the Act, and one or more amendments to such registration
statement may have been so filed. After the execution of this Agreement, the
Company will file with the Commission either (i) if such registration statement,
as it may have been amended, has been declared by the Commission to be effective
under the Act, either (A) if the Company relies on Rule 434 under the Act, a
Term Sheet (as hereinafter defined) relating to the Securities, that shall
identify the Preliminary Prospectus (as hereinafter defined) that it supplements
containing such information as is required or permitted by Rules 434, 430A and
424(b) under the Act or (B) if the Company does not rely on Rule 434 under the
Act, a prospectus in the form most recently included in an amendment to such
registration statement (or, if no such amendment shall have been filed, in such
registration statement), with such changes or insertions as are required by Rule
430A under the Act or permitted by Rule 424(b) under the Act, and in the case of
clause (i)(A) or (i)(B) of this sentence as have been provided to and approved
by the Representatives prior to the execution of this Agreement, or (ii) if such
registration statement, as it may have been amended, has not been declared by
the Commission to be effective under the Act, an amendment to such registration
statement, including a form of prospectus, a copy of which amendment has been
furnished to and approved by the Representatives prior to the execution of this
Agreement. The Company may also file a related registration statement with the
Commission pursuant to Rule 462(b) under the Act for the purpose of registering
certain additional Securities, which registration shall be effective upon filing
with the Commission. As used in this Agreement, the term "Original Registration
Statement" means the registration statement initially filed relating to the
Securities, as amended at the time when it was or is declared effective,
including all financial schedules and exhibits thereto, and any information
omitted therefrom pursuant to Rule 430A under the Act and included in the
Prospectus (as hereinafter defined); the term "Rule 462(b) Registration
Statement" means any registration statement filed with the Commission pursuant
to Rule 462(b) under the Act (including the Registration Statement and any
Preliminary Prospectus or Prospectus incorporated therein at the time such
Registration Statement becomes effective); the term "Registration Statement"
includes both the Original Registration Statement and any Rule 462(b)
Registration Statement; the term "Preliminary Prospectus" means each prospectus
subject to completion filed with such registration statement or any amendment
thereto (including the prospectus subject to completion, if any, included in the
Registration Statement or any amendment thereto at the time it was or is
declared effective); the term "Prospectus" means:
(A) if the Company relies on Rule 434 under the Act, the Term Sheet
relating to the Securities that is first filed pursuant to Rule 424(b)(7)
under the Act, together with the Preliminary Prospectus identified therein
that such Term Sheet supplements:
(B) if the Company does not rely on Rule 434 under the Act, the prospectus
first filed with the Commission pursuant to Rule 424(b) under the Act; or
(C) if the Company does not rely on Rule 434 under the Act and if no
prospectus is required to be filed pursuant to Rule 424(b) under the Act,
the prospectus included in the Registration Statement, including, in the
case of clauses (A), (B) or (C) of this sentence, all documents
incorporated by reference therein filed under the Securities Exchange Act
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of 1934, as amended (the "Exchange Act"); and the term "Term Sheet" means
any term sheet that satisfies the requirements of Rule 434 under the Act.
Any reference in this Agreement to an "amendment or supplement" to any
Preliminary Prospectus, the Prospectus or an "amendment" to any
registration statement (including the Registration Statement) shall be
deemed to include any document incorporated by reference therein that is
filed with the Commission under the Exchange Act after the date of such
Preliminary Prospectus, Prospectus or registration statement, as the case
may be; any reference herein to the "date" of a Prospectus that includes a
Term Sheet shall mean the date of such Term Sheet. For purposes of the
preceding sentence, any reference to the "effective date" of an amendment
to a registration statement shall, if such amendment is effected by means
of the filing with the Commission under the Exchange Act of a document
incorporated by reference in such registration statement, be deemed to
refer to the date on which such document was so filed with the Commission.
(b) The Commission has not issued any order preventing or suspending the
use of any Preliminary Prospectus. When any Preliminary Prospectus and any
amendment or supplement thereto was filed with the Commission, it (i) contained
all statements required to be stated therein in accordance with, and complied in
all material respects with the requirements of, the Act, the Exchange Act and
the respective rules and regulations of the Commission thereunder, and (ii) did
not include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. When the
Registration Statement or any amendment thereto was or is declared effective, it
(i) contained or will contain all statements required to be stated therein in
accordance with, and complied or will comply in all material respects with the
requirements of, the Act, the Exchange Act and the respective rules and
regulations of the Commission thereunder and (ii) did not or will not include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading. When the Prospectus or
any Term Sheet that is a part thereof or any amendment or supplement to the
Prospectus is filed with the Commission pursuant to Rule 424(b) (or, if the
Prospectus or part thereof or such amendment or supplement is not required to be
so filed, when the Registration Statement or the amendment thereto containing
such amendment or supplement to the Prospectus was or is declared effective), on
the date when the Prospectus is otherwise amended or supplemented and on the
Firm Closing Date and any Option Closing Date (both as hereinafter defined), the
Prospectus, as amended or supplemented at any such time, (i) contained or will
contain all statements required to be stated therein in accordance with, and
complied or will comply in all material respects with the requirements of, the
Act, the Exchange Act and the respective rules and regulations of the Commission
thereunder and (ii) did not or will not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The foregoing provisions of this paragraph (b) do not
apply to statements or omissions made in any Preliminary Prospectus, or any
amendment or supplement thereto, the Registration Statement, or any amendment
thereto or the Prospectus or any amendment or supplement thereto in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein.
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(c) If the Company has elected to rely on Rule 462(b) and the Rule 462(b)
Registration Statement has not been declared effective (i) the Company has filed
a Rule 462(b) Registration Statement in compliance with, and that is effective
upon filing pursuant to, Rule 462(b) and has received confirmation of its
receipt; and (ii) the Company has given irrevocable instructions for
transmission of the applicable filing fee in connection with the filing of the
Rule 462(b) Registration Statement, in compliance with Rule 111 promulgated
under the Act, or the Commission has received payment of such filing fee.
(d) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of Wisconsin and is duly qualified
to transact business as a foreign corporation and is in good standing under the
laws of all other jurisdictions where the ownership or leasing of its properties
or the conduct of its business requires such qualification, except where the
failure to be so qualified would be expected to result in a material adverse
change in the condition (financial or otherwise), management, business
prospects, net worth or results of operations of the Company ("Material Adverse
Change").
(e) The Company has corporate power to own or lease its properties and
conduct its business as described in the Registration Statement or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus; and the
Company has full power (corporate and other) to enter into this Agreement and to
carry out all the terms and provisions hereof to be carried out by it.
(f) The Company has an authorized, issued and outstanding capitalization as
set forth in the Prospectus under the caption "Capitalization" or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus. All of
the issued shares of capital stock of the Company have been duly authorized and
validly issued and are fully paid and nonassessable (except to the extent
otherwise provided in Section 180.0622(2)(b) of the Wisconsin Business
Corporation Law (the "WBCL")). The Firm Securities and the Option Securities
have been duly authorized and at the Firm Closing Date or the related Option
Closing Date (as the case may be), after payment therefor in accordance
herewith, will be validly issued, fully paid and nonassessable (except to the
extent otherwise provided in Section 180.0622(2)(b) of the WBCL). No holders of
outstanding shares of capital stock of the Company are entitled as such to any
preemptive or other rights to subscribe for any of the Securities, and no holder
of securities of the Company has any right which has not been fully exercised or
waived to require the Company to register the offer or sale of any securities
owned by such holder under the Act in the public offering contemplated by this
agreement.
(g) The capital stock of the Company conforms to the description thereof
contained in the Prospectus (or, if the Prospectus is not in existence, the most
recent Preliminary Prospectus).
(h) Except as disclosed in the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), there are no outstanding (A)
securities or obligations of the Company convertible into or exchangeable for
any capital stock of the Company, (B) warrants, rights or options to subscribe
for or purchase from the Company any such capital stock or any
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such convertible or exchangeable securities or obligations, or (C) obligations
of the Company to issue any shares of capital stock, any such convertible or
exchangeable securities or obligations, or any such warrants, rights or options.
(i) The financial statements and schedules of the Company included in the
Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus) fairly present the financial
position of the Company and the results of operations and changes in financial
condition as of the dates and periods therein specified. Such financial
statements and schedules have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved (except as otherwise noted therein). The selected financial data set
forth under the caption "Selected Financial Data" in the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus) fairly
present, on the basis stated in the Prospectus (or such Preliminary Prospectus),
the information included therein.
(j) Each of KPMG LLP and Arthur Andersen LLP, who have certified certain
financial statements of the Company and delivered their report with respect to
the audited financial statements and schedules included in the Registration
Statement and the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus), are independent public accountants as
required by the Act, the Exchange Act and the applicable rules and regulations
thereunder.
(k) The execution and delivery of this Agreement have been duly authorized
by the Company, and this Agreement has been duly executed and delivered by, and
assuming due authorization, execution and delivery by the Underwriters, is the
valid and binding agreement of, the Company, enforceable against the Company in
accordance with its terms; except as the enforcement hereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating or affecting the rights and remedies of creditors or by several
equitable principles.
(l) No legal or governmental proceedings are pending to which the Company
is a party or to which the property of the Company is subject that are required
to be described in the Registration Statement or the Prospectus and are not
described therein (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus), and, to the Company's knowledge, no such proceedings
have been threatened against the Company or with respect to any of its
properties; and no contract or other document is required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement that is not described therein (or, if the Prospectus is
not in existence, the most recent Preliminary Prospectus), or filed as required.
(m) The issuance, offering and sale of the Securities to the Underwriters
by the Company pursuant to this Agreement, the compliance by the Company with
the other provisions of this Agreement and the consummation of the other
transactions herein contemplated do not (i) require the consent, approval,
authorization, registration or qualification of or with any
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governmental authority, except such as have been obtained, such as may be
required under state securities or blue sky laws and, if the registration
statement filed with respect to the Securities (as amended) is not effective
under the Act as of the time of execution hereof, such as may be required (and
shall be obtained as provided in this Agreement) under the Act, or (ii) conflict
with or result in a breach or violation of any of the terms and provisions of,
or constitute a default under, any indenture, mortgage, deed of trust, lease or
other agreement or instrument to which the Company is a party or by which the
Company or any of its properties are bound, which in any such case is material
to the Company or the charter documents or by-laws of the Company, or any
statute or any judgment, decree, order, rule or regulation of any court or other
governmental authority as would not be expected to, individually or in the
aggregate, result in a Material Adverse Change.
(n) Subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus (or if the Prospectus is not in
existence, the most recent Preliminary Prospectus), the Company has not
sustained any material loss or interference with its business 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 that would be
expected to result in a Material Adverse Change, except in each case as
described in or contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(o) The Company has not, directly or indirectly, (i) taken any action
designed to cause or to result in, or that has constituted or which might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the
Securities, or (ii) since the filing of the Registration Statement (A) sold, bid
for, purchased, or paid anyone any compensation for soliciting purchases of the
Securities or (B) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of the Company.
(p) The Company has not distributed and, prior to the later of (i) the
Closing Date and (ii) the completion of the distribution of the Securities, will
not distribute any offering material in connection with the offering and sale of
the Securities other than the Registration Statement or any amendment thereto,
any Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto, or other materials, if any permitted by the Act.
(q) Subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus), (1) the Company has not
incurred any material liability or obligation, direct or contingent, nor entered
into any material transaction not in the ordinary course of business; (2) the
Company has not purchased any of its outstanding capital stock, nor declared,
paid or otherwise made any dividend or distribution of any kind on its capital
stock; and (3) there has not been any material change in the capital stock,
short-term debt or long-term debt of the Company, except with respect to the
exercise of previously outstanding options, and
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except in each case as described in or contemplated by the Prospectus (or, if
the Prospectus is not in existence, the most recent Preliminary Prospectus).
(r) The Company has good and marketable title to all the properties and
assets reflected as owned in the financial statements referred to in Section
2(i) above (or elsewhere in the Prospectus) in each case free and clear of any
security interests, liens, encumbrances, equities, claims and other defects,
except such as do not materially and adversely affect the value of such property
and do not interfere with the use made or proposed to be made of such property
by the Company and any real property and buildings held under lease by the
Company are held under valid, subsisting and enforceable leases, with such
exceptions as are not material and do not materially interfere with the use made
or proposed to be made of such property and buildings by the Company in each
case except as described in or contemplated by the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus).
(s) No labor dispute with the employees of the Company exists or to the
knowledge of the Company, is threatened or imminent that would be expected to
result in a Material Adverse Change, except as described in or contemplated by
the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(t) The Company owns, licenses, or possesses, or can acquire on reasonable
terms, all material patents, patent applications, trademarks, service marks,
trade names, licenses, copyrights and proprietary or other confidential
information currently employed by it in connection with its business, and the
Company has not received any notice of infringement of or conflict with asserted
rights of any third party with respect to any of the foregoing which, singly or
in the aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Change, except as described in or
contemplated by the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus).
(u) The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
generally deemed adequate and customary in the businesses in which it is
engaged; the Company has not been refused any insurance coverage sought or
applied for; and the Company has no reason to believe that it will not be able
to renew its existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to continue
its business at a cost that would not be expected to have a Material Adverse
Change, except as described in or contemplated by the Prospectus (or, if the
Prospectus is not in existence, the most recent Preliminary Prospectus).
(v) The Company possesses all certificates, authorizations and permits
issued by the appropriate federal, state or foreign regulatory authorities
necessary to conduct its business as currently conducted, and the Company has
not received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which, singly or
in the aggregate, if the subject of an unfavorable decision, ruling or finding,
would be expected to result in a Material Adverse Change, except as described in
or contemplated by the Prospectus (or, if the Prospectus is not in existence,
the most recent Preliminary Prospectus).
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(w) The Company has conducted its operations in a manner that will not
subject it to registration as an investment company under the Investment Company
Act of 1940, as amended, and this transaction will not cause the Company to
become an investment company subject to registration under such Act.
(x) The Company has filed all foreign, federal, state and local tax returns
that are required to be filed or has requested extensions thereof (except in any
case in which the failure so to file would not reasonably be expected to result
in a Material Adverse Change and has paid all taxes required to be paid by it
and any other assessment, fine or penalty levied against it, to the extent that
any of the foregoing is due and payable, except for any such assessment, fine or
penalty that is currently being contested in good faith or as described in or
contemplated by the Prospectus (or, if the Prospectus is not in existence, the
most recent Preliminary Prospectus).
(y) The Company is not in violation of any federal or state law or
regulation relating to occupational safety and health or to the storage,
handling or transportation of hazardous or toxic materials and the Company has
received all permits, licenses or other approvals required of them under
applicable federal and state occupational safety and health and environmental
laws and regulations to conduct its business, and the Company is in compliance
with all terms and conditions of any such permit, license or approval, except
any such violation of law or regulation, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals which would not reasonably be expected
to, singly or in the aggregate, result in a Material Adverse Change, except as
described in or contemplated by the Prospectus (or, if the Prospectus is not in
existence, the most recent Preliminary Prospectus).
(z) Each certificate signed by any officer of the Company and delivered to
the Representatives or counsel for the Underwriters shall be deemed to be a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
(aa) The Company does not own any shares of stock or any other equity
securities of any corporation or has any equity interest in any firm,
partnership, association or other entity, except as described in or contemplated
by the Prospectus (or, if the Prospectus is not in existence, the most recent
Preliminary Prospectus).
(bb) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurance that (1) transactions are executed in
accordance with management's general or specific authorizations; (2)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain asset accountability; (3) access to assets is permitted only in
accordance with management's general or specific authorization; and (4) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(cc) No default exists, and no event has occurred which, with notice or
lapse of time or both, would constitute a default in the due performance and
observance of any term, covenant or
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condition of any indenture, mortgage, deed of trust, lease or other agreement or
instrument to which the Company is a party or by which the Company or any of its
respective properties is bound except for any such default or event which would
not be expected to result in a Material Adverse Change.
(dd) The Company is not in violation of any healthcare law, ordinance,
administrative or governmental rule or regulation applicable to the Company,
including, without limitation, those relating to product testing, marketing
approvals and reimbursement by government agencies or third-party payors, except
for any such violation which would not be expected to result in a Material
Adverse Change.
3. Purchase, Sale and Delivery of the Securities.
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(a) On the basis of the representations, warranties, agreements and
covenants herein contained and subject to the terms and conditions herein set
forth, the Company agrees to issue and sell to each of the Underwriters, and
each of the Underwriters, severally and not jointly, agrees to purchase from the
Company, at a purchase price of $15.04 per share, the number of Firm Securities
set forth opposite the name of such Underwriter in Schedule I hereto. One or
more certificates in definitive form for the Firm Securities that the several
Underwriters have agreed to purchase hereunder, and in such denomination or
denominations and registered in such name or names as the Representatives
request upon notice to the Company at least 48 hours prior to the Firm Closing
Date, shall be delivered by or on behalf of the Company to the Representatives
for the respective accounts of the Underwriters, against payment by or on behalf
of the Underwriters of the purchase price therefor by wire transfer in same-day
funds (the "Wired Funds") to the account of the Company. Such delivery of and
payment for the Firm Securities shall be made at the offices of Stroock &
Stroock & Lavan LLP, 180 Maiden Lane, New York, New York 10038 at 9:30 A.M.,
New York time, on December 15, 2000, or at such other place, time or date as the
Representatives and the Company may agree upon or as the Representatives may
determine pursuant to Section 9 hereof, such time and date of delivery against
payment being herein referred to as the "Firm Closing Date". The Company will
make such certificate or certificates for the Firm Securities available for
checking and packaging by the Representatives at the offices in New York, New
York of the Company's transfer agent or registrar or of Prudential Securities
Incorporated at least 24 hours prior to the Firm Closing Date.
(b) For the purpose of covering any over-allotments in connection with the
distribution and sale of the Firm Securities as contemplated by the Prospectus,
the Company hereby grants to the several Underwriters an option to purchase,
severally and not jointly, the Option Securities. The purchase price to be paid
for any Option Securities shall be the same price per share as the price per
share for the Firm Securities set forth above in paragraph (a) of this
Section 3. The option granted hereby may be exercised as to all or any part of
the Option Securities from time to time within thirty days after the date of the
Prospectus (or, if such 30th day shall be a Saturday or Sunday or a holiday, on
the next business day thereafter when the New York Stock Exchange is open for
trading). The Underwriters shall not be under any obligation to purchase any of
the Option Securities prior to the exercise of such option. The Representatives
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may from time to time exercise the option granted hereby by giving notice in
writing or by telephone (confirmed in writing) to the Company setting forth the
aggregate number of Option Securities as to which the several Underwriters are
then exercising the option and the date and time for delivery of and payment for
such Option Securities. Any such date of delivery shall be determined by the
Representatives but shall not be earlier than two business days or later than
five business days after such exercise of the option and, in any event, shall
not be earlier than the Firm Closing Date. The time and date set forth in such
notice, or such other time on such other date as the Representatives and the
Company may agree upon or as the Representatives may determine pursuant to
Section 9 hereof, is herein called the "Option Closing Date" with respect to
such Option Securities. Upon exercise of the option as provided herein, the
Company shall become obligated to sell to each of the several Underwriters, and,
subject to the terms and conditions herein set forth, each of the Underwriters
(severally and not jointly) shall become obligated to purchase from the Company,
the same percentage of the total number of the Option Securities as to which the
several Underwriters are then exercising the option as such Underwriter is
obligated to purchase of the aggregate number of Firm Securities, as adjusted by
the Representatives in such manner as they deem advisable to avoid fractional
shares. If the option is exercised as to all or any portion of the Option
Securities, one or more certificates in definitive form for such Option
Securities, and payment therefor, shall be delivered on the related Option
Closing Date in the manner, and upon the terms and conditions, set forth in
paragraph (a) of this Section 3, except that reference therein to the Firm
Securities and the Firm Closing Date shall be deemed, for purposes of this
paragraph (b), to refer to such Option Securities and Option Closing Date,
respectively.
(c) The Company hereby acknowledges that the wire transfer by or on behalf
of the Underwriters of the purchase price for any Securities does not constitute
closing of a purchase and sale of the Securities. Only execution and delivery
of a receipt for Securities by the Underwriters indicates completion of the
closing of a purchase of the Securities from the Company. Furthermore, in the
event that the Underwriters wire funds to the Company prior to the completion of
the closing of a purchase of Securities, the Company hereby acknowledges that
until the Underwriters execute and deliver a receipt for the Securities, by
facsimile or otherwise, the Company will not be entitled to the Wired Funds and
shall return the Wired Funds to the Underwriters as soon as practicable (by wire
transfer of same-day funds) upon demand. In the event that the closing of a
purchase of Securities is not completed and the Wired Funds are not returned by
the Company to the Underwriters on the same day the Wired Funds were received by
the Company, the Company agrees to pay to the Underwriters in respect of each
day the Wired Funds are not returned by it, in same-day funds, interest on the
amount of such Wired Funds in an amount representing the Underwriters' cost of
financing as reasonably determined by Prudential Securities Incorporated.
(d) It is understood that any of you, individually and not as one of the
Representatives, may (but shall not be obligated to) make payment on behalf of
any Underwriter or Underwriters for any of the Securities to be purchased by
such Underwriter or Underwriters. No such payment shall relieve such
Underwriter or Underwriters from any of its or their obligations hereunder.
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4. Offering by the Underwriters. Upon your authorization of the release
of the Firm Securities, the several Underwriters propose to offer the Firm
Securities for sale to the public upon the terms set forth in the Prospectus.
5. Covenants of the Company. The Company covenants and agrees with each
of the Underwriters that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the time of execution of this Agreement, and any
amendments thereto to become effective as promptly as possible. If required,
the Company will file the Prospectus or any Term Sheet that constitutes a part
thereof and any amendment or supplement thereto with the Commission in the
manner and within the time period required by Rules 434 and 424(b) under the
Act. During any time when a prospectus relating to the Securities is required
to be delivered under the Act, the Company (i) will comply with all requirements
imposed upon it by the Act, the Exchange Act and the respective rules and
regulations of the Commission thereunder to the extent necessary to permit the
continuance of sales of or dealings in the Securities in accordance with the
provisions hereof and of the Prospectus, as then amended or supplemented, and
(ii) will not file with the Commission the prospectus or the amendment referred
to in the second sentence of Section 2(a) hereof, any amendment or supplement to
such prospectus or any amendment to the Registration Statement or any Rule
462(b) Registration Statement of which the Representatives shall not previously
have been advised and furnished with a copy for a reasonable period of time
prior to the proposed filing and as to which filing the Representatives shall
not have given their consent not unreasonably withheld. The Company will
prepare and file with the Commission, in accordance with the rules and
regulations of the Commission, promptly upon request by the Representatives or
counsel for the Underwriters, any amendments to the Registration Statement or
amendments or supplements to the Prospectus that may be necessary or advisable
in connection with the distribution of the Securities by the several
Underwriters, and will use its best efforts to cause any such amendment to the
Registration Statement to be declared effective by the Commission as promptly as
possible. The Company will advise the Representatives, promptly after receiving
notice thereof, of the time when the Registration Statement or any amendment
thereto has been filed or declared effective or the Prospectus or any amendment
or supplement thereto has been filed and will provide evidence satisfactory to
the Representatives of each such filing or effectiveness.
(b) The Company will advise the Representatives, promptly after receiving
notice or obtaining knowledge thereof, of (i) the issuance by the Commission of
any stop order suspending the effectiveness of the Original Registration
Statement or any Rule 462(b) Registration Statement or any post-effective
amendment thereto or any order directed at any document incorporated by
reference in the Registration Statement preventing or suspending the use of any
Preliminary Prospectus or the Prospectus or any amendment or supplement thereto,
(ii) the suspension of the qualification of the Securities for offering or sale
in any jurisdiction, (iii) the institution, threatening or contemplation of any
proceeding for any such purpose or (iv) any request made by the Commission for
amending the Original Registration Statement or any Rule 462(b) Registration
Statement, for amending or supplementing any Preliminary Prospectus or the
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Prospectus or for additional information. The Company will use its best efforts
to prevent the issuance of any such stop order and, if any such stop order is
issued, to obtain the withdrawal thereof as promptly as possible.
(c) The Company will cooperate, when and as reasonably requested by the
Representatives, in connection with the qualification of the Securities for
offering and sale under the securities or blue sky laws of such jurisdictions as
the Representatives may designate and will continue such qualifications in
effect for as long as may be necessary to complete the distribution of the
Securities, provided, however, that in connection therewith the Company shall
not be required to qualify as a foreign corporation or to execute a general
consent to service of process in any jurisdiction.
(d) If, at any time prior to the later of (i) the final date when a
prospectus relating to the Securities is required to be delivered under the Act
or (ii) the Option Closing Date, any event occurs as a result of which the
Prospectus, as then amended or supplemented, would include any untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, or if for any other reason it is necessary at any time to
amend or supplement the Prospectus to comply with the Act, the Exchange Act or
the respective rules or regulations of the Commission thereunder, the Company
will promptly notify the Representatives thereof and, subject to Section 5(a)
hereof, will prepare and file with the Commission, at the Company's expense, an
amendment to the Registration Statement or an amendment or supplement to the
Prospectus that corrects such statement or omission or effects such compliance.
(e) The Company will, without charge, provide (i) to the Representatives
and to counsel for the Underwriters a signed copy of the Original Registration
Statement filed with respect to the Securities and each amendment thereto (in
each case including exhibits thereto), (ii) to each other Underwriter, a
conformed copy of such registration statement or any Rule 462(b) Registration
Statement and each amendment thereto (in each case without exhibits thereto) and
(iii) so long as a prospectus relating to the Securities is required to be
delivered under the Act, as many copies of each Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto as the Representatives may
reasonably request; without limiting the application of clause (iii) of this
sentence, the Company, not later than (A) 6:00 P.M., New York City time, on the
date of determination of the public offering price, if such determination
occurred at or prior to 10:00 A.M., New York City time on such date or (B) 2:00
P.M., New York City time, on the business day following the date of
determination of the public offering price, if such determination occurred after
10:00 A.M., New York City time, on such date, will deliver to the Underwriters,
without charge, as many copies of the Prospectus and any amendment or supplement
thereto as the Representatives may reasonably request for purposes of confirming
orders that are expected to settle on the Firm Closing Date.
(f) The Company, as soon as practicable, will make generally available to
its securityholders and to the Representatives a earnings statement of the
Company that satisfies the provisions of Section 11(a) of the Act and Rule 158
thereunder.
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(g) The Company will apply the net proceeds from the sale of the Securities
as set forth under "Use of Proceeds" in the Prospectus.
(h) The Company will not, directly or indirectly, without the prior written
consent of Prudential Securities Incorporated, on behalf of the Underwriters,
offer, sell, offer to sell, contract to sell, grant any option to purchase or
otherwise sell or dispose (or announce any offer, sale, offer of sale, contract
of sale, grant of any option to purchase or other sale or disposition) of any
shares of Common Stock or any securities convertible into, or exchangeable or
exercisable for, shares of Common Stock for a period of 90 days after the date
hereof, except pursuant to this Agreement and to employees in the ordinary
course of business and except for issuances pursuant to the exercise of employee
stock options outstanding on the date hereof, pursuant to the Company's dividend
reinvestment plan or pursuant to the terms of convertible securities of the
Company outstanding on the date hereof.
(i) The Company will not, directly or indirectly, (i) take any action
designed to cause or to result in, or that constitutes or which might reasonably
be expected to constitute, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Securities or
(ii) (A) sell, bid for, purchase, or pay anyone any compensation for soliciting
purchases of, the Securities or (B) pay or agree to pay to any person any
compensation for soliciting another to purchase any other securities of the
Company.
(j) The Company will obtain the agreements described in Section 7(j) hereof
prior to the Firm Closing Date.
(k) If at any time during the 25-day period after the Registration
Statement becomes effective or the period prior to the Option Closing Date, any
rumor, publication or event relating to or affecting the Company shall occur as
a result of which in the opinion of Prudential Securities Incorporated, the
market price of the Common Stock has been or is likely to be materially affected
(regardless of whether such rumor, publication or event necessitates a
supplement to or amendment of the Prospectus), the Company will, after notice
from Prudential Securities Incorporated advising the Company to the effect set
forth above, forthwith consult with Prudential Securities Incorporated
concerning the substance of and mutually agreed upon dissemination of a press
release or other public statement, reasonably satisfactory to Prudential
Securities Incorporated and the Company and its counsel, responding to or
commenting on such rumor, publication or event.
(l) If the Company elects to rely on Rule 462(b), the Company shall both
file a Rule 462(b) Registration Statement with the Commission in compliance with
Rule 462(b) and pay the applicable fees in accordance with Rule 111 promulgated
under the Act by the earlier of (i) 10:00 P.M. Eastern time on the date of this
Agreement and (ii) the time confirmations are sent or given, as specified by
Rule 462(b)(2).
(m) The Company will cause the Securities to be duly included for quotation
on The Nasdaq Stock Market's National Market (the "Nasdaq National Market")
prior to the Firm Closing Date. The Company will use its best efforts to cause
the Securities to remain included
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for quotation on the Nasdaq National Market following the Firm Closing Date and
until the earliest of three years after the date hereof, the date when the
Company is no longer subject to the reporting requirements of the Exchange Act
or the date the Securities are listed on a national securities exchange.
6. Expenses. The Company will pay all costs and expenses incident to the
performance of its obligations under this Agreement, whether or not the
transactions contemplated herein are consummated or this Agreement is terminated
pursuant to Section 11 hereof, including all costs and expenses incident to (i)
the printing or other production of documents with respect to the transactions,
including any costs of printing the Original Registration Statement filed with
respect to the Securities and any amendment thereto, any Rule 462(b)
Registration Statement, any Preliminary Prospectus and the Prospectus and any
amendment or supplement thereto, this Agreement and any blue sky memoranda, (ii)
all arrangements relating to the delivery to the Underwriters of copies of the
foregoing documents, (iii) the fees and disbursements of the counsel,
accountants and any other experts or advisors retained by the Company, (iv)
preparation, issuance and delivery to the Underwriters of any certificates
evidencing the Securities, including transfer agent's and registrar's fees, (v)
the qualification of the Securities under state securities and blue sky laws,
including filing fees and fees and disbursements of counsel for the Underwriters
relating thereto, (vi) the filing fees of the Commission and the National
Association of Securities Dealers, Inc. relating to the Securities, (vii) the
quotation of the Securities on the Nasdaq National Market, (viii) meetings with
prospective investors in the Securities (other than as shall have been
specifically approved by the Representatives to be paid for by the Underwriters)
and (ix) advertising relating to the offering of the Securities (other than
shall have been specifically approved by the Representatives to be paid for by
the Underwriters). If the sale of the Securities provided for herein is not
consummated because any condition to the obligations of the Underwriters set
forth in Section 7 hereof is not satisfied, because this Agreement is terminated
pursuant to Section 11 hereof or because of any failure, refusal or inability on
the part of the Company to perform all obligations and satisfy all conditions on
its part to be performed or satisfied hereunder other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally upon demand for all out-of-pocket expenses (including reasonable fees
and disbursements of counsel) that shall have been incurred by them in
connection with the proposed purchase and sale of the Securities. The Company
shall not in any event be liable to any of the Underwriters for the loss of
anticipated profits from the transactions covered by this Agreement.
7. Conditions of the Underwriters' Obligations. The obligations of the
several Underwriters to purchase and pay for the Firm Securities shall be
subject, in the Representatives' sole discretion, to the accuracy of the
representations and warranties of the Company contained herein as of the date
hereof and as of the Firm Closing Date, as if made on and as of the Firm Closing
Date, to the accuracy of the statements of the Company's officers made pursuant
to the provisions hereof, to the performance by the Company of its covenants and
agreements hereunder and to the following additional conditions:
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(a) If the Original Registration Statement or any amendment thereto filed
prior to the Firm Closing Date has not been declared effective as of the time of
execution hereof, the Original Registration Statement or such amendment and, if
the Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration
Statement shall have become effective not later than the earlier of (i) 11:00
A.M., New York City time, on the date on which the amendment to the Original
Registration Statement filed with respect to the Securities or to the
Registration Statement, as the case may be, containing information regarding the
initial public offering price of the Securities has been filed with the
Commission and (ii) the time confirmations are sent or given as specified by
Rule 462(b)(2), or with respect to the Original Registration Statement, or such
later time and date as shall have been consented to by the Representatives; if
required, the Prospectus or any Term Sheet that constitutes a part thereof and
any amendment or supplement thereto shall have been filed with the Commission in
the manner and within the time period required by Rules 434 and 424(b) under the
Act; no stop order suspending the effectiveness of the Registration Statement or
any post-effective amendment thereto and no order directed at any document
incorporated by reference in the Registration Statement or the Prospectus or any
amendment or supplement thereto shall have been issued and no proceedings for
that purpose shall have been instituted or threatened or, to the knowledge of
the Company or the Representatives, shall be contemplated by the Commission; and
the Company shall have complied with any request of the Commission for
additional information (to be included in the Registration Statement or the
Prospectus or otherwise).
(b) The Representatives shall have received an opinion, dated the Firm
Closing Date, of Sidley & Austin, counsel for the Company, to the effect that:
(i) the Registration Statement has become effective under the Act; and
to our knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceeding for such purpose has been
instituted or threatened by the Commission;
(ii) at the time the Registration Statement became effective (but
after giving effect to Rule 430A under the Act), the Registration Statement
(other than the financial statements, financial data, statistical data and
supporting schedules included therein, as to which such counsel expresses no
opinion) complied as to form in all material respects with the requirements of
the Act and the rules and regulations of the Commission thereunder;
(iii) the documents incorporated by reference in the Prospectus
(other than the financial statements, financial data, statistical data and
supporting schedules included therein, as to which such counsel expresses no
opinion), at the respective times such documents were filed with the Commission,
complied as to form in all material respects with the requirements of the
Exchange Act, and the rules and regulations of the Commission thereunder;
(iv) to the knowledge of such counsel, there are no holders of shares
of Common Stock, who, by reason of the filing of the Registration Statement,
have the contractual right (and have not waived such right) to request the
Company to register under the Act, or to include in the Registration Statement,
shares of Common Stock held by them;
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<PAGE>
(v) to the knowledge of such counsel, there are no statutes or legal
or governmental proceedings required to be described in the Registration
Statement or the Prospectus which are not described as required, or any
contracts or documents of a character required to be described in the
Registration Statement or the Prospectus (or required to be filed under the
Exchange Act if upon such filing they would be incorporated, in whole or in
part, by reference therein) or to be filed as exhibits to the Registration
Statement which are not described or filed as required;
(vi) the Securities have been included for trading on The Nasdaq
National Market as evidenced by the Listing of Additional Shares Transaction
Summary Report from The Nasdaq Stock Market, Inc. dated on or about December 13,
2000;
(vii) such counsel has no reason to believe that the Registration
Statement (other than the financial statements, financial data, statistical data
and supporting schedules included therein), as of its effective date (but after
giving effect to Rule 430A under the Act), contained any untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein not misleading or that the Prospectus (other than the
financial statements, financial data, statistical data and supporting schedules
included therein) as of its date or the date of such opinion, included or
includes any untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(viii) the Company is not required to register as an investment
company under the Investment Company Act of 1940, as amended (the "1940 Act"),
and will not be required to register as an investment company under the 1940 Act
solely as a result of the consummation of the transaction contemplated by the
Underwriting Agreement;
(ix) assuming the due authorization, execution and delivery of the
Underwriting Agreement by the Company and the Underwriters, the Underwriting
Agreement is a legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except as the enforceability
thereof may be limited by (a) bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights generally, (b) general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or at law) and
(iii) federal and state securities laws or the public policy underlying such
laws that may limit the right to indemnity or contribution; and
(x) the issuance, offering and sale of the Securities to the
Underwriters by the Company pursuant to the Underwriting Agreement, the
compliance by the Company with the other provisions of the Underwriting
Agreement and the consummation of the other transactions contemplated thereby,
do not result in a breach or violation of any of the terms and provisions of, or
constitute a default under any indenture, mortgage, deed of trust, lease or
other agreement or other agreement or instrument, known to such counsel, by
which the Company is a party or by which the Company or any of its respective
properties are bound.
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With respect to our opinion in paragraph (viii) above, such counsel has
based its opinion solely on (i) a certificate of Robert Beckman, the Acting Vice
President-Finance of the Company, as to the nature of certain assets held by the
Company as of the date hereof, the nature of the assets to be acquired by the
Company with the proceeds of the sale of the Securities pursuant to the
Underwriting Agreement and the Company's primary purpose for holding such
assets, a copy of which certificate is attached to this opinion and (ii) the
analysis and conclusions provided by the Commission in its Order Granting
Exemption under the Investment Company Act of 1940 to ICOS Corporation dated
March 16, 1993 (SEC Release No. IC-19334) (the "ICOS Exemption Order"). In
addition, we have assumed, with your permission, that a court of competent
jurisdiction, in a properly prepared and presented case, would agree with the
analysis and conclusions provided by the Commission in the ICOS Exemption Order.
Such counsel notes that, as the ICOS Exemption Order was not issued to the
Company, the Company is not legally entitled to rely thereon. Such counsel
further notes that the Company has not filed an application requesting an order
granting exemption pursuant to Section 3(b)(2) of the Investment Company Act
and, to our knowledge, has no intent to do so.
With respect to the opinion set forth in paragraph (v) above, to the extent
that any matter set forth therein is covered in the opinion of Olsson, Frank and
Weeda, P.C., food and drug regulatory counsel for the Company, such counsel has
relied exclusively, with the consent of the Underwriters, on such opinion.
With respect to the opinion set forth in paragraph (vi) above, such counsel
has based its opinion solely on the Listing of Additional Shares Transaction
Summary Report from The Nasdaq Stock Market, Inc., dated on or about December
13, 2000.
(c) The Representatives shall have received an opinion, dated the Firm
Closing Date, of Michael, Best & Friedrich, special Wisconsin counsel for the
Company, to the effect that:
(i) the Company is duly incorporated and validly existing under
the laws of the State of Wisconsin. Based solely upon a certificate from the
Wisconsin Department of Financial Institutions, the Company has filed with the
Wisconsin Department of Financial Institutions the most recent annual report
required to be filed by it, has not filed articles of dissolution and has a
perpetual existence;
(ii) the Company has full corporate power and authority necessary
to own or lease its properties and conduct its business in which it is engaged
as described in the Registration Statement and the Prospectus and the Company
has full corporate power to enter into the Underwriting Agreement and to carry
out the full terms and provisions thereof to be carried out by it;
(iii) all of the issued shares of capital stock of the Company have
been validly issued and are fully paid and nonassessable, except to the extent
that such shares are assessable as provided in Section 180.0622 of the Wisconsin
Business Corporation Law and judicial interpretations thereof;
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(iv) the Securities have been duly authorized by all necessary
corporate action of the Company and, when sold to the Underwriters pursuant to
the Underwriting Agreement, will be validly issued, fully paid and
nonassessable, except to the extent that such Securities are assessable as
provided in Section 180.0622 of the Wisconsin Business Corporation Law and
judicial interpretations thereof;
(v) the statements set forth under the heading "Description of
Capital Stock" which are incorporated by reference in the Prospectus and,
insofar as such statements purport to summarize certain provisions of the
capital stock of the Company, provide a fair summary of such provisions;
(vi) the execution and delivery of the Underwriting Agreement have
been duly authorized by all necessary corporate action of the Company and the
Underwriting Agreement has been duly executed and delivered by the Company;
(vii) the issuance, offering and sale of the Securities to the
Underwriters by the Company pursuant to the Underwriting Agreement, the
compliance by the Company with the other provisions of the Underwriting
Agreement and the consummation of the other transactions contemplated by the
Underwriting Agreement, do not conflict with or result in a breach or violation
of any of the terms and provisions of the Company's Articles of Incorporation or
By-laws or require the consent, approval, authorization or qualification of or
with any Wisconsin governmental authority, except such as have been obtained and
such as may be required under state securities or blue sky laws; and
(viii) to the knowledge of such counsel, the Company is not in
violation of any federal or state of Wisconsin law or regulation relating to the
occupational safety and health or to the storage, handling or transportation of
hazardous or toxic materials and the Company has received all permits, licenses
or other approvals required of it under applicable federal and state of
Wisconsin occupational safety and health and environmental laws and regulations
to conduct its business, and the Company is in compliance with all terms and
conditions of any such permit, license or approval, except any such violation of
law or regulation, failure to receive required permits, licenses or approvals or
failure to comply with the terms and conditions of such permits, licenses or
approvals which would not be expected to, singly or in the aggregate, result in
a Material Adverse Change, except as described in the Prospectus.
References to the Registration Statement and the Prospectus in these
paragraphs (b) and (c) shall include any amendment or supplement thereto at the
date of such opinions.
(d) The Representatives shall have received an opinion, dated the Firm
Closing Date, of Olsson, Frank and Weeda, P.C., outside food and drug regulatory
counsel for the Company, to the effect that:
(i) the laws and regulations enforced by the Food and Drug
Administration (the "FDA") include, without limitation, regulations relating to
the product testing, Good Manufacturing Practices, Good Laboratory Practices,
and marketing approval which includes
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authorization to seek reimbursement from government agencies or third-party
payors. The FDA is charged with enforcement of the Federal Food, Drug and
Cosmetic Act. Such counsel concludes, that the "Business - Government
Regulation" section of the Registration Statement, insofar as restated therein,
represents a fair summary insofar as applicable to the Company;
(ii) to such counsel's knowledge, the Company is currently in
compliance with all applicable United States food and drug laws, including the
regulations of the FDA;
(iii) to such counsel's knowledge, there are currently no legal
governmental proceedings related to the food and drug laws of the United States
underway with regard to the Company;
(iv) to such counsel's knowledge, there are no statutes or legal
governmental proceedings related to the food and drug laws of the United States
required to be described in the Prospectus which are not described as required,
or of any contracts or documents of a similar character required to be described
in the Registration Statement or the Prospectus (or required to be filed under
the Exchange Act if upon such filing they would be incorporated, in whole or in
part, by reference therein) or to be filed as exhibits to the Registration
Statement which are not described or filed as required; and
In rendering such opinions, such counsel may rely, as to matters of fact,
to the extent such counsel deems proper, on certificates of responsible officers
of the Company and public officials, provided that copies of any such statements
or certificates shall be delivered to counsel to the Underwriters. Such counsel
shall also state that such counsel has participated in conferences with officers
and representatives of the Company, representatives of the independent public
accountants of the Company and the Representatives at which the contents of the
Registration Statement and the Prospectus and related matters were discussed
and, although such counsel has not undertaken to investigate or verify
independently, and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus, on the basis of the foregoing, no facts have come
to the attention of such counsel leading such counsel to believe that the
Registration Statement, as of its effective date, contained any untrue statement
of a material fact or omitted to state any material fact required to be stated
therein or necessary to make the statements therein not misleading or that the
Prospectus as of its date or the date of such opinion, included or includes any
untrue statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(e) The Representatives shall have received an opinion, dated the Firm
Closing Date, of Stroock & Stroock & Lavan LLP, counsel for the Underwriters,
with respect to the issuance and sale of the Firm Securities, the Registration
Statement and the Prospectus and such other related matters as the
Representatives may reasonably require, and the Company shall have furnished to
such counsel such documents as they may reasonably request for the purpose of
enabling them to pass upon such matters.
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(f) The Representatives shall have received an opinion, dated the Firm
Closing Date, from Michael, Best & Friedrich, the Company's intellectual
property counsel, in form and substance satisfactory to the Representatives
addressing matters relating to the intellectual property disclosure contained in
the Prospectus under the headings "Risk Factors-Risks Related to Intellectual
Property" and "Business-Intellectual Property" as well as certain matters
relating to the Company's proprietary rights generally.
(g) The Representatives shall have received from KPMG LLP a letter or
letters dated, respectively, the date hereof and the Firm Closing Date, in form
and substance satisfactory to the Representatives, to the effect that:
(i) they were independent accountants with respect to the Company
for the periods prior to July 1, 1999 within the meaning of the Act, the
Exchange Act and the applicable rules and regulations thereunder;
(ii) in their opinion, the audited financial statements examined by
them and included in the Registration Statement and the Prospectus comply in
form in all material respects with the applicable accounting requirements of the
Act and the related published rules and regulations adopted by the Commission;
(iii) they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages and
financial information that are derived from the general accounting records of
the Company and included in the Registration Statement and Prospectus under the
captions "Financial Statements," "Summary Financial Data" and "Selected
Financial Data" in the Registration Statement, and have compared such amounts,
percentages and financial information with such records of the Company and with
information derived from such records and have found them to be in agreement,
excluding any questions of legal interpretation.
In the event that the letters referred to above set forth any exceptions,
it shall be a further condition to the obligations of the Underwriters that such
letters shall be accompanied by a written explanation of the Company as to the
significance thereof, unless the Representatives deem such explanation
unnecessary.
References to the Registration Statement and the Prospectus in this
paragraph (g) with respect to either letter referred to above shall include any
amendment or supplement thereto at the date of such letter.
(h) The Representatives shall have received from Arthur Andersen LLP a
letter or letters dated, respectively, the date hereof and the Firm Closing
Date, in form and substance satisfactory to the Representatives, to the effect
that:
(i) they are independent accountants with respect to the Company
within the meaning of the Act and the applicable rules and regulations
thereunder;
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(ii) on the basis of a reading of the latest available interim
unaudited financial statements of the Company, carrying out certain specified
procedures (which do not constitute an examination made in accordance with
generally accepted auditing standards) that would not necessarily reveal matters
of significance with respect to the comments set forth in this paragraph (ii), a
reading of the minute books of the shareholders, the board of directors and any
committees thereof of the Company and inquiries of certain officials of the
Company who have responsibility for financial and accounting matters, nothing
came to their attention that caused them to believe that:
(A) the interim unaudited financial statements of the Company are
not 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; and
(B) at a specific date not more than five business days prior to
the date of such letter, there were any changes in the capital stock or long-
term debt of the Company or any decreases in working capital or stockholders'
equity of the Company, in each case compared with amounts shown on the June 30,
2000 balance sheet included in the Registration Statement and the Prospectus, or
for the period from July 1, 2000 to such specified date there were any
decreases, as compared with the comparable period of the prior year in revenues,
net income before income taxes or total or per share amounts of net income of
the Company except in all instances for changes, decreases or increases set
forth in such letter; and
(iii) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim financial
information as described in Statement of Auditing Standards No. 71 ("SAS 71"),
Interim Financial Information, on the unaudited financial statements dated
September 30, 2000;
(iv) they have carried out certain specified procedures, not
constituting an audit, with respect to certain amounts, percentages and
financial information that are derived from the general accounting records of
the Company and included in the Registration Statement and Prospectus under the
captions "Financial Statements," "Summary Financial Data" and "Selected
Financial Data" in the Registration Statement, and have compared such amounts,
percentages and financial information with such records of the Company and with
information derived from such records and have found them to be in agreement,
excluding any questions of legal interpretation.
In the event that the letters referred to above set forth any such changes,
decreases or increases, it shall be a further condition to the obligations of
the Underwriters that (A) such letters shall be accompanied by a written
explanation of the Company as to the significance thereof, unless the
Representatives deem such explanation unnecessary, and (B) such changes,
decreases or increases do not, in the sole judgment of the Representatives, make
it impractical or inadvisable to proceed with the purchase and delivery of the
Securities as contemplated by the Registration Statement, as amended as of the
date hereof.
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References to the Registration Statement and the Prospectus in this
paragraph (h) with respect to either letter referred to above shall include any
amendment or supplement thereto at the date of such letter.
(i) The Representatives shall have received a certificate, dated the Firm
Closing Date, of the Chief Executive Officer and the Acting Vice President-
Finance of the Company to the effect that:
(i) the representations and warranties of the Company in this
Agreement are true and correct as if made on and as of the Firm Closing Date;
the Registration Statement, as amended as of the Firm Closing Date, does not
include any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein not misleading, and the
Prospectus, as amended or supplemented as of the Firm Closing Date, does not
include any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and the Company has
performed all covenants and agreements and satisfied all conditions on its part
to be performed or satisfied at or prior to the Firm Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereto and no order directed at any
document incorporated by reference in the Registration Statement or the
Prospectus or any amendment or supplement thereto has been to the best of the
Company's knowledge, issued, and no proceedings for that purpose have been
instituted or threatened or are contemplated by the Commission; and
(iii) subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, the Company has not
sustained any material loss or interference with its business 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 that
would be expected to result in a Material Adverse Change, except in each case as
described in or contemplated by the Prospectus (exclusive of any amendment or
supplement thereto).
(j) The Representatives shall have received from each person who is a
director or officer of the Company an agreement to the effect that such person
will not, directly or indirectly, without the prior written consent of
Prudential Securities Incorporated, on behalf of the Underwriters, offer, sell,
offer to sell, contract to sell, grant any option to purchase or otherwise sell
or dispose (or announce any offer, sale, offer of sale, contract of sale, grant
of an option to purchase or other sale or disposition) of any shares of Common
Stock or any securities convertible into, or exchangeable or exercisable for,
shares of Common Stock for a period of 90 days after the date of this Agreement.
(k) On or before the Firm Closing Date, the Representatives and counsel for
the Underwriters shall have received such further certificates, documents or
other information as they may have reasonably requested from the Company.
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<PAGE>
(l) Prior to the commencement of the offering of the Securities, the
Securities shall have been included for trading on the Nasdaq National Market.
All opinions, certificates, letters and documents delivered pursuant to
this Agreement will comply with the provisions hereof only if they are
reasonably satisfactory in all material respects to the Representatives and
counsel for the Underwriters. The Company shall furnish to the Representatives
such conformed copies of such opinions, certificates, letters and documents in
such quantities as the Representatives and counsel for the Underwriters shall
reasonably request. The respective obligations of the several Underwriters to
purchase and pay for any Option Securities shall be subject, in their
discretion, to each of the foregoing conditions to purchase the Firm Securities,
except that all references to the Firm Securities and the Firm Closing Date
shall be deemed to refer to such Option Securities and the related Option
Closing Date, respectively.
8. Indemnification and Contribution.
(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 of the Exchange Act against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter or such
controlling person may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement made by the
Company in Section 2 of this Agreement;
(ii) any untrue statement or alleged untrue statement of any
material fact contained in (A) the Registration Statement or any amendment
thereto, any Preliminary Prospectus or the Prospectus or any amendment or
supplement thereto or (B) any application or other document, or any
amendment or supplement thereto, executed by the Company or based upon
written information furnished by or on behalf of the Company filed in any
jurisdiction in order to qualify the Securities under the securities or
blue sky laws thereof or filed with the Commission or any securities
association or securities exchange (each an "Application");
(iii) the omission or alleged omission to state in the Registration
Statement or any amendment thereto, any Preliminary Prospectus or the
Prospectus or any amendment or supplement thereto, or any Application a
material fact required to be stated therein or necessary to make the
statements therein, not misleading; or
(iv) any untrue statement or alleged untrue statement of any
material fact contained in any audio or visual materials to the extent
prepared by the Company or based upon written information furnished by or
on behalf of the Company including, without limitation, slides, videos,
films, and tape recordings used in connection with the
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<PAGE>
marketing of the Securities, including, without limitation, statements
communicated in writing to securities analysts employed by the
Underwriters;
and will reimburse, as incurred, each Underwriter and each such
controlling person for any legal or other expenses reasonably incurred by
such Underwriter or such controlling person in connection with
investigating, defending against or appearing as a third-party witness in
connection with any such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or
is based upon any untrue statement or alleged untrue statement or omission
or alleged omission made in such registration statement or any amendment
thereto, any Preliminary Prospectus, the Prospectus or any amendment or
supplement thereto, or any Application in reliance upon and in conformity
with written information furnished to the Company by such Underwriter
through the Representatives specifically for use therein; and provided,
further, that the Company will not be liable to any Underwriter or any
person controlling any Underwriter with respect to any such untrue
statement or omission made in any Preliminary Prospectus that is corrected
in the Prospectus (or any amendment or supplement thereto) if the person
asserting any such loss, claim, damage or liability purchased Securities
from any Underwriter but was not sent or given a copy of the Prospectus (as
amended or supplemented), other than the documents incorporated by
reference therein, at or prior to the written confirmation of the sale of
such Securities to such person in any case where such delivery of the
Prospectus (as amended or supplemented) is required by the Act, unless such
failure to deliver the Prospectus (as amended or supplemented) was a result
of noncompliance by the Company with Sections 5(d) and (e) of this
Agreement. This indemnity agreement will be in addition to any liability
which the Company may otherwise have. The Company will not, without the
prior written consent of the Underwriter or Underwriters purchasing, in the
aggregate, more than fifty percent (50%) of the Securities, settle or
compromise or consent to the entry of any judgment in any pending or
threatened claim, action, suit or proceeding in respect of which
indemnification may be sought hereunder (whether or not any such
Underwriter or any person who controls any such Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act is a
party to such claim, action, suit or proceeding), unless such settlement,
compromise or consent includes an unconditional release of all of the
Underwriters and such controlling persons from all liability arising out of
such claim, action, suit or proceeding.
(b) Each Underwriter, severally and not jointly, will indemnify and hold
harmless the Company, each of its directors, each of its officers who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act against
any losses, claims, damages or liabilities to which the Company or any such
director, officer or controlling person may become subject under the Act, the
Exchange Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in the Registration Statement or any amendment thereto,
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<PAGE>
any Preliminary Prospectus or the Prospectus or any amendment or supplement
thereto, or any Application, (ii) the omission or the alleged omission to state
therein a material fact required to be stated in the Registration Statement or
any amendment thereto, any Preliminary Prospectus or the Prospectus or any
amendment or supplement thereto, or any Application or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the
Representatives specifically for use therein; and, subject to the limitation set
forth immediately preceding this clause, will reimburse, as incurred, any legal
or other expenses reasonably incurred by the Company or any such director,
officer or controlling person in connection with investigating or defending any
such loss, claim, damage, liability or any action in respect thereof. This
indemnity agreement will be in addition to any liability which such Underwriter
may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 8 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 8, notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from any
liability which it may have to any indemnified party otherwise than under this
Section 8. In case any such action is brought against any indemnified party,
and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the extent
that it may wish, jointly with any other indemnifying party similarly notified,
to assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party; provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be one or more
legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnifying party shall not have the right to direct the defense of such action
on behalf of such indemnified party or parties and such indemnified party or
parties shall have the right to select separate counsel to defend such action on
behalf of such indemnified party or parties. After notice from the indemnifying
party to such indemnified party of its election so to assume the defense thereof
and approval by such indemnified party of counsel appointed to defend such
action, the indemnifying party will not be liable to such indemnified party
under this Section 8 for any legal or other expenses, other than reasonable
costs of investigation, subsequently incurred by such indemnified party in
connection with the defense thereof, unless (i) the indemnified party shall have
employed separate counsel in accordance with the proviso to the next preceding
sentence (it being understood, however, that in connection with such action the
indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to local counsel) in any one action or separate
but substantially similar actions in the same jurisdiction arising out of the
same general allegations or circumstances, designated by the Representatives in
the case of paragraph (a) of this Section 8, representing the indemnified
parties under such paragraph (a) who are parties to such action or actions) or
(ii) the indemnifying party does not promptly retain counsel satisfactory to the
indemnified party or (iii) the indemnifying party has authorized the employment
of counsel for the indemnified party at the
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<PAGE>
expense of the indemnifying party. After such notice from the indemnifying party
to such indemnified party, the indemnifying party will not be liable for the
costs and expenses of any settlement of such action effected by such indemnified
party without the consent of the indemnifying party.
(d) In circumstances in which the indemnity agreement provided for in the
preceding paragraphs of this Section 8 is unavailable or insufficient, for any
reason, to hold harmless an indemnified party in respect of any losses, claims,
damages or liabilities (or actions in respect thereof), each indemnifying party,
in order to provide for just and equitable contribution, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect (i) the relative benefits received by
the indemnifying party or parties on the one hand and the indemnified party on
the other from the offering of the Securities or (ii) if the allocation provided
by the foregoing clause (i) is not permitted by applicable law, not only such
relative benefits but also the relative fault of the indemnifying party or
parties on the one hand and the indemnified party on the other in connection
with the statements or omissions or alleged statements or omissions that
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total proceeds from
the offering (before deducting expenses) received by the Company to the total
underwriting discounts and commissions received by the Underwriters. The
relative fault of the parties shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters, the parties' relative intents,
knowledge, access to information and opportunity to correct or prevent such
statement or omission, and any other equitable considerations appropriate in the
circumstances. The Company and the Underwriters agree that it would not be
equitable if the amount of such contribution were determined by pro rata or per
capita allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take into account
the equitable considerations referred to above in this paragraph (d).
Notwithstanding any other provision of this paragraph (d), no Underwriter shall
be obligated to make contributions hereunder that in the aggregate exceed the
total public offering price of the Securities purchased by such Underwriter
under this Agreement, less the aggregate amount of any damages that such
Underwriter has otherwise been required to pay in respect of the same or any
substantially similar claim, and no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute hereunder are
several in proportion to their respective underwriting obligations and not
joint, and contributions among Underwriters shall be governed by the provisions
of the Prudential Securities Incorporated Master Agreement Among Underwriters.
For purposes of this paragraph (d), each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of
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<PAGE>
Section 15 of the Act or Section 20 of the Exchange Act, shall have the same
rights to contribution as the Company.
9. Default of Underwriters. If one or more Underwriters default in their
obligations to purchase Firm Securities or Option Securities hereunder and the
aggregate number of such Securities that such defaulting Underwriter or
Underwriters agreed but failed to purchase is ten percent or less of the
aggregate number of Firm Securities or Option Securities to be purchased by all
of the Underwriters at such time hereunder, the other Underwriters may make
arrangements satisfactory to the Representatives for the purchase of such
Securities by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives), but if no such arrangements are
made by the Firm Closing Date or the related Option Closing Date, as the case
may be, the other Underwriters shall be obligated severally in proportion to
their respective commitments hereunder to purchase the Firm Securities or Option
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase. If one or more Underwriters so default with respect to an aggregate
number of Securities that is more than ten percent of the aggregate number of
Firm Securities or Option Securities, as the case may be, to be purchased by all
of the Underwriters at such time hereunder, and if arrangements satisfactory to
the Representatives are not made within 36 hours after such default for the
purchase by other persons (who may include one or more of the non-defaulting
Underwriters, including the Representatives) of the Securities with respect to
which such default occurs, this Agreement will terminate without liability on
the part of any non-defaulting Underwriter or the Company other than as provided
in Section 10 hereof. In the event of any default by one or more Underwriters as
described in this Section 9, the Representatives shall have the right to
postpone the Firm Closing Date or the Option Closing Date, as the case may be,
established as provided in Section 3 hereof for not more than seven business
days in order that any necessary changes may be made in the arrangements or
documents for the purchase and delivery of the Firm Securities or Option
Securities, as the case may be. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 9. Nothing herein shall relieve any defaulting Underwriter from
liability for its default.
10. Survival. The respective representations, warranties, agreements,
covenants, indemnities and other statements of the Company, its officers and the
several Underwriters set forth in this Agreement or made by or on behalf of
them, respectively, pursuant to this Agreement shall remain in full force and
effect, regardless of (i) any investigation made by or on behalf of the Company,
any of its officers or directors, any Underwriter or any controlling person
referred to in Section 8 hereof and (ii) delivery of and payment for the
Securities. The respective agreements, covenants, indemnities and other
statements set forth in Sections 6 and 8 hereof shall remain in full force and
effect, regardless of any termination or cancellation of this Agreement.
11. Termination. (a) This Agreement may be terminated with respect to the
Firm Securities or any Option Securities in the sole discretion of the
Representatives by notice to the Company given prior to the Firm Closing Date or
the related Option Closing Date, respectively, in the event that the Company
shall have failed, refused or been unable to perform all obligations
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<PAGE>
and satisfy all conditions on its part to be performed or satisfied hereunder at
or prior thereto or, if at or prior to the Firm Closing Date or such Option
Closing Date, respectively,
(i) the Company shall have, in the sole judgment of the
Representatives, sustained any material loss or interference with its business
or properties from fire, flood, hurricane, accident or other calamity, whether
or not covered by insurance, or from any labor dispute or any legal or
governmental proceeding or there shall have been any material adverse change, or
any development involving a prospective material adverse change (including
without limitation a change in management or control of the Company), in the
condition (financial or otherwise), business prospects, net worth or results of
operations of the Company except in each case as described in or contemplated by
the Prospectus (exclusive of any amendment or supplement thereto);
(ii) trading in the Common Stock shall have been suspended by the
Commission or the Nasdaq National Market, or trading in securities generally on
the New York Stock Exchange or the Nasdaq National Market shall have been
suspended or minimum or maximum prices shall have been established on either
such exchange;
(iii) a banking moratorium shall have been declared by New York or
United States authorities; or
(iv) there shall have been (A) an outbreak or escalation of
hostilities between the United States and any foreign power, (B) an outbreak or
escalation of any other insurrection or armed conflict involving the United
States or (C) any other calamity or crisis or material adverse change in general
economic, political or financial conditions having an effect on the U.S.
financial markets that, in the sole judgment of the Representatives, makes it
impractical or inadvisable to proceed with the public offering or the delivery
of the Securities as contemplated by the Registration Statement, as amended as
of the date hereof.
(b) Termination of this Agreement pursuant to this Section 11 shall be
without liability of any party to any other party except as provided in Section
10 hereof.
12. Information Supplied by Underwriters. The statements set forth in the
last paragraph on the front cover page and under the heading "Underwriting" in
any Preliminary Prospectus or the Prospectus (to the extent such statements
relate to the Underwriters) constitute the only information furnished by any
Underwriter through the Representatives to the Company for the purposes of
Sections 2(b) and 8 hereof. The Underwriters confirm that such statements (to
such extent) are correct.
13. Notices. All communications hereunder shall be in writing and, if
sent to any of the Underwriters, shall be delivered or sent by mail, telex or
facsimile transmission and confirmed in writing to Prudential Securities
Incorporated, One New York Plaza, New York, New York 10292, Attention: Equity
Transactions Group; and if sent to the Company, shall be delivered or sent by
mail, telex or facsimile transmission and confirmed in writing to the
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Company at Bone Care International, Inc., One Science Court, Madison, Wisconsin
53711, Attention: Charles W. Bishop, Ph.D.
14. Successors. This Agreement shall inure to the benefit of and shall be
binding upon the several Underwriters, the Company and their respective
successors and legal representatives, and nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any other person any legal
or equitable right, remedy or claim under or in respect of this Agreement, or
any provisions herein contained, this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that (i)
the indemnities of the Company contained in Section 8 of this Agreement shall
also be for the benefit of any person or persons who control any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
and (ii) the indemnities of the Underwriters contained in Section 8 of this
Agreement shall also be for the benefit of the directors of the Company, the
officers of the Company who have signed the Registration Statement and any
person or persons who control the Company within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act. No purchaser of Securities from any
Underwriter shall be deemed a successor because of such purchase.
15. Applicable Law. The validity and interpretation of this Agreement,
and the terms and conditions set forth herein, shall be governed by and
construed in accordance with the laws of the State of New York, without giving
effect to any provisions relating to conflicts of laws.
16. Consent to Jurisdiction and Service of Process. All judicial
proceedings arising out of or relating to this Agreement may be brought in any
state or federal court of competent jurisdiction in the State of New York.
17. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
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If the foregoing correctly sets forth our understanding, please indicate
your acceptance thereof in the space provided below for that purpose, whereupon
this letter shall constitute an agreement binding the Company and each of the
several Underwriters.
Very truly yours,
BONE CARE INTERNATIONAL, INC.
By: /s/ Charles W. Bishop, Ph.D.
------------------------------
Name: Charles W. Bishop, Ph.D.
Title: President, Chief Executive
Officer and Director
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
PRUDENTIAL SECURITIES INCORPORATED
U.S. BANCORP PIPER JAFFRAY INCORPORATED
ROBERT W. BAIRD & CO. INCORPORATED
By: PRUDENTIAL SECURITIES INCORPORATED
By: /s/ Jean-Claude Canfin
-----------------------------------
Name: Jean-Claude Canfin
Title: Managing Director
For itself and on behalf of the Representatives.
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SCHEDULE I
UNDERWRITERS
<TABLE>
<CAPTION>
Number of Securities
Underwriters to be Purchased
____________ ____________________
<S> <C>
Prudential Securities Incorporated 1,150,000
U.S. Bancorp Piper Jaffray Incorporated 805,000
Robert W. Baird & Co. Incorporated 345,000
Total...................... 2,300,000
---------
</TABLE>
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