<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 12, 1999
REGISTRATION NO. 333-88417
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
-------------------------
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
INAMED CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
-------------------------
<TABLE>
<S> <C> <C>
DELAWARE 3842 59-0920629
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
-------------------------
5540 EKWILL STREET, SUITE D
SANTA BARBARA, CALIFORNIA 93111
(805) 692-5400
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
-------------------------
DAVID E. BAMBERGER, ESQ.
SENIOR VICE PRESIDENT, SECRETARY AND GENERAL COUNSEL
INAMED CORPORATION
11 PENN PLAZA, SUITE 946
NEW YORK, NY 10001
(212) 273-3430
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
-------------------------
WITH A COPY TO:
<TABLE>
<S> <C>
LAWRENCE LEDERMAN, ESQ. ALEXANDER D. LYNCH, ESQ.
ARNOLD B. PEINADO, III, ESQ. SCOTT L. KAUFMAN, ESQ.
MILBANK, TWEED, HADLEY & MCCLOY LLP BROBECK, PHLEGER & HARRISON LLP
ONE CHASE MANHATTAN PLAZA 1633 BROADWAY, 47TH FLOOR
NEW YORK, NEW YORK 10005 NEW YORK, NEW YORK 10019
(212) 530-5000 (212) 581-1600
</TABLE>
------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
AMOUNT PROPOSED MAXIMUM PROPOSED
TITLE OF EACH CLASS OF TO BE OFFERING PRICE MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER UNIT(1) OFFERING PRICE(1) REGISTRATION FEE(2)
- ---------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.01 per
share.......................... 3,450,000 $25.56(3) $88,182,000 $24,514.60
- ---------------------------------------------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated solely for the purpose of calculating the amount of the
registration fee pursuant to Rule 457(c) under the Securities Act of 1933.
(2) Includes $18,862.30 previously paid.
(3) Closing price on October 22, 1999.
-------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(a), MAY
DETERMINE.
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- --------------------------------------------------------------------------------
<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated costs and expenses, other than
the underwriting discounts and commissions, payable by Inamed Corporation, Inc.
(the "Registrant") in connection with the sale of the common stock being offered
by the Registrant.
<TABLE>
<CAPTION>
AMOUNT TO
BE PAID
----------
<S> <C>
SEC registration fee........................................ $ 24,515
NASD filing fee............................................. 9,318
Legal fees and expenses..................................... 665,000
Accounting fees and expenses................................ 200,000
Printing expenses........................................... 200,000
Transfer agent fees......................................... 5,000
Miscellaneous............................................... 96,167
----------
Total............................................. $1,200,000
==========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The Registrant is a Delaware corporation. Subsection (b)(7) of Section 102
of the Delaware General Corporation Law (the "DGCL") enables a corporation in
its original certificate of incorporation or an amendment thereto to eliminate
or limit the personal liability of a director to the corporation or its
stockholders for monetary damages for violations of the director's fiduciary
duty, except (i) for any breach of the director's duty of loyalty to the
corporation or its stockholders, (ii) for acts or omissions not in good faith or
which involve intentional misconduct or a knowing violation of law, (iii)
pursuant to Section 174 of the DGCL (providing for liability of directors for
unlawful payment of dividends or unlawful stock purchases or redemptions) or
(iv) for any transaction from which a director derived an improper personal
benefit. Article Fifteenth of the Restated Certificate of Incorporation of the
Registrant provides that, to the fullest extent permitted by the DGCL, no
director of the Registrant shall be personally liable to the corporation or any
of its stockholders for monetary damages for breach of fiduciary duty as a
director.
The bylaws of the Registrant provide for the indemnification of directors
and officers on an individual basis upon a determination by the Board of
Directors that actions by a director or officer meet a certain standard of
conduct.
Subsection (a) of Section 145 of the DGCL empowers a corporation to
indemnify any director or officer, or former director or officer, who was or is
a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation) by
reason of the fact that such person is or was a director or officer of the
corporation or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred in connection with such action, suit or proceeding provided that such
director or officer acted in good faith in a manner reasonably believed to be
in, or not opposed to, the best interests of the corporation, and, with respect
to any criminal action or proceeding, provided further that such director or
officer has no reasonable cause to believe his conduct was unlawful.
II-1
<PAGE> 3
Subsection (b) of Section 145 empowers a corporation to indemnify any
director or officer, or former director or officer, who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor by
reason of the fact that such person acted in any of the capacities set forth
above, against expenses (including attorneys' fees) actually and reasonably
incurred in connection with the defense or settlement of such action or suit
provided that such director or officer acted in good faith and in a manner he
reasonably believed to be in, or not opposed to, the best interests of the
corporation, except that no indemnification may be made in respect of any claim,
issue or matter as to which such director or officer shall have been adjudged to
be liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that despite the adjudication of liability but in view of all
of the circumstances of the case, such director or officer is fairly and
reasonably entitled to indemnity for such expenses which the Court of Chancery
or such other court shall deem proper.
Section 145 further provides that (i) to the extent a director or officer
of a corporation has been successful in the defense of any action, suit or
proceeding referred to in subsections (a) and (b) or in the defense of any
claim, issue or matter therein, he shall be indemnified against expenses
(including attorneys' fees) actually and reasonably incurred by him in
connection therewith; and (ii) indemnification and advancement of expenses
provided for, by or granted pursuant to, Section 145 shall not be deemed
exclusive of any other rights to which the indemnified party may be entitled In
addition, Section 145 empowers the corporation to purchase and maintain
insurance on behalf of any person who is or was a director or officer of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against any liability asserted against him or
incurred by him in any such capacity, or arising out of his status as such,
whether or not the corporation would have the power to indemnify him against
such liabilities under Section 145.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- ------- -------------------
<C> <S>
1.1 Form of Underwriting Agreement.
2.1 Agreement and Plan of Merger dated as of December 22, 1998
by and between Inamed Corporation and Inamed Corporation
(Delaware). (Incorporated herein by reference to Exhibit 2.1
of the Registrant's Current Report on Form 8-K filed with
the Commission on December 30, 1998).
2.2 Agreement and Plan of Merger, dated as of July 31, 1999, by
and among Inamed Corporation, Inamed Acquisition Corporation
and Collagen Aesthetics, Inc. (Incorporated herein by
reference to Exhibit (c)(1) to Schedule 14D-1 filed by
Inamed Corporation and Inamed Acquisition Corporation with
the Commission on August 4, 1999).
3.1 Registrant's Restated Certificate of Incorporation, as
amended, December 22, 1998. (Incorporated herein by
reference to Exhibit 3.1 of the Registrant's Financial
Report on Form 10-K for the year ended December 31, 1998
(Commission File No. 1-9741)).
3.2 Registrant's By-Laws, as amended December 22, 1998
(Incorporated herein by reference to Exhibit 3.2 of the
Registrant's Financial Report on Form 10-K for the year
ended December 31, 1998 (Commission File No. 1-9741)).
4.1 Specimen Stock Certificate for Inamed Corporation Common
Stock, par value $0.01 per share.
5.1 Form of Opinion of Milbank, Tweed, Hadley & McCloy LLP with
respect to the validity of securities being offered.
8.1 Form of Tax Opinion of Milbank, Tweed, Hadley & McCloy LLP.
</TABLE>
II-2
<PAGE> 4
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- ------- -------------------
<C> <S>
16.1 Letter from Coopers & Lybrand L.L.P. dated March 6, 1998.
(Incorporated herein by reference to Exhibit 16.1 of the
Registrant's Current Report on Form 8-K/A filed with the
Commission on March 27, 1998).
16.2 Letter from Coopers & Lybrand L.L.P. dated March 25, 1998.
(Incorporated herein by reference to Exhibit 16.2 of the
Registrant's Current Report on Form 8-K/A filed with the
Commission on March 27, 1998).
23.1 Consent of Milbank, Tweed, Hadley & McCloy LLP (included in
Exhibits 5.1 and 8.1).
*23.2 Consent of BDO Seidman, LLP.
*23.3 Consent of Ernst & Young LLP, independent auditors.
*24 Power of Attorney.
*27.1 Financial Data Schedule as of September 30, 1999.
*27.2 Financial Data Schedule as of December 31, 1998.
99.1 Order and Financial Judgment Certifying Inamed Settlement
Class, Approving Class Settlement, and Dismissing Claims
against Inamed and Released Parties dated February 1, 1999.
(Incorporated herein by reference to Exhibit 99.1 of the
Company's Financial Report From 10-K for the year ended
December 31, 1998 (Commission File No. 1-9741).
99.2 Order Instituting Proceedings Pursuant to Section 21C of the
Securities Exchange Act of 1934, Making Findings and
Imposing a Cease-and-Desist Order dated August 17, 1999
(Administrative Proceeding File No. 3-9976).
*99.3 Offer of Settlement of Inamed Corporation dated July 21,
1999.
</TABLE>
- ---------------
* Previously filed.
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4), or 497(h)
under the Securities Act of 1933, shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-3
<PAGE> 5
The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report, to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the prospectus to provide such interim financial information.
II-4
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Amendment No. 2 to
be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of New York, New York, on November 12, 1999.
INAMED CORPORATION
By: /s/ ILAN K. REICH
--------------------------------------
Name: Ilan K. Reich
Title: Director and President
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act, this Amendment No. 2
has been signed by the following persons in the capacities and on the dates
indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
* Chairman of the Board of November 12, 1999
- --------------------------------------------------- Directors and Chief
Richard G. Babbitt Executive Officer
* Director November 12, 1999
- ---------------------------------------------------
James E. Bolin
* Director November 12, 1999
- ---------------------------------------------------
Malcolm R. Currie, Ph.D.
/s/ ILAN K. REICH Director and President November 12, 1999
- ---------------------------------------------------
Ilan K. Reich
* Director November 12, 1999
- ---------------------------------------------------
Mitchell S. Rosenthal, M.D.
* Director November 12, 1999
- ---------------------------------------------------
David A. Tepper
* Director November 12, 1999
- ---------------------------------------------------
John E. Williams, M.D.
* Senior Vice President and November 12, 1999
- --------------------------------------------------- Chief Financial Officer
Michael J. Doty
*By: /s/ ILAN K. REICH
- ---------------------------------------------------
Ilan K. Reich
Attorney-in-Fact
</TABLE>
II-5
<PAGE> 7
EXHIBIT INDEX
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- ------- -------------------
<C> <S>
1.1 Form of Underwriting Agreement.
2.1 Agreement and Plan of Merger dated as of December 22, 1998
by and between Inamed Corporation and Inamed Corporation
(Delaware). (Incorporated herein by reference to Exhibit 2.1
of the Registrant's Current Report on Form 8-K filed with
the Commission on December 30, 1998).
2.2 Agreement and Plan of Merger, dated as of July 31, 1999, by
and among Inamed Corporation, Inamed Acquisition Corporation
and Collagen Aesthetics, Inc. (Incorporated herein by
reference to Exhibit (c)(1) to Schedule 14D-1 filed by
Inamed Corporation and Inamed Acquisition Corporation with
the Commission on August 4, 1999).
3.1 Registrant's Restated Certificate of Incorporation, as
amended, December 22, 1998. (Incorporated herein by
reference to Exhibit 3.1 of the Registrant's Financial
Report on Form 10-K for the year ended December 31, 1998
(Commission File No. 1-9741)).
3.2 Registrant's By-Laws, as amended December 22, 1998
(Incorporated herein by reference to Exhibit 3.2 of the
Registrant's Financial Report on Form 10-K for the year
ended December 31, 1998 (Commission File No. 1-9741)).
4.1 Specimen Stock Certificate for Inamed Corporation Common
Stock, par value $0.01 per share.
5.1 Form of Opinion of Milbank, Tweed, Hadley & McCloy LLP with
respect to the validity of securities being offered.
8.1 Form of Tax Opinion of Milbank, Tweed, Hadley & McCloy LLP.
16.1 Letter from Coopers & Lybrand L.L.P. dated March 6, 1998.
(Incorporated herein by reference to Exhibit 16.1 of the
Registrant's Current Report on Form 8-K/A filed with the
Commission on March 27, 1998).
16.2 Letter from Coopers & Lybrand L.L.P. dated March 25, 1998.
(Incorporated herein by reference to Exhibit 16.2 of the
Registrant's Current Report on Form 8-K/A filed with the
Commission on March 27, 1998).
23.1 Consent of Milbank, Tweed, Hadley & McCloy LLP (included in
Exhibits 5.1 and 8.1).
*23.2 Consent of BDO Seidman, LLP.
*23.3 Consent of Ernst & Young LLP, independent auditors.
*24 Power of Attorney (included on the signature page of this
Registration Statement).
*27.1 Financial Data Schedule as of September 30, 1999.
*27.2 Financial Data Schedule as of December 31, 1998.
99.1 Order and Financial Judgment Certifying Inamed Settlement
Class, Approving Class Settlement, and Dismissing Claims
against Inamed and Released Parties dated February 1, 1999.
(Incorporated herein by reference to Exhibit 99.1 of the
Company's Financial Report From 10-K for the year ended
December 31, 1998 (Commission File No. 1-9741).
99.2 Order Instituting Proceedings Pursuant to Section 21C of the
Securities Exchange Act of 1934, Making Findings and
Imposing a Cease-and-Desist Order dated August 17, 1999
(Administrative Proceeding File No. 3-9976).
*99.3 Offer of Settlement of Inamed Corporation dated July 21,
1999.
</TABLE>
- ---------------
* Previously filed.
<PAGE> 1
EXHIBIT 1.1
INAMED CORPORATION
3,000,000 SHARES(1)
COMMON STOCK
FORM OF UNDERWRITING AGREEMENT
November , 1999
----
HAMBRECHT & QUIST LLC
Bear, Stearns & Co. Inc.
CIBC World Markets Corp.
as Representatives of the Several Underwriters
c/o Hambrecht & Quist LLC
One Bush Street
San Francisco, CA 94104
Ladies and Gentlemen:
Inamed Corporation, a Delaware corporation (herein called the Company
which term shall also include its direct and indirect subsidiaries, unless the
context requires otherwise), proposes to issue and sell 2,500,000 shares of its
authorized but unissued Common Stock, $0.01 par value (herein called the Common
Stock), and the stockholders of the Company named in Schedule II hereto (herein
collectively called the Selling Securityholders) propose to sell an aggregate of
500,000 shares of Common Stock of the Company (said 3,000,000 shares of Common
Stock being herein called the Underwritten Stock). The Company proposes to grant
to the Underwriters (as hereinafter defined) an option to purchase up to 450,000
additional shares of Common Stock (herein called the Option Stock and with the
Underwritten Stock herein collectively called the Stock). The Common Stock is
more fully described in the Registration Statement and the Prospectus
hereinafter mentioned.
The Company and the Selling Securityholders severally hereby confirm
the agreements made with respect to the purchase of the Stock by the several
underwriters, for whom you are acting, named in Schedule I hereto (herein
collectively called the Underwriters, which term shall also include any
underwriter purchasing Stock pursuant to Section 3(b) hereof). You represent and
warrant that you have been authorized by each of the other Underwriters to enter
into this Agreement on its behalf and to act for it in the manner herein
provided.
1. REGISTRATION STATEMENT. The Company has filed with the Securities and
Exchange Commission (herein called the Commission) a registration statement on
Form S-3 (No. 333-88417), including
- --------
(1) Plus an option to purchase from the Company up to 450,000 additional
shares to cover over-allotments.
<PAGE> 2
the related preliminary prospectus, for the registration under the Securities
Act of 1933, as amended (herein called the Securities Act), of the Stock. Copies
of such registration statement and of each amendment thereto, if any, including
the related preliminary prospectus (meeting the requirements of Rule 430A of the
rules and regulations of the Commission) heretofore filed by the Company with
the Commission have been delivered to you.
The term Registration Statement as used in this agreement shall mean
such registration statement, including all documents incorporated by reference
therein, all exhibits and financial statements, all information omitted
therefrom in reliance upon Rule 430A and contained in the Prospectus referred to
below, in the form in which it became effective, and any registration statement
filed pursuant to Rule 462(b) of the rules and regulations of the Commission
under the Securities Act (herein called the Rules and Regulations) with respect
to the Stock (herein called a Rule 462(b) registration statement), and, in the
event of any amendment thereto after the effective date of such registration
statement (herein called the Effective Date), shall also mean (from and after
the effectiveness of such amendment) such registration statement as so amended
(including any Rule 462(b) registration statement). The term Prospectus as used
in this Agreement shall mean the prospectus, including the documents
incorporated by reference therein, relating to the Stock first filed with the
Commission pursuant to Rule 424(b) and Rule 430A (or if no such filing is
required, as included in the Registration Statement) and, in the event of any
supplement or amendment to such prospectus after the Effective Date, shall also
mean (from and after the filing with the Commission of such supplement or the
effectiveness of such amendment) such prospectus as so supplemented or amended.
The term Preliminary Prospectus as used in this Agreement shall mean each
preliminary prospectus, including the documents incorporated by reference
therein, included in such registration statement prior to the time it becomes
effective.
The Registration Statement has been declared effective under the
Securities Act, and no post-effective amendment to the Registration Statement
has been filed as of the date of this Agreement. The Company has caused to be
delivered to you copies of each Preliminary Prospectus and has consented to the
use of such copies for the purposes permitted by the Securities Act.
2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING
SECURITYHOLDERS.
(a) The Company hereby represents and warrants as follows:
(i) Each of the Company and its subsidiaries has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
jurisdiction of its incorporation, has full corporate power and authority to own
or lease its properties and conduct its business as described in the
Registration Statement and the Prospectus and as being conducted, and is duly
qualified as a foreign corporation and in good standing in all jurisdictions in
which the character of the property owned or leased or the nature of the
business transacted by it makes qualification necessary (except where the
failure to be so qualified would not have a material adverse effect on the
business, properties, financial condition or results of operations of the
Company and its subsidiaries, individually or taken as a whole (herein called a
Material Adverse Effect)).
(ii) Since the respective dates as of which information is given in the
Registration Statement and the
2
<PAGE> 3
Prospectus, there has not been any materially adverse change in the business,
properties, financial condition or results of operations of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in the
ordinary course of business, other than as set forth in the Registration
Statement and the Prospectus, and since such dates, except in the ordinary
course of business, neither the Company nor any of its subsidiaries has entered
into any material transaction not referred to in the Registration Statement and
the Prospectus.
(iii) The Registration Statement, the Prospectus and each document filed or to
be filed pursuant to the Securities Exchange Act of 1934, as amended (herein
called the Exchange Act), and incorporated by reference in the Registration
Statement and Prospectus comply, and on the Closing Date (as hereinafter
defined) and any later date on which Option Stock is to be purchased, the
Prospectus will comply, in all material respects, with the provisions of the
Securities Act and the Exchange Act, as applicable, and the rules and
regulations of the Commission thereunder; on the Effective Date, the
Registration Statement did not contain any untrue statement of a material fact
and did not omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading; and, on the
Effective Date the Prospectus did not and, on the Closing Date and any later
date on which Option Stock is to be purchased, will not contain 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; provided, however, that none of the
representations and warranties in this subparagraph (iii) shall apply to
statements in, or omissions from, the Registration Statement or the Prospectus
made in reliance upon and in conformity with information herein or otherwise
furnished in writing to the Company by or on behalf of the Underwriters for use
in the Registration Statement or the Prospectus.
(iv) The Stock to be sold by the Selling Securityholders is listed and duly
admitted to trading on the Nasdaq National Market, and prior to the Closing
Date the Stock to be issued and sold by the Company will be authorized for
listing by the Nasdaq National Market upon official notice of issuance.
(v) The outstanding shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and non-assessable; the Stock
to be issued and sold by the Company have been duly authorized and, when issued
and paid for as contemplated herein, will be validly issued, fully paid and
non-assessable; and no preemptive, co-sale, registration right, right of first
refusal or other similar rights of stockholders exist with respect to any of
the Stock or the issue and sale thereof, except as set forth in the
Registration Statement. No further approval or authority of the stockholders or
the Board of Directors of the Company will be required for the issuance and
sale of the Stock. Except as described in the Prospectus, neither the filing of
the Registration Statement nor the offering or sale of the Stock as
contemplated by this Agreement gives rise to any rights, other than those which
have been waived or satisfied, for or relating to the registration of any
shares of capital stock. Except as described in the Prospectus, there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to require the Company to file a registration
statement under the Securities Act with respect to any securities of the
Company owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant to any
other registration statement filed by the Company under the Securities Act.
Except as described in the Prospectus, there are no
3
<PAGE> 4
outstanding subscriptions, rights, warrants, options, calls, convertible
securities, commitments of sale or liens related to or entitling any person to
purchase or otherwise to acquire any shares of the capital stock of, or other
ownership interest in, the Company.
(vi) The information set forth under the caption "Capitalization" in the
Prospectus is true and correct in all material respects. All of the Stock
conforms in all material respects to the description thereof contained in the
Registration Statement. The form of certificates for the Stock conforms to the
legal requirements of the state of Delaware.
(vii) The Commission has not issued an order preventing or suspending the use
of any Prospectus relating to the proposed offering of the Stock, nor, to the
best knowledge of the Company, instituted proceedings for that purpose.
(viii) The financial statements of the Company, together with related notes and
schedules as set forth or incorporated by reference in the Registration
Statement, present fairly, the consolidated financial position and the results
of operations and cash flows of each of the Company and Collagen Aesthetics,
Inc. (herein called "Collagen") at the indicated dates and for the indicated
periods. Such financial statements and related schedules have, to the best of
the Company's knowledge, been prepared in accordance with generally accepted
accounting principles, consistently applied throughout the periods involved,
and all adjustments necessary for a fair presentation of results for such
periods have been made. The summary and selected financial data included in the
Registration Statement present fairly the information shown therein and such
data has been compiled on a basis consistent with the financial statements
presented therein and the books and records of the Company and Collagen.
(ix) Each of BDO Seidman, LLP and Ernst & Young LLP, who have certified certain
of the financial statements filed with the Commission as part of or
incorporated by reference in the Registration Statement, are independent public
accountants as required by the Securities Act and the Rules and Regulations.
(x) Except as disclosed in the Registration Statement, there is no action, suit,
claim or proceeding pending, or, to the knowledge of the Company, threatened
against the Company or any of its respective officers or properties, before any
court or administrative agency or otherwise, which if determined adversely to
the Company could reasonably be expected to result in any Material Adverse
Effect or prevent the consummation of the transactions contemplated hereby; and
there are no agreements, contracts, leases or documents of the Company of a
character required to be described or referred to in the Registration Statement
or Prospectus or to be filed as an exhibit to the Registration Statement by the
Securities Act or the Rules and Regulations which have not been accurately
described in all material respects or referred to in the Registration Statement
or Prospectus or filed as exhibits to the Registration Statement. The contracts
so described in the Registration Statement and Prospectus are in full force and
effect on the date hereof, and neither the Company nor, to the best of the
Company's knowledge, any other party, is in breach of or default under any of
such contracts where such breach or default would have a Material Adverse
Effect.
(xi) The Company has good and marketable title to all of the properties and
assets as described in the Registration Statement or as reflected in the
financial statements filed with the Commission as part of the Registration
Statement, free and clear of any lien, mortgage, pledge, charge or
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<PAGE> 5
encumbrance of any kind except those reflected in such financial statements or
as described in the Registration Statement. All leases to which the Company is a
party are valid and binding obligations of the Company and no default by the
Company has occurred or is continuing thereunder which could reasonably be
expected to result in a Material Adverse Effect, and the Company enjoys peaceful
and undisturbed possession under all such leases to which it is a party as
lessee.
(xii) The Company has timely filed all federal, state, local and foreign income
tax returns which have been required to be filed and have paid all taxes
indicated by said returns and all assessments received by them or any of them
to the extent that such taxes have become due and are not being contested in
good faith except where the failure to file such returns and pay such taxes
would not have a Material Adverse Effect. All tax liabilities (including those
being contested in good faith) for the periods covered by the financial
statements of the Company that are included in the Registration Statement have
been adequately provided for in such financial statements.
(xiii) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not occurred any Material
Adverse Effect or any development involving a prospective Material Adverse
Effect whether or not occurring in the ordinary course of business, and there
has not been any material transaction entered into or any material transaction
that is probable of being entered into by the Company, other than transactions
in the ordinary course of business and changes and transactions described in
the Registration Statement and the Prospectus. The Company has no material
contingent obligations which are not disclosed in the Prospectus or provided
for in the Company's financial statements that are included in the Registration
Statement.
(xiv) This Agreement has been duly authorized, executed and delivered by the
Company and (assuming due authorization and delivery by the Underwriters) is a
valid and binding agreement of the Company, enforceable in accordance with its
terms except insofar as indemnification and contribution provisions may be
limited by laws, principles of public policy or equitable principles and except
as enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or affecting creditors' rights generally
or by general equitable principles.
(xv) The Company is not, nor with the giving of notice or lapse of time or both
will be, in violation of or in default under its Certificate of Incorporation
or Bylaws or under any agreement, lease, contract, indenture or other
instrument or obligation to which it is a party or by which it, or any of its
properties, is bound and which default could have a Material Adverse Effect.
The execution and delivery of this Agreement and the consummation of the
transactions herein contemplated and the fulfillment of the terms hereof will
not conflict with or result in a breach of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust or other
agreement or instrument to which the Company is a party, or of the respective
Certificate of Incorporation or Bylaws of the Company or, to the best knowledge
of the Company, any law, order, rule or regulation, injunction, judgment, or
decree applicable to the Company of any court or of any regulatory body or
administrative agency or other governmental body having jurisdiction over the
Company, which conflict, breach or default could have a Material Adverse
Effect.
(xvi) Each approval, consent, order, authorization, designation, declaration or
filing by or with any
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<PAGE> 6
regulatory, administrative or other governmental body necessary in connection
with the execution and delivery by the Company of this Agreement and the
consummation of the transactions herein contemplated (except such additional
steps as may be required by the National Association of Securities Dealers, Inc.
(herein called the NASD) or such additional steps as may be necessary to qualify
the Stock for public offering by the Underwriters under state securities or blue
sky laws) has been obtained or made and is in full force and effect.
(xvii) The Company now holds and at the Closing Date and any later date on
which the Option Stock is purchased, as the case may be, will hold, all
licenses, consents, certificates, orders, approvals and permits from all state,
United States, foreign and other governmental or regulatory authorities,
including, but not limited to, the U.S. Food and Drug Administration (herein
called the FDA) and any foreign governmental or regulatory authorities
performing functions similar to those performed by the FDA, that are required
for the conduct of the business of the Company as such business is currently
conducted and as proposed to be conducted as described in the Prospectus,
except for such licenses, certificates approvals and permits the failure of
which to maintain would not have a Material Adverse Effect, all of which are
valid and in full force and effect (and there is no proceeding pending or, to
the best knowledge of the Company, threatened which may cause any such license,
consent, certificate, order, approval or permit to be withdrawn, cancelled,
suspended or not renewed). All of the descriptions in the Registration
Statement and Prospectus of the legal and governmental proceedings by or before
the FDA or any foreign, state or local government body exercising comparable
authority are true, complete and accurate in all material respects. The Company
is in compliance in all material respects with all applicable FDA, state and
local rules, regulations, guidelines and policies, including, without
limitation, applicable FDA, state and local rules, regulations and policies
relating to good laboratory practice, and good manufacturing practices. The
Company has not violated any foreign, federal, state or local law or regulation
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants or relating
to discrimination in the hiring, promotion or pay of, or to the wages and hours
of, employees, except for such violations as in the aggregate would not result
in any Material Adverse Effect. To the best of Company's knowledge, no labor
disturbance by the employees of the Company exists or is imminent, and the
Company is not aware of any existing or imminent labor disturbance by the
employees of any of its principal suppliers, value added resellers, authorized
dealers or distributors that might be expected to result in a Material Adverse
Effect. No collective bargaining agreement exists with any of the Company's
employees and, to the best of the Company's knowledge, no such agreement is
imminent.
(xviii) The Company is in compliance in all material respects with all
currently applicable provisions of the Employee Retirement Income Security Act
of 1974, as amended, including the regulations and published interpretations
thereunder (herein called ERISA); no "reportable event" (as defined in ERISA)
has occurred with respect to any "pension plan" (as defined in ERISA) for which
the Company would have any liability; the Company has not incurred and does not
expect to incur liability under (i) Title IV of ERISA with respect to
termination of, or withdrawal from, any "pension plan" or (ii) Sections 412 or
4971 of the Internal Revenue Code of 1986, as amended, including the
regulations and published interpretation thereunder (herein called the Code);
and each "pension plan" for which the Company would have any liability that is
intended to be qualified under Section 401(a) of the Code is so qualified in
all material respects and
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<PAGE> 7
nothing has occurred, whether by action or by failure to act, that would cause
the loss of such qualification.
(xix) The Company is conducting its business in compliance with all of the
laws, rules and regulations of the jurisdictions in which it is conducting
business, including, but not limited to, (i) the laws, rules and regulations
administered or promulgated by the FDA or any foreign, state or local
governmental or regulatory authorities, performing functions similar to those
performed by the FDA body exercising comparable authority and (ii) all laws,
rules and regulations applicable to the import and export of the Company's
products, except where any such failure to be in compliance would not have a
Material Adverse Effect.
(xx) Except as set forth in the Registration Statement, the Company owns or
possesses adequate rights to use all inventions, designs, trade secrets,
know-how, trademarks, service marks, trade names, copyright works or other
information (herein collectively called Intellectual Property) which are
necessary to conduct its businesses as described in the Registration Statement
and the Prospectus. Except as set forth in the Registration Statement, the
Company has not received any notice of, and has no knowledge of, any
infringement of or conflict with any rights of the Company by others with
respect to any Intellectual Property which, singly or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would have a Material
Adverse Effect. Except as set forth in the Registration Statement, the Company
has not received any notice of, and has no knowledge of, any infringement of or
conflict with any rights of others with respect to any Intellectual Property
which, singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would have a Material Adverse Effect. To the Company's best
knowledge, none of the Intellectual Property licensed to or by the Company is
unenforceable or invalid; and except as set forth in the Registration
Statement, the Company is not aware of the granting of any patent rights to
third parties or the filing of any patent applications by third parties or of
any other rights of third parties to, or conflicting with, any Intellectual
Property owned by the Company.
(xxi) The Company has not taken, directly or indirectly, any action designed to
cause or result in, or which has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of the price of the
shares of Common Stock to facilitate the sale or resale of the Stock.
(xxii) The Company is not an "investment company" or a company "controlled" by
an "investment company" within the meaning of such terms under the Investment
Company Act of 1940, as amended (herein called the Investment Company Act), and
the rules and regulations of the Commission thereunder.
(xxiii) The Company maintains a system of internal accounting controls
sufficient to provide reasonable assurances that (i) transactions are executed
in accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with generally accepted accounting principles and to
maintain accountability for assets; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv) the
recorded accountability for assets is compared with existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences.
(xxiv) The Company carries, or is covered by, insurance with insurers of
nationally recognized
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<PAGE> 8
reputability in such amounts and covering such risks as it believes is customary
for companies engaged in similar industries.
(xxv) The statements incorporated by reference in the Prospectus relating to
"Certain Transactions" set forth all existing agreements, arrangements,
understandings or transactions, or proposed agreements, arrangements,
understandings or transactions, between or among the Company, on the one hand,
and any officer, director or stockholder of the Company, or with any partner,
affiliate or associate of any of the foregoing persons or entities, on the
other hand, required to be set forth or described thereunder.
(xxvi) There are no issues related to the Company's preparedness for the Year
2000 that (i) are of a character required to be described or referred to in the
Registration Statement or Prospectus by the Securities Act or the Rules and
Regulations which have not been accurately described in the Registration
Statement or Prospectus or (ii) might reasonably be expected to result in any
Material Adverse Effect. Except as set forth in the Registration Statement, all
internal computer systems and each Constituent Component (as defined below) of
those systems and all computer-related products and each Constituent Component
of those products of the Company fully comply with the Year 2000 Qualification
Requirements. "Year 2000 Qualification Requirements" means that the internal
computer systems and each Constituent Component of those systems and all
computer-related products and each Constituent Component of those products of
the Company (i) have been reviewed to confirm that they store, process
(including sorting and performing mathematical operations, calculations and
computations), input and output data containing date and information correctly
regardless of whether the date contains dates and times before, on or after
January 1, 2000, (ii) have been designated to ensure date and time entry
recognition, calculations that accommodate same century and multi-century
formulas and date values, leap year recognition and calculations, and date data
interface values that reflect the century, (iii) accurately manage and
manipulate data involving dates and times, including single century formulas
and multi-century formulas, and will not cause an abnormal ending scenario
within the application or generate incorrect values or invalid results
involving such dates, (iv) accurately process any date rollover and (v) accept
and respond to two-digit year date input in a manner that resolves any
ambiguities as to the century. "Constituent Component" means all software
(including operating systems, programs, packages and utilities), firmware,
hardware, networking components, and peripherals provided as part of the
configuration.
(xxvii) The Company has not at any time since its inception (i) made any
unlawful contribution to any candidate for foreign office or failed to disclose
fully any contribution in violation of law, or (ii) made any payment to any
U.S. federal or state governmental officer or official, or other person charged
with similar public or quasi-public duties, other than payments required or
permitted by the laws of the United States or any jurisdiction thereof.
(xxviii) The Company has not distributed and will not distribute prior to the
later of (i) the Closing Date, or any date on which Option Stock is to be
purchased, as the case may be, and (ii) completion of the distribution of the
Stock, any offering material in connection with the offering and sale of the
Stock other than any Preliminary Prospectuses, the Prospectus, the Registration
Statement and other materials, if any, permitted by the Securities Act.
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<PAGE> 9
(xxix) The Company has not incurred any liability for any finder's fees or
similar payments in connection with the transactions contemplated hereby other
than to the Underwriters.
(b) Each of the Selling Securityholders hereby represents and warrants as
follows:
(i) Such Selling Securityholder has good and marketable title to all the shares
of Stock to be sold by such Selling Securityholder hereunder, free and clear of
all liens, encumbrances, equities, security interests and claims whatsoever,
with full right and authority to deliver the same hereunder, subject, in the
case of each Selling Securityholder, to the rights of degrees , as Custodian
(herein called the Custodian), and that upon the delivery of and payment for
such shares of the Stock hereunder, and assuming that the Underwriters are
acquiring the Stock with no knowledge of any adverse claim, the several
Underwriters will receive good and marketable title thereto, free and clear of
all liens, encumbrances, equities, security interests and claims whatsoever.
(ii) Certificates in negotiable form for the shares of the Stock to be sold by
such Selling Securityholder have been placed in custody under a Custody
Agreement for delivery under this Agreement with the Custodian; such Selling
Securityholder specifically agrees that the shares of the Stock represented by
the certificates so held in custody for such Selling Securityholder are subject
to the interests of the several Underwriters and the Company, that the
arrangements made by such Selling Securityholder for such custody, including
the Power of Attorney provided for in such Custody Agreement, are to that
extent irrevocable, and that the obligations of such Selling Securityholder
shall not be terminated by any act of such Selling Securityholder or by
operation of law, whether by the death or incapacity of such Selling
Securityholder (or, in the case of a Selling Securityholder that is not an
individual, the dissolution or liquidation of such Selling Securityholder) or
the occurrence of any other event; if any such death, incapacity, dissolution,
liquidation or other such event should occur before the delivery of such shares
of the Stock hereunder, certificates for such shares of the Stock shall be
delivered by the Custodian in accordance with the terms and conditions of this
Agreement as if such death, incapacity, dissolution, liquidation or other event
had not occurred, regardless of whether the Custodian shall have received
notice of such death, incapacity, dissolution, liquidation or other event.
(iii) Such Selling Securityholder has reviewed the Registration Statement and
Prospectus and, although such Selling Securityholder has not independently
verified the accuracy or completeness of all the information contained therein,
nothing has come to the attention of such Selling Securityholder that would lead
such Selling Securityholder to believe that on the Effective Date, the
Registration Statement contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and, on the Effective Date
the Prospectus contained and, on the Closing Date and any later date on which
Option Stock is to be purchased, contains any untrue statement of a material
fact or omitted or omits 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.
3. PURCHASE OF THE STOCK BY THE UNDERWRITERS.
(a) On the basis of the representations and warranties and subject to the terms
and conditions herein set forth, the Company agrees to issue and sell 2,500,000
shares of the Underwritten Stock to the
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<PAGE> 10
several Underwriters, each Selling Securityholder agrees to sell to the several
Underwriters the number of shares of the Underwritten Stock set forth in
Schedule II opposite the name of such Selling Securityholder, and each of the
Underwriters agrees to purchase from the Company and the Selling Securityholders
the respective aggregate number of shares of Underwritten Stock set forth
opposite its name in Schedule I. The price at which such shares of Underwritten
Stock shall be sold by the Company and the Selling Securityholders and purchased
by the several Underwriters shall be $___ per share. The obligation of each
Underwriter to the Company and each of the Selling Securityholders shall be to
purchase from the Company and the Selling Securityholders that number of shares
of the Underwritten Stock which represents the same proportion of the total
number of shares of the Underwritten Stock to be sold by each of the Company and
the Selling Securityholders pursuant to this Agreement as the number of shares
of the Underwritten Stock set forth opposite the name of such Underwriter in
Schedule I hereto represents of the total number of shares of the Underwritten
Stock to be purchased by all Underwriters pursuant to this Agreement, as
adjusted by you in such manner as you deem advisable to avoid fractional shares.
In making this Agreement, each Underwriter is contracting severally and not
jointly; except as provided in paragraphs (b) and (c) of this Section 3, the
agreement of each Underwriter is to purchase only the respective number of
shares of the Underwritten Stock specified in Schedule I.
(b) If for any reason one or more of the Underwriters shall fail or refuse
(otherwise than for a reason sufficient to justify the termination of this
Agreement under the provisions of Section 8 or 9 hereof) to purchase and pay for
the number of shares of the Stock agreed to be purchased by such Underwriter or
Underwriters, the Company or the Selling Securityholders shall immediately give
notice thereof to you, and the non-defaulting Underwriters shall have the right
within 24 hours after the receipt by you of such notice to purchase, or procure
one or more other Underwriters to purchase, in such proportions as may be agreed
upon between you and such purchasing Underwriter or Underwriters and upon the
terms herein set forth, all or any part of the shares of the Stock which such
defaulting Underwriter or Underwriters agreed to purchase. If the non-defaulting
Underwriters fail so to make such arrangements with respect to all such shares
and portion, the number of shares of the Stock which each non-defaulting
Underwriter is otherwise obligated to purchase under this Agreement shall be
automatically increased on a pro rata basis to absorb the remaining shares and
portion which the defaulting Underwriter or Underwriters agreed to purchase;
provided, however, that the non-defaulting Underwriters shall not be obligated
to purchase the shares and portion which the defaulting Underwriter or
Underwriters agreed to purchase if the aggregate number of such shares of the
Stock exceeds 10% of the total number of shares of the Stock which all
Underwriters agreed to purchase hereunder. If the total number of shares of the
Stock which the defaulting Underwriter or Underwriters agreed to purchase shall
not be purchased or absorbed in accordance with the two preceding sentences, the
Company and the Selling Securityholders shall have the right, within 24 hours
next succeeding the 24-hour period above referred to, to make arrangements with
other underwriters or purchasers satisfactory to you for purchase of such shares
and portion on the terms herein set forth. In any such case, either you or the
Company and the Selling Securityholders shall have the right to postpone the
Closing Date determined as provided in Section 5 hereof for not more than seven
business days after the date originally fixed as the Closing Date pursuant to
said Section 5 in order that any necessary changes in the Registration
Statement, the Prospectus or any other
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<PAGE> 11
documents or arrangements may be made. If neither the non-defaulting
Underwriters nor the Company and the Selling Securityholders shall make
arrangements within the 24-hour periods stated above for the purchase of all the
shares of the Stock which the defaulting Underwriter or Underwriters agreed to
purchase hereunder, this Agreement shall be terminated without further act or
deed and without any liability on the part of the Company or the Selling
Securityholders to any non-defaulting Underwriter and without any liability on
the part of any non-defaulting Underwriter to the Company or the Selling
Securityholders. Nothing in this paragraph (b), and no action taken hereunder,
shall relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
(c) On the basis of the representations, warranties and covenants herein
contained, and subject to the terms and conditions herein set forth, the
Company grants an option to the several Underwriters to purchase, severally and
not jointly, up to the number of shares specified in Scheduled II as Option
Stock at the same price per share as the Underwriters shall pay for the
Underwritten Stock. Said option may be exercised only to cover over-allotments
in the sale of the Underwritten Stock by the Underwriters and may be exercised
in whole or in part at any time (but not more than once) on or before the
thirtieth day after the date of this Agreement upon written or telegraphic
notice by you to the Company and the Selling Securityholders setting forth the
aggregate number of shares of the Option Stock as to which the several
Underwriters are exercising the option. Delivery of certificates for the shares
of Option Stock, and payment therefor, shall be made as provided in Section 5
hereof. The number of shares of the Option Stock to be purchased by each
Underwriter shall be the same percentage of the total number of shares of the
Option Stock to be purchased by the several Underwriters as such Underwriter is
purchasing of the Underwritten Stock, as adjusted by you in such manner as you
deem advisable to avoid fractional shares.
4. OFFERING BY UNDERWRITERS.
(a) The terms of the public offering by the Underwriters of the Stock to be
purchased by them shall be as set forth in the Prospectus. The Underwriters may
from time to time change the public offering price after the closing of the
public offering and increase or decrease the concessions and discounts to
dealers as they may determine.
(b) The information set forth in the last paragraph on the front cover page and
under "Underwriting" in the Registration Statement, any Preliminary Prospectus
and the Prospectus relating to the Stock filed by the Company (insofar as such
information relates to the Underwriters) constitutes the only information
furnished by the Underwriters to the Company for inclusion in the Registration
Statement, any Preliminary Prospectus, and the Prospectus, and you on behalf of
the respective Underwriters represent and warrant to the Company that the
statements made therein are correct.
5. DELIVERY OF AND PAYMENT FOR THE STOCK.
(a) Delivery of certificates for the shares of the Underwritten Stock and the
Option Stock (if the option granted by Section 3(c) hereof shall have been
exercised not later than 10:00 A.M., New York time, on the date two business
days preceding the Closing Date), and payment therefor, shall be made at the
office of Brobeck, Phleger & Harrison LLP, 1633 Broadway, New York,
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New York, at 10:00 a.m., New York time, on the fourth business day after the
date of this Agreement, or at such time on such other day, not later than seven
full business days after such fourth business day, as shall be agreed upon in
writing by the Company, the Selling Securityholders and you. The date and hour
of such delivery and payment (which may be postponed as provided in Section 3(b)
hereof) are herein called the Closing Date.
(b) If the option granted by Section 3(c) hereof shall be exercised after 10:00
a.m., New York time, on the date two business days preceding the Closing Date,
delivery of certificates for the shares of Option Stock, and payment therefor,
shall be made at the office of Brobeck, Phleger & Harrison LLP, 1633 Broadway,
New York, New York, at 10:00 a.m., New York time, on the third business day
after the exercise of such option, unless otherwise agreed upon by the Company
and you.
(c) Payment for the Stock purchased from the Company shall be made to the
Company or its order, and payment for the Stock purchased from the Selling
Securityholders shall be made to the Custodian, for the account of the Selling
Securityholders, in each case by one or more certified or official bank check
or checks in same day funds or by wire transfer as mutually agreed. Such
payment shall be made upon delivery of certificates for the Stock to you for
the respective accounts of the several Underwriters against receipt therefor
signed by you. Certificates for the Stock to be delivered to you shall be
registered in such name or names and shall be in such denominations as you may
request at least one business day before the Closing Date, in the case of
Underwritten Stock, and at least one business day prior to the purchase
thereof, in the case of the Option Stock. Such certificates will be made
available to the Underwriters for inspection, checking and packaging at the
offices of Lewco Securities Corporation, 2 Broadway, New York, New York 10004
on the business day prior to the Closing Date or, in the case of the Option
Stock, by 3:00 p.m., New York time, on the business day preceding the date of
purchase.
It is understood that you, individually and not on behalf of the
Underwriters, may (but shall not be obligated to) make payment to the Company
and the Selling Securityholders for shares to be purchased by any Underwriter
whose check shall not have been received by you on the Closing Date or any later
date on which Option Stock is purchased for the account of such Underwriter. Any
such payment by you shall not relieve such Underwriter from any of its
obligations hereunder.
6. FURTHER AGREEMENTS OF THE COMPANY AND THE SELLING SECURITYHOLDERS. Each of
the Company and the Selling Securityholders respectively covenants and agrees
as follows:
(a) The Company will (i) prepare and timely file with the Commission under Rule
424(b) a Prospectus containing information previously omitted at the time of
effectiveness of the Registration Statement in reliance on Rule 430A and (ii)
not file any amendment to the Registration Statement or supplement to the
Prospectus of which you shall not previously have been advised and furnished
with a copy or to which you shall have reasonably objected in writing or which
is not in compliance with the Securities Act or the Rules and Regulations.
(b) The Company will promptly notify each Underwriter in the event of (i) the
request by the Commission for amendment of the Registration Statement or for
supplement to the Prospectus or for any additional information, (ii) the
issuance by the Commission of any stop order suspending the effectiveness of
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<PAGE> 13
the Registration Statement, (iii) the institution or notice of intended
institution of any action or proceeding for that purpose, (iv) the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Stock for sale in any jurisdiction, or (v) the receipt by
it of notice of the initiation or threatening of any proceeding for such
purpose. The Company will make every reasonable effort to prevent the issuance
of such a stop order and, if such an order shall at any time be issued, to
obtain the withdrawal thereof at the earliest possible moment.
(c) The Company will (i) on or before the Closing Date, deliver to you a signed
copy of the Registration Statement as originally filed and of each amendment
thereto filed prior to the time the Registration Statement becomes effective
and, promptly upon the filing thereof, a signed copy of each post-effective
amendment, if any, to the Registration Statement (together with, in each case,
all exhibits thereto unless previously furnished to you) and will also deliver
to you, for distribution to the Underwriters, a sufficient number of additional
conformed copies of each of the foregoing (but without exhibits) so that one
copy of each may be distributed to each Underwriter, (ii) as promptly as
possible deliver to you and send to the several Underwriters, at such office or
offices as you may designate, as many copies of the Prospectus as you may
reasonably request, and (iii) thereafter from time to time during the period in
which a prospectus is required by law to be delivered by an Underwriter or
dealer, likewise send to the Underwriters as many additional copies of the
Prospectus and as many copies of any supplement to the Prospectus and of any
amended prospectus, filed by the Company with the Commission, as you may
reasonably request for the purposes contemplated by the Securities Act.
(d) If at any time during the period in which a prospectus is required by law
to be delivered by an Underwriter or dealer any event relating to or affecting
the Company, or of which the Company shall be advised in writing by you, shall
occur as a result of which it is necessary, in the opinion of counsel for the
Company or of counsel for the Underwriters, to supplement or amend the
Prospectus in order to make the Prospectus not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser of the Stock,
the Company will forthwith prepare and file with the Commission a supplement to
the Prospectus or an amended prospectus so that the Prospectus as so
supplemented or amended will not contain 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 existing at the time such
Prospectus is delivered to such purchaser, not misleading. If, after the public
offering of the Stock by the Underwriters and during such period, the
Underwriters shall propose to vary the terms of offering thereof by reason of
changes in general market conditions or otherwise, you will advise the Company
in writing of the proposed variation, and, if in the opinion either of counsel
for the Company or of counsel for the Underwriters such proposed variation
requires that the Prospectus be supplemented or amended, the Company will
forthwith prepare and file with the Commission a supplement to the Prospectus
or an amended prospectus setting forth such variation. The Company authorizes
the Underwriters and all dealers to whom any of the Stock may be sold by the
several Underwriters to use the Prospectus, as from time to time amended or
supplemented, in connection with the sale of the Stock in accordance with the
applicable provisions of the Securities Act and the applicable rules and
regulations thereunder for such period.
(e) Prior to the filing thereof with the Commission, the Company will submit to
you, for your information, a copy of any post-effective amendment to the
Registration Statement and any
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<PAGE> 14
supplement to the Prospectus or any amended prospectus proposed to be filed.
(f) The Company will cooperate, when and as requested by you, in the
qualification of the Stock for offer and sale under the securities or blue sky
laws of such jurisdictions as you may designate and, during the period in which
a prospectus is required by law to be delivered by an Underwriter or dealer, in
keeping such qualifications in good standing under said securities or blue sky
laws; provided, however, that the Company shall not be obligated to file any
general consent to service of process or to qualify as a foreign corporation in
any jurisdiction in which it is not so qualified. The Company will, from time
to time, prepare and file such statements, reports, and other documents as are
or may be required to continue such qualifications in effect for so long a
period as you may reasonably request for distribution of the Stock.
(g) During a period of five years commencing with the date hereof, the Company
will furnish to you, and to each Underwriter who may so request in writing,
copies of all periodic and special reports furnished to stockholders of the
Company and of all information, documents and reports filed with the
Commission.
(h) Not later than the 45th day following the end of the fiscal quarter first
occurring after the first anniversary of the Effective Date, the Company will
make generally available to its security holders an earnings statement in
accordance with Section 11(a) of the Securities Act and Rule 158 thereunder.
(i) The Company and the Selling Securityholders jointly and severally agree to
pay all costs and expenses incident to the performance of their obligations
under this Agreement, including all costs and expenses incident to (i) the
preparation, printing and filing with the Commission and the National
Association of Securities Dealers, Inc. ("NASD") of the Registration Statement,
any Preliminary Prospectus and the Prospectus, (ii) the furnishing to the
Underwriters of copies of any Preliminary Prospectus and of the several
documents required by paragraph (c) of this Section 6 to be so furnished, (iii)
the printing of this Agreement and related documents delivered to the
Underwriters, (iv) the preparation, printing and filing of all supplements and
amendments to the Prospectus referred to in paragraph (d) of this Section 6,
(v) the furnishing to you and the Underwriters of the reports and information
referred to in paragraph (g) of this Section 6 and (vi) the printing and
issuance of stock certificates, including the transfer agent's fees. The
Selling Securityholders will pay any transfer taxes incident to the transfer to
the Underwriters of the shares the Stock being sold by the Selling
Securityholders.
(j) The Company and the Selling Securityholders jointly and severally agree to
reimburse you, for the account of the several Underwriters, for blue sky fees
and related disbursements (including reasonable counsel fees and disbursements
and cost of printing memoranda for the Underwriters) paid by or for the account
of the Underwriters or their counsel in qualifying the Stock under state
securities or blue sky laws and in the review of the offering by the NASD.
(k) The provisions of paragraphs (i) and (j) of this Section are intended to
relieve the Underwriters from the payment of the expenses and costs which the
Company and the Selling Securityholders hereby agree to pay and shall not
affect any agreement which the Company and the Selling Securityholders may
make, or may have made, for the sharing of any such expenses and costs.
(l) The Company hereby agrees that, without the prior written consent of
Hambrecht & Quist LLC on behalf of the Underwriters, the Company or such
Selling Securityholder, as the case may be, will not,
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<PAGE> 15
for a period of 90 days following the commencement of the public offering of the
Stock by the Underwriters, directly or indirectly, (i) sell, offer, contract to
sell, make any short sale, pledge, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to
purchase or otherwise transfer or dispose of any shares of Common Stock or any
securities convertible into or exchangeable or exercisable for or any rights to
purchase or acquire Common Stock or (ii) enter into any swap or other agreement
that transfers, in whole or in part, any of the economic consequences or
ownership of Common Stock, whether any such transaction described in clause (i)
or (ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise, except that the Company may issue shares upon
the exercise of options or warrants granted prior to the date hereof and may
grant additional options under the Company's stock option plans, provided that,
without the prior written consent of Hambrecht & Quist LLC on behalf of the
Underwriters, such additional options shall not be exercisable during the 90 day
period discussed above. The foregoing sentence shall not apply to the Stock to
be sold to the Underwriters pursuant to this Agreement.
(m) The Company is familiar with the Investment Company Act of 1940, as
amended, and has in the past conducted its affairs, and will in the future
conduct its affairs, in such a manner to ensure that the Company was not and
will not be an "investment company" or a company "controlled" by an "investment
company" within the meaning of the Investment Company Act of 1940, as amended,
and the rules and regulations thereunder.
7. INDEMNIFICATION AND CONTRIBUTION.
(a) The Company and the Selling Securityholders jointly and severally agree to
indemnify and hold harmless each Underwriter and each person (including each
partner or officer thereof) who controls any Underwriter within the meaning of
Section 15 of the Securities Act from and against any and all losses, claims,
damages or liabilities, joint or several, to which such indemnified parties or
any of them may become subject under the Securities Act, the Exchange Act, or
the common law or otherwise, and the Company and the Selling Securityholders
jointly and severally agree to reimburse each such Underwriter and controlling
person for any legal or other expenses (including, except as otherwise
hereinafter provided, reasonable fees and disbursements of counsel) incurred by
the respective indemnified parties in connection with defending against any such
losses, claims, damages or liabilities or in connection with any investigation
or inquiry of, or other proceeding which may be brought against, the respective
indemnified parties, in each case arising out of or based upon (i) any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement (including the Prospectus as part thereof and any Rule
462(b) registration statement) or any post-effective amendment thereto
(including any Rule 462(b) registration statement), or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus or the Prospectus (as amended or as supplemented if the
Company shall have filed with the Commission any amendment thereof or supplement
thereto) or the omission or alleged omission to state therein a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided, however,
that (1) the indemnity agreements of the Company and the Selling Securityholders
contained in this paragraph (a) shall not apply to any such losses, claims,
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<PAGE> 16
damages, liabilities or expenses if such statement or omission was made in
reliance upon and in conformity with information furnished as herein stated or
otherwise furnished in writing to the Company by or on behalf of any Underwriter
for use in any Preliminary Prospectus or the Registration Statement or the
Prospectus or any such amendment thereof or supplement thereto, (2) the
indemnity agreement contained in this paragraph (a) with respect to any
Preliminary Prospectus shall not inure to the benefit of any Underwriter from
whom the person asserting any such losses, claims, damages, liabilities or
expenses purchased the Stock which is the subject thereof (or to the benefit of
any person controlling such Underwriter) if at or prior to the written
confirmation of the sale of such Stock a copy of the Prospectus (or the
Prospectus as amended or supplemented) was not sent or delivered to such person
and the untrue statement or omission of a material fact contained in such
Preliminary Prospectus was corrected in the Prospectus (or the Prospectus as
amended or supplemented) unless the failure is the result of noncompliance by
the Company with paragraph (c) of Section 6 hereof, and (3) each Selling
Securityholder shall only be liable under this paragraph with respect to (A)
information pertaining to such Selling Securityholder furnished by or on behalf
of such Selling Securityholder expressly for use in any Preliminary Prospectus
or the Registration Statement or the Prospectus or any such amendment thereof or
supplement thereto or (B) facts that would constitute a breach of any
representation or warranty of such Selling Securityholder set forth in Section
2(b) hereof. The indemnity agreements of the Company and the Selling
Securityholders contained in this paragraph (a) and the representations and
warranties of the Company and the Selling Securityholders contained in Section 2
hereof shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any indemnified party and shall survive
the delivery of and payment for the Stock.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, each of its officers who signs the Registration Statement on his own
behalf or pursuant to a power of attorney, each of its directors, each other
Underwriter and each person (including each partner or officer thereof) who
controls the Company or any such other Underwriter within the meaning of
Section 15 of the Securities Act, and the Selling Securityholders from and
against any and all losses, claims, damages or liabilities, joint or several,
to which such indemnified parties or any of them may become subject under the
Securities Act, the Exchange Act, or the common law or otherwise and to
reimburse each of them for any legal or other expenses (including, except as
otherwise hereinafter provided, reasonable fees and disbursements of counsel)
incurred by the respective indemnified parties in connection with defending
against any such losses, claims, damages or liabilities or in connection with
any investigation or inquiry of, or other proceeding which may be brought
against, the respective indemnified parties, in each case arising out of or
based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (including the Prospectus as part
thereof and any Rule 462(b) registration statement) or any post-effective
amendment thereto (including any Rule 462(b) registration statement) or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading or
(ii) any untrue statement or alleged untrue statement of a material fact
contained in the Prospectus (as amended or as supplemented if the Company shall
have filed with the Commission any amendment thereof or supplement thereto) or
the omission or alleged omission to state therein a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which
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<PAGE> 17
they were made, not misleading, if such statement or omission was made in
reliance upon and in conformity with information furnished as herein stated or
otherwise furnished in writing to the Company by or on behalf of such
indemnifying Underwriter for use in the Registration Statement or the Prospectus
or any such amendment thereof or supplement thereto. The indemnity agreement of
each Underwriter contained in this paragraph (b) shall remain operative and in
full force and effect regardless of any investigation made by or on behalf of
any indemnified party and shall survive the delivery of and payment for the
Stock.
(c) Each party indemnified under the provision of paragraphs (a) and (b) of this
Section 7 agrees that, upon the service of a summons or other initial legal
process upon it in any action or suit instituted against it or upon its receipt
of written notification of the commencement of any investigation or inquiry of,
or proceeding against, it in respect of which indemnity may be sought on account
of any indemnity agreement contained in such paragraphs, it will promptly give
written notice (herein called the Notice) of such service or notification to the
party or parties from whom indemnification may be sought hereunder. No
indemnification provided for in such paragraphs shall be available to any party
who shall fail so to give the Notice if the party to whom such Notice was not
given was unaware of the action, suit, investigation, inquiry or proceeding to
which the Notice would have related and was prejudiced by the failure to give
the Notice, but the omission so to notify such indemnifying party or parties of
any such service or notification shall not relieve such indemnifying party or
parties from any liability which it or they may have to the indemnified party
for contribution or otherwise than on account of such indemnity agreement. Any
indemnifying party shall be entitled at its own expense to participate in the
defense of any action, suit or proceeding against, or investigation or inquiry
of, an indemnified party. Any indemnifying party shall be entitled, if it so
elects within a reasonable time after receipt of the Notice by giving written
notice (herein called the Notice of Defense) to the indemnified party, to assume
(alone or in conjunction with any other indemnifying party or parties) the
entire defense of such action, suit, investigation, inquiry or proceeding, in
which event such defense shall be conducted, at the expense of the indemnifying
party or parties, by counsel chosen by such indemnifying party or parties and
reasonably satisfactory to the indemnified party or parties; provided, however,
that (i) if the indemnified party or parties reasonably determine that there may
be a conflict between the positions of the indemnifying party or parties and of
the indemnified party or parties in conducting the defense of such action, suit,
investigation, inquiry or proceeding or that there may be legal defenses
available to such indemnified party or parties different from or in addition to
those available to the indemnifying party or parties, then counsel for the
indemnified party or parties shall be entitled to conduct the defense to the
extent reasonably determined by such counsel to be necessary to protect the
interests of the indemnified party or parties and (ii) in any event, the
indemnified party or parties shall be entitled to have counsel chosen by such
indemnified party or parties participate in, but not conduct, the defense. If,
within a reasonable time after receipt of the Notice, an indemnifying party
gives a Notice of Defense and the counsel chosen by the indemnifying party or
parties is reasonably satisfactory to the indemnified party or parties, the
indemnifying party or parties will not be liable under paragraphs (a) through
(c) of this Section 7 for any legal or other expenses subsequently incurred by
the indemnified party or parties in connection with the defense of the action,
suit, investigation, inquiry or proceeding, except that (A) the indemnifying
party or parties shall bear the legal and other expenses incurred in connection
with the conduct of the defense as referred to in clause (i) of the proviso to
the preceding sentence and (B) the indemnifying party or parties
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<PAGE> 18
shall bear such other expenses as it or they have authorized to be incurred by
the indemnified party or parties. If, within a reasonable time after receipt of
the Notice, no Notice of Defense has been given, the indemnifying party or
parties shall be responsible for any legal or other expenses incurred by the
indemnified party or parties in connection with the defense of the action, suit,
investigation, inquiry or proceeding.
(d) If the indemnification provided for in this Section 7 is unavailable or
insufficient to hold harmless an indemnified party under paragraph (a) or (b) of
this Section 7, then each indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of the losses, claims, damages or liabilities
referred to in paragraph (a) or (b) of this Section 7 (i) in such proportion as
is appropriate to reflect the relative benefits received by each indemnifying
party from the offering of the Stock or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of each indemnifying party in connection with
the 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 and the
Selling Securityholders, respectively, on the one hand and the Underwriters on
the other shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of the Stock received by the Company and the
Selling Securityholders and the total underwriting discount and commission
received by the Underwriters, as set forth in the table on the cover page of the
Prospectus, bear to the aggregate public offering price of the Stock. Relative
fault 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 each
indemnifying party and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission.
The parties agree that it would not be just and equitable if
contributions pursuant to this paragraph (d) were to be determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take into account
the equitable considerations referred to in the first sentence of this paragraph
(d). The amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities, or actions in respect thereof, referred to in the first
sentence of this paragraph (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigation, preparing to defend or defending against any action or claim
which is the subject of this paragraph (d). Notwithstanding the provisions of
this paragraph (d), no Underwriter shall be required to contribute any amount in
excess of the underwriting discount applicable to the Stock purchased by such
Underwriter. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this paragraph (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
Each party entitled to contribution agrees that upon the service of a
summons or other initial legal process upon it in any action instituted against
it in respect of which contribution
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<PAGE> 19
may be sought, it will promptly give written notice of such service to the party
or parties from whom contribution may be sought, but the omission so to notify
such party or parties of any such service shall not relieve the party from whom
contribution may be sought from any obligation it may have hereunder or
otherwise (except as specifically provided in paragraph (c) of this Section 7).
(e) Neither the Company nor the Selling Securityholders will, without the prior
written consent of each Underwriter, 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 such Underwriter or any person who controls such Underwriter within the
meaning of Section 15 of the Securities 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 such Underwriter and
each such controlling person from all liability arising out of such claim,
action, suit or proceeding.
8. TERMINATION. This Agreement may be terminated by you at any time prior to the
Closing Date by giving written notice to the Company and the Selling
Securityholders if after the date of this Agreement trading in the Common Stock
shall have been suspended, or if there shall have occurred (i) the engagement in
hostilities or an escalation of major hostilities by the United States or the
declaration of war or a national emergency by the United States on or after the
date hereof, (ii) any outbreak of hostilities or other national or international
calamity or crisis or change in economic or political conditions if the effect
of such outbreak, calamity, crisis or change in economic or political conditions
in the financial markets of the United States would, in the Underwriters'
reasonable judgment, make the offering or delivery of the Stock impracticable,
(iii) suspension of trading in securities generally or a material adverse
decline in value of securities generally on the New York Stock Exchange, the
American Stock Exchange, or The Nasdaq Stock Market, or limitations on prices
(other than limitations on hours or numbers of days of trading) for securities
on either such exchange or system, (iv) the enactment, publication, decree or
other promulgation of any federal or state statute, regulation, rule or order
of, or commencement of any proceeding or investigation by, any court,
legislative body, agency or other governmental authority which in the
Underwriters' reasonable opinion materially and adversely affects or will
materially or adversely affect the business or operations of the Company, (v)
declaration of a banking moratorium by either federal or New York State
authorities or (vi) the taking of any action by any federal, state or local
government or agency in respect of its monetary or fiscal affairs which in the
Underwriters' reasonable opinion has a material adverse effect on the securities
markets in the United States. If this Agreement shall be terminated pursuant to
this Section 8, there shall be no liability of the Company or the Selling
Securityholders to the Underwriters and no liability of the Underwriters to the
Company or the Selling Securityholders; provided, however, that in the event of
any such termination the Company and the Selling Securityholders agree to
indemnify and hold harmless the Underwriters from all costs or expenses incident
to the performance of the obligations of the Company and the Selling
Securityholders under this Agreement, including all costs and expenses referred
to in paragraphs (i) and (j) of Section 6 hereof.
9. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the several
Underwriters to purchase and pay for the Stock shall be subject to the
performance by the Company and by the
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<PAGE> 20
Selling Securityholders of all their respective obligations to be performed
hereunder at or prior to the Closing Date or any later date on which Option
Stock is to be purchased, as the case may be, and to the following further
conditions:
(a) The Registration Statement shall have become effective; and no stop order
suspending the effectiveness thereof shall have been issued and no proceedings
therefor shall be pending or threatened by the Commission.
(b) The legality and sufficiency of the sale of the Stock hereunder and the
validity and form of the certificates representing the Stock, all corporate
proceedings and other legal matters incident to the foregoing, and the form of
the Registration Statement and of the Prospectus (except as to the financial
statements contained therein), shall have been approved at or prior to the
Closing Date by Brobeck, Phleger & Harrison LLP, counsel for the Underwriters.
(c) You shall have received from Milbank, Tweed, Hadley & McCloy LLP, special
counsel for the Company, David B. Bamberger, general counsel for the Company,
Seward & Kissel LLP, counsel for the Selling Securityholders, and from Hogan &
Hartson, FDA and patent counsel for the Company, Covington & Burling, FDA
counsel to Collagen, and Foley & Lardner, patent counsel to Collagen and Eugene
F. Collins, Solicitors, foreign counsel and European regulatory counsel to the
Company, opinions, addressed to the Underwriters and dated the Closing Date,
covering the matters set forth in Annex A, Annex A-1, Annex A-2, Annex B, Annex
C, Annex D, Annex E, Annex F and Annex G hereto, respectively, and if Option
Stock is purchased at any date after the Closing Date, additional opinions from
each such counsel, addressed to the Underwriters and dated such later date,
confirming that the statements expressed as of the Closing Date in such opinions
remain valid as of such later date.
(d) You shall be satisfied that (i) as of the Effective Date, the statements
made in the Registration Statement and the Prospectus were true and correct and
neither the Registration Statement nor the Prospectus omitted to state any
material fact required to be stated therein or necessary in order to make the
statements therein, respectively, not misleading, (ii) since the Effective
Date, no event has occurred which should have been set forth in a supplement or
amendment to the Prospectus which has not been set forth in such a supplement
or amendment, (iii) since the respective dates as of which information is given
in the Registration Statement in the form in which it originally became
effective and the Prospectus contained therein, there has not been any material
adverse change or any development involving a prospective material adverse
change in or affecting the business, properties, financial condition or results
of operations of the Company and its subsidiaries, taken as a whole, whether or
not arising from transactions in the ordinary course of business, and, since
such dates, except in the ordinary course of business, neither the Company nor
any of its subsidiaries has entered into any material transaction not referred
to in the Registration Statement in the form in which it originally became
effective and the Prospectus contained therein, (iv) neither the Company nor
any of its subsidiaries has any material contingent obligations which are not
disclosed in the Registration Statement and the Prospectus, (v) there are not
any pending or known threatened legal proceedings to which the Company or any
of its subsidiaries is a party or of which property of the Company or any of
its subsidiaries is the subject which are material and which are not disclosed
in the Registration Statement and the Prospectus, (vi) there are not any
franchises, contracts, leases or other documents which are
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<PAGE> 21
required to be filed as exhibits to the Registration Statement which have not
been filed as required, (vii) the representations and warranties of the Company
herein are true and correct in all material respects as of the Closing Date or
any later date on which Option Stock is to be purchased, as the case may be, and
(viii) there has not been any material change in the market for securities in
general or in political, financial or economic conditions from those reasonably
foreseeable as to render it impracticable in your reasonable judgment to make a
public offering of the Stock, or a material adverse change in market levels for
securities in general (or those of companies in particular) or financial or
economic conditions which render it inadvisable to proceed.
(e) You shall have received on the Closing Date and on any later date on which
Option Stock is purchased a certificate, dated the Closing Date or such later
date, as the case may be, and signed by the President and the Chief Financial
Officer of the Company, stating that the respective signers of said certificate
have carefully examined the Registration Statement in the form in which it
originally became effective and the Prospectus contained therein and any
supplements or amendments thereto, and that the statements included in clauses
(i) through (vii) of paragraph (d) of this Section 9 are true and correct.
(f) You shall have received from BDO Seidman, LLP and Ernst & Young LLP,
separate letters in form and substance reasonably satisfactory to you,
addressed to the Underwriters and the directors and officers of the Company and
dated the Closing Date and any later date on which Option Stock is purchased.
The letters shall not disclose any change, or any development involving a
prospective change, in or affecting the business or properties of the Company
or any of its subsidiaries which, in your sole judgment, makes it impractical
or inadvisable to proceed with the public offering of the Stock or the purchase
of the Option Stock as contemplated by the Prospectus. In addition, you shall
have received from BDO Seidman, LLP and Ernst & Young LLP separate letters
addressed to the Underwriters and the directors and officers of the Company
stating that their review of the Company's system of internal accounting
controls, to the extent they deemed necessary in establishing the scope of
their examination of the Company's consolidated financial statements, did not
disclose any weaknesses in internal controls that they considered to be
material weaknesses.
(g) You shall have been furnished evidence in usual written or telegraphic form
from the appropriate authorities of the several jurisdictions, or other
evidence satisfactory to you, of the qualification referred to in paragraph (f)
of Section 6 hereof.
(h) Prior to the Closing Date, the Stock to be issued and sold by the Company
shall have been duly authorized for listing by the Nasdaq National Market upon
official notice of issuance.
(i) On or prior to the Closing Date, you shall have received from all directors,
executive officers, and entities affiliated with Appaloosa Management L.P. and
Oracle Partners, L.P. letters, in form reasonably satisfactory to Hambrecht &
Quist LLC, stating that without the prior written consent of Hambrecht & Quist
LLC on behalf of the Underwriters, such person or entity will not, subject to
certain exceptions specified in such letters, for a period of 90 days following
the commencement of the public offering of the Stock by the Underwriters,
directly or indirectly, (i) sell, offer, contract to sell, make any short sale,
pledge, sell any option or contract to purchase,
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<PAGE> 22
purchase any option or contract to sell, grant any option, right or warrant to
purchase or otherwise transfer or dispose of any shares of Common Stock or any
securities convertible into or exchangeable or exercisable for or any rights to
purchase or acquire Common Stock or (ii) enter into any swap or other agreement
that transfers, in whole or in part, any of the economic consequences or
ownership of Common Stock, whether any such transaction described in clause (i)
or (ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise.
All the agreements, opinions, certificates and letters mentioned above
or elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if Brobeck, Phleger & Harrison LLP, counsel for the
Underwriters, shall be satisfied that they comply in form and scope.
In case any of the conditions specified in this Section 9 shall not be
fulfilled, this Agreement may be terminated by you by giving notice to the
Company and to the Selling Securityholders. Any such termination shall be
without liability of the Company or the Selling Securityholders to the
Underwriters and without liability of the Underwriters to the Company or the
Selling Securityholders; provided, however, that (i) in the event of such
termination, the Company and the Selling Securityholders agree to indemnify and
hold harmless the Underwriters from all costs or expenses incident to the
performance of the obligations of the Company and the Selling Securityholders
under this Agreement, including all costs and expenses referred to in paragraphs
(i) and (j) of Section 6 hereof, and (ii) if this Agreement is terminated by you
because of any refusal, inability or failure on the part of the Company or the
Selling Securityholders to perform any agreement herein, to fulfill any of the
conditions herein, or to comply with any provision hereof 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 transactions contemplated hereby.
10. CONDITIONS OF THE OBLIGATION OF THE COMPANY AND THE SELLING SECURITYHOLDERS.
The obligation of the Company and the Selling Securityholders to deliver the
Stock shall be subject to the conditions that (a) the Registration Statement
shall have become effective and (b) no stop order suspending the effectiveness
thereof shall be in effect and no proceedings therefor shall be pending or
threatened by the Commission.
In case either of the conditions specified in this Section 10 shall not
be fulfilled, this Agreement may be terminated by the Company and the Selling
Securityholders by giving notice to you. Any such termination shall be without
liability of the Company and the Selling Securityholders to the Underwriters and
without liability of the Underwriters to the Company or the Selling
Securityholders; provided, however, that in the event of any such termination
the Company and the Selling Securityholders jointly and severally agree to
indemnify and hold harmless the Underwriters from all costs or expenses incident
to the performance of the obligations of the Company and the Selling
Securityholders under this Agreement, including all costs and expenses referred
to in paragraphs (i) and (j) of Section 6 hereof.
11. REIMBURSEMENT OF CERTAIN EXPENSES. In addition to their other obligations
under Section 7 of
22
<PAGE> 23
this Agreement, the Company and the Selling Securityholders hereby jointly and
severally agree to reimburse on a quarterly basis the Underwriters for all
reasonable legal and other expenses reasonably incurred in connection with
investigating or defending any claim, action, investigation, inquiry or other
proceeding arising out of or based upon any statement or omission, or any
alleged statement or omission, described in paragraph (a) of Section 7 of this
Agreement, notwithstanding the absence of a judicial determination as to the
propriety and enforceability of the obligations under this Section 11 and the
possibility that such payments might later be held to be improper; provided,
however, that (i) to the extent any such payment is ultimately held to be
improper, the persons receiving such payments shall promptly refund them and
(ii) such persons shall provide to the Company, upon request, reasonable
assurances of their ability to effect any refund, when and if due.
12. PERSONS ENTITLED TO BENEFIT OF AGREEMENT. This Agreement shall inure to the
benefit of the Company, the Selling Securityholders and the several Underwriters
and, with respect to the provisions of Section 7 hereof, the several parties (in
addition to the Company, the Selling Securityholders and the several
Underwriters) indemnified under the provisions of said Section 7, and their
respective personal representatives, successors and assigns. Nothing in this
Agreement is intended or shall be construed to give to any other person, firm or
corporation any legal or equitable remedy or claim under or in respect of this
Agreement or any provision herein contained. The term "successors and assigns"
as herein used shall not include any purchaser, as such purchaser, of any of the
Stock from any of the several Underwriters.
13. NOTICES. Except as otherwise provided herein, all communications hereunder
shall be in writing or by telegraph and, if to the Underwriters, shall be
mailed, telegraphed or delivered to Hambrecht & Quist LLC, One Bush Street, San
Francisco, California 94104, Attn: David Yao, with a copy to Brobeck, Phleger &
Harrison LLP, 1633 Broadway, 47th Floor, New York, New York 10019, Attention:
Alexander D. Lynch, Esq.; and if to the Company, shall be mailed, telegraphed
or delivered to it at its office, 11 Penn Plaza, Suite 946, New York, New York
10001, Attention: David E. Bamberger, Esq., with a copy to Milbank, Tweed,
Hadley & McCloy LLP at 1 Chase Manhattan Plaza, New York, New York 10005-1413,
Attention: Arnold B. Peinado, III, Esq.; and if to the Selling Securityholders,
shall be mailed, telegraphed or delivered to the Selling Securityholders in
care of Seward & Kissel LLP at One Battery Park Plaza, New York, New York
10004, Attention: _______________. All notices given by telegraph shall be
promptly confirmed by letter.
14. MISCELLANEOUS. The reimbursement, indemnification and contribution
agreements contained in this Agreement and the representations, warranties and
covenants in this Agreement shall remain in full force and effect regardless of
(a) any termination of this Agreement, (b) any investigation made by or on
behalf of any Underwriter or controlling person thereof, or by or on behalf of
the Company or the Selling Securityholders or their respective directors or
officers, and (c) delivery and payment for the Stock under this Agreement;
provided, however, that if this Agreement is terminated prior to the Closing
Date, the provisions of paragraph (l) of Section 6 hereof and the letters
referred to in paragraph (i) of Section 9 hereof shall be of no further force or
effect.
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.
23
<PAGE> 24
This Agreement shall be governed by, and construed in accordance with,
the laws of the State of California.
Please sign and return to the Company and to the Selling
Securityholders in care of the Company the enclosed duplicates of this letter,
whereupon this letter will become a binding agreement among the Company, the
Selling Securityholders and the several Underwriters in accordance with its
terms.
Very truly yours,
INAMED CORPORATION
By:
[Name]
[Title]
SELLING SECURITYHOLDERS:
[List Names]
By:
[Attorney-in-Fact]]
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
HAMBRECHT & QUIST LLC
Bear, Stearns & Co. Inc.
CIBC World Markets Corp.
By Hambrecht & Quist LLC
By:
---------------------------
Managing Director
Acting on behalf of the several Underwriters,
including themselves, named in Schedule I hereto.
24
<PAGE> 25
SCHEDULE I
UNDERWRITERS
NUMBER OF SHARES TO
UNDERWRITERS BE PURCHASED
Hambrecht & Quist LLC
Bear, Stearns & Co. Inc.
CIBC World Markets Corp.
Total
<PAGE> 26
SCHEDULE II
SELLING SECURITYHOLDERS
NAME AND ADDRESS NUMBER OF SHARES OF NUMBER OF SHARES TO
OF SELLING SECURITYHOLDERS STOCK TO BE SOLD BE SOLD AS OPTIONS
- --------------------------
Total
<PAGE> 1
EXHIBIT 4.1
"THIS CERTIFICATE IS RESTRICTED FROM TRANSFER AS INDICATED ON REVERSE SIDE."
COMMON STOCK COMMON STOCK
NUMBER INAMED SHARES
INAMED CORPORATION CUSIP 453235 10 3
INCORPORATED UNDER SEE REVERSE FOR CERTAIN
THE LAWS OF THE STATE DEFINITIONS
OF DELAWARE
THIS CERTIFIES THAT
IS THE RECORD HOLDER OF
FULLY PAID AND NONASSESSABLE SHARES OF THE COMMON STOCK, $.01 PAR VALUE, OF
INAMED CORPORATION
transferable on the books of the Corporation in person or by duly authorized
attorney upon surrender of this Certificate properly endorsed. This Certificate
is not valid unless countersigned and registered by the Transfer Agent and
Registrar.
WITNESS the facsimile seal of the Corporation and the facsimile signature
of its duly authorized officers.
Dated:
/s/Carol Brennan INAMED CORPORATION /s/Richard Babbitt
SECRETARY CORPORATE CHAIRMAN
SEAL
1998
DELAWARE
COUNTERSIGNED AND REGISTERED:
U.S. STOCK TRANSFER CORPORATION
TRANSFER AGENT AND REGISTRAR
By
AUTHORIZED SIGNATURE
The Corporation shall furnish without charge to each stockholder who so
requests a statement of the powers, designations, preferences and relative,
participating, optional,
<PAGE> 2
or other special rights of each class of stock of the Corporation or series
thereof and the qualifications, limitations or restrictions of such preferences
and/or rights. Such requests shall be made to the Corporation's Secretary at the
principal office of the Corporation.
This certificate also evidences and entitles the holder hereof to certain
rights as set forth in a Rights Agreement between INAMED Corporation and U.S.
Stock Transfer Corporation dated as of June 2, 1997 (the "Rights Agreement"),
the terms of which are hereby incorporated herein by reference and a copy of
which is on file at the principal executive offices of INAMED Corporation. Under
certain circumstances, as set forth in the Rights Agreement, such Rights will be
evidenced by separate certificates and will no longer be evidenced by this
certificate. INAMED Corporation will mail to the holder of this certificate a
copy of the Rights Agreement without charge after receipt of a written request
therefor. Under certain circumstances, as set forth in the Rights Agreement,
Rights issued to any person who becomes an Acquiring Person (as defined in the
Rights Agreement) may become null and void. The Rights shall not be exercisable
by a holder in any jurisdiction where the requisite qualification to the
issuance to such holder of the Rights in such jurisdiction shall not have been
obtained or obtainable.
KEEP THIS CERTIFICATE IN A SAFE PLACE. IF IT IS LOST, STOLEN, OR DESTROYED
THE CORPORATION WILL REQUIRE A BOND OF INDEMNITY AS A CONDITION TO THE ISSUANCE
OF A REPLACEMENT CERTIFICATE.
The following abbreviations, when used in the inscription on the face of
this certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as tenants in
common
COM PROP - as community property
UNIF GIFT MIN ACT - ...................... Custodian ..........................
(Cust) (Minor)
under Uniform Gifts to Minors
Act ..........................................
(State)
UNIF TRF MIN ACT - ....................... Custodian (until age ..............)
(Cust) ................. under Uniform Transfers
(Minor)
to Minors Act ..............................
(State)
Additional abbreviations may also be used though not in the above list.
For Value Received, ________________________hereby sell, assign and
transfer unto
<PAGE> 3
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
[ ]
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
shares of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
___________________________________________________________attorney-in-fact to
transfer the said stock on the books of the within named Corporation with full
power of substitution in the premises.
Dated_______________________
NOTICE _________________________________________
THE SIGNATURE TO THIS ASSIGNMENT MUST
CORRESPOND WITH THE NAME AS WRITTEN UPON
THE FACE OF THE CERTIFICATE IN EVERY
PARTICULAR, WITHOUT ALTERATION OR
ENLARGEMENT OR ANY CHANGE WHATSOEVER.
Signature Guaranteed
"THE HOLDER REPRESENTS THAT THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND
NOT WITH A VIEW TO RESALE OR DISTRIBUTION THEREOF WITHIN THE MEANING OF THE
SECURITIES ACT. THESE SHARES MAY BE TRANSFERRED ONLY UNDER AN EFFECTIVE
REGISTRATION STATEMENT OR PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER RULE
144 OF THE GENERAL RULE AND REGULATIONS UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, OR PURSUANT TO A "NO-ACTION" LETTER ISSUED BY THE SECURITIES AND
EXCHANGE COMMISSION."
<PAGE> 1
EXHIBIT 5.1
FORM OF OPINION OF MILBANK, TWEED, HADLEY & MCCLOY LLP
November 12, 1999
Inamed Corporation
5540 Ekwill Street, Suite D
Santa Barbara, CA 93111
Ladies and Gentlemen:
We have examined the registration statement on Form S-3 filed by you
with the Securities and Exchange Commission on October 4, 1999 (Registration No.
333-88417) and Amendment Nos. 1 and 2 thereto (as so amended, the "Registation
Statement"), in connection with the public offering of 3,450,000 shares
(including the underwriters' over-allotment options) of common stock, par value
$0.01, of Inamed Corporation. The shares are to be sold to the underwriters for
resale to the public as described in the Registration Statement and pursuant to
the Underwriting Agreement in the form filed as Exhibit 1.1 to the Registration
Statement. As your counsel in connection with this transaction, we have examined
the proceedings proposed to be taken in connection with said sale and issuance
of the shares.
Based on these examinations, it is our opinion that upon the completion
of the proceedings being taken, or which we, as your special counsel,
contemplate will be taken prior to the issuance of the shares, the shares when
issued and sold in the manner referred to in the Registration Statement will be
legally and validly issued, fully paid and non-assessable.
The foregoing opinion is limited to matters involving the Federal laws
of the United States of America and the General Corporate Law of the State of
Delaware, and we do not express any opinion as to the laws of any other
jurisdiction.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and the reference to the name of our firm therein,
without thereby admitting that we are "experts" under the Securities Act of
1933, as amended, or the rules and regulations of the Securities and Exchange
Commission thereunder for the purposes of any part of the Registration
Statement.
Very truly yours,
/s/ Milbank, Tweed, Hadley & McCloy LLP
MILBANK, TWEED, HADLEY & MCCLOY LLP
ABP/RSR
<PAGE> 1
EXHIBIT 8.1
TAX OPINION OF MILBANK, TWEED, HADLEY & MCCLOY LLP
November 12, 1999
Inamed Corporation
5540 Ekwill Street, Suite D
Santa Barbara, CA 93111
Ladies and Gentlemen:
You have requested our opinion regarding certain United States tax
considerations in connection with the offering of common stock, par value $0.01
per share, of Inamed Corporation, a Delaware corporation, pursuant to a
registration statement filed with the Securities and Exchange Commission under
the Securities Act of 1933, as amended, on Form S-3.
In our opinion, the discussion in the prospectus forming part of the
Registration Statement (the "Prospectus") under the heading "U.S. Tax
Considerations Applicable to Non-U.S. Holders of the Common Stock," to the
extent it states matters of law or legal conclusions and subject to the
qualifications and limitations contained therein, describes the principal United
States federal income tax consequences that are likely to be material to a
beneficial owner of the common stock, and are incorporated and adopted herein as
our opinion.
We express no opinion in respect of those matters governed by or
construed in accordance with the law of any jurisdiction other than the federal
income tax laws of the United States of America.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and the reference to the name of our firm therein,
without thereby admitting that we are "experts" under the Securities Act or the
rules and regulations of the Securities and Exchange Commission thereunder for
the purposes of any part of the Registration Statement.
Very truly yours,
/s/ Milbank, Tweed, Hadley & McCloy LLP
MILBANK, TWEED, HADLEY & MCCLOY LLP
BK/ABP
