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DB DRAFT OF JULY 17, 2000
Adesso
[_____] Shares
Common Stock
($.0001 Par Value)
UNDERWRITING AGREEMENT
[_____], 2000
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UNDERWRITING AGREEMENT
[_____], 2000
UBS Warburg LLC
CIBC World Markets Corp.
U.S. Bancorp Piper Jaffray Inc.
As representatives of the several Underwriters
named in Schedule A hereto
c/o UBS Warburg LLC
299 Park Avenue
New York, New York 10171-0026
Ladies and Gentlemen:
Adesso Healthcare Technology Services Inc., a Delaware
corporation (the "Company"), proposes to issue and sell to the Underwriters
named in Schedule A annexed hereto (the "Underwriters") an aggregate of [_____]
shares (the "Firm Shares") of Common Stock, par value $.0001 per share (the
"Common Stock"), of the Company. In addition, solely for the purpose of covering
over-allotments, the Company proposes to grant to the Underwriters the option to
purchase from the Company up to an additional [_____] shares of Common Stock
(the "Additional Shares"). The Firm Shares and the Additional Shares are
hereinafter collectively sometimes referred to as the Shares. The Shares are
described in the Prospectus which is referred to below.
The Company hereby acknowledges that in connection with the
proposed offering of the Shares, it has requested UBS Warburg LLC ("UBSW") to
administer a directed share program (the "Directed Share Program") under which
up to [_____] shares of the Firm Shares to be purchased by you (the "Reserved
Shares") shall be reserved for sale by you at the initial public offering price
to the Company's officers, directors, employees, and consultants and others
having a business relationship with the Company (the "Directed Share
Participants") as part of the distribution of the Shares by the Underwriters,
subject to the terms of this Agreement, the applicable rules, regulations and
interpretations of the National Association of Securities Dealers, Inc. and all
other applicable laws, rules and regulations. The number of Shares available for
sale to the general public will be reduced to the extent that Directed Share
Participants purchase Reserved Shares. You may offer any Reserved Shares not
purchased by Directed Share Participants to the general public on the same basis
as the other Shares being issued and sold hereunder. The Company has supplied
UBSW with the names, addresses and telephone numbers of the individuals or other
entities that the Company
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has designated to be participants in the Directed Share Program. It is
understood that any number of those designated to participate in the Directed
Share Program may decline to do so.
The Company has filed, in accordance with the provisions of
the Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively called the "Act"), with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-1 (File No. 333-[_____])
including a prospectus, relating to the Shares. The Company has furnished to
you, for use by the Underwriters and by dealers, copies of one or more
preliminary prospectuses (each thereof being herein called a "Preliminary
Prospectus") relating to the Shares. Except where the context otherwise
requires, the registration statement, as amended when it becomes effective,
including all documents filed as a part thereof, and including any information
contained in a prospectus subsequently filed with the Commission pursuant to
Rule 424(b) under the Act and deemed to be part of the registration statement at
the time of effectiveness pursuant to Rule 430(A) under the Act, and also
including any registration statement filed pursuant to Rule 462(b) under the
Act, is herein called the Registration Statement, and the prospectus, in the
form filed by the Company with the Commission pursuant to Rule 424(b) under the
Act on or before the second business day after the date hereof (or such earlier
time as may be required under the Act) or, if no such filing is required, the
form of final prospectus included in the Registration Statement at the time it
became effective, is herein called the Prospectus.
The Company and the Underwriters agree as follows:
1. SALE AND PURCHASE. Upon the basis of the representations
and warranties and subject to the terms and conditions herein set forth, the
Company agrees to sell to the respective Underwriters and each of the
Underwriters, severally and not jointly, agrees to purchase from the Company the
aggregate number of Firm Shares set forth opposite the name of such Underwriter
in Schedule A attached hereto in each case at a purchase price of $[_____] per
Share. The Company is advised by you that the Underwriters intend (i) to make a
public offering of their respective portions of the Firm Shares as soon after
the effective date of the Registration Statement as in your judgment is
advisable and (ii) initially to offer the Firm Shares upon the terms set forth
in the Prospectus. You may from time to time increase or decrease the public
offering price after the initial public offering to such extent as you may
determine.
In addition, the Company hereby grants to the several
Underwriters the option to purchase, and upon the basis of the representations
and warranties and subject to the terms and conditions herein set forth, the
Underwriters shall have the right to purchase, severally and not jointly, from
the Company, ratably in accordance with the number of Firm Shares to be
purchased by each of them, all or a portion of the Additional Shares as may be
necessary to cover over-allotments made in connection with the offering of the
Firm Shares, at the same purchase price per share to be paid by the Underwriters
to the Company for the Firm Shares. This option may be exercised by you on
behalf of the several Underwriters at any time and
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from time to time on or before the thirtieth day following the date hereof, by
written notice to the Company. Such notice shall set forth the aggregate number
of Additional Shares as to which the option is being exercised, and the date and
time when the Additional Shares are to be delivered (such date and time being
herein referred to as the additional time of purchase); PROVIDED, HOWEVER, that
the additional time of purchase shall not be earlier than the time of purchase
(as defined below) nor earlier than the second business day1 after the date on
which the option shall have been exercised nor later than the tenth business day
after the date on which the option shall have been exercised. The number of
Additional Shares to be sold to each Underwriter shall be the number which bears
the same proportion to the aggregate number of Additional Shares being purchased
as the number of Firm Shares set forth opposite the name of such Underwriter on
Schedule A hereto bears to the total number of Firm Shares (subject, in each
case, to such adjustment as you may determine to eliminate fractional shares).
2. PAYMENT AND DELIVERY. Payment of the purchase price for the
Firm Shares shall be made to the Company by Federal Funds wire transfer, against
delivery of the certificates for the Firm Shares to you through the facilities
of the Depository Trust Company ("DTC") for the respective accounts of the
Underwriters. Such payment and delivery shall be made at 10:00 A.M., New York
City time, on [_____], 2000 (unless another time shall be agreed to by you and
the Company or unless postponed in accordance with the provisions of Section 8
hereof). The time at which such payment and delivery are actually made is
hereinafter sometimes called the time of purchase. Certificates for the Firm
Shares shall be delivered to you in definitive form in such names and in such
denominations as you shall specify on the second business day preceding the time
of purchase. For the purpose of expediting the checking of the certificates for
the Firm Shares by you, the Company agrees to make such certificates available
to you for such purpose at least one full business day preceding the time of
purchase.
Payment of the purchase price for the Additional Shares shall
be made at the additional time of purchase in the same manner and at the same
office as the payment for the Firm Shares. Certificates for the Additional
Shares shall be delivered to you in definitive form in such names and in such
denominations as you shall specify no later than the second business day
preceding the additional time of purchase. For the purpose of expediting the
checking of the certificates for the Additional Shares by you, the Company
agrees to make such certificates available to you for such purpose at least one
full business day preceding the additional time of purchase.
Deliveries of the documents described in Section 6 below with
respect to the purchase of the Shares shall be made at the offices of Dewey
Ballantine LLP, 1301 Avenue of
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1 As used herein "business day" shall mean a day on
which the New York Stock Exchange is open for trading.
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the Americas, New York, New York at 9:00 a.m., New York time, on the date of the
closing of the purchase of the Firm Shares or the Additional Shares, as the case
may be.
3. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to each of the Underwriters that:
(a) the Company has not received, and has no notice of, any
order of the Commission preventing or suspending the use of any
Preliminary Prospectus, or instituting proceedings for that purpose,
and each Preliminary Prospectus, at the time of filing thereof,
conformed in all material respects to the requirements of the Act; and
when the Registration Statement became or becomes effective, the
Registration Statement and the Prospectus complied or will comply fully
in all material respects with the provisions of the Act, and the
Registration Statement did not or will not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and the Prospectus did not or will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading
and the Prospectus, any Preliminary Prospectus and any supplement
thereto or prospectus wrapper prepared in connection therewith, at
their respective times of issuance and at the time of closing, complied
and will comply in all material respects with any applicable laws or
regulations of jurisdictions in which the Prospectus and such
preliminary prospectus, as amended or supplemented, if applicable, are
distributed in connection with the offer and sale of the Shares,
PROVIDED, HOWEVER, that the Company makes no warranty or representation
with respect to any statement contained in the Registration Statement
or the Prospectus in reliance upon and in conformity with information
concerning the Underwriters and furnished in writing by or on behalf of
any Underwriter through you to the Company expressly for use in the
Registration Statement or the Prospectus; and the Company has not
distributed directly or indirectly any offering material in connection
with the offering or sale of the Shares other than the Registration
Statement, the Preliminary Prospectus, the Prospectus or any other
materials, if any, permitted by the Act;
(b) as of the date of this Agreement, the Company has
authorized and outstanding capital stock as set forth under the heading
entitled "Actual" in the section of the Registration Statement and the
Prospectus entitled "Capitalization" and, as of the time of purchase,
and assuming the receipt and application of the net proceeds as
described under the section of the Registration Statement and the
Prospectus entitled "Use of Proceeds," the Company shall have an
authorized and outstanding capital stock as set forth under the heading
entitled "Pro Forma As Adjusted" in the section of the Registration
Statement and the Prospectus entitled "Capitalization"; all of the
shares of capital stock will be duly and validly authorized and issued,
fully paid and
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non-assessable, will have been issued in compliance with all federal
and state securities laws and will not have been issued in violation of
any preemptive right, resale right, right of first refusal or similar
right;
(c) the Company has been duly organized and is validly
existing as a corporation and is in good standing under the laws of the
State of Delaware, with full power and authority to own, lease and
operate its properties and conduct its business as described in the
Registration Statement;
(d) the Company is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction in which the
ownership or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to so qualify
would not individually or in the aggregate have a material adverse
effect on the business, prospects, properties, condition (financial or
otherwise) or results of operation of the Company and its Subsidiaries
(as defined below) taken as a whole (a "Material Adverse Effect"); the
Company does not have any subsidiaries (as defined in the Act) other
than Adesso Specialty Services Management Inc., a California
corporation and Adesso Specialty Services Organization of Florida,
Inc., a Delaware corporation (collectively, the "Subsidiaries"); other
than the Subsidiaries, the Company does not own, directly or
indirectly, any shares of stock or any other equity or long-term debt
securities of any corporation or have any equity interest in any firm,
partnership, limited liability company, joint venture, association or
other entity except as set forth in the Registration Statement and the
Prospectus; complete and correct copies of the articles of
incorporation and bylaws or other organizational documents of the
Company and the Subsidiaries and all amendments thereto have been
delivered to you, and except as set forth in the exhibits to the
Registration Statement no changes therein will be made subsequent to
the date hereof and prior to the time of purchase or, if later, the
additional time of purchase; the Subsidiaries are duly qualified to do
business as foreign corporations and are in good standing in each
jurisdiction in which the ownership or leasing of their properties or
the conduct of their businesses requires such qualification, except
where the failure to so qualify would not individually or in the
aggregate have a Material Adverse Effect; and the Company and each of
its Subsidiaries are in compliance in all material respects with the
laws, orders, rules, regulations and directives issued or administered
by such jurisdictions;
(e) neither the Company nor any of the Subsidiaries is in
breach of, or in default under (and no event has occurred which with
notice, lapse of time, or both would result in any breach of, or
constitute a default under), its charter or bylaws or other
organizational documents or in the performance or observance of any
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, bank loan or credit agreement or
other evidence of indebtedness, or any lease, contract
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or other agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which it or any of its properties is
bound, the effect of which would individually or in the aggregate have
a Material Adverse Effect, and the execution, delivery and performance
of this Agreement, the issuance and sale of the Shares contemplated
hereby and by the Registration Statement will not conflict with, or
result in any breach of or constitute a default under (nor constitute
any event which with notice, lapse of time, or both would result in any
breach of, or constitute a default under), any provisions of the
charter or bylaws or other organizational documents of the Company or
any of the Subsidiaries or under any provision of any license, permit,
franchise, indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any lease, contract or
other agreement or instrument to which the Company or any of the
Subsidiaries is a party or by which any of them or their respective
properties may be bound or affected, or under any federal, state, local
or foreign law, regulation or rule or any decree, judgment or order
applicable to the Company any of the Subsidiaries, the result of which
would individually or in the aggregate would have a Material Adverse
Effect;
(f) this Agreement has been duly authorized, executed and
delivered by the Company and is a legal, valid and binding agreement of
the Company, enforceable in accordance with its terms;
(g) the capital stock of the Company, including the Shares,
conforms in all material respects to the description thereof contained
in the Registration Statement and Prospectus; the certificates for the
Shares are in due and proper form; and the holders of the Shares will
not be subject to personal liability by reason of being such holders;
(h) the Shares have been duly and validly authorized and, when
issued and delivered against payment therefor as provided herein, will
be duly and validly issued, fully paid and non-assessable;
(i) no approval, authorization, consent or order of or filing
with any national, state or local governmental or regulatory
commission, board, body, authority or agency is required in connection
with the execution, delivery and performance by the Company of this
Agreement, the issuance and sale of the Shares contemplated hereby and
by the Registration Statement, other than registration of the Shares
under the Act, which has been or will be effected by the Company, and
any necessary qualification under the securities or blue sky laws of
the various jurisdictions in which the Shares are being offered by the
Underwriters or under the rules and regulations of the National
Association of Securities Dealers, Inc. ("NASD");
(j) except as set forth in the Registration Statement and the
Prospectus: (i) no person has the right, contractual or otherwise, to
cause the Company to issue to it, or register pursuant to the Act, any
shares of capital stock or other equity interests; and
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(ii) no person has any preemptive rights, co-sale rights, rights of
first refusal or other rights to purchase any shares of Common Stock of
the Company.
(k) Ernst & Young LLP, whose report on the financial
statements of the Company and the Subsidiaries is filed with the
Commission as part of the Registration Statement and Prospectus, are
independent public accountants as required by the Act;
(l) the Company and each of the Subsidiaries has all necessary
licenses, permits, franchises, authorizations, consents and approvals,
and made all necessary filings required under any federal, state, local
or foreign law, regulation or rule, and has obtained all necessary
authorizations, consents and approvals from other persons, in order to
conduct its business; neither the Company nor any of the Subsidiaries
is in violation of, or in default under, any such license, permit,
franchise, authorization, consent or approval or any federal, state,
local or foreign law, regulation or rule or any decree, order or
judgment applicable to the Company or any of the Subsidiaries, the
effect of which could individually or in the aggregate have a Material
Adverse Effect;
(m) all legal or governmental proceedings, all statutes and
regulations and all contracts, leases or documents of a character
required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration Statement
have been so described or filed as required;
(n) there are no private or governmental actions, suits,
claims, investigations or proceedings pending, threatened or, to the
knowledge of the Company, contemplated, to which the Company or any of
the Subsidiaries or any of their respective officers is subject or of
which any of their respective properties is subject, whether at law, in
equity or before or by any federal, state, local or foreign
governmental or regulatory commission, board, body, authority or
agency;
(o) the audited financial statements of the Company and the
Subsidiaries included in the Registration Statement and the Prospectus
present fairly the financial position and results of operations of the
Company and the Subsidiaries as of the dates and for the periods
indicated; such financial statements have been prepared in conformity
with generally accepted accounting principles applied on a consistent
basis during the periods involved; the pro forma financial data
included in the Registration Statement and the Prospectus comply as to
form in all material respects with the applicable accounting
requirements of Regulation S-X of the Securities Act, and the pro forma
adjustments have been properly applied to the historical amounts in the
compilation of those statements; and the other financial and
statistical data set forth in the Registration Statement and the
Prospectus are accurately presented and prepared on a basis consistent
with such financial statements and the books and records of the Company
and the Subsidiaries;
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(p) subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, there has
not been (i) any material adverse change, or any development involving
a prospective material adverse change, in the business, prospects,
properties, condition (financial or otherwise) or results of operations
of the Company or any of the Subsidiaries, (ii) any transaction which
is material to the Company or any of the Subsidiaries, (iii) the
incurrence by the Company or any of the Subsidiaries of any obligation,
direct or contingent, and whether or not in the ordinary course of
business, which is material to the Company or any of the Subsidiaries,
(iv) any change in the capital stock or other equity interest or
outstanding indebtedness of the Company or any of the Subsidiaries or
(v) any dividend or distribution of any kind declared, paid or made on
the capital stock or other equity interest of the Company or any of the
Subsidiaries. The Company and each of the Subsidiaries does not have
any material contingent obligations which are not disclosed in the
Registration Statement;
(q) the Company has obtained the agreement of each of its
executive officers, directors and holders of Common Stock and securities
convertible into or exchangeable or exercisable for Common Stock not to
sell, offer to sell, contract to sell, hypothecate, pledge, grant any
option to sell or otherwise dispose of, directly or indirectly, any shares
of Common Stock or securities convertible into or exchangeable or
exercisable for Common Stock or warrants or other rights to purchase
Common Stock for a period of 180 days after the date of the Prospectus
without the prior written consent of UBSW;
(r) the Company and each of the Subsidiaries has good and
marketable title to all property (real and personal) described in the
Prospectus as being owned by it, free and clear of all liens, claims,
security interests or other encumbrances except such as are described
in the Registration Statement and the Prospectus and except as would
not individually or in the aggregate have a Material Adverse Effect.
All the property described in the Prospectus as being held under lease
by the Company and each of the Subsidiaries is held thereby under
valid, subsisting and enforceable leases;
(s) the Company and each of the Subsidiaries is insured by
insurers of recognized financial responsibility against such losses and
risks and in such amount as are customary in the business in which it
is engaged; all policies of insurance insuring the Company and each of
the Subsidiaries or any of their respective businesses, assets,
employees, officers and directors are in full force and effect, and the
Company and each of the Subsidiaries is in compliance with the terms of
such policies in all material respects; there are no claims by the
Company or any of the Subsidiaries under any such policy or instrument
as to which any insurance company is denying liability or defending
under a reservation of rights clause;
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(t) the Company and each of the Subsidiaries has not either
sent or received any notice of termination of any of the contracts or
agreements referred to or described in, or filed as an exhibit to, the
Registration Statement, and no such termination has been threatened by
the Company or any of the Subsidiaries or any other party to any such
contract or agreement;
(u) all statistical and market-related data included in the
Prospectus are based on or derived from sources that the Company
believes to be reliable and accurate, and the Company has obtained the
written consent to the use of such data from such sources to the extent
required;
(v) neither the Company nor any of its affiliates has taken,
directly or indirectly, any action designed to or which has constituted
or which might reasonably be expected to cause or result, under the
Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (collectively called the "Exchange Act") or
otherwise, in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares;
(w) other than as set forth in the Prospectus, the Company and
each of the Subsidiaries will own, possess, license or have other rights
to use all patents, trademarks, servicemarks, trade names, copyrights,
trade secrets, information, proprietary rights and processes
("Intellectual Property") necessary for their respective businesses as
described in the Prospectus (including the offer and sale of those
products and services, both currently marketed and under development,
described in the Prospectus), without, to the Company's knowledge, any
conflict with or infringement of the interests of others, and has taken
all reasonable steps necessary to secure interests in such Intellectual
Property; except as disclosed in the Prospectus, the Company is not aware
of outstanding options, licenses or agreements of any kind relating to the
Intellectual Property of the Company that are required to be disclosed in
the Prospectus, and, except as disclosed in the Prospectus the Company is
not a party to or bound by any options, licenses or agreements with
respect to the Intellectual Property of any other person or entity that
are required to be disclosed in the Prospectus; none of the technology
employed by the Company or any of the Subsidiaries has been obtained or is
being used by the Company or any of the Subsidiaries in violation of any
contractual obligation binding on the Company or any of the Subsidiaries
or any of their respective directors or executive officers or, to the
Company's knowledge, any employees of the Company or any of the
Subsidiaries or otherwise in violation of the rights of any persons;
except as disclosed in the Prospectus, the Company and each of the
Subsidiaries has not received any communications alleging that the Company
or any of the Subsidiaries has violated, infringed or conflicted with, or,
by conducting its business as described in the Prospectus, would violate,
infringe or conflict with any of the Intellectual Property of any other
person or entity other than any
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such violation, infringement or conflict which would not individually or
in the aggregate have a Material Adverse Effect;
(x) the Company and each of the Subsidiaries has not
sustained, since the date of the latest audited financial statements
included in the Prospectus, any loss or interference with their respective
businesses from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as disclosed in the Prospectus or
other than any loss or interference which individually or in the aggregate
would not have a Material Adverse Effect;
(y) the Company and each of the Subsidiaries 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, nor any federal or
state law relating to discrimination in the hiring, promotion or pay of
employees nor any applicable federal or state wages and hours laws, nor
any provisions of the Employee Retirement Income Security Act or the rules
and regulations promulgated thereunder, which individually or in the
aggregate might result in a Material Adverse Effect;
(z) the Company and each of the Subsidiaries 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;
(aa) the Company and each of the Subsidiaries has filed all
federal, state, local and foreign tax returns and tax forms required to
be filed. Such returns and forms are complete and correct in all
material respects, and all taxes shown by such returns or otherwise
assessed that are due or payable have been paid, except such taxes as
are being contested in good faith and as to which adequate reserves
have been provided. All payroll withholdings required to be made by the
Company and each of the Subsidiaries with respect to employees have
been made. The charges, accruals and reserves on the books of the
Company and each of the Subsidiaries in respect of any tax liability
for any year not finally determined are adequate to meet any
assessments or reassessments for additional taxes. There have been no
tax deficiencies asserted and, to the knowledge of the Company, no tax
deficiency might be reasonably asserted or threatened against the
Company or any of the Subsidiaries that could individually or in the
aggregate have a Material Adverse Effect; and
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(bb) the Company is not, and after the offering and sale of
the Shares, will not be, an "investment company" or a "promoter,"
"principal underwriter" for or an entity "controlled" by an "investment
company," as such terms are defined in the Investment Company Act of
1940, as amended (the "Investment Company Act").
In addition, any certificate signed by any officer of the
Company, delivered to the Representatives or counsel for the Underwriters in
connection with the offering of the Shares shall be deemed to be a
representation and warranty by the Company, as to matters covered thereby, to
each Underwriter.
4. CERTAIN COVENANTS. The Company hereby agrees:
(a) to furnish such information as may be required and
otherwise to cooperate in qualifying the Shares for offering and sale
under the securities or blue sky laws of such states as you may
designate and to maintain such qualifications in effect so long as
required for the distribution of the Shares; provided that the Company
shall not be required to qualify as a foreign corporation or to consent
to the service of process under the laws of any such state (except
service of process with respect to the offering and sale of the
Shares); and to promptly advise you of the receipt of any notification
with respect to the suspension of the qualification of the Shares for
sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose;
(b) to make available to the Underwriters in New York City, as
soon as practicable after the Registration Statement becomes effective,
and thereafter from time to time to furnish to the Underwriters, as
many copies of the Prospectus (or of the Prospectus as amended or
supplemented if the Company shall have made any amendments or
supplements thereto after the effective date of the Registration
Statement) as the Underwriters may request for the purposes
contemplated by the Act; in case any Underwriter is required to deliver
a prospectus beyond the nine-month period referred to in Section
10(a)(3) of the Act in connection with the sale of the Shares, the
Company will prepare promptly upon request and at its cost such
amendment or amendments to the Registration Statement and such
prospectuses as may be necessary to permit compliance with the
requirements of Section 10(a)(3) of the Act;
(c) to advise you promptly and (if requested by you) to
confirm such advice in writing, (i) when the Registration Statement has
become effective and when any post-effective amendment thereto becomes
effective and (ii) if Rule 430A under the Act is used, when the
Prospectus is filed with the Commission pursuant to Rule 424(b) under
the Act (which the Company agrees to file in a timely manner under such
Rules);
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(d) to advise you promptly, confirming such advice in writing,
of any request by the Commission for amendments or supplements to the
Registration Statement or Prospectus or for additional information with
respect thereto, or of notice of institution of proceedings for, or the
entry of a stop order suspending the effectiveness of the Registration
Statement and, if the Commission should enter a stop order suspending
the effectiveness of the Registration Statement, to use its best
efforts to obtain the lifting or removal of such order as soon as
possible; to advise you promptly of any proposal to amend or supplement
the Registration Statement or Prospectus and to file no such amendment
or supplement to which you shall object in writing;
(e) subject to Section 4(o) hereof, to file promptly all
reports and any definitive proxy or information statement required to
be filed by the Company with the Commission in order to comply with the
Exchange Act subsequent to the date of the Prospectus and for so long
as the delivery of a prospectus is required in connection with the
offering or sale of the shares, and to promptly notify you of such
filing;
(f) if necessary or appropriate, to file in a timely fashion a
registration statement pursuant to Rule 462(b) under the Act;
(g) to furnish to you and, upon request, to each of the other
Underwriters for a period of five years from the date of this Agreement
(i) copies of any reports or other communications which the Company
shall send to its shareholders or shall from time to time publish or
publicly disseminate, (ii) copies of all annual, quarterly and current
reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such
other similar form as may be designated by the Commission, (iii) copies
of documents or reports filed with any national securities exchange on
which any class of securities of the Company is listed, and (iv) such
other information as you may reasonably request regarding the Company
or the Subsidiaries as soon as such communications, documents or
information becomes available;
(h) to advise the Underwriters promptly of the occurrence of
any event known to the Company within the time during which a
Prospectus relating to the Shares is required to be delivered under the
Act which would require the making of any change in the Prospectus then
being used so that the Prospectus would not include an untrue statement
of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances under which
they are made, not misleading, and, during such time, to prepare and
furnish promptly to the underwriters, at no expense to the
Underwriters, such amendments or supplements to such Prospectus as may
be necessary to reflect any such change and to furnish you a copy of
such proposed amendment or supplement before filing any such amendment
or supplement with the Commission;
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(i) to make generally available to its security holders, and
to deliver to you, as soon as practicable an earnings statement of the
Company (which will satisfy the provisions of Section 11(a) of the Act)
covering a period of twelve months beginning after the effective date
of the Registration Statement (as defined in Rule 158(c) of the Act)
and ending not later than 15 months thereafter;
(j) to furnish to its shareholders as soon as practicable
after the end of each fiscal year an annual report (including a balance
sheet and statements of income, shareholders' equity and of cash flow
of the Company for such fiscal year, accompanied by a copy of the
certificate or report thereon of nationally recognized independent
certified public accountants);
(k) to furnish to you four conformed copies of the
Registration Statement, as initially filed with the Commission, and of
all amendments thereto including all exhibits thereto) and sufficient
conformed copies of the foregoing (other than exhibits) for
distribution of a copy to each of the other Underwriters;
(l) to furnish to you as early as practicable prior to the
time of purchase and the additional time of purchase, as the case may
be, but not later than two business days prior thereto, a copy of the
latest available quarterly (if available) or monthly unaudited interim
consolidated financial statements, if any, of the Company and the
Subsidiaries, which have been read by the Company's independent
certified public accountants, as stated in their letter to be furnished
pursuant to Section 6(b) hereof;
(m) to apply the net proceeds from the sale of the Shares in
the manner set forth under the caption "Use of Proceeds" in the
Prospectus;
(n) to pay all costs, expenses, fees and taxes in connection
with (i) the preparation and filing of the Registration Statement, each
Preliminary Prospectus, the Prospectus, and any amendments or
supplements thereto, and the printing and furnishing of copies of each
thereof to the Underwriters and to dealers (including costs of mailing
and shipment), (ii) the registration, issue, sale and delivery of the
Shares, (iii) the producing, word processing and/or printing of this
Agreement, any Agreement Among Underwriters, any dealer agreements, any
Powers of Attorney and any closing documents (including compilations
thereof) and the reproduction and/or printing and furnishing of copies
of each thereof to the Underwriters and (except closing documents) to
dealers (including costs of mailing and shipment), (iv) the
qualification of the Shares for offering and sale under state laws and
the determination of their eligibility for investment under state law
as aforesaid (including the reasonable legal fees and filing fees and
other disbursements of counsel for the Underwriters) and the printing
and furnishing of copies of any blue sky surveys or legal investment
surveys to the Underwriters and to dealers, (v) any listing of the
Shares on any securities exchange or qualification of the Shares for
quotation on NASDAQ and any
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registration thereof under the Exchange Act, (vi) any filing for review
of the public offering of the Shares by the NASD, including the
associated reasonable fees and disbursements of counsel for the
Underwriters, and (vii) the performance of the Company's other
obligations hereunder;
(o) to furnish to you, before filing with the Commission
subsequent to the effective date of the Registration Statement and
during the period referred to in paragraph (h) above, a copy of any
document proposed to be filed pursuant to Section 13, 14 or 15(d) of
the Exchange Act;
(p) not to sell, offer to sell, contract to sell, hypothecate,
pledge, grant any option to sell or otherwise dispose of, directly or
indirectly, any shares of Common Stock or securities convertible into
or exchangeable or exercisable for Common Stock or warrants or other
rights to purchase Common Stock or any other shares of the Company that
are substantially similar to Common Stock or permit the registration
under the Act of any shares of Common Stock for a period of 180 days
after the date hereof (the "Lock-up Period"), without the prior written
consent of UBSW, except for (i) the registration of the Shares and the
sales to the Underwriters pursuant to this Agreement, (ii) issuances of
Common Stock upon the exercise of outstanding options or warrants as
disclosed in the Registration Statement and the Prospectus, such issued
Common Stock not to be disposed of by the recipients thereof prior to
the expiration of the Lock-up Period and (iii) the issuance of employee
stock options not exercisable during the Lock-up Period pursuant to
stock option plans described in the Registration Statement and the
Prospectus; and
(q) to use its best efforts to cause the Common Stock to be
listed for quotation on the National Association of Securities Dealers
Automated Quotation National Market System ("NASDAQ").
5. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. The Company agrees
that if the Shares are not delivered for any reason other than the termination
of this Agreement pursuant to subsections (ii), (iii) or (iv) of the second
paragraph of Section 7 hereof or the last paragraph of Section 8 hereof or the
default by one or more of the Underwriters in its or their respective
obligations hereunder, it shall, in addition to paying the amounts described in
Section 4(n) hereof, reimburse the Underwriters for all of the out-of-pocket
accountable expenses actually incurred by the Underwriters, including the
reasonable fees and disbursements of their counsel.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company on the date hereof and at the time
of purchase (and the several obligations of the Underwriters at the additional
time of purchase are subject to the accuracy of the representations and
warranties of the Company on the date hereof and at the time of purchase
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(unless previously waived) and at the additional time of purchase, as the case
may be), the performance by the Company of its obligations hereunder and to the
following additional conditions precedent:
(r) The Company shall furnish to you at the time of purchase
and at the additional time of purchase, as the case may be, an opinion
of Cooley Godward LLP, counsel for the Company, addressed to the
Underwriters, and dated the time of purchase or the additional time of
purchase, as the case may be, with reproduced copies for each of the
other Underwriters and in form reasonably satisfactory to Dewey
Ballantine LLP, counsel for the Underwriters, stating that:
(i) the Company has been duly incorporated and is
validly existing as a corporation and is in good standing
under the laws of the State of Delaware, with full power and
authority to own, lease and operate its properties and conduct
its business as described in the Registration Statement and
the Prospectus, to execute and deliver this Agreement and to
issue, sell and deliver the Shares as herein contemplated;
(ii) each of the Subsidiaries has been duly
incorporated and is validly existing in good standing under
the laws of its respective jurisdiction of incorporation with
full corporate power and authority to own, lease and operate
its properties and to conduct its business;
(iii) the Company and each of the Subsidiaries is
duly qualified to do business as a foreign corporation and is
in good standing in each jurisdiction in which the ownership
or leasing of its properties or the conduct of its business
requires such qualification, except where the failure to so
qualify would not individually or in the aggregate have a
Material Adverse Effect;
(iv) this Agreement has been duly authorized,
executed and delivered by the Company and is a legal, valid
and binding agreement of the Company enforceable in accordance
with its terms;
(v) the Shares have been duly authorized and, when
issued and delivered to and paid for by the Underwriters, will
be validly issued, fully paid and non-assessable;
(vi) the Company has authorized and outstanding
shares of capital stock as set forth in the Registration
Statement and the Prospectus; the outstanding shares of
capital stock of the Company and each of the Subsidiaries have
been duly and validly authorized and issued and are fully
paid, nonassessable and free of statutory and, to such
counsel's knowledge,
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contractual preemptive rights, resale rights, rights of first
refusal and similar rights, except as set forth in the
Prospectus and the Registration Statement; the Shares when
issued will be free of statutory and, to such counsel's
knowledge, contractual preemptive rights, resale rights,
rights of first refusal and similar rights; the certificates
for the Shares are in due and proper form and the holders of
the Shares will not be subject to personal liability by reason
of being such holders;
(vii) the capital stock of the Company, including the
Shares, conforms to the description thereof contained in the
Registration Statement and Prospectus;
(viii) the Registration Statement and the Prospectus
(except as to the financial statements and schedules and other
financial and statistical data contained therein, as to which
such counsel need express no opinion) comply as to form in all
material respects with the requirements of the Act;
(ix) the Registration Statement has become effective
under the Act and, to such counsel's knowledge, no stop order
proceedings with respect thereto are pending or threatened
under the Act and any required filing of the Prospectus, and
any supplement thereto pursuant to Rule 424 under the Act has
been made in the manner and within the time period required by
such Rule 424;
(x) no approval, authorization, consent or order of
or filing with any national, state or local governmental or
regulatory commission, board, body, authority or agency is
required in connection with the execution, delivery and
performance of this Agreement, the issuance and sale of the
Shares and the consummation of the transactions contemplated
hereby and by the Registration Statement, other than
registration of the Shares under the Act and other than any
necessary qualification under the state securities or blue sky
laws of the various jurisdictions in which the Shares are
being offered by the Underwriters, as to which such
qualification such counsel need express no opinion;
(xi) the execution, delivery and performance of this
agreement by the Company and the transactions contemplated
hereby and by the Registration Statement do not and will not
conflict with, or result in any breach of, or constitute a
default under (nor constitute any event which with notice,
lapse of time, or both, would result in any breach of, or
constitute a default under), any provisions of the charter or
bylaws or other organizational documents of the Company or any
of the Subsidiaries or under any provision of any license,
permit, franchise, indenture, mortgage, deed of trust, bank
loan or credit
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<PAGE>
agreement or other evidence of indebtedness, or any lease,
contract or other agreement or instrument to which the Company
or any of the Subsidiaries is a party or by which their
respective properties may be bound or affected that is filed
as an exhibit to the Registration Statement or under any
federal, state, local or foreign law, regulation or rule, or
any decree, judgment or order applicable to the Company and
known to such counsel;
(xii) to such counsel's knowledge, the Company and
each of the Subsidiaries is not in violation of its charter or
bylaws, and the Company and each of the Subsidiaries is not in
breach of nor in default under (nor has any event occurred
which with notice, lapse of time, or both would result in any
breach of, or constitute a default under), any license,
permit, franchise, indenture, mortgage, deed of trust, bank
loan or credit agreement or other evidence of indebtedness, or
any lease, contract or other agreement or instrument to which
the Company or any of the Subsidiaries is or was a party or by
which it or its respective properties may be bound or affected
or in violation of any federal, state, local or foreign law,
regulation or rule or any decree, judgment or order applicable
to the Company or any of the Subsidiaries, the effect of which
would individually or in the aggregate have a Material Adverse
Effect;
(xiii) to such counsel's knowledge, there are no
contracts, licenses, agreements, leases or documents of a
character which are required to be filed as exhibits to the
Registration Statement or to be described in the Prospectus
which have not been so filed or described;
(xiv) to such counsel's knowledge, there are no
private or governmental actions, suits, claims, investigations
or proceedings pending, threatened or contemplated to which
the Company or any of the Subsidiaries or any of their
respective officers is subject or of which any of their
respective properties is subject, whether at law, in equity or
before or by any federal, state, local or foreign governmental
or regulatory commission, board, body, authority or agency;
(xv) the Company is not, and after the offering and
sale of the Shares, will not be, an "investment company," or a
"promoter," "principal underwriter" for or an entity
controlled by an "investment company," as such terms are
defined in the Investment Company Act;
(xvi) the statements in the Registration Statement
and Prospectus, insofar as they are descriptions of contracts,
agreements or other legal documents, or refer to statements of
law or legal conclusions, are accurate in all material
respects and present fairly the information required to be
shown; and
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(xvii) to the knowledge of such counsel, except as
described in the Registration Statement and Prospectus, no
person is entitled to registration rights with respect to
shares of capital stock or other securities of the Company or
any of the Subsidiaries.
In addition, such counsel shall state that it has participated
in conferences with officers and other representatives of the Company,
representatives of the independent public accountants of the Company
and representatives of the Underwriters at which the contents of the
Registration Statement and Prospectus were discussed and, although such
counsel is not passing upon and does not assume responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or Prospectus (except as and to the extent
stated in subparagraphs (vi), (vii) and (xv) above), on the basis of
the foregoing nothing has come to the attention of such counsel that
causes them to believe that the Registration Statement or any amendment
thereto at the time such Registration Statement or amendment became
effective contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the Prospectus or
any supplement thereto at the date of such Prospectus or such
supplement, and at all times up to and including the time of purchase
or additional time of purchase, as the case may be, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading (it being understood that such counsel need express no
opinion with respect to the financial statements and schedules and
other financial and statistical data included in the Registration
Statement or Prospectus).
(s) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the opinion of
[_____], special counsel to the Company with respect to patents and
proprietary rights, dated the time of purchase or the additional time
of purchase, as the case may be, stating that:
(i) To such counsel's knowledge, except as described
in the Prospectus, (A) the Company has valid license rights or
clear title to the Intellectual Property referenced in the
Prospectus, and there are no rights of third parties to any
such Intellectual Property; (B) there is no infringement or
other violation by third parties of any of the Intellectual
Property of the Company referenced in the Prospectus; (C)
there is no infringement or other violation by the Company of
any Intellectual Property of others; (D) there is no pending
or threatened action, suit proceeding or claim by governmental
authorities or others that the Company infringes or otherwise
violates any Intellectual Property of others, and such counsel
is unaware of any facts which would form a reasonable basis
for any such claim; and (E) there is no pending
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or threatened action, suit, proceeding or claim by
governmental authorities or others challenging the rights of
the Company in or to, or challenging the scope of, any
Intellectual Property of the Company referenced in the
Prospectus, and such counsel is unaware of any facts which
would form a reasonable basis for any such claim;
(ii) to such counsel's knowledge, the patent
applications of the Company presently on file disclose
patentable subject matter, and such counsel is not aware of
any inventorship challenges, any interference which has been
declared or provoked, or any other material fact with respect
to the patent applications of the Company presently on file
that (A) would preclude the issuance of patents with respect
to such applications, or (B) would lead such counsel to
conclude that such patents, when issued, would not be valid
and enforceable in accordance with applicable regulations; and
(iii) the statements in the Registration Statement
and the Prospectus referencing Intellectual Property matters,
insofar as such statements constitute summaries of legal
matters, contracts, agreements, documents or proceedings
referred to therein, or refer to statements of law or legal
conclusions, are in all material respects accurate and
complete statements or summaries of the matters therein set
forth. Nothing has come to such counsel's attention that
causes them to believe that such above described portions of
the Registration Statement, at the time such Registration
Statement became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein
not misleading, or that such above described portions of the
Prospectus, at the date of the Prospectus contained an untrue
statement of material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading.
(t) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the opinion of
[_____], regulatory counsel to the Company, dated the time of purchase
or the additional time of purchase, as the case may be, to the effect
that the statements in the Registration Statement and the Prospectus
referencing regulatory matters, insofar as such statements constitute
summaries of food and drug regulatory matters with respect to the
Company, as of the date of the Registration Statement and the
Prospectus and as of the date of such opinion, are in all material
respects accurate and complete statements or summaries of the matters
therein set forth; and nothing has come to such counsel's attention
that causes such counsel to believe that the above-described portions
of the Registration Statement and the Prospectus, at the date of the
Registration Statement and the
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Prospectus or at the date of such opinion, contained or contains an
untrue statement of material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
(u) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the favorable opinion
of Dewey Ballantine LLP, counsel for the Underwriters, dated the time
of purchase or the additional time of purchase, as the case may be,
with respect to the issuance and sale of the Shares by the Company, the
Registration Statement, the Prospectus (together with any supplement
thereto) and such other related matters as the Underwriters may
require.
(v) You shall have received from Ernst & Young LLP, letters
dated, respectively, the date of this Agreement and the time of
purchase and additional time of purchase, as the case may be, and
addressed to the Underwriters (with reproduced copies for each of the
Underwriters) in the forms heretofore approved by Dewey Ballantine LLP,
counsel for the Underwriters.
(w) No amendment or supplement to the Registration Statement
or Prospectus shall be filed prior to the time the Registration
Statement becomes effective to which you object in writing.
(x) The Registration Statement shall become effective, or if
Rule 430A under the Act is used, the Prospectus shall have been filed
with the Commission pursuant to Rule 424(b) under the Act, at or before
5:30 P.M., New York City time, on the date of this Agreement, unless a
later time (but not later than 5:30 P.M., New York City time, on the
second full business day after the date of this Agreement) shall be
agreed to by the Company and you in writing or by telephone, confirmed
in writing; PROVIDED, HOWEVER, that the Company and you and any group
of Underwriters, including you, who have agreed hereunder to purchase
in the aggregate at least 50% of the Firm Shares may from time to time
agree on a later date.
(y) Prior to the time of purchase or the additional time of
purchase, as the case may be, (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued
under the Act or proceedings initiated under Section 8(d) or 8(e) of
the Act; (ii) the Registration Statement and all amendments thereto, or
modifications thereof, if any, shall not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and
(iii) the Prospectus and all amendments or supplements thereto, or
modifications thereof, if any, shall not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they are made, not misleading.
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(z) Between the time of execution of this Agreement and the
time of purchase or the additional time of purchase, as the case may
be, (i) no material and unfavorable change, or any development
involving a prospective material and adverse change, financial or
otherwise (other than as specifically identified in the Registration
Statement and Prospectus), in the business, prospects, properties,
condition or results of operations of the Company or any of the
Subsidiaries shall occur or become known and (ii) no transaction which
is material and unfavorable to the Company shall have been entered into
by the Company or any of the Subsidiaries.
(aa) The Company will, at the time of purchase or additional
time of purchase, as the case may be, deliver to you a certificate of
its President and its Chief Financial Officer to the effect that the
representations and warranties of the Company as set forth in this
Agreement are true and correct as of each such date, that the Company
has performed such of their obligations under this Agreement as are to
be performed at or before the time of purchase and at or before the
additional time of purchase, as the case may be, and the conditions set
forth in paragraphs (g), (h) and (i) of this Section 6 have been met.
(bb) You shall have received signed letters, dated the date of
this Agreement, from each of the officers and directors of the Company
and all shareholders of the Company agreeing with the Underwriters that
such persons will not sell, offer or agree to sell, contract to sell,
hypothecate, pledge, grant any option to sell or otherwise dispose of,
directly or indirectly, any shares of Common Stock of the Company or
securities convertible into or exchangeable or exercisable for Common
Stock or warrants or other rights to purchase Common Stock or any other
securities of the Company that are substantially similar to the Common
Stock for a period of 180 days after the date of the Prospectus without
UBSW's prior written consent.
(cc) The Company shall have furnished to you such other
documents and certificates as to the accuracy and completeness of any
statement in the Registration Statement and the Prospectus as of the
time of purchase and the additional time of purchase, as the case may
be, as you may reasonably request.
(dd) The Shares shall have been approved for listing for
quotation on NASDAQ, subject only to notice of issuance at or prior to
the time of purchase or the additional time of purchase, as the case
may be.
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7. EFFECTIVE DATE OF AGREEMENT; TERMINATION. This Agreement
shall become effective (i) if Rule 430A under the Act is not used, when you
shall have received notification of the effectiveness of the Registration
Statement, or (ii) if Rule 430A under the Act is used, when the parties hereto
have executed and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be
subject to termination in the absolute discretion of you or any group of
Underwriters (which may include you) which has agreed to purchase in the
aggregate at least 50% of the Firm Shares, (i) if, since the time of execution
of this Agreement or the respective dates as of which information is given in
the Registration Statement and Prospectus, there has been any material adverse
and unfavorable change, or any development involving a prospective material
adverse change, financial or otherwise (other than as specifically identified in
the Registration Statement and Prospectus), in the business, prospects,
properties, condition or results of operations of the Company and the
Subsidiaries taken as a whole that would, in your judgment or in the judgment of
such group of Underwriters, make it impracticable to market the Shares, or, (ii)
if, at any time prior to the time of purchase or, with respect to the purchase
of any Additional Shares, the additional time of purchase, as the case may be,
trading in securities on the New York Stock Exchange, the American Stock
Exchange or the Nasdaq National Market shall have been suspended or limitations
or minimum prices shall have been established on the New York Stock Exchange,
the American Stock Exchange or the Nasdaq National Market, or (iii) if a banking
moratorium shall have been declared either by the United States or New York
State authorities, or (iv) if the United States shall have declared war in
accordance with its constitutional processes or there shall have occurred any
material outbreak or escalation of hostilities or other national or
international calamity or crisis of such magnitude in its effect on the
financial markets of the United States as, in your judgment or in the judgment
of such group of Underwriters, to make it impracticable to market the Shares.
If you or any group of Underwriters elects to terminate this
Agreement as provided in this Section 7, the Company and each other Underwriter
shall be notified promptly by letter or telegram.
If the sale to the Underwriters of the Shares, as contemplated
by this Agreement, is not carried out by the Underwriters for any reason
permitted under this Agreement or if such sale is not carried out because the
Company shall be unable to comply with any of the terms of this Agreement, the
Company shall not be under any obligation or liability under this Agreement
(except to the extent provided in Sections 4(n), 5 and 9 hereof), and the
Underwriters shall be under no obligation or liability to the Company under this
Agreement (except to the extent provided in Section 9 hereof) or to one another
hereunder.
8. INCREASE IN UNDERWRITERS' COMMITMENTS. Subject to Sections
6 and 7, if any Underwriter shall default in its obligation to take up and pay
for the Firm Shares to be purchased by it hereunder (otherwise than for a reason
sufficient to justify the termination of this Agreement under the provisions of
Section 7 hereof) and if the number of Firm Shares
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which all Underwriters so defaulting shall have agreed but failed to take up and
pay for does not exceed 10% of the total number of Firm Shares, the
non-defaulting Underwriters shall take up and pay for (in addition to the
aggregate number of Firm Shares they are obligated to purchase pursuant to
Section 1 hereof) the number of Firm Shares agreed to be purchased by all such
defaulting Underwriters, as hereinafter provided. Such Shares shall be taken up
and paid for by such non-defaulting Underwriter or Underwriters in such amount
or amounts as you may designate with the consent of each Underwriter so
designated or, in the event no such designation is made, such Shares shall be
taken up and paid for by all non-defaulting Underwriters pro rata in proportion
to the aggregate number of Firm Shares set opposite the names of such
non-defaulting Underwriters in Schedule A.
Without relieving any defaulting Underwriter from its
obligations hereunder, the Company agrees with the non-defaulting Underwriters
that it will not sell any Firm Shares hereunder unless all of the Firm Shares
are purchased by the Underwriters (or by substituted Underwriters selected by
you with the approval of the Company or selected by the Company with your
approval).
If a new Underwriter or Underwriters are substituted by the
Underwriters or by the Company for a defaulting Underwriter or Underwriters in
accordance with the foregoing provision, the Company or you shall have the right
to postpone the time of purchase for a period not exceeding five business days
in order that any necessary changes in the Registration Statement and Prospectus
and other documents may be effected.
The term Underwriter as used in this Agreement shall refer to
and include any Underwriter substituted under this Section 8 with like effect as
if such substituted Underwriter had originally been named in Schedule A.
If the aggregate number of Shares which the defaulting
Underwriter or Underwriters agreed to purchase exceeds 10% of the total number
of Shares which all Underwriters agreed to purchase hereunder, and if neither
the non-defaulting Underwriters nor the Company shall make arrangements within
the five business day period stated above for the purchase of all the Shares
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 to any non-defaulting Underwriter and
without any liability on the part of any non-defaulting Underwriter to the
Company. Nothing in this paragraph, and no action taken hereunder, shall relieve
any defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
9. INDEMNITY AND CONTRIBUTION.
(ee) The Company agrees to indemnify, defend and hold harmless
each Underwriter, its partners, directors and officers, and any person who
controls any Underwriter within the meaning of Section 15 of the Act or Section
20 of the Exchange Act, and the
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successors and assigns of all of the foregoing persons from and against any
loss, damage, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, any such Underwriter or any such
person may incur under the Act, the Exchange Act, the common law or otherwise,
insofar as such loss, damage, expense, liability or claim arises out of or is
based upon (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement (or in the Registration Statement
as amended by any post-effective amendment thereof by the Company) or in a
Prospectus (the term Prospectus for the purpose of this Section 9 being deemed
to include any Preliminary Prospectus, the Prospectus and the Prospectus as
amended or supplemented by the Company), or arises out of or is based upon any
omission or alleged omission to state a material fact required to be stated in
either such Registration Statement or Prospectus or necessary to make the
statements made therein not misleading, except insofar as any such loss, damage,
expense, liability or claim arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact contained in and in conformity
with information furnished in writing by or on behalf of any Underwriter through
you to the Company expressly for use with reference to such Underwriter in such
Registration Statement or such Prospectus or arises out of or is based upon any
omission or alleged omission to state a material fact in connection with such
information required to be stated in such Registration Statement or such
Prospectus or necessary to make such information not misleading, (ii) any untrue
statement or alleged untrue statement made by the Company in Section 3 of this
Agreement or the failure by the Company to perform when and as required any
agreement or covenant contained herein, (iii) any untrue statement or alleged
untrue statement of any material fact contained in any audio or visual materials
provided by the Company or based upon written information furnished by or on
behalf of the Company including, without limitation, slides, videos, films, tape
recordings, used in connection with the marketing of the Shares or (iv) the
Directed Share Program, provided that, the Company shall not be responsible for
any loss, damage, expense, liability, or claim that is finally judicially
determined to have resulted from the bad faith or gross negligence of the
Underwriters in conducting the Directed Share Program.
(ff) If any action, suit or proceeding (together, a
"Proceeding") is brought against an Underwriter or any such person in respect of
which indemnity may be sought against the Company pursuant to the foregoing
paragraph, such Underwriter or such person shall promptly notify the Company in
writing of the institution of such Proceeding and the Company shall assume the
defense of such Proceeding, including the employment of counsel reasonably
satisfactory to such indemnified party and payment of all fees and expenses;
PROVIDED, HOWEVER, that the omission to so notify the Company shall not relieve
the Company from any liability which the Company may have to any Underwriter or
any such person or otherwise. Such Underwriter or such person shall have the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such Underwriter or of such
person unless the employment of such counsel shall have been authorized in
writing by the Company in connection with the defense of such Proceeding or the
Company shall not have, within a reasonable period of time in light of the
circumstances,
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<PAGE>
employed counsel to defend such Proceeding or such indemnified party or parties
shall have reasonably concluded that there may be defenses available to it or
them which are different from, additional to or in conflict with those available
to the Company (in which case the Company shall not have the right to direct the
defense of such Proceeding on behalf of the indemnified party or parties), in
any of which events such fees and expenses shall be borne by the Company and
paid as incurred (it being understood, however, that the Company shall not be
liable for the expenses of more than one separate counsel (in addition to any
local counsel) in any one Proceeding or series of related Proceedings in the
same jurisdiction representing the indemnified parties who are parties to such
Proceeding). The Company shall not be liable for any settlement of any
Proceeding effected without the written consent of the Company but if settled
with the written consent of the Company, the Company agrees to indemnify and
hold harmless any Underwriter and any such person from and against any loss or
liability by reason of such settlement. Notwithstanding the foregoing sentence,
if at any time an indemnified party shall have requested an indemnifying party
to reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second sentence of this paragraph, then the indemnifying
party agrees that it shall be liable for any settlement of any Proceeding
effected without its written consent if (i) such settlement is entered into more
than 60 days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement and (iii) such
indemnified party shall have given the indemnifying party at least 30 days'
prior notice of its intention to settle. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any settlement of any
pending or threatened Proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such Proceeding and does not include an admission of fault, culpability or a
failure to act, by or on behalf of such indemnified party.
(gg) In connection with the offer and sale of the Reserved
Shares, the Company agrees to pay UBSW, at its request, the full purchase price
of all Reserved Shares which were subject to a properly confirmed agreement to
purchase and for which any Directed Share Participant failed to pay therefor and
accept delivery thereof. Each Underwriter severally agrees to indemnify, defend
and hold harmless the Company, its directors and officers, and any person who
controls the Company within the meaning of Section 15 of the Act or Section 20
of the Exchange Act, and the successors and assigns of all of the foregoing
persons from and against any loss, damage, expense, liability or claim
(including the reasonable cost of investigation) which, jointly or severally,
the Company or any such person may incur under the Act, the Exchange Act, the
common law or otherwise, insofar as such loss, damage, expense, liability or
claim arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in and in conformity with information
furnished in writing by or on behalf of such Underwriter through you to the
Company expressly for use with reference to such Underwriter in the Registration
Statement
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<PAGE>
(or in the Registration Statement as amended by any post-effective amendment
thereof by the Company) or in a Prospectus, or arises out of or is based upon
any omission or alleged omission to state a material fact in connection with
such information required to be stated in such Registration Statement or such
Prospectus or necessary to make such information not misleading.
If any Proceeding is brought against the Company or any such
person in respect of which indemnity may be sought against any Underwriter
pursuant to the foregoing paragraph, the Company or such person shall promptly
notify such Underwriter in writing of the institution of such Proceeding and
such Underwriter shall assume the defense of such Proceeding, including the
employment of counsel reasonably satisfactory to such indemnified party and
payment of all fees and expenses; PROVIDED, HOWEVER, that the omission to so
notify such Underwriter shall not relieve such Underwriter from any liability
which such Underwriter may have to the Company or any such person or otherwise.
The Company or such person shall have the right to employ its own counsel in any
such case, but the fees and expenses of such counsel shall be at the expense of
the Company or such person unless the employment of such counsel shall have been
authorized in writing by such Underwriter in connection with the defense of such
Proceeding or such Underwriter shall not have, within a reasonable period of
time in light of the circumstances, employed counsel to have charge of the
defense of such Proceeding or such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or them which
are different from or additional to or in conflict with those available to such
Underwriter (in which case such Underwriter shall not have the right to direct
the defense of such Proceeding on behalf of the indemnified party or parties,
but such Underwriter may employ counsel and participate in the defense thereof
but the fees and expenses of such counsel shall be at the expense of such
Underwriter), in any of which events such fees and expenses shall be borne by
such Underwriter and paid as incurred (it being understood, however, that such
Underwriter shall not be liable for the expenses of more than one separate
counsel (in addition to any local counsel) in any one Proceeding or series of
related Proceedings in the same jurisdiction representing the indemnified
parties who are parties to such Proceeding). No Underwriter shall be liable for
any settlement of any such Proceeding effected without the written consent of
such Underwriter but if settled with the written consent of such Underwriter,
such Underwriter agrees to indemnify and hold harmless the Company and any such
person from and against any loss or liability by reason of such settlement.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second sentence of this
paragraph, then the indemnifying party agrees that it shall be liable for any
settlement of any Proceeding effected without its written consent if (i) such
settlement is entered into more than 60 days after receipt by such indemnifying
party of the aforesaid request, (ii) such indemnifying party shall not have
reimbursed the indemnified party in accordance with such request prior to the
date of such settlement and (iii) such indemnified party shall have given the
indemnifying party at least 30 days' prior notice of its intention to
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<PAGE>
settle. No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened Proceeding
in respect of which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such Proceeding.
(hh) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party under subsections (a), (b) or (c) of this
Section 9 in respect of any losses, damages, expenses, liabilities or claims
referred to therein, then each applicable indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, damages, expenses,
liabilities or claims (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Underwriters
on the other hand from the offering of the Shares or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and of the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, damages, expenses, liabilities or
claims, as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same respective proportions as the total
proceeds from the offering (net of underwriting discounts and commissions but
before deducting expenses) received by the Company and the total underwriting
discounts and commissions received by the Underwriters, bear to the aggregate
public offering price of the Shares. The relative fault of the Company on the
one hand and of the Underwriters on the other shall be determined by reference
to, among other things, whether the untrue statement or alleged untrue statement
of a material fact or omission or alleged omission relates to information
supplied by the Company or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, damages, expenses, liabilities and claims referred to in this subsection
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such party in connection with investigating, preparing to defend or
defending any Proceeding.
(ii) The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to this Section 9 were determined
by pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation that does not take account of
the equitable considerations referred to in subsection (c) above.
Notwithstanding the provisions of this Section 9, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by such Underwriter and distributed to
the public were offered to the public exceeds the amount of any damage which
such Underwriter has otherwise been
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<PAGE>
required to pay by reason of such untrue statement or alleged untrue statement
or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Section 9 are several in proportion to their respective underwriting commitments
and not joint.
(jj) The indemnity and contribution agreements contained in
this Section 9 and the covenants, warranties and representations of the Company
contained in this Agreement shall remain in full force and effect regardless of
any investigation made by or on behalf of any Underwriter, its partners,
directors or officers or any person (including each partner, officer or director
of such person) who controls any Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act, or by or on behalf of the Company its
directors or officers or any person who controls the Company within the meaning
of Section 15 of the Act or Section 20 of the Exchange Act, and shall survive
any termination of this Agreement or the issuance and delivery of the Shares.
The Company and each Underwriter agree promptly to notify each other of the
commencement of any Proceeding against it and, in the case of the Company,
against any of the Company's officers or directors in connection with the
issuance and sale of the Shares, or in connection with the Registration
Statement or Prospectus.
10. NOTICES. Except as otherwise herein provided, all
statements, requests, notices and agreements shall be in writing or by telegram
and, if to the Underwriters, shall be sufficient in all respects if delivered or
sent to UBS Warburg LLC, 299 Park Avenue, New York, NY 10171-0026, Attention:
Syndicate Department and, if to the Company, shall be sufficient in all respects
if delivered or sent to the Company at the offices of the Company at 2835 Zanker
Road, San Jose, California, 95134, Attention: [_____].
11. GOVERNING LAW; CONSTRUCTION. This Agreement and any claim,
counterclaim or dispute of any kind or nature whatsoever arising out of or in
any way relating to this Agreement ("Claim"), directly or indirectly, shall be
governed by, and construed in accordance with, the laws of the State of New
York. The Section headings in this Agreement have been inserted as a matter of
convenience of reference and are not a part of this Agreement.
12. SUBMISSION TO JURISDICTION. Except as set forth below, no
Claim may be commenced, prosecuted or continued in any court other than the
courts of the State of New York located in the City and County of New York or in
the United States District Court for the Southern District of New York, which
courts shall have jurisdiction over the adjudication of such matters, and the
Company consents to the jurisdiction of such courts and personal service with
respect thereto. The Company hereby consents to personal jurisdiction, service
and venue in any court in which any Claim arising out of or in any way relating
to this Agreement is brought by any third party against UBSW or any indemnified
party. Each of
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<PAGE>
UBSW and the Company (on their respective behalfs and, to the extent permitted
by applicable law, on behalf of their respective shareholders and affiliates)
waives all right to trial by jury in any action, proceeding or counterclaim
(whether based upon contract, tort or otherwise) in any way arising out of or
relating to this Agreement. The Company agrees that a final judgment in any such
action, proceeding or counterclaim brought in any such court shall be conclusive
and binding upon the Company and may be enforced in any other courts in the
jurisdiction of which the Company is or may be subject, by suit upon such
judgment.
13. PARTIES AT INTEREST. The Agreement herein set forth has
been and is made solely for the benefit of the Underwriters and the Company and
to the extent provided in Section 9 hereof the controlling persons, directors
and officers referred to in such section, and their respective successors,
assigns, heirs, personal representatives and executors and administrators. No
other person, partnership, association or corporation (including a purchaser, as
such purchaser, from any of the Underwriters) shall acquire or have any right
under or by virtue of this Agreement.
14. COUNTERPARTS. This Agreement may be signed by the parties
in one or more counterparts which together shall constitute one and the same
agreement among the parties.
15. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon the Underwriters, the Company and their successors and assigns and any
successor or assign of any substantial portion of the Company's, and any of the
Underwriters' respective businesses and/or assets.
16. MISCELLANEOUS. UBSW, an indirect, wholly owned subsidiary
of UBS AG, is not a bank and is separate from any affiliated bank, including any
U.S. branch or agency of UBS AG. Because UBSW is a separately incorporated
entity, it is solely responsible for its own contractual obligations and
commitments, including obligations with respect to sales and purchases of
securities. Securities sold, offered or recommended by UBSW are not deposits,
are not insured by the Federal Deposit Insurance Corporation, are not guaranteed
by a branch or agency, and are not otherwise an obligation or responsibility of
a branch or agency.
A lending affiliate of UBSW may have lending relationships
with issuers of securities underwritten or privately placed by UBSW. To the
extent required under the securities laws, prospectuses and other disclosure
documents for securities underwritten or privately placed by UBSW will disclose
the existence of any such lending relationships and whether the proceeds of the
issue will be used to repay debts owed to affiliates of UBSW.
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<PAGE>
If the foregoing correctly sets forth the understanding among
the Company and the Underwriters, please so indicate in the space provided below
for the purpose, whereupon this letter and your acceptance shall constitute a
binding agreement among the Company and the Underwriters, severally.
Very truly yours,
ADESSO HEALTHCARE TECHNOLOGY
SERVICES INC.
By:________________________
Name:
Title:
Accepted and agreed to as of the
date first above written, on behalf of
themselves and the other several Underwriters
named in Schedule A
UBS WARBURG LLC
CIBC WORLD MARKETS CORP.
U.S. BANCORP PIPER JAFFRAY INC.
By: UBS WARBURG LLC
By: __________________
Name:
Title: [_____]
By: __________________________
Name:
Title: [_____]
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<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
Number of
Underwriter Firm Shares
----------- -----------
<S> <C>
UBS WARBURG LLC....................................................................
CIBC WORLD MARKETS CORP............................................................
U.S. BANCORP PIPER JAFFRAY INC.....................................................
Total............................... _________
===========================
</TABLE>
