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Coherent, Inc.
[_____] Shares
Common Stock
($.01 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.
BlueStone Capital Partners, L.P.
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:
Coherent, 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 [3,000,000] shares (the "Firm Shares") of Common
Stock, $.01 par value 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 [450,000] 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 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-3 (File No. 333-[_____])
including a prospectus, relating to the Shares, which incorporates by reference
documents which the Company has filed in accordance with the provisions of the
Securities and Exchange Act of 1934, as amended, and the rules and regulations
thereunder (collectively called the "Exchange Act"). The Company has furnished
to you, for use by the Underwriters and by dealers, copies of one or more
preliminary prospectuses and the documents incorporated by reference therein
(each thereof, including the documents incorporated by reference, 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
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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,
including all documents incorporated therein by reference, 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 public offering contemplated herein 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 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 day (1) after the date on which the option shall have been
exercised nor later than the tenth business day after
----------------------
(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 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.,
Pacific Standard 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, 333 South Hope Street, Los Angeles, California at 9:00 A.M.,
Pacific Standard 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
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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, any statutes, regulations, contracts or other
documents that are required to be described in the Registration Statement
or the Prospectus or to be filed as exhibits to the Registration
Statement or Prospectus have been so described or filed, 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; the documents incorporated by
reference in the Registration Statement or the Prospectus, at the time
they were filed with the Commission, complied in all material respects
with the requirements of the Exchange Act and do not contain an untrue
statement of 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 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
the additional time of purchase, as the case may be, the Company shall
have an authorized capitalization as set forth under the heading entitled
"As adjusted" in the section of the Registration and the Prospectus
entitled "Capitalization"[, 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 issued and outstanding shares of capital stock including Common
Stock of the Company shall have been duly and validly authorized and
issued, fully paid and nonassessable, shall have
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been issued in compliance with all federal and state securities laws and
shall not have been issued in violation of any preemptive right, resale
right, right of first refusal or similar right;
(c) except as set forth in the Prospectus, the Company
does not have outstanding any options to purchase, or any preemptive
rights or other rights to subscribe for or to purchase, any securities or
obligations convertible into, or any contracts or commitments to issue or
sell, shares of its capital stock or any such options, rights,
convertible securities or obligations other than non-material amounts of
options granted pursuant to the Company's stock plans described in the
Prospectus. All outstanding shares of capital stock and options and
other rights to acquire capital stock have been issued in compliance with
the registration and qualification provisions of all applicable
securities laws and were not issued in violation of any preemptive
rights, rights of first refusal or similar rights.
(d) the Company has been duly organized and is validly
existing as a corporation 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;
(e) the Company is duly qualified to do business as a
foreign corporation 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 those set
forth on Schedule B attached hereto (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 certificates 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 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; all
of the outstanding shares of capital stock of the Subsidiaries have
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been duly authorized and validly issued, are fully paid and nonassessable
and are owned by the Company subject to no security interest other
encumbrance or adverse claims; no options, warrants or other rights to
convert any obligation into shares of capital stock or ownership
interests in the Subsidiaries are outstanding; and the Company and each
of its Subsidiaries are in compliance in all material respects with the
laws, orders, rules, regulations and directives issued or administered by
such jurisdictions;
(f) the Company and the Subsidiaries are duly qualified
or licensed by and are in good standing in each jurisdiction in which
they conduct their respective businesses and in which the failure,
individually or in the aggregate, to be so licensed or qualified could
have a Material Adverse Effect on the operations, business, condition,
prospects or property of the Company and the Subsidiaries, taken as a
whole; and the Company and the Subsidiaries are in compliance in all
material respects with the laws, orders, rules, regulations and
directives issued or administered by such jurisdictions;
(g) 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 respective 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 or other agreement or instrument
to which the Company or any of the Subsidiaries is a party or by which
either of them or any of their respective properties may be bound or
affected, 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 and the consummation
of the transactions 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 or any of the Subsidiaries, the result of which
would individually or in the aggregate would have a Material Adverse
Effect;
(h) 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;
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(i) 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;
(j) 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 nonassessable;
(k) 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");
(l) 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 in connection with the
filing of the Registration Statement or upon the issuance and sale of the
Shares to the Underwriters; and no person has any preemptive rights,
co-sale rights, rights of first refusal or other rights to purchase any
of shares of Common Stock of the Company [other than those that have been
expressly waived prior to the date hereof] or to underwrite the offer and
sale of the Shares.
(m) Deloitte and Touche, LLP, whose report on the
consolidated financial statements of the Company and the Subsidiaries is
filed with the Commission as part of the Registration Statement and
Prospectus, are independent public accountants as required by the Act;
(n) the Company and each of the Subsidiaries has all
necessary licenses, permits, franchises, authorizations, consents and
approvals, and has made all necessary filings required under any federal,
state, local or foreign law, regulation or rule, and has obtained all
necessary authorizations, consents and approvals from other persons, in
order to conduct its respective business; 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;
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(o) 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;
(p) 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 or in
equity or before or by any federal, state, local or foreign governmental
or regulatory commission, board, body, authority or agency [which could
(i) result in a judgment, decree or order having a Material Adverse
Effect, (ii) would materially and adversely affect the ability to the
Company to perform its obligations contemplated hereby or (iii) would be
otherwise material in the context of the issuance or sale of the Shares
or consummation of the transactions contemplated hereby];
(q) the audited financial statements 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; 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[; and there are no financial statements
(historical or pro forma) that are required to be included in the
Registration Statement and the Prospectus that are not so included as
required]];
(r) 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, assets described or referred to in the
Registration Statement or 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
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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;
(s) 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 90 days after the date of the Prospectus
without the prior written consent of UBS Warburg LLC ("UBSW");
(t) 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,
defects, 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;
(u) the Company and each of the Subsidiaries (i) is in
compliance with any and all applicable foreign, federal, state and local
laws and regulations relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants (collectively, "Environmental Laws"), (ii) has
received all permits, licenses or other approvals required of it under
applicable Environmental Laws to conduct its respective business and
(iii) is in compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with Environmental
Laws, failure to receive required permits, licenses or other approvals or
failure to comply with the terms and conditions of such permits, licenses
or approvals would not, individually or in the aggregate, have a Material
Adverse Effect;
(v) in the ordinary course of its respective business,
the Company and each of the Subsidiaries conducts a periodic review of
the effect of Environmental Laws on its respective business, operations
and properties, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation, any
capital or operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any permit, license
or approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such review,
the Company and each of the Subsidiaries has reasonably
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concluded that such associated costs and liabilities would not,
individually or in the aggregate, have a Material Adverse Effect;
(w) 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; [the Company and each of the Subsidiaries
has not been refused any material insurance coverage sought or applied
for; and the Company and each of the Subsidiaries has no reason to
believe that it will not be able to renew its existing insurance coverage
as and when such coverage expires or to obtain similar coverage from
similar insurers as may be necessary to continue its respective business
at a cost that would not materially and adversely affect the condition,
financial or otherwise, or the earnings, business or operations of the
Company[, except as described or contemplated by the Prospectus;]
(x) 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;
(y) 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;
(z) neither the Company nor any of its affiliates,
including the Subsidiaries, 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;
(aa) 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,
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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 or the Subsidiaries 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 such violatio, infringement
or conflict which would not individually or in the aggregate have a
Material Adverse Effect;
(bb) 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;
(cc) 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;
(dd) no material labor dispute with the employees of the
Company or any of the Subsidiaries exists, except as described in or
contemplated by the Prospectus, or to the best knowledge of the Company,
is imminent; and the Company and each of the Subsidiaries is not aware of
any existing, threatened or imminent labor disturbance by the
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employees of any of its principal suppliers, manufacturers or contractors
that could result in any material adverse change in the condition,
financial or otherwise, or in the earnings, business or operations of the
Company or the Subsidiaries;
(ee) 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;
(ff) 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;
(gg) the Company is not, and after giving effect to 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"); and
(hh) the outstanding Common Stock is, and the Shares as
of the date of the Registration Statement becomes effective, the Common
Stock will be, authorized for quotation on the Nasdaq National Market.
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.
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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, [San Francisco and Los Angeles,] 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);
(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, including by filing any
documents that would be incorporated therein by reference, and to file no
such amendment or supplement to which you shall object in writing;
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(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 stockholders or shall from time to time publish
or publicly disseminate, (ii) copies of all annual, quarterly and current
reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or such
other similar form as may be designated by the Commission, (iii) copies
of documents or reports filed with any national securities exchange on
which any class of securities of the Company is listed and (iv) such
other information as you may reasonably request regarding the Company or
the Subsidiaries, in each case, 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, or in the information incorporated therein by reference, 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;
(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 12 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 stockholders as soon as
practicable after the end of each fiscal year an annual report (including
a balance sheet and statements of income, stockholders' 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);
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(k) to furnish to you five signed copies of the
Registration Statement, as initially filed with the Commission, and of
all amendments thereto (including all exhibits thereto and documents
incorporated by reference therein) 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(e) 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, issuance, 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 statements of information, 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 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 (e) above, a copy of any document
proposed to be filed pursuant to Section 13, 14 or 15(d) of the Exchange
Act;
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(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
90 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 Shares to be
listed for quotation and to maintain the listing of the Common Stock 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 (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:
(a) 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 Wilson Sonsini Goodrich & Rosati, P.C., 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:
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(i) the Company has been duly incorporated and
is validly existing as a corporation in good standing under the
laws of the State of Delaware, with 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 as a corporation in good
standing under the laws of its respective jurisdiction of
incorporation with full corporate power and authority to own,
lease and operate its respective properties and to conduct its
respective 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 respective properties or the conduct of its
respective 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 of Common Stock outstanding
prior to the issuance of the Shares to be sold by the Company have
been duly authorized and are validly issued, nonassessable and, to
such counsel's knowledge, fully paid;
(vi) the Shares have been duly authorized and,
when issued and delivered to and paid for by the Underwriters,
will be duly and validly issued, fully paid and nonassessable;
(vii) 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, 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
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<PAGE>
of the Shares will not be subject to personal liability by reason
of being such holders;
(viii) other than the Subsidiaries, the Company
does not own or control, directly or indirectly, any corporation,
association or other entity; the Subsidiaries each has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation,
with full corporate power and authority to own, lease and operate
its respective properties and to conduct its respective business
as described in the Registration Statement; each of the
Subsidiaries is duly qualified to do business as a foreign
corporation in good standing in each jurisdiction where the
ownership or leasing of its respective properties or the conduct
of its respective business requires such qualification, except
where the failure to so qualify would not have a Material Adverse
Effect; all of the outstanding shares of capital stock of each of
the Subsidiaries have been duly authorized and validly issued, are
fully paid and nonassessable and, except as otherwise stated in
the Registration Statement, are owned by the Company, in each case
subject to no security interest, other encumbrance or adverse
claim; to the best of such counsel's knowledge, no options,
warrants or other rights to purchase, agreements or other
obligations to issue or other rights to convert any obligation
into shares of capital stock or ownership interests in each of the
Subsidiaries are outstanding;
(ix) the capital stock of the Company,
including the Shares, conforms to the description thereof
contained in the Registration Statement and Prospectus;
(x) 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;
(xi) 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;
(xii) 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
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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;
(xiii) 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 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, or under any federal, state, local or
foreign law, regulation or rule, or any decree, judgment or order
applicable to the Company or any of the Subsidiaries;
(xiv) to such counsel's knowledge, the Company
and each of the Subsidiaries is not in violation of its respective
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;
(xv) the statements (A) in the Prospectus under
the captions "Risk factors - Provisions of our charter documents,
Delaware law and our Change-of-Control Severance Plan may have
anti-takeover effects that could prevent or delay a change in
control" and (B) in the Registration Statement in Item 15, in each
case insofar as such statements constitute summaries of the legal
matters, documents or proceedings referred to therein, fairly
present the
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information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters
referred to therein;
(xvi) 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, summarized or described;
(xvii) 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 or in equity or before or by any
federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency;
(xviii) 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;
(xix) the documents incorporated by reference in
the Registration Statement and Prospectus, when they became
effective were filed (or, if an amendment with respect to any such
document was filed when such amendment was filed) with the
Commission, complied as to form in all material respects with the
Exchange Act (except as to the consolidated financial statements
and schedules and other financial data contained or incorporated
by reference therein as to which such counsel need express no
opinion);
(xx) 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
(xxi) 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
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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 (viii) 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).
(b) You shall have received at the time of purchase and
at the additional time of purchase, as the case may be, the opinion of
Limbach & Limbach L.L.P., special counsel to the Company with respect to
intellectual property, 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) such counsel represents the Company in
certain matters relating to intellectual property, including
patents;
(ii) 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 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
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such counsel is unaware of any facts which would form a reasonable
basis for any such claim;
(iii) 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
(iv) 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.
(c) You shall have received at the time of
purchase and at the additional time of purchase, as the case may be, the
opinion of Arnold & Porter, 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 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
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the statements therein, in light of the circumstances under which they
were made, not misleading.
(d) You shall have received at the time of purchase and
at the additional time of purchase, as the case may be, the 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.
(e) You shall have received from Deloitte & Touche, 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.
(f) No amendment or supplement to the Registration
Statement or Prospectus, including documents deemed to be incorporated by
reference therein, shall be filed prior to the time the Registration
Statement becomes effective to which you object in writing.
(g) 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 5:00 P.M., New York City time, on the date of this Agreement,
unless a later time (but not later than 5:00 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.
(h) 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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(i) 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.
(j) 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.
(k) You shall have received signed letters, dated the
date of this Agreement, from each of the officers and directors of the
Company and all stockholders 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 90 days after
the date of the Prospectus without UBSW's prior written consent.
(l) 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.
(m) 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.
-24-
<PAGE>
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, (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, (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
-25-
<PAGE>
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.
(a) 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
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<PAGE>
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, 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 Agreemet or the failure by the Company to perform
when and as required any agreement or covenant contained herein or (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.
(b) 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, employed counsel to defend such
Proceeding or such indemnified party or parties shall have reasonably
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<PAGE>
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 shal 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.
(c) 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 (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
-28-
<PAGE>
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 indemnifid 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
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<PAGE>
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.
(d) If the indemnification provided for in this Section
9 is unavailable to an indemnified party under subsections (a) or (b) of
this Section 9 in respect of any losses, damages, expenses, liabilities
or claims referred to therein, then each applicable indemnifying party,
in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, damages, expenses, liabilities or claims (i) in such proportion
as is appropriate to reflect the relative benefits received by the
Company on the one hand and the 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 pary 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.
(e) 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 required to pay by reason of such untrue statement or
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<PAGE>
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.
(f) 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 5100
Patrick Henry Avenue, Santa Clara, California 95054, Attention: Scott H. Miller,
Senior Vice President, General Counsel and Assistant Secretary.
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 its respective behalf and, to the extent permitted by
applicable law, on behalf of their respective stockholders and affiliates)
waives all right to trial by jury in any action, proceeding or counterclaim
(whether based upon contract, tort or otherwise) in any way arising out of or
relating to this Agreement. The Company agrees that a final judgment in any
such action, proceeding or counterclaim brought in any such court shall be
conclusive and binding upon the Company and may be enforced in any other courts
in the jurisdiction of which the Company is or may be subject, by suit upon such
judgment.
13. PARTIES 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,
COHERENT, 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.
BLUESTONE CAPITAL PARTNERS, L.P.
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.............
BLUESTONE CAPITAL PARTNERS, L.P............
Total.......... -----------
=============
</TABLE>
<PAGE>
SCHEDULE B
<TABLE>
<CAPTION>
Jurisdiction of
Name Incorporation
---- -------------
<S> <C>
Coherent FSC, Inc.. . . . . . . . . . . . . . . . . . . . . . Virgin Islands
Coherent GmbH.. . . . . . . . . . . . . . . . . . . . . . . . Germany
Coherent (U.K.) Ltd.. . . . . . . . . . . . . . . . . . . . . United Kingdom
Coherent Japan, Inc.. . . . . . . . . . . . . . . . . . . . . Japan
Lambda Physik GmbH (1). . . . . . . . . . . . . . . . . . . . Germany
Lambda Physik U.S (1) . . . . . . . . . . . . . . . . . . . . United States
Lambda Physik Japan, K.K (2). . . . . . . . . . . . . . . . . Japan
Coherent S.A... . . . . . . . . . . . . . . . . . . . . . . . France
Coherent Optics Europe, Ltd.. . . . . . . . . . . . . . . . . United Kingdom
Coherent Lubek GmbH . . . . . . . . . . . . . . . . . . . . . Germany
Coherent Export Co., Inc... . . . . . . . . . . . . . . . . . United States
Coherent Holding Co., GmbH. . . . . . . . . . . . . . . . . . Germany
Coherent-Ealing Europe, Ltd.. . . . . . . . . . . . . . . . . United Kingdom
Coherent (U.K.) Holdings, Ltd.. . . . . . . . . . . . . . . . United Kingdom
Coherent Benelux. . . . . . . . . . . . . . . . . . . . . . . The Netherlands
Coherent Tutcore, Ltd.(1) . . . . . . . . . . . . . . . . . . Finland
Coherent HK Ltd.. . . . . . . . . . . . . . . . . . . . . . . Hong Kong
Star Medical Technologies, Inc. . . . . . . . . . . . . . . . United States
</TABLE>
-------------------
The Company owns 100% of the outstanding voting securities of each
of the corporations listed above, each a Subsidiary of the Company, except those
footnoted, in which the Company's ownership interest is as follows:
(1) The Company owns 80% of the outstanding voting securities of these
Subsidiaries.
(2) The Company owns 76% of the outstanding voting securities of this
Subsidiary.
