<PAGE>
As filed with the Securities and Exchange Commission on October 11, 1995.
Registration No. 33-62651
=========================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------------
GENZYME CORPORATION
(Exact name of registrant as specified in its charter)
Massachusetts 06-1047163
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification Number)
One Kendall Square, Cambridge, Massachusetts 02139 (617) 252-7500
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
----------------------
HENRI A. TERMEER
Chief Executive Officer
Genzyme Corporation
One Kendall Square
Cambridge, Massachusetts 02139
(617) 252-7500
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
with copies to:
MAUREEN P. MANNING, ESQUIRE GEOFFREY E. LIEBMANN, ESQUIRE
Palmer & Dodge Cahill Gordon & Reindel
One Beacon Street 80 Pine Street
Boston, Massachusetts 02108 New York, New York 10005
(617) 573-0100 (212) 701-3000
----------------------
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the effective date of this Registration Statement.
----------------------
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [ ]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
----------------------
Page 1 of 47 Sequential Pages
Exhibit Index appears on Page 6
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933 or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The expenses to be borne by the Company in connection with this offering are as
follows:
<TABLE>
<CAPTION>
<S> <C>
SEC registration fee............... $ 57,129
NASD filing fee.................... $ 17,068
Blue Sky fees and expenses......... $ 17,250
Printing and engraving expenses.... $ 50,000
Accounting fees and expenses....... $ 60,000
Legal fees and expenses............ $125,000
Transfer Agent and Registrar fees.. $ 10,000
Miscellaneous expenses............. $ 13,553
-------
Total........................... $350,000
=======
</TABLE>
All of the above figures, except the SEC registration fee and NASD filing fee,
are estimates.
Item 15. Indemnification of Directors and Officers
Section 67 of chapter 156B of the Massachusetts Business Corporation Law
grants Genzyme the power to indemnify any director, officer, employee or agent
to whatever extent permitted by Genzyme's Articles of Organization, By-Laws or a
vote adopted by the holders of a majority of the shares entitled to vote
thereon, unless the proposed indemnitee has been adjudicated in any proceeding
not to have acted in good faith in the reasonable belief that his or her actions
were in the best interests of the corporation or, to the extent that the matter
for which indemnification is sought relates to service with respect to an
employee benefit plan, in the best interests of the participants or
beneficiaries of such employee benefit plan. Such indemnification may include
payment by Genzyme of expenses incurred in defending a civil or criminal action
or proceeding in advance of the final disposition of such action or proceeding,
upon receipt of an undertaking by the person indemnified to repay such payment
if he or she shall be adjudicated to be not entitled to indemnification under
the statute.
Article VI of Genzyme's By-Laws provides that Genzyme shall, to the extent
legally permissible, indemnify each person who may serve or who has served at
any time as a director or officer of the corporation or of any of its
subsidiaries, or who at the request of the corporation may serve or at any time
has served as a director, officer or trustee of, or in a similar capacity with,
another organization or an employee benefit plan, against all expenses and
liabilities (including counsel fees, judgments, fines, excise taxes, penalties
and amounts payable in settlements) reasonably incurred by or imposed upon such
person in connection with any threatened, pending or completed action, suit or
other proceeding, whether civil, criminal, administrative or investigative, in
which he or she may become involved by reason of his or her serving or having
served in such capacity (other than a proceeding voluntarily initiated by such
person unless he or she is successful on the merits, the proceeding was
authorized by the corporation or the proceeding seeks a declaratory judgment
regarding his or her own conduct). Such indemnification shall include payment
by Genzyme of expenses incurred in defending a civil or criminal action or
proceeding in advance of the final disposition of such action or proceeding,
upon receipt of an undertaking by the person indemnified to repay such payment
if he or she shall be adjudicated to be not entitled to indemnification under
Article VI, which undertaking may be accepted without regard to the financial
ability of such person to make repayment.
II-1
<PAGE>
The indemnification provided for in Article VI is a contract right inuring to
the benefit of the directors, officers and others entitled to indemnification.
In addition, the indemnification is expressly not exclusive of any other rights
to which such director, officer or other person may be entitled by contract or
otherwise under law, and inures to the benefit of the heirs, executors and
administrators of such a person.
Genzyme also has in place agreements with certain officers and directors which
affirm Genzyme's obligation to indemnify them to the fullest extent permitted by
law and contain various procedural and other provisions which expand the
protection afforded by Genzyme's By-Laws.
Section 13(b)(1 1/2) of chapter 156B of the Massachusetts Business Corporation
Law provides that a corporation may, in its articles of organization, eliminate
a director's personal liability to the corporation and its stockholders for
monetary damages for breaches of fiduciary duty, except in circumstances
involving (i) a breach of the director's duty of loyalty to the corporation or
its stockholders, (ii) acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) unauthorized
distributions and loans to insiders and (iv) transactions from which the
director derived an improper personal benefit. Section VI.C.5. of Genzyme's
Articles of Organization provides that no director shall be personally liable to
the corporation or its stockholders for monetary damages for any breach of
fiduciary duty as a director, except to the extent that such exculpation is not
permitted under the Massachusetts Business Corporation Law as in effect when
such liability is determined.
Item 16. Exhibits
1 Underwriting Agreement dated as of _____________, 1995 between Genzyme
and CS First Boston Corporation. Filed herewith.
4.1 Articles of Organization, as amended, of Genzyme. Filed as Exhibit 3.1
to Genzyme's Form 10-K for the year ended December 31, 1994, and
incorporated herein by reference.
4.2 By-laws of Genzyme. Filed as Exhibit 3.2 to Genzyme's Form 8-K dated
December 31, 1991, and incorporated herein by reference.
4.3 Amended and Restated Rights Agreement dated as of October 13, 1994
between Genzyme and American Stock Transfer and Trust Company. Filed as
Exhibit 4 to Genzyme's Form 8-K dated December 29, 1994, and incorporated
herein by reference.
5* Opinion of Palmer & Dodge.
23.1* Consent of Coopers & Lybrand L.L.P., independent accountants to Genzyme
Corporation.
23.2* Consent of Price Waterhouse LLP, independent accountants to BioSurface
Technology, Inc.
23.3* Consent of Palmer & Dodge.
24.1* Power of Attorney.
24.2 Certified Copy of Board Resolution authorizing signatures pursuant to
Power of Attorney. Filed herewith.
______________
* Previously filed.
II-2
<PAGE>
Item 17. Undertakings
(a) The undersigned hereby undertakes that, for purposes of determining any
liability under the Securities Act, each filing of the registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 that is incorporated by reference in this Registration Statement shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers or controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a director,
officer or controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
(c) (1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be a part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements of filing on Form S-3 and has duly caused this amendment to the
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Cambridge, Commonwealth of Massachusetts, on
October 11, 1995.
GENZYME CORPORATION
By: Henri A. Termeer*
------------------------------
Henri A. Termeer, President
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
<TABLE>
<CAPTION>
Signature Title
- --------- -----
<S> <C> <C>
Henri A. Termeer* Director and Principal October 11, 1995
- --------------------------------- Executive Officer
Henri A. Termeer
David J. McLachlan* Principal Financial and October 11, 1995
- --------------------------------- Accounting Officer
David J. McLachlan
Constantine E. Anagnostopoulos* Director October 11, 1995
- ---------------------------------
Constantine E. Anagnostopoulos
Douglas A. Berthiaume* Director October 11, 1995
- ---------------------------------
Douglas A. Berthiaume
Henry E. Blair* Director October 11, 1995
- ---------------------------------
Henry E. Blair
Robert J. Carpenter* Director October 11, 1995
- ---------------------------------
Robert J. Carpenter
Charles L. Cooney* Director October 11, 1995
- ---------------------------------
Charles L. Cooney
Henry R. Lewis* Director October 11, 1995
- ---------------------------------
Henry R. Lewis
*By: /s/ Evan M. Lebson
-----------------------------
Evan M. Lebson
Attorney-in-Fact
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT INDEX
-------------
Exhibit Sequential
No. Description Page No.
------- ----------- --------
<S> <C> <C>
1 Underwriting Agreement dated as of _______________, 1995
between Genzyme and CS First Boston Corporation.
Filed herewith. 7
4.1 Articles of Organization, as amended, of Genzyme. Filed as
Exhibit 3.1 to Genzyme's Form 10-K for the year ended
December 31, 1994, and incorporated herein by reference.
4.2 By-laws of Genzyme. Filed as Exhibit 3.2 to Genzyme's
Form 8-K dated December 31, 1991, and incorporated herein by
reference.
4.3 Amended and Restated Rights Agreement dated as of October 13,
1994 between Genzyme and American Stock Transfer and Trust
Company. Filed as Exhibit 4 to Genzyme's Form 8-K dated
December 29, 1994, and incorporated herein by reference.
5* Opinion of Palmer & Dodge.
23.1* Consent of Coopers & Lybrand L.L.P., independent accountants
to Genzyme Corporation.
23.2* Consent of Price Waterhouse LLP, independent accountants to
BioSurface Technology, Inc.
23.3* Consent of Palmer & Dodge.
24.1* Power of Attorney.
24.2 Certified Copy of Board Resolution authorizing signatures
pursuant to Power of Attorney. Filed herewith. 47
</TABLE>
_______________
* Previously filed.
<PAGE>
2,500,000 Shares
GENZYME CORPORATION
General Division Common Stock
UNDERWRITING AGREEMENT
October __, 1995
CS First Boston Corporation
Cowen & Company
Lehman Brothers
PaineWebber Incorporated,
As Representatives of the Several Underwriters,
c/o CS First Boston Corporation
Park Avenue Plaza
New York, N.Y. 10055
Dear Sirs:
1. Introductory. Genzyme Corporation, a Massachusetts corporation
("Company"), proposes to issue and sell to the Underwriters named in Schedule A
(the "Underwriters") 2,500,000 shares ("Firm Securities") of its General
Division Common Stock, par value $.01 per share ("Securities"), and also
proposes to issue and sell to the Underwriters, at the option of the
Underwriters, an aggregate of not more than 375,000 additional shares ("Optional
Securities") of its Securities as set forth below. The Firm Securities and the
Optional Securities are herein collectively called the "Offered Securities".
The Company hereby agrees with the several Underwriters as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Underwriters that:
(a) The Company and the proposed offering of the Firm Securities meet
the requirements for use of Form S-3, and a registration statement on Form
S-3 (No. 33-62651) relating to the Offered Securities, including a form of
prospectus, has been filed with the Securities and Exchange Commission
("Commission") and either (i) has been
<PAGE>
-2-
declared effective under the Securities Act of 1933 ("Act") and is not
proposed to be amended or (ii) is proposed to be amended by amendment or
post-effective amendment. If such registration statement ("initial
registration statement") has been declared effective, either (i) an
additional registration statement ("additional registration statement")
relating to the Offered Securities may have been filed with the Commission
pursuant to Rule 462(b) ("Rule 462(b)") under the Act and, if so filed,
has become effective upon filing pursuant to such Rule and the Offered
Securities all have been duly registered under the Act pursuant to the
initial registration statement and, if applicable, the additional
registration statement or (ii) such an additional registration statement
may be proposed to be filed with the Commission pursuant to Rule 462(b),
if so filed, and will become effective upon filing pursuant to such Rule
and upon such filing the Offered Securities will all have been duly
registered under the Act pursuant to the initial registration statement
and such additional registration statement. If the Company does not
propose to amend the initial registration statement or if an additional
registration statement has been filed and the Company does not propose to
amend it and if any post-effective amendment to either such registration
statement has been filed with the Commission prior to the execution and
delivery of this Agreement, the most recent amendment (if any) to each
such registration statement has been declared effective by the Commission
or has become effective upon filing pursuant to Rule 462(c) ("Rule
462(c)") under the Act or, in the case of the additional registration
statement, Rule 462(b). For purposes of this Agreement, "Effective Time"
with respect to the initial registration statement or, if filed prior to
the execution and delivery of this Agreement, the additional registration
statement means (i) if the Company has advised the Representatives that it
does not propose to amend such registration statement, the date and time
as of which such registration statement, or the most recent post-effective
amendment thereto (if any) filed prior to the execution and delivery of
this Agreement, was declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c), or (ii) if the Company has
advised the Representatives that it proposes to file an amendment or post-
effective amendment to such registration statement, the date and time as
of which such registration statement, as amended by such amendment or
post-effective amendment, as the case may be, is declared effective by the
<PAGE>
-3-
Commission. If an additional registration statement has not been filed
prior to the execution and delivery of this Agreement but the Company has
advised the Representatives that it proposes to file one, "Effective Time"
with respect to such additional registration statement means the date and
time as of which such registration statement is filed and becomes
effective pursuant to Rule 462(b). "Effective Date" with respect to the
initial registration statement or the additional registration statement
(if any) means the date of the Effective Time thereof. The initial
registration statement, as amended at its Effective Time, including all
material incorporated by reference therein, including all information
contained in the additional registration statement (if any) and deemed to
be a part of the initial registration statement as of the Effective Time
of the additional registration statement pursuant to the General
Instructions of Form S-3 and including all information (if any) deemed to
be a part of the initial registration statement as of its Effective Time
pursuant to Rule 430A(b) ("Rule 430A(b)") under the Act, is hereinafter
referred to as the "Initial Registration Statement". The additional
registration statement, as amended at its Effective Time, including the
contents of the initial registration statement and all other information
incorporated by reference therein and including all information (if any)
deemed to be a part of the additional registration statement as of its
Effective Time pursuant to Rule 430A(b), is hereinafter referred to as the
"Additional Registration Statement". The Initial Registration Statement
and the Additional Registration Statement are herein referred to
collectively as the "Registration Statements" and individually as a
"Registration Statement". The form of prospectus relating to the Offered
Securities, as first filed with the Commission pursuant to and in
accordance with Rule 424(b) ("Rule 424(b)") under the Act or (if no such
filing is required) as included in a Registration Statement, including all
material incorporated by reference in such prospectus, is hereinafter
referred to as the "Prospectus". No document has been or will be prepared
or distributed in reliance on Rule 434 under the Act.
(b) If the Effective Time of the Initial Registration Statement
is prior to the execution and delivery of this Agreement: (i) on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement conformed in all respects to the requirements of
the Act
<PAGE>
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and the rules and regulations of the Commission ("Rules and Regulations")
and did not include any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make
the statements therein not misleading, (ii) on the Effective Date of the
Additional Registration Statement (if any), each Registration Statement
conformed, or will conform, in all respects to the requirements of the Act
and the Rules and Regulations and did not include, or will not include,
any untrue statement of a material fact and did not omit, or will not
omit, to state any material fact required to be stated therein or
necessary to make the statements therein not misleading and (iii) on the
date of this Agreement, the Initial Registration Statement and, if the
Effective Time of the Additional Registration Statement is prior to the
execution and delivery of this Agreement, the Additional Registration
Statement each conform, and at the time of filing of the Prospectus
pursuant to Rule 424(b) or (if no such filing is required) at the
Effective Date of the Additional Registration Statement in which the Pro-
spectus is included, each Registration Statement and the Prospectus will
conform, in all respects to the requirements of the Act and the Rules and
Regulations, and neither of such documents includes, or will include, any
untrue statement of a material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of the
circumstances under which they are made) not misleading. If the Effective
Time of the Initial Registration Statement is subsequent to the execution
and delivery of this Agreement: on the Effective Date of the Initial
Registration Statement, the Initial Registration Statement and the
Prospectus will conform in all respects to the requirements of the Act and
the Rules and Regulations, neither of such documents will include any
untrue statement of a material fact or will omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading, and no Additional Registration Statement has been
or will be filed. The two preceding sentences do not apply to statements
in or omissions from a Registration Statement or the Prospectus in
reliance upon and in conformity with written information relating to any
Underwriter furnished to the Company by such Underwriter through the
Representatives specifically for use therein, it being understood and
agreed that the only such information is that described as such in
Section 7(b). The
<PAGE>
-5-
documents which are or will be incorporated by reference in a Registration
Statement or the Prospectus or from which information is or will be so
incorporated by reference, when they became or become effective or were
or are filed with the Commission, as the case may be, complied or will
comply in all material respects with the requirements of the Act or the
Securities Exchange Act of 1934, as amended ("Exchange Act"), the Rules
and Regulations and the rules and regulations under the Exchange Act
("Exchange Act Rules and Regulations"), as applicable.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the Commonwealth of
Massachusetts, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus; and
the Company is duly licensed or qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its
ownership or lease of property or the conduct of its business requires
such license or qualification, except where the failure to be so licensed
or qualified would not have a material adverse effect on the business,
condition (financial or otherwise), properties, prospects or results of
operations of (i) the Company and the Subsidiaries (as defined below)
taken as a whole (the "Business of the Company") or (ii) the Company's
General Division (the "Business of the General Division").
(d) The only "significant subsidiaries" of the Company, as
defined in Rule 102(x) of the Commission's Regulation S-X, that are
corporations are the subsidiaries of the Company listed on Schedule B
hereto (the "Corporate Subsidiaries"). The only other entities in which
the Company has a direct or indirect equity interest (other than entities
which are not "significant subsidiaries" of the Company, as defined in
Rule 102(x) of the Commission's Regulation S-X) are those partnerships
listed on Schedule C hereto (the "Partnerships"). The Corporate
Subsidiaries and the Partnerships are hereinafter collectively referred to
as the "Subsidiaries". Each Subsidiary has been duly incorporated or
organized and is existing in good standing under the laws of the
jurisdiction of its incorporation or formation, with power and authority
to own its properties and conduct its business as described in the
Prospectus; and each Subsidiary is duly licensed or qualified to do
business as a foreign corporation or other entity in good
<PAGE>
-6-
standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such license or
qualification, except where the failure to be so licensed or qualified
would not have a material adverse effect on the Business of the Company or
on the Business of the General Division; all of the issued and outstanding
capital stock or partnership interest of each Subsidiary has been duly
authorized and validly issued and, with respect to each Corporate
Subsidiary, is fully paid and nonassessable; and the capital stock or
partnership interest of each Subsidiary owned by the Company, directly or
through subsidiaries, is owned free from liens, encumbrances and defects.
(e) The Offered Securities and all other outstanding shares of
capital stock of the Company have been duly authorized; all outstanding
shares of capital stock of the Company are, and, when the Offered
Securities have been delivered and paid for in accordance with this
Agreement on each Closing Date (as defined below), such Offered Securities
will have been, validly issued, fully paid and nonassessable and will
conform to the description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive or similar rights with
respect to the Securities. Except as set forth in the Prospectus, the
Company does not have outstanding, and at the Closing Date the Company
will not have outstanding, any options to purchase, or any rights or
warrants to subscribe for, or any securities or obligations convertible
into, or any contracts or commitments to issue or sell, (i) any shares of
Securities, or (ii) any shares of capital stock held by it in any
Subsidiary, or any such warrants, convertible securities or obligations
(except shares issued or issuable pursuant to employee benefit plans
after the date as of which information with respect thereto is given in
the Prospectus).
(f) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person that would
give rise to a valid claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like payment with respect to
the Offered Securities.
(g) Except as set forth on Schedule D hereto, there are no
contracts, agreements or understandings between the Company and any person
granting such person the right to
<PAGE>
-7-
require the Company to file a registration statement under the Act with
respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the
securities registered pursuant to a Registration Statement or in any
securities being registered pursuant to any other registration statement
filed by the Company under the Act.
(h) The Company has mailed, for delivery on the day after the date
hereof, a notification form relating to the issuance of the Offered
Securities with the National Association of Securities Dealers, Inc.
("NASD") in accordance with Schedule D of the NASD Bylaws.
(i) No consent, approval, authorization, or order of, or filing
with, any governmental agency or body or any court is required for the
consummation by the Company of the transactions contemplated by this
Agreement in connection with the issuance and sale of the Offered
Securities by the Company, except such as have been obtained and made
under the Act and such as may be required under state securities laws.
(j) The execution, delivery and performance of this Agreement, and
the issuance and sale of the Offered Securities, will not result in a
breach or violation of any of the terms and provisions of, or constitute a
default under, any statute, any rule, regulation or order of any
governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any Subsidiary or any of their
properties, or any agreement or instrument to which the Company or any
such Subsidiary is a party or by which the Company or any such Subsidiary
is bound or to which any of the properties of the Company or any such
Subsidiary is subject, or the charter or bylaws (or comparable
instruments) of the Company or any such Subsidiary, and the Company has
full power and authority to authorize, issue and sell the Offered
Securities as contemplated by this Agreement.
(k) This Agreement has been duly authorized, executed and
delivered by the Company.
(l) Except as disclosed in the Prospectus, the Company and its
Subsidiaries have good and marketable title to all real properties and all
other properties and assets owned by them, in each case free from liens,
encumbrances
<PAGE>
-8-
and defects that would materially affect the value thereof or materially
interfere with the use made or to be made thereof by them; and except as
disclosed in the Prospectus, the Company and its Subsidiaries hold any
leased real or personal property under valid and enforceable leases with
no exceptions that would materially interfere with the use made or to be
made thereof by them.
(m) The Company and its Subsidiaries possess adequate
certificates, authorities, licenses or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business now
operated by them and have not received any notice of proceedings relating
to the revocation or modification of any such certificate, authority,
licenses or permit that, if determined adversely to the Company or any of
its Subsidiaries, would individually or in the aggregate have a material
adverse effect on the Business of the Company or on the Business of the
General Division.
(n) No labor dispute with the employees of the Company or any
Subsidiary exists or, to the knowledge of the Company, is imminent that
might have a material adverse effect on the Business of the Company or on
the Business of the General Division.
(o) The Company and its Subsidiaries own, possess or can acquire
on reasonable terms adequate trademarks, trade names and other rights to
inventions, know how, patents, copyrights, confidential information and
other intellectual property (collectively, "intellectual property
rights") necessary to conduct the business now operated by them, or
presently employed by them, and have not received any notice of
infringement of or conflict with asserted rights of others with respect to
any intellectual property rights that, if determined adversely to the
Company or any of its Subsidiaries, would individually or in the aggre-
gate have a material adverse effect on the Business of the Company or on
the Business of the General Division.
(p) Neither the Company nor any of its Subsidiaries is in
violation of any statute, any rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign, relating to
the use, disposal or release of hazardous or toxic substances or relating
to the protection or restoration of the environment or human exposure to
hazardous or toxic substances
<PAGE>
-9-
(collectively, "environmental laws"), owns or operates any real property
contaminated with any substance that is subject to any environmental
laws, is liable for any offsite disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any environ-
mental laws, which violation, contamination, liability or claim would
individually or in the aggregate have a material adverse effect on the
Business of the Company or on the Business of the General Division; and
the Company is not aware of any pending investigation which might lead to
such a claim.
(q) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of its
Subsidiaries or any of their respective properties that, if determined
adversely to the Company or any of its Subsidiaries, would individually
or in the aggregate have a material adverse effect on the Business of the
Company or on the Business of the General Division, or would materially
and adversely affect the ability of the Company to perform its obligations
under this Agreement, or which are otherwise material in the context of
the sale of the Offered Securities; and no such actions, suits or
proceedings are threatened or, to the Company's knowledge, contemplated.
(r) The financial statements included or incorporated in each
Registration Statement and the Prospectus present fairly the financial
position of the Company and its consolidated subsidiaries, the General
Division and the Tissue Repair Division as of the dates shown and their
results of operations and cash flows for the periods shown, and such
financial statements have been prepared in conformity with generally
accepted accounting principles in the United States applied on a
consistent basis and the schedules included in each Registration Statement
present fairly the information required to be stated therein. The pro
forma financial data and other pro forma financial information included or
incorporated in each Registration Statement and the Prospectus (i) comply
as to form in all material respects with applicable requirements of
Regulation S-X promulgated under the Exchange Act, (ii) have been
prepared in accordance with the Commission's rules and guidelines with
respect to pro forma financial statements, and (iii) have been properly
computed on the bases described therein; the assumptions used in the
preparation of the pro forma financial data and other pro forma
<PAGE>
-10-
financial information included or incorporated in each Registration
Statement and the Prospectus are reasonable and the adjustments used
therein are appropriate to give effect to the transactions or
circumstances referred to therein. No other financial statements or
schedules of the Company are required by the Act, the Exchange Act, the
Rules and Regulations or the Exchange Act Rules and Regulations to be
included or incorporated in either Registration Statement or the
Prospectus. Coopers & Lybrand L.L.P. and Price Waterhouse, who have
reported on certain of such financial statements and schedules, are
independent accountants as required by the Act, the Rules and
Regulations, the Exchange Act and the Exchange Act Rules and Regulations.
(s) There is no document or contract of a character required to be
described in a Registration Statement or the Prospectus or to be filed as
an exhibit to a Registration Statement which is not described or filed as
required. All contracts so described or filed to which the Company or any
Subsidiary is a party have been duly authorized, executed and delivered by
the Company or such Subsidiary, constitute valid and binding agreements of
the Company or such Subsidiary and are enforceable against the Company or
such Subsidiary in accordance with the terms thereof.
(t) Neither the Company nor any of the Subsidiaries is in
violation of its certificate of incorporation, bylaws or partnership
agreement or in default (nor has an event occurred which with notice or
lapse of time or both would constitute a default or acceleration) in the
performance of any obligation, agreement or condition contained in any
indenture, mortgage, deed of trust, voting trust agreement, loan
agreement, bond, debenture, note agreement or other evidence of
indebtedness, 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 is bound or affected and neither the
Company nor any of the Subsidiaries is in violation of any judgment,
ruling, decree, order, franchise, license or permit known to such counsel
or any statute, rule or regulation applicable to the business or proper-
ties of the Company or any of the Subsidiaries, where such violation or
default would have a material adverse effect on the Business of the
Company or on the Business of the General Division.
<PAGE>
-11-
(u) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included or incorporated in the
Prospectus there has been no material adverse change, nor any development
or event involving a prospective material adverse change, in the Business
of the Company or in the Business of the General Division and there has
been no dividend or distribution of any kind declared, paid or made by the
Company on any class of its capital stock.
(v) The Company is not and, after giving effect to the offering
and sale of the Offered Securities and the application of the proceeds
thereof as described in the Prospectus, will not be an "investment
company" as defined in the Investment Company Act of 1940, as amended.
(w) Neither the Company nor any of its affiliates does business
with the government of Cuba or with any person or affiliate located in
Cuba within the meaning of Section 517.075, Florida Statutes and the
Company agrees to comply with such Section if prior to the completion of
the distribution of the Offered Securities it commences doing such
business.
(x) The Company and its affiliates have not taken and will not
take, directly or indirectly, any action designed to cause, or result in,
or which has constituted or which might reasonably be expected to
constitute, the stabilization or manipulation of the price of the Securi-
ties to facilitate the sale or resale of the Offered Securities.
3. Purchase, Sale and Delivery of Offered Securities. On the
basis of the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Company agrees to
sell to the Underwriters, and the Underwriters agree, severally and not jointly,
to purchase from the Company, at a purchase price of $_____ per share, the
respective numbers of shares of Firm Securities set forth opposite the names of
the Underwriters in Schedule A hereto.
The Company will deliver the Firm Securities to the Representatives
for the accounts of the Underwriters, against payment of the purchase price by
certified or official bank check or checks in New York Clearing House (next day)
funds drawn to the order of the Company at the office of Cahill
<PAGE>
-12-
Gordon & Reindel, 80 Pine Street, NY, NY, at 9:00 A.M., New York time, on
October __, 1995, or at such other time not later than seven full business days
thereafter as CS First Boston Corporation ("CS First Boston") and the Company
determine, such time being herein referred to as the "First Closing Date". For
purposes of Rule 15c61 under the Exchange Act, the First Closing Date (if
later than the otherwise applicable settlement date) shall be the settlement
date for payment of funds and delivery of securities for all the Offered
Securities sold pursuant to the offering. The certificates for the Firm Securi-
ties so to be delivered will be in definitive form, in such denominations and
registered in such names as CS First Boston requests and will be made available
for checking and packaging at the office of CS First Boston, Park Avenue Plaza,
NY, NY 10055 at least 24 hours prior to the First Closing Date.
In addition, upon written notice from CS First Boston given to the
Company from time to time not more than 30 days subsequent to the date of the
Prospectus, the Underwriters may purchase all or less than all of the Optional
Securities at the purchase price per Security to be paid for the Firm
Securities. The Company agrees to sell to the Underwriters the number of shares
of Optional Securities specified in such notice and the Underwriters agree,
severally and not jointly, to purchase such Optional Securities. Such Optional
Securities shall be purchased for the account of each Underwriter in the same
proportion as the number of shares of Firm Securities set forth opposite such
Underwriter's name bears to the total number of shares of Firm Securities
(subject to adjustment by CS First Boston to eliminate fractions) and may be
purchased by the Underwriters only for the purpose of covering over allotments
made in connection with the sale of the Firm Securities. No Optional Securities
shall be sold or delivered unless the Firm Securities previously have been, or
simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be exercised from time to time and to the
extent not previously exercised may be surrendered and terminated at any time
upon notice by CS First Boston to the Company.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "Optional Closing Date," which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "Closing Date"), shall be determined by CS
First Boston but shall be not later than five full business days after written
notice of election to purchase Optional
<PAGE>
-13-
Securities is given. The Company will deliver the Optional Securities being
purchased on each Optional Closing Date to the Representatives for the accounts
of the several Underwriters, against payment of the purchase price therefor by
certified or official bank check or checks in New York Clearing House (next day)
funds drawn to the order of the Company, at the above office of Cahill Gordon &
Reindel. The certificates for the Optional Securities being purchased on each
Optional Closing Date will be in definitive form, in such denominations and reg-
istered in such names as CS First Boston requests upon reasonable notice prior
to such Optional Closing Date and will be made available for checking and
packaging at the above office of CS First Boston at a reasonable time in advance
of such Optional Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. Certain Agreements of the Company. The Company agrees with the
several Underwriters that:
(a) If the Effective Time of the Initial Registration Statement
is prior to the execution and delivery of this Agreement, the Company will
file the Prospectus with the Commission pursuant to and in accordance with
subparagraph (1) (or, if applicable and if consented to by CS First
Boston, subparagraph (4)) of Rule 424(b) not later than the earlier of (A)
the second business day following the execution and delivery of this
Agreement or (B) the fifteenth business day after the Effective Date of
the Initial Registration Statement. The Company will advise CS First
Boston promptly of any such filing pursuant to Rule 424(b). If the
Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement and an additional registration
statement is necessary to register a portion of the Offered Securities
under the Act but the Effective Time thereof has not occurred as of such
execution and delivery, the Company will transmit the additional
registration statement or, if filed, will transmit a post-effective
amendment thereto with the Commission pursuant to and in accordance with
Rule 462(b) on or prior to 10:00 P.M., New York time, on the date of this
Agreement or, if earlier, on or prior to the time the Prospectus is
printed and distributed to any Underwriter, or will make such filing at
such later date as shall have been consented to by CS First Boston.
<PAGE>
-14-
(b) The Company will advise CS First Boston promptly of any
proposal to amend or supplement the initial or any additional registration
statement as filed or the related prospectus or the Initial Registration
Statement, the Additional Registration Statement (if any) or the Prospec-
tus and will not effect such amendment or supplementation without CS First
Boston's consent; and the Company will also advise CS First Boston
promptly of the effectiveness of each Registration Statement (if its
Effective Time is subsequent to the execution and delivery of this Agree-
ment) and of any amendment or supplementation of a Registration Statement
or the Prospectus and of the institution by the Commission of any stop
order proceedings in respect of a Registration Statement and will use its
best efforts to prevent the issuance of any such stop order and to obtain
as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Act, the Company will promptly
notify CS First Boston of such event and will promptly prepare and file
with the Commission, at its own expense, an amendment or supplement which
will correct such statement or omission or an amendment which will effect
such compliance. Neither CS First Boston's consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the Availability
Date (as defined below), the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional Registration
Statement) which will satisfy the provisions of Section 11(a) of the Act.
For the purpose of the preceding sentence, "Availability Date" means the
45th day after the end of the fourth fiscal quarter following the fiscal
quarter that includes such Effective
<PAGE>
-15-
Date, except that, if such fourth fiscal quarter is the last quarter of
the Company's fiscal year, "Availability Date" means the 90th day after
the end of such fourth fiscal quarter.
(e) The Company will furnish to the Representatives copies of each
Registration Statement (four of which will be copies of the signed
documents certified as to the authenticity of the signatures and will
include all exhibits), each related preliminary prospectus, and, so long
as delivery of a prospectus relating to the Offered Securities is
required to be delivered under the Act in connection with sales by any
Underwriter or dealer, the Prospectus and all amendments and supplements
to such documents, in each case as soon as available and in such
quantities as CS First Boston requests. The Prospectus shall be so
furnished on or prior to 10:00 A.M., New York time, on the business day
following the later of the execution and delivery of this Agreement or the
Effective Time of the Initial Registration Statement. All other documents
shall be so furnished as soon as available. The Company will pay the
expenses of printing and distributing to the Underwriters all such
documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as CS First
Boston designates and will continue such qualification in effect so long
as required for the distribution.
(g) During the period of five years hereafter, the Company will
furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year, a
copy of its annual report to stockholders for such year; and the Company
will furnish to the Representatives (i) as soon as available, a copy of
each report and any definitive proxy statement of the Company filed with
the Commission under the Exchange Act or mailed to stockholders, and (ii)
from time to time, such other information concerning the Company as CS
First Boston may reasonably request.
(h) The Company will pay all expenses incident to the performance
of its obligations under this Agreement and will reimburse the
Underwriters (if and to the extent incurred by them) for any filing fees
and other expenses (including fees and disbursements of counsel) incurred
by
<PAGE>
-16-
them in connection with qualification of the Offered Securities for sale
under the laws of such jurisdictions as CS First Boston designates and the
reproduction of memoranda relating thereto, for the filing fee of the
National Association of Securities Dealers, Inc. relating to the Offered
Securities, for any travel expenses of the Company's officers and
employees and any other expenses of the Company in connection with
attending or hosting meetings with prospective purchasers of the Offered
Securities and for expenses incurred in distributing preliminary
prospectuses and the Prospectus (including any amendments and supplements
thereto) to the Underwriters.
(i) For a period of 90 days after the Effective Date of the
Initial Registration Statement (or, if later, the Additional Registration
Statement), the Company will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the Commission
a registration statement under the Act relating to, any additional shares
of its Securities or securities convertible into or exchangeable or
exercisable for any shares of its Securities, or publicly disclose the
intention to make any such offer, sale, pledge, disposal or filing,
without the prior written consent of CS First Boston, except issuances of
Securities pursuant to the conversion or exchange of convertible or
exchangeable securities or the exercise of warrants or options, in each
case outstanding on the date hereof, grants of employee stock options
pursuant to the terms of a plan in effect on the date hereof or issuances
of Securities pursuant to the exercise of such options.
6. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Firm
Securities on the First Closing Date and the Optional Securities to be purchased
on each Optional Closing Date will be subject to the accuracy of the
representations and warranties on the part of the Company herein, to the
accuracy of the statements of Company officers made pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions precedent:
(a) The Representatives shall have received a letter, dated the
date of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement,
<PAGE>
-17-
shall be on or prior to the date of this Agreement or, if the Effective
Time of the Initial Registration Statement is subsequent to the execution
and delivery of this Agreement, shall be prior to the filing of the
amendment or post-effective amendment to the registration statement to be
filed shortly prior to such Effective Time), of Coopers & Lybrand L.L.P.
confirming that they are independent pub lic accountants within the
meaning of the Act and the applicable published Rules and Regulations
thereunder and stating to the effect that:
(i) in their opinion the financial statements and schedules
examined by them and included or incorporated in the Registration
Statements (the "Genzyme Financial Statements") comply as to form in
all material respects with the applicable accounting requirements
of the Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by the
American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement of Auditing
Standards No. 71, Interim Financial Information, on the unaudited
Genzyme Financial Statements (other than the combined financial
statements for the General Division and the Tissue Repair Division
at and for the three months ended March 31, 1994 and for the three
and six months ended June 30, 1994) included or incorporated in the
Registration Statements;
(iii) they have read the combined financial statements for the
General Division and the Tissue Repair Division at and for the three
months ended March 31, 1994 and the three and six months ended June
30, 1994 and have inquired of certain officials of the Company who
have responsibility for financial and accounting matters whether the
unaudited combined financial statements for the General Division and
the Tissue Repair Division at and for the three months ended March
31, 1994 and the three and six months ended June 30, 1994 (1) are in
conformity with generally accepted accounting principles applied on
a basis substantially consistent with that of the audited combined
financial statements included or incorporated in the Registration
Statement, and (2) comply as to form in all material respects with
<PAGE>
-18-
the applicable accounting requirements of the Exchange Act and the
related published Exchange Act Rules and Regulations;
(iv) on the basis of the review referred to in clauses (ii)
and (iii) above, a reading of the latest available interim financial
statements of the Company, the General Division and the Tissue
Repair Division and inquiries of officials of the Company who have
responsibility for financial and accounting matters and other
specified procedures, nothing came to their attention that caused
them to believe that:
(A) the unaudited Genzyme Financial Statements
included or incorporated in the Registration Statements do
not comply as to form in all material respects with the
applicable accounting requirements of the Act and the related
published Rules and Regulations or any material modifications
should be made to such unaudited financial statements for them
to be in conformity with generally accepted accounting
principles;
(B) at the date of the latest available balance sheets
read by such accountants, or at a subsequent specified date
not more than five days prior to the date of this Agreement,
there was any change in the capital stock of the Company,
other than changes due to the issuance of common stock in
connection with the exercise of stock options, stock warrants
or the employee stock purchase plan, or any increase in long-
term debt of the Company and its consolidated subsidiaries,
the General Division or the Tissue Repair Division or, at the
date of the latest available balance sheets read by such
accountants, there was any decrease in net current assets of
the Company and its consolidated subsidiaries, the General
Division or the Tissue Repair Division, as compared with
amounts shown on the latest balance sheets included or incor-
porated in the Prospectus; or
(C) for the period from the closing date of the latest
statements of operations included or incorporated in the
Prospectus to the closing
<PAGE>
-19-
date of the latest available statements of operations read by
such accountants there were any decreases, as compared with
the corresponding period of the previous year, in total
revenues or in net income,
except in all cases set forth in clauses (iv)(B) and (iv)(C) above
for changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such letter;
and
(v) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other financial
information contained in the Registration Statements (in each case
to the extent that such dollar amounts, percentages and other
financial information are derived from the general accounting
records of the Company and its subsidiaries, the General Division
or the Tissue Repair Division subject to the internal controls of
the Company's accounting system or are derived directly from such
records by analysis or computation) with the results obtained from
inquiries, a reading of such general accounting records and other
procedures specified in such letter and have found such dollar
amounts, percentages and other financial information to be in
agreement with such results, except as otherwise specified in such
letter.
For purposes of this subsection, (i) if the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement, "Registration Statements" shall mean the initial registration
statement as proposed to be amended by the amendment or post-effective
amendment to be filed shortly prior to its Effective Time, (ii) if the
Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement but the Effective Time of the
Additional Registration is subsequent to such execution and delivery,
"Registration Statements" shall mean the Initial Registration Statement
and the additional registration statement as proposed to be filed or as
proposed to be amended by the post-effective amendment to be filed shortly
prior to its Effective Time, and (iii) "Prospectus" shall mean the
prospectus included in the Registration Statements. All financial
statements and schedules included in material incorporated by reference
into the Prospectus shall be
<PAGE>
-20-
deemed included in the Registration Statements for purposes of this
subsection.
(b) The Representatives shall have received a letter, dated the
date of delivery thereof (which, if the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement, shall be on or prior to the date of this Agreement or, if the
Effective Time of the Initial Registration Statement is subsequent to the
execution and delivery of this Agreement, shall be prior to the filing of
the amendment or post-effective amendment to the registration statement to
be filed shortly prior to such Effective Time), of Price Waterhouse
confirming that they are independent public accountants within the meaning
of the Act and the applicable Rules and Regulations thereunder and
containing statements and information satisfactory to the Representatives
with respect to the financial information relating to BioSurface
Technology, Inc. included or incorporated in the Registration Statements.
(c) The Representatives shall have a received a certificate, in
form and substance satisfactory to them and dated the date of this
Agreement, of the President or any Vice-President of the Company in which
such officer, to the best of his knowledge after reasonable investigation,
shall address certain matters relating to registration rights of holders
of the Company's securities.
(d) If the Effective Time of the Initial Registration Statement
is not prior to the execution and delivery of this Agreement, such
Effective Time shall have occurred not later than 10:00 P.M., New York
time, on the date of this Agreement or such later date as shall have been
con sented to by CS First Boston. If the Effective Time of the Additional
Registration Statement (if any) is not prior to the execution and delivery
of this Agreement, such Effective Time shall have occurred not later than
10:00 P.M., New York time, on the date of this Agreement or, if earlier,
the time the Prospectus is printed and distributed to any Underwriter, or
shall have occurred at such later date as shall have been consented to by
CS First Boston. If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Prospectus shall have been filed with the Commission in accordance with
the Rules and Regulations and Section 5(a) of this Agreement. Prior to
such
<PAGE>
-21-
Closing Date, no stop order suspending the effectiveness of a Registration
Statement shall have been issued and no proceedings for that purpose shall
have been instituted or, to the knowledge of the Company or the
Representatives, shall be contemplated by the Commission.
(e) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the Business of the Company or in the
Business of the General Division which, in the judgment of a majority in
interest of the Underwriters including the Representatives, is material
and adverse and makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Offered Securities; (ii) any downgrading in the rating of any debt
securities of the Company by any "nationally recognized statistical rating
organization" (as defined for purposes of Rule 436(g) under the Act), or
any public announcement that any such organization has under surveillance
or review its rating of any debt securities of the Company (other than an
announcement with positive implications of a possible upgrading, and no
implication of a possible downgrading, of such rating); (iii) any
suspension or limitation of trading in securities generally on the New
York Stock Exchange, or any setting of minimum prices for trading on such
exchange, or any suspension of trading of any securities of the Company on
any exchange or in the over-the-counter market; (iv) any banking
moratorium declared by U.S. Federal or New York authorities; or (v) any
outbreak or escalation of major hostilities in which the United States is
involved, any declaration of war by Congress or any other substantial
national or international calamity or emergency if, in the judgment of a
majority in interest of the Underwriters including the Representatives,
the effect of any such outbreak, escalation, declaration, calamity or
emergency makes it impractical or inadvisable to proceed with completion
of the public offering or the sale of and payment for the Offered
Securities.
(f) The Representatives shall have received an opinion, dated
such Closing Date, of Palmer & Dodge, counsel for the Company, to the
effect that:
(i) Each of the Company and its Corporate Subsidiaries
incorporated in a state of the United
<PAGE>
-22-
States (the "Domestic Corporate Subsidiaries") is a corporation duly
organized, validly existing and in good standing under the laws of
the jurisdiction of its incorporation, and each of the Company's
subsidiaries that is a partnership (together with the Domestic
Corporate Subsidiaries, the "Domestic Subsidiaries") is duly
organized, validly existing and in good standing under the laws of
the jurisdiction of its formation. Each of the Company and the Domes
tic Subsidiaries is duly qualified to do business as a foreign
corporation or other entity in good standing in all jurisdictions
in which the nature of the activities conducted by it or the
character of the assets owned or leased by it makes such
qualification necessary, except where the failure to be so quali-
fied would not have a material adverse effect on the Business of the
Company or on the Business of the General Division. Each of the
Company and the Domestic Subsidiaries has full power and authority
to own or lease all the assets owned or leased by it and to conduct
its business as described in the Prospectus.
(ii) The outstanding shares of the Company's capital stock
have been duly authorized and validly issued and are fully paid and
non-assessable and are not subject to any preemptive or similar
right.
(iii) The Offered Securities sold to the Under-writers pursuant
to this Agreement have been duly authorized and validly issued by
the Company and upon issuance and delivery against payment therefor
as provided in this Agreement will be fully paid and non-assessable;
and no holder thereof is or will be subject to personal liability by
reason of being such a holder.
(iv) The issuance of the Offered Securities by the Company is
not subject to preemptive rights of any holder of securities of the
Company.
(v) Except as set forth on Schedule D to this Agreement,
there are no contracts, agreements or understandings known to such
counsel between the Company and any person granting such person the
right to require the Company to file a registration statement under
the Act with respect to any securities of the Company owned or to be
owned by such person or to
<PAGE>
-23-
require the Company to include such securities in the securities
registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company under the Act.
(vi) No consent, approval, authorization or order of, or any
filing or declaration with, any court or governmental agency or body
is required in connection with the authorization, issuance, trans-
fer, sale or delivery of the Offered Securities by the Company, in
connection with the execution, delivery and performance of this
Agreement by the Company or in connection with the taking by the
Company of any action contemplated thereby, except such as have been
obtained under the Act and the Rules and Regulations and such as may
be required under state securities laws.
(vii) The authorized capital stock of the Company is as set
forth in the Prospectus. The description of the Securities contained
in the Prospectus conforms in all material respects to the terms
thereof contained in the Company's articles of organization. Except
as set forth on Schedule B attached hereto, the Company is the sole
record owner, directly or indirectly, of all of the capital stock of
each of its Domestic Corporate Subsidiaries.
(viii) The Company and the offering of the Firm Securities meet
the requirements for the use of Form S-3, and the Registration
Statement (as amended on the date of such opinion) and the
Prospectus (including any documents incorporated by reference into
the Prospectus, at the time they were filed) comply or complied in
all material respects as to form with the requirements of the Act,
the Rules and Regulations, the Exchange Act and the Exchange Act
Rules and Regulations (except that such counsel need express no
opinion as to financial statements, schedules and other financial
and statistical data contained in such Registration Statement or the
Prospectus or incorporated by reference therein).
(ix) Such counsel has participated in the preparation of the
Registration Statement and the Prospectus. Except as explicitly
provided in such opinion,
<PAGE>
-24-
such counsel has not undertaken to verify independently the facts
disclosed in the Registration Statement and the Prospectus
(including any documents incorporated by reference therein).
However, in the course of such participation nothing has come to
such counsel's attention which has caused them to believe that, both
as of the Effective Date of the Initial Registration Statement (or,
if later, of the Additional Registration Statement) and as of the
First Closing Date and the Optional Closing Date, either the
Registration Statement or the Prospectus, or any amendment or
supplement thereto including any documents incorporated by
reference into the Prospectus, contained or contains any untrue
statement of a material fact or omitted or omits to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they
were made, not misleading (except that such counsel need express no
opinion as to financial statements, schedules and other financial
or statistical data contained in the Registration Statement or the
Prospectus or incorporated by reference therein).
(x) The Initial Registration Statement was declared effective
under the Act as of the date and time specified in such opinion, the
Additional Registration Statement (if any) was filed and became
effective under the Act as of the date and time (if determinable)
specified in such opinion, the Prospectus either was filed with the
Commission pursuant to the subparagraph of Rule 424(b) specified in
such opinion on the date specified therein or was included in the
Initial Registration Statement or the Additional Registration
Statement (as the case may be), and, to the best of such counsel's
knowledge, no order suspending the effectiveness of the Registra-
tion Statement has been issued and no proceeding for that purpose
has been instituted or is threatened, pending or contemplated.
(xi) Such counsel has reviewed all contracts or other
agreements referred to in the Registration Statement and the
Prospectus (except that with respect to the contracts referred to in
the documents incorporated by reference therein, such counsel may
state that such counsel has reviewed only the
<PAGE>
-25-
following numbered exhibits to the Company's Form 10-K for the year
ended December 31, 1994: Exhibits 3.1, 3.2, 4.1-4.9, 10.11-10.19,
10.21-10.26 and 10.28-10.41) and the descriptions thereof (insofar
as such descriptions constitute a summary of the legal matters
referred to therein) are accurate in all material respects. Such
counsel does not know of any contracts or other documents required
to be so summarized or disclosed or filed as an exhibit to the
Registration Statement or to any document incorporated by reference
therein which have not been so summarized or disclosed or filed.
(xii) All descriptions in the Prospectus of statutes and
regulations (excluding statutes and regulations relating to FDA
matters and organ transplant or tissue bank licensure laws) and, to
the best of such counsel's knowledge, of legal or governmental pro-
ceedings are accurate and fairly present the information required
to be shown therein.
(xiii) The Company has full corporate power and authority to
enter into this Agreement, and this Agreement has been duly
authorized, executed and delivered by the Company.
(xiv) The execution and delivery of this Agreement by the
Company, the consummation by the Company of the transactions therein
contemplated and the compliance by the Company with the terms of
this Agreement do not and will not result in the creation or
imposition of any lien, charge or encumbrance upon any of the assets
of the Company or any of the Subsidiaries pursuant to the terms or
provisions of, or result in a breach or violation of any of the
terms or provisions of, or constitute a default or result in the
acceleration of any obligation under, the articles of organization
or by-laws of the Company or any of its Domestic Corporate
Subsidiaries, or, in the case of each of the partnerships, its
partnership agreement, or any indenture, mortgage, deed of trust,
voting trust agreement, loan agreement, bond, debenture, note
agreement or other evidence of indebtedness, lease, contract or
other agreement or instrument known to us to which the Company or
any of the Company's Domestic Subsidiaries is a party or by which
any of the Company's or any of the Company's
<PAGE>
-26-
Domestic Subsidiaries' properties is bound or affected, or any
judgment, ruling, decree or order known to such counsel or any
statute, rule or regulation applicable to the business or
properties of the Company or any of the Company's Domestic
Subsidiaries (except that such counsel need express no opinion as to
the securities or Blue Sky laws of any jurisdiction other than the
United States).
(xv) Delivery of certificates for the Offered Securities will
pass valid and marketable title thereto free and clear of any liens,
encumbrances or claims to each Underwriter that has purchased such
Securities in good faith without knowledge or reason to know of any
adverse claims thereto and such counsel is not aware, after due
inquiry, of any adverse claim with respect thereto.
(xvi) Except as disclosed in the Prospectus, such counsel knows
of no actions, suits or proceedings pending or threatened against or
affecting the Company or any of its Subsidiaries or any of their
respective properties wherein an unfavorable ruling, decision or
finding would individually or in the aggregate materially and
adversely affect the Business of the Company or the Business of the
General Division, or materially and adversely affect the ability of
the Company to perform its obligations under this Agreement, or
which are otherwise material in the context of the sale of the
Offered Securities.
(xvii) To the best of such counsel's knowledge, neither the
Company nor any of the Domestic Subsidiaries is in violation of its
certificate of incorporation, by-laws or partnership agreement or in
default (nor has an event occurred which with notice or lapse of
time or both would constitute a default or acceleration) in the
performance of any obligation, agreement or condition contained in
any indenture, mortgage, deed of trust, voting trust agree ment,
loan agreement, bond, debenture, note agreement or other evidence of
indebtedness, lease, contract or other agreement or instrument known
to such counsel to which the Company or any of the Domestic Subsid-
iaries is a party or by which any of them or their respective
properties is bound or affected and neither the Company nor any of
the Domestic Subsidiaries
<PAGE>
-27-
is in violation of any judgment, ruling, decree, order, franchise,
license or permit known to such counsel or any statute, rule or
regulation applicable to the business or properties of the Company
or any of the Domestic Subsidiaries, where such violation or default
would have a material adverse effect on the Business of the Company
or on the Business of the General Division.
(xviii) The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of
the proceeds thereof as described in the Prospectus, will not be an
"investment company," as such term is defined in the Investment
Company Act of 1940, as amended.
In rendering the foregoing opinion, such counsel may rely, to the
extent they deem such reliance proper, on the opinions (in form and
substance reasonably satisfactory to Underwriters' counsel) of other
counsel reasonably acceptable to Underwriters' counsel as to matters
governed by the laws of jurisdictions other than the United States, the
Commonwealth of Massachusetts or the General Corporation Law of the State
of Delaware, and as to matters of fact, upon certificates of officers of
the Company and of government officials; provided that such counsel shall
state that the opinion of any other counsel is in form satisfactory to
such counsel and, in such counsel's opinion, such counsel and the
Representatives are justified in relying on such opinions of other
counsel. Copies of all such opinions and certificates shall be furnished
to counsel to the Underwriters on the Closing Date. Such counsel may
state that they are not passing on matters relating to patents and
trademarks.
(g) The Representatives shall have received an opinion, dated
such Closing Date, of Mark A. Hofer, Esq., Senior Vice President and
General Counsel of the Company, to the effect that
(i) Such counsel has studied and agrees with the statements
in the Prospectus under the captions "Risk Factors -- Uncertainty
Regarding Patents and Protection of Proprietary Technology" and
"Risk Factors -- Regulation by Government Agencies and in the
December 31, 1994 Annual Report on Form 10-K of the Company under
the captions "Business -- General
<PAGE>
-28-
Division -- Patents and Proprietary Technology," "Business --
General Division -- Government Regulation," "Business -- Tissue
Repair Division -- Patents and Proprietary Rights," "Business --
Tissue Repair Division -- Government Regulation" and "Legal
Proceedings."
(ii) Except as disclosed in the sections of the Prospectus
mentioned above and the documents incorporated by reference in the
Prospectus, such counsel does not know of any pending or threatened
legal or governmental proceeding relating to patents or proprietary
know how owned or used by the Company or others, to which the
Company or any of its subsidiaries is a party or to which any of
the properties of the Company or any of its subsidiaries are subject
which, if adversely decided, would have a material adverse effect on
the Business of the Company or on the Business of the General
Division.
(iii) Except as disclosed in the sections of the Prospectus
mentioned above and the documents incorporated by reference in the
Prospectus, such counsel has no knowledge of any infringement or
alleged infringement by the Company or any of its Subsidiaries of
patent rights of others which would have a material adverse effect
on the Business of the Company or on the Business of the General
Division.
(iv) To the best of such counsel's knowledge, each of the
Company and its Subsidiaries possesses all governmental licenses,
permits, consents, orders, approvals and other authorizations
necessary to carry on its business as described in the Prospectus,
except for those the absence of which do not have a material adverse
effect on the Business of the Company or on the Business of the
General Division.
(v) Such counsel has reviewed all contracts or other
agreements referred to in the Registration Statement and the
Prospectus (except that with respect to the contracts referred to in
the documents incorporated by reference therein, such counsel may
state that such counsel has reviewed only the following numbered
exhibits to the Company's Form 10-K for the year ended December 31,
1994: Exhibits 10.20, 10.42 and 10.43) and the descriptions thereof
<PAGE>
-29-
(insofar as such descriptions constitute a summary of the legal
matters referred to therein) are accurate in all material respects.
Such counsel does not know of any contracts or other documents
required to be so summarized or disclosed or filed as an exhibit to
the Registration Statement or to any document incorporated by
reference therein which have not been so summarized or disclosed or
filed.
(h) The Representatives shall have received from Cahill Gordon &
Reindel, counsel for the Underwriters, such opinion or opinions, dated
such Closing Date, with respect to this Agreement, the validity of the
Offered Securities delivered on such Closing Date, the Registration
Statements, the Prospectus and other related matters as the
Representatives may require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them to
pass upon such matters. In rendering such opinion, Cahill Gordon & Reindel
may rely as to matters governed by Massachusetts law upon the opinion of
Palmer & Dodge referred to above.
(i) The Representatives shall have received a certificate, dated
such Closing Date, of the President or any Vice President and a principal
financial or accounting officer of the Company in which such officers, to
the best of their knowledge after reasonable investigation, shall state
that: the representations and warranties of the Company in this Agreement
are true and correct; the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied
hereunder at or prior to such Closing Date; no stop order suspending the
effectiveness of any Registration Statement has been issued and no
proceedings for that purpose have been instituted or are contemplated by
the Commission; the Additional Registration Statement (if any) satisfying
the requirements of subparagraphs (1) and (3) of Rule 462(b) was filed
pursuant to Rule 462(b), including payment of the applicable filing fee in
accordance with Rule 111(a) or (b) under the Act, prior to the time the
Prospectus was printed and distributed to any Underwriter; as of such
date, there was no change in the capital stock of the Com-pany (including
changes due to option or warrant exercises) as compared with the amount
shown on the latest balance sheets included or incorporated in the
Prospectus; and, subsequent to the date of the most recent financial
statements included or incorporated in the Prospectus,
<PAGE>
-30-
there has been no material adverse change, nor any development or event
involving a prospective material adverse change, in the Business of the
Company or in the Business of the General Division except as set forth in
or contemplated by the Prospectus or as described in such certificate.
(j) The Representatives shall have received (i) a letter, dated
such Closing Date, of Coopers & Lybrand L.L.P. which meets the
requirements of subsection (a) of this Section, except that the specified
date referred to in such subsection will be a date not more than five days
prior to such Closing Date for the purposes of this subsection and (ii) a
letter, dated such Closing Date, of Price Waterhouse which meets the
requirements of subsection (b) of this Section.
(k) The Company shall have filed a notification form relating to
the issuance of the Offered Securities with the NASD in accordance with
Schedule D of the NASD Bylaws.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. CS First Boston may in its sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. Indemnification and Contribution. (a) The Company will
indemnify and hold harmless each Underwriter against any losses, claims, damages
or liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or liabili-
ties (or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any
Registration Statement, the Prospectus, or any amendment or supplement thereto,
or any related preliminary prospectus, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company will
<PAGE>
-31-
not be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or alleged
untrue statement in or omission or alleged omission from any of such documents
in reliance upon and in conformity with written information relating to any
Underwriter furnished to the Company by such Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described as such in subsection (b) below; and provided, further,
that with respect to any untrue statement or omission or alleged untrue
statement or omission made in any preliminary prospectus the indemnity agreement
contained in this subsection (a) shall not inure to the benefit of any
Underwriter from whom the person asserting any such losses, claims, damages or
liabilities purchased Offered Securities if such untrue statement or omis-sion
or alleged untrue statement or omission made in such preliminary prospectus is
eliminated or remedied in the Prospectus (as amended or supplemented if the
Company shall have furnished any amendments or supplements thereto to the
Underwriters) and such loss, claim, damage or liability of such Underwriter
results from the fact that there was not furnished to such person, at or prior
to the written confirmation of the sale of such Offered Securities to such
person, a copy of the Prospectus (as so amended or supplemented) if the Company
had previously furnished copies thereof to such Underwriter.
(b) Each Underwriter will severally and not jointly indemnify and
hold harmless the Company against any losses, claims, damages or liabilities to
which the Company may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in any Registration Statement, the Prospectus,
or any amendment or supplement thereto, or any related preliminary prospectus,
or arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information relating to such Underwriter furnished to the Company by such
Underwriter through the Representatives specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such loss, claim, damage,
<PAGE>
-32-
liability or action as such expenses are incurred, it being understood and
agreed that the only such information furnished by any Underwriter consists of
the following information in the Prospectus furnished on behalf of each
Underwriter: the last paragraph at the bottom of the cover page concerning the
terms of the offering by the Underwriters, the legends concerning overallotments
and stabilizing and passive market making on the inside front cover page and the
concession and reallowance figures appearing in the fourth paragraph under the
caption "Underwriting" and the information contained in the fifth paragraph
under the caption "Underwriting".
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened action 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 any claims
that are the subject matter of such action. An indemnifying party will not be
liable for any settlement of any action or claim effected without its written
consent.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an
<PAGE>
-33-
indemnified party under subsection (a) or (b) above, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (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 from the offering of the Securities 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 the Underwriters on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Underwriters on the other shall
be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or the Underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this subsec-
tion (d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any action or claim which is the subject of this subsection (d). Notwithstanding
the provisions of this subsection (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
<PAGE>
-34-
(e) The obligations of the Company under this Section shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company, to each officer of the Company
who has signed a Registration Statement and to each person, if any, who controls
the Company within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Offered Securities hereunder on either
the First or any Optional Closing Date and the aggregate number of shares of
Offered Securities that such defaulting Underwriter or Underwriters agreed but
failed to purchase does not exceed 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing
Date, CS First Boston may make arrangements satisfactory to the Company for the
purchase of such Offered Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to
their respective commitments hereunder, to purchase the Offered Securities that
such defaulting Underwriters agreed but failed to purchase on such Closing Date.
If any Underwriter or Underwriters so default and the aggregate number of shares
of Offered Securities with respect to which such default or defaults occur
exceeds 10% of the total number of shares of Offered Securities that the
Underwriters are obligated to purchase on such Closing Date and arrangements
satisfactory to CS First Boston and the Company for the purchase of such Offered
Securities by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any non-
defaulting Underwriter or the Company, except as provided in Section 9 (provided
that if such default occurs with respect to Optional Securities after the First
Closing Date, this Agreement will not terminate as to the Firm Securities or
any Optional Securities purchased prior to such termination). As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
<PAGE>
-35-
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Company or its officers and of the several Underwriters set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter, the Company or any of their respective
representatives, officers or directors or any controlling person, and will
survive delivery of and payment for the Offered Securities. If this Agreement is
terminated pursuant to Section 8 or if for any reason the purchase of the
Offered Securities by the Underwriters is not consummated, the Company shall
remain responsible for the expenses to be paid or reimbursed by it pursuant to
Section 5 and the respective obligations of the Company and the Underwriters
pursuant to Section 7 shall remain in effect, and if any Offered Securities have
been purchased hereunder the representations and warranties in Section 2 and
all obligations under Section 5 shall also remain in effect. If the purchase of
the Offered Securities by the Underwriters is not consummated for any reason
other than solely because of the termination of this Agreement pursuant to
Section 8 or the occurrence of any event specified in clause (iii), (iv) or (v)
of Section 6(d), the Company will reimburse the Underwriters for all out of
pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and,
if sent to the Underwriters, will be mailed, delivered or telegraphed and
confirmed to the Representatives c/o CS First Boston Corporation, Park Avenue
Plaza, New York, N.Y. 10055, Attention: Investment Banking Department -- Trans-
actions Advisory Group, or, if sent to the Company, will be mailed, delivered or
telegraphed and confirmed to it at One Kendall Square, Cambridge, MA 02139,
Attention: Senior Vice President, Finance; provided, however, that any notice to
an Underwriter pursuant to Section 7 will be mailed, delivered or telegraphed
and confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
<PAGE>
-36-
12. Representation of Underwriters. The Representatives will act
for the several Underwriters in connection with this financing, and any action
under this Agreement taken by the Representatives jointly or by CS First Boston
will be binding upon all the Underwriters.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
14. Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York, without regard
to principles of conflicts of laws.
The Company hereby submits to the nonexclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
<PAGE>
-37-
If the foregoing is in accordance with the Representatives'
understanding of our agreement, kindly sign and return to the Company one of the
counterparts hereof, whereupon it will become a binding agreement between the
Company and the several Underwriters in accordance with its terms.
Very truly yours,
GENZYME CORPORATION
By
The foregoing Underwriting Agreement is hereby
confirmed and confirmed and accepted as of the
date first above written.
CS FIRST BOSTON CORPORATION
COWEN & COMPANY
LEHMAN BROTHERS
PAINEWEBBER INCORPORATED
Acting on behalf of themselves and as the
Representatives of the several Underwriters.
By CS FIRST BOSTON CORPORATION
By ____________________________
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
Number of
Underwriter Firm Securities
<S> <C>
CS First Boston Corporation...........................
Cowen & Company.......................................
Lehman Brothers.......................................
PaineWebber Incorporated..............................
Total..................................... 2,500,000
</TABLE>
<PAGE>
SCHEDULE B
Significant Corporate Subsidiaries of Genzyme
<TABLE>
<CAPTION>
Jurisdiction
Names Ownership of Incorporation
<S> <C> <C>
Genzyme Limited 100% U.K.
Genzyme Securities 100% Massachusetts
Corporation
Genzyme Transgenics 48% Massachusetts
Corporation
Vivigen, Inc. 100% New Mexico
</TABLE>
SCHEDULE C
Significant Partnership Subsidiaries of Genzyme
None
<PAGE>
SCHEDULE D
Contracts, Agreements or Understandings
Granting Registration Rights
<PAGE>
EXHIBIT 24.2
GENZYME CORPORATION
Certificate of Clerk
I, Peter Wirth, being the duly elected and acting Clerk of Genzyme
Corporation (the "Company"), a Massachusetts corporation, hereby certify that
the following is a true, correct and complete copy of a vote duly adopted by the
Board of Directors of the Company at a meeting of the Board of Directors
convened and held on August 25, 1995, at which meeting a quorum for the
transaction of business was present and acting throughout; and that said vote
has not been amended or rescinded and is now in full force and effect.
VOTED: That any officer of the Company executing, on behalf of the
Company or in any other capacity, the Registration Statement and
any and all amendments to such Registration Statement and other
documents to be filed with the Commission in connection therewith
is hereby authorized to execute the same through or by Henri A.
Termeer, David J. McLachlan, Mark A. Hofer, Evan M. Lebson or
Peter Wirth, as attorney-in-fact, pursuant to a power of attorney
reflecting such authorization.
WITNESS my signature this 11th day of October, 1995.
/s/ Peter Wirth
---------------------------
Peter Wirth, Clerk
