<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON NOVEMBER 24, 1997
REGISTRATION NUMBER 333-37123
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 3
TO
FORM S-2
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
LIFECELL CORPORATION
(Exact name of registrant as specified in its charter)
<TABLE>
<CAPTION>
<C> <C>
DELAWARE 76-0172936
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
J. DONALD PAYNE
VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
LIFECELL CORPORATION
3606 RESEARCH FOREST DRIVE 3606 RESEARCH FOREST DRIVE
THE WOODLANDS, TEXAS 77381 THE WOODLANDS, TEXAS 77381
281/367-5368 281/367-5368
(Address, including zip code, and telephone (Name, address, including zip code, and
number, including area code, of registrant's telephone number, including area
principal executive offices) code, of agent for service)
</TABLE>
Copies to:
<TABLE>
<C> <C>
ROBERT E. WILSON RODD M. SCHREIBER
FULBRIGHT & JAWORSKI L.L.P. SKADDEN, ARPS, SLATE, MEAGHER & FLOM (ILLINOIS)
1301 MCKINNEY, SUITE 5100 333 WEST WACKER DRIVE
HOUSTON, TEXAS 77010-3095 CHICAGO, ILLINOIS 60606
713/651-5151 312/407-0700
</TABLE>
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
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, check the following box. [ ]
If the registrant elects to deliver its latest annual report to security
holders, or a complete and legible facsimile thereof, pursuant to Item 11(a)(i)
of this Form, 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. [ ]
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, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(A), MAY DETERMINE.
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<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The estimated expenses in connection with the Offering are:
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee......... $ 12,546
NASD Filing Fee............................................. 4,640
Nasdaq National Market Listing Fee.......................... 50,000
Legal Fees and Expenses..................................... 300,000
Accounting Fees and Expenses................................ 60,000
Blue Sky Fees and Expenses (including legal fees)........... 50,000
Printing Expenses........................................... 150,000
Transfer Agent and Registrar Fees........................... 1,000
Miscellaneous............................................... 71,814
--------
TOTAL............................................. $700,000
========
</TABLE>
None of these expenses will be paid by the Selling Stockholders pursuant to
the terms of the agreements under which the shares of Common Stock to be sold
hereby are being registered.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article X of the Company's By-laws provides for mandatory indemnification
to at least the extent specifically allowed by Section 145 of the General
Corporation Law of the State of Delaware (the "GCL").
Pursuant to Section 145 of the GCL, the Company generally has the power to
indemnify its current and former directors, officers, employees and agents
against expenses and liabilities incurred by them in connection with any suit to
which they are, or are threatened to be made, a party by reason of their serving
in such positions so long as they acted in good faith and in a manner in which
they reasonably believed to be, or not opposed to, the best interest of the
Company, and with respect to any criminal action, they had no reasonable cause
to believe their conduct was unlawful. With respect to suits by or in the right
of the Company, however, indemnification is generally limited to attorneys' fees
and other expenses and is not available if such person is adjudged to be liable
to the Registrant unless the court determines that indemnification is
appropriate. The statute expressly provides that the power to indemnify
authorized thereby is not exclusive of any rights granted under any bylaw,
agreement, vote of stockholders or disinterested directors, or otherwise. The
Company also has the power to purchase and maintain insurance for such persons.
The above discussion of the Company's By-laws and Section 145 of the GCL is
not intended to be exhaustive and is qualified in its entirety by such document
and statute.
Directors and Officers are insured at the Company's expense, against
certain liabilities which might arise out of their employment and which are not
subject to indemnification under the By-laws.
Reference is made to the form of the Underwriting Agreement, filed as
Exhibit 1.1 hereto, which contains provisions for indemnification of the
Company, its directors, officers and any controlling persons by the Underwriters
against certain liabilities for information furnished by the Underwriters.
II-1
<PAGE> 3
ITEM 15. EXHIBITS.
(a) Exhibits:
<TABLE>
<CAPTION>
NO. DESCRIPTION
--- -----------
<C> <S>
1.1 -- Form of Underwriting Agreement.
3.1* -- Restated Certificate of Incorporation, as amended.
3.2 -- Amended and Restated By-laws (incorporated by reference
to Exhibit 3.2 to the Company's Quarterly Report on Form
10-Q for the period ended June 30, 1996).
4.1 -- Specimen Common Stock Certificate (incorporated by
reference to Exhibit 4.2 to Amendment No. 2 to the
Company's Registration Statement on Form S-1,
Registration No. 33-44969, filed with the Commission on
February 10, 1992).
4.2 -- See Exhibits numbered 3.1 and 3.2 for provisions of the
Restated Certificate of Incorporation and Amended and
Restated By-laws of LifeCell defining the rights of the
holders of Common Stock.
5.1* -- Opinion of Fulbright & Jaworski L.L.P.
10.1 -- LifeCell Corporation Second Amended and Restated 1992
Stock Option Plan, as amended (incorporated by reference
to Exhibit 10.1 to the Company's Quarterly Report on Form
10-Q for the period ended June 30, 1997, filed with the
Commission on August 12, 1997).
10.4 -- LifeCell Corporation Second Amended and Restated 1993
Non-Employee Director Stock Option Plan, as amended
(incorporated by reference to Exhibit 10.4 to the
Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996, filed with the Commission on
March 31, 1997).
10.5 -- Form of Confidentiality/Non-Compete Agreement
(incorporated by reference to Exhibit 10.28 to the
Company's Registration Statement on Form S-1,
Registration No. 33-44969, filed with the Commission on
January 9, 1992).
10.6 -- Exclusive License Agreement dated June 6, 1986, between
the Registrant and The Board of Regents of The University
of Texas System (incorporated by reference to Exhibit
10.29 to the Company's Registration Statement on Form
S-1, Registration No. 33-44969, filed with the Commission
on January 9, 1992).
10.7 -- Amended and Restated Registration Rights Agreement dated
February 26, 1992, by and between the Registration and
the stockholders named therein (incorporated by reference
to Exhibit 10.40 to Amendment No. 3 to the Company's
Registration Statement on Form S-1, Registration No.
33-44969, filed with the Commission on February 27,
1992).
10.8 -- Underwriter's Warrant Agreement dated March 6, 1992,
between the Registrant and Robert Todd Financial
Corporation, and First Amendment to Underwriter's Warrant
Agreement dated January 26, 1993, between the Registrant
and Robert Todd Financial Corporation (incorporated by
reference to Exhibit 10.18 to the Registrant's Annual
Report on Form 10-K for the fiscal year ended December
31, 1992).
</TABLE>
II-2
<PAGE> 4
<TABLE>
<CAPTION>
NO. DESCRIPTION
--- -----------
<C> <S>
10.9 -- Lease Agreement dated December 10, 1986, between the
Registrant and The Woodlands Corporation, Modification
and Ratification of Lease Agreement dated April 11, 1988,
between the Registration and The Woodlands Corporation
Modification and Ratification of Lease dated August 1,
1992, between the Company and The Woodlands Corporation
and Modification, Extension and Ratification of Lease
dated March 5, 1993, between the Registrant and The
Woodlands Corporation, and Modification and Ratification
of Lease Agreement dated December 21, 1995, between the
Company and The Woodlands Office Equities -- '95 Limited
(incorporated by reference to Exhibit 10.1 to the
Company's Quarterly Report on Form 10-Q for the period
ended March 31, 1996).
10.10 -- Lease Agreement dated September 1, 1988, between the
Registrant and The Woodlands Corporation, and
Modification of Lease Agreement dated March 5, 1993,
between the Registrant and The Woodlands Corporation
(incorporated by reference to Exhibit 10.22 to the
Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1992).
10.11 -- Stock Purchase Warrant dated January 26, 1993, issued to
Strategem of Alabama, Inc. (incorporated by reference to
Exhibit 10.25 to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1992).
10.12 -- License and Development Agreement dated March 3, 1994,
between the Registrant and Medtronic, Inc. (incorporated
by reference to Exhibit 10.1 to the Company's Current
Report on Form 8-K dated March 3, 1994).
10.13 -- Investment Agreement dated March 3, 1994, between the
Registrant and Medtronic, Inc. (incorporated by reference
to Exhibit 10.2 to Company's Current Report on Form 8-K
dated March 3, 1994).
10.14 -- Lease Agreement between LifeCell Corporation and Unichem,
dated August 1, 1994 (incorporated by reference to
Exhibit 10.3 to the Company's Quarterly Report on Form
10-Q for the period ended September 30, 1994).
10.15 -- Securities Purchase Agreement dated November 18, 1996,
between LifeCell Corporation and the Investors named
therein (incorporated by reference to Exhibit 10.15 to
the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1996).
10.16 -- Voting Agreement dated November 18, 1996, among LifeCell
Corporation and certain stockholders named therein
(incorporated by reference to Exhibit 10.15 to the
Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996).
10.17 -- Registration Rights Agreement dated November 18, 1996,
between LifeCell Corporation and certain stockholders
named therein (incorporated by reference to Exhibit 10.15
to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1996).
10.18 -- Form of Stock Purchase Warrant dated November 18, 1996,
issued to each of the warrant holders named on Schedule
10.19 attached thereto (incorporated by reference to
Exhibit 10.15 to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1996).
10.19 -- Stock Purchase Warrant dated November 18, 1996, issued to
Gruntal & Co., Incorporated (incorporated by reference to
Exhibit 10.19 to Amendment No. 1 to the Company's Annual
Report on Form 10-K for the fiscal year ended December
31, 1996 on Form 10-K/A).
</TABLE>
II-3
<PAGE> 5
<TABLE>
<CAPTION>
NO. DESCRIPTION
--- -----------
<C> <S>
10.20* -- Agreement dated July 1, 1997, between LifeCell
Corporation and Paul M. Frison.
10.21* -- Agreement dated July 1, 1997, between LifeCell
Corporation and Stephen A. Livesey.
23.1* -- Consent of Arthur Andersen LLP.
23.2* -- Consent of Fulbright & Jaworski L.L.P. (included in
Exhibit 5.1).
23.3* -- Consent of Arnold, White & Durkee.
24.1 -- Powers of Attorney from certain members of the Board of
Directors of the Company (contained on page II-5).
</TABLE>
- ---------------
* Previously filed.
As permitted by Item 601(b)(4) of Regulation S-K, the Company has not filed
with this Registration Statement certain instruments defining the rights of
holders of long-term debt of the Company, if any, because the total amount of
securities authorized under any of such instruments does not exceed 10% of the
total assets of the Company and its subsidiaries on a consolidated basis. The
Company agrees to furnish a copy of any such agreements to the Securities and
Exchange Commission upon request.
ITEM 16. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the Company
pursuant to the foregoing provisions, or otherwise, the Company has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of expenses
incurred or paid by a director, officer or controlling person of the Company 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 Company 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 Securities Act and will be governed by the final
adjudication of such issue.
The undersigned Company hereby undertakes to provide to the Underwriters at
the closing specified in the Underwriting Agreement certificates in such
denominations and registered in such names as required by the Underwriters to
permit prompt delivery to each purchaser.
The undersigned Company hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act, the information omitted from the form of prospectus filed as a part of
this Registration Statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the Company 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, 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-4
<PAGE> 6
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, LifeCell
Corporation has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-2 and has duly caused this Amendment No. 3 to
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of The Woodlands, State of Texas, on November 24,
1997.
LifeCell Corporation
By: /s/ PAUL M. FRISON
----------------------------------
Paul M. Frison
Chairman of the Board, President
and Chief Executive Officer
Pursuant to the requirements of the Securities Act, this Amendment No. 3 to
Registration Statement has been signed below by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ PAUL M. FRISON Chairman of the Board, November 24, 1997
- ----------------------------------------------------- President and Chief
Paul M. Frison Executive Officer
(Principal Executive
Officer)
/s/ J. DONALD PAYNE Vice President, Chief November 24, 1997
- ----------------------------------------------------- Financial Officer and
J. Donald Payne Secretary (Principal
Financial and Accounting
Officer)
* Director November 24, 1997
- -----------------------------------------------------
Michael E. Cahr
* Director November 24, 1997
- -----------------------------------------------------
James G. Foster
* Director November 24, 1997
- -----------------------------------------------------
Lori G. Koffman
* Director November 24, 1997
- -----------------------------------------------------
Stephen A. Livesey
Director , 1997
- -----------------------------------------------------
K. Flynn McDonald
* Director November 24, 1997
- -----------------------------------------------------
David A. Thompson
*By: /s/ J. DONALD PAYNE
------------------------------------------------
J. Donald Payne, Attorney-in-Fact
for each of the persons indicated
</TABLE>
II-5
<PAGE> 7
EXHIBIT INDEX
<TABLE>
<CAPTION>
NO. DESCRIPTION
--- -----------
<C> <S>
1.1 -- Form of Underwriting Agreement.
3.1* -- Restated Certificate of Incorporation, as amended.
3.2 -- Amended and Restated By-laws (incorporated by reference
to Exhibit 3.2 to the Company's Quarterly Report on Form
10-Q for the period ended June 30, 1996).
4.1 -- Specimen Common Stock Certificate (incorporated by
reference to Exhibit 4.2 to Amendment No. 2 to the
Company's Registration Statement on Form S-1,
Registration No. 33-44969, filed with the Commission on
February 10, 1992).
4.2 -- See Exhibits numbered 3.1 and 3.2 for provisions of the
Restated Certificate of Incorporation and Amended and
Restated By-laws of LifeCell defining the rights of the
holders of Common Stock.
5.1* -- Opinion of Fulbright & Jaworski L.L.P.
10.1 -- LifeCell Corporation Second Amended and Restated 1992
Stock Option Plan, as amended (incorporated by reference
to Exhibit 10.1 to the Company's Quarterly Report on Form
10-Q for the period ended June 30, 1997, filed with the
Commission on August 12, 1997).
10.4 -- LifeCell Corporation Second Amended and Restated 1993
Non-Employee Director Stock Option Plan, as amended
(incorporated by reference to Exhibit 10.4 to the
Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996, filed with the Commission on
March 31, 1997).
10.5 -- Form of Confidentiality/Non-Compete Agreement
(incorporated by reference to Exhibit 10.28 to the
Company's Registration Statement on Form S-1,
Registration No. 33-44969, filed with the Commission on
January 9, 1992).
10.6 -- Exclusive License Agreement dated June 6, 1986, between
the Registrant and The Board of Regents of The University
of Texas System (incorporated by reference to Exhibit
10.29 to the Company's Registration Statement on Form
S-1, Registration No. 33-44969, filed with the Commission
on January 9, 1992).
10.7 -- Amended and Restated Registration Rights Agreement dated
February 26, 1992, by and between the Registration and
the stockholders named therein (incorporated by reference
to Exhibit 10.40 to Amendment No. 3 to the Company's
Registration Statement on Form S-1, Registration No.
33-44969, filed with the Commission on February 27,
1992).
10.8 -- Underwriter's Warrant Agreement dated March 6, 1992,
between the Registrant and Robert Todd Financial
Corporation, and First Amendment to Underwriter's Warrant
Agreement dated January 26, 1993, between the Registrant
and Robert Todd Financial Corporation (incorporated by
reference to Exhibit 10.18 to the Registrant's Annual
Report on Form 10-K for the fiscal year ended December
31, 1992).
10.9 -- Lease Agreement dated December 10, 1986, between the
Registrant and The Woodlands Corporation, Modification
and Ratification of Lease Agreement dated April 11, 1988,
between the Registration and The Woodlands Corporation
Modification and Ratification of Lease dated August 1,
1992, between the Company and The Woodlands Corporation
and Modification, Extension and Ratification of Lease
dated March 5, 1993, between the Registrant and The
Woodlands Corporation, and Modification and Ratification
of Lease Agreement dated December 21, 1995, between the
Company and The Woodlands Office Equities -- '95 Limited
(incorporated by reference to Exhibit 10.1 to the
Company's Quarterly Report on Form 10-Q for the period
ended March 31, 1996).
</TABLE>
<PAGE> 8
<TABLE>
<CAPTION>
NO. DESCRIPTION
--- -----------
<C> <S>
10.10 -- Lease Agreement dated September 1, 1988, between the
Registrant and The Woodlands Corporation, and
Modification of Lease Agreement dated March 5, 1993,
between the Registrant and The Woodlands Corporation
(incorporated by reference to Exhibit 10.22 to the
Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1992).
10.11 -- Stock Purchase Warrant dated January 26, 1993, issued to
Strategem of Alabama, Inc. (incorporated by reference to
Exhibit 10.25 to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1992).
10.12 -- License and Development Agreement dated March 3, 1994,
between the Registrant and Medtronic, Inc. (incorporated
by reference to Exhibit 10.1 to the Company's Current
Report on Form 8-K dated March 3, 1994).
10.13 -- Investment Agreement dated March 3, 1994, between the
Registrant and Medtronic, Inc. (incorporated by reference
to Exhibit 10.2 to Company's Current Report on Form 8-K
dated March 3, 1994).
10.14 -- Lease Agreement between LifeCell Corporation and Unichem,
dated August 1, 1994 (incorporated by reference to
Exhibit 10.3 to the Company's Quarterly Report on Form
10-Q for the period ended September 30, 1994).
10.15 -- Securities Purchase Agreement dated November 18, 1996,
between LifeCell Corporation and the Investors named
therein (incorporated by reference to Exhibit 10.15 to
the Company's Annual Report on Form 10-K for the fiscal
year ended December 31, 1996).
10.16 -- Voting Agreement dated November 18, 1996, among LifeCell
Corporation and certain stockholders named therein
(incorporated by reference to Exhibit 10.15 to the
Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 1996).
10.17 -- Registration Rights Agreement dated November 18, 1996,
between LifeCell Corporation and certain stockholders
named therein (incorporated by reference to Exhibit 10.15
to the Company's Annual Report on Form 10-K for the
fiscal year ended December 31, 1996).
10.18 -- Form of Stock Purchase Warrant dated November 18, 1996,
issued to each of the warrant holders named on Schedule
10.19 attached thereto (incorporated by reference to
Exhibit 10.15 to the Company's Annual Report on Form 10-K
for the fiscal year ended December 31, 1996).
10.19 -- Stock Purchase Warrant dated November 18, 1996, issued to
Gruntal & Co., Incorporated (incorporated by reference to
Exhibit 10.19 to Amendment No. 1 to the Company's Annual
Report on Form 10-K for the fiscal year ended December
31, 1996 on Form 10-K/A).
10.20* -- Agreement dated July 1, 1997, between LifeCell
Corporation and Paul M. Frison.
10.21* -- Agreement dated July 1, 1997, between LifeCell
Corporation and Stephen A. Livesey.
23.1* -- Consent of Arthur Andersen LLP.
23.2* -- Consent of Fulbright & Jaworski L.L.P. (included in
Exhibit 5.1).
23.3* -- Consent of Arnold, White & Durkee.
24.1 -- Powers of Attorney from certain members of the Board of
Directors of the Company (contained on page II-5).
</TABLE>
- ---------------
* Previously filed.
<PAGE> 1
4,500,000 Shares
LIFECELL CORPORATION
Common Stock
UNDERWRITING AGREEMENT
November __, 1997
VECTOR SECURITIES INTERNATIONAL, INC.
GRUNTAL & CO., L.L.C.
As Representatives of the Several Underwriters
c/o VECTOR SECURITIES INTERNATIONAL, INC.
1751 Lake Cook Road, Suite 350
Deerfield, Illinois 60015
Dear Sirs:
LifeCell Corporation, a Delaware corporation (the "Company"),
and the persons or entities listed in Schedule II hereto (the "Selling
Stockholders"), confirm their respective agreements with the several
Underwriters named in Schedule I hereto (the "Underwriters") for whom Vector
Securities International, Inc. ("Vector"), and Gruntal & Co., L.L.C. are acting
as representatives (the "Representatives") with respect to (i) the sale by the
Company and the Selling Stockholders, acting severally and not jointly, and the
purchase by the Underwriters, acting severally and not jointly, of the
respective numbers of shares of Common Stock, par value $.001 per share (the
"Initial Securities"), of the Company set forth in Schedules I and II hereto
and (ii) the grant by the Company and the Selling Stockholders, acting severally
and not jointly, to the Underwriters, acting severally and not jointly, of the
option described in Section 2 hereof to purchase up to an aggregate of 675,000
additional shares of Common Stock of the Company (the "Option Securities") to
cover over-allotments, if any. The Initial Securities and the Option Securities
are hereinafter collectively referred to as the "Securities." The Company's
Common Stock, par value $.001 per share, including the Securities, is
hereinafter referred to as the "Common Stock." The Company and the Selling
Stockholders wish to confirm as follows their respective agreements with you and
the other Underwriters on whose behalf you are acting in connection with the
several purchases by the Underwriters of the Securities:
1
<PAGE> 2
1. REGISTRATION STATEMENT AND PROSPECTUS. The Company has
prepared and filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-2 (No. 333-37123) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus, or prospectuses, and
either (A) has prepared and filed, prior to the effective date of such
registration statement, an amendment to such registration statement, including
a final prospectus or (B) if the Company has elected to rely upon Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations"), will prepare and file a prospectus, in accordance
with the provisions of Rule 430A and Rule 424(b) ("Rule 424(b)") of the 1933 Act
Regulations, promptly after execution and delivery of this Agreement.
Additionally, if the Company has elected to rely upon Rule 434 ("Rule 434") of
the 1933 Act Regulations, the Company will prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b),
promptly after execution and delivery of this Agreement. The information, if
any, included in such prospectus or in such Term Sheet, that was omitted from
such registration statement at the time it became effective but that is deemed
to be part of such registration statement at the time it became effective (a)
pursuant to paragraph (b) of Rule 430A, is referred to herein as the "Rule 430A
Information," or (b) pursuant to paragraph (d) of Rule 434, is referred to
herein as the "Rule 434 Information." Each prospectus used before the time such
registration statement became effective, and any prospectus that omitted, as
applicable, the Rule 430A Information or the Rule 434 Information that was used
after effectiveness and prior to the execution and delivery of this Agreement is
herein called a "preliminary prospectus." Such registration statement, including
the exhibits thereto, schedules thereto, if any, and the documents incorporated
by reference therein pursuant to Item 12 of Form S-2 under the 1933 Act, at the
time it became effective and including the Rule 430A Information or the Rule 434
Information, as applicable, is herein called the "Registration Statement." Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations
is herein referred to as the "Rule 462(b) Registration Statement," and after
such filing the term Registration Statement shall include the Rule 462(b)
Registration Statement. The final prospectus, including the documents
incorporated by reference therein pursuant to Item 12 of Form S-2 under the 1933
Act, in the form first furnished to the Underwriters for use in connection with
the offering of the Securities is herein referred to as the "Prospectus." If
Rule 434 is relied upon, the term "Prospectus" shall refer to the preliminary
prospectus last furnished to the Underwriters in connection with the offering of
the Securities, together with the Term Sheet, and all references to the date of
the Prospectus shall mean the date of the Term Sheet. For purposes of this
Agreement, all references to the Registra-
2
<PAGE> 3
tion Statement, any preliminary prospectus, the Prospectus or any Term Sheet or
any amendment or supplement to any of the foregoing shall be deemed to include
the copy, if any, filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("EDGAR").
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement, any preliminary prospectus or the Prospectus (or
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which is
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectus, as the case may be.
2. AGREEMENTS TO SELL AND PURCHASE. Upon the basis of the
representations, warranties and agreements contained herein and subject to all
the terms and conditions set forth herein, the Company and each Selling
Stockholder, severally and not jointly, agree to sell to each Underwriter,
severally and not jointly, and each Underwriter, severally and not jointly,
agrees to purchase from the Company and each Selling Stockholder, at a purchase
price of $ ___ per share (the "purchase price per share"), that proportion of
the number of Initial Securities set forth in Schedule II opposite the name of
the Company or such Selling Stockholder, as the case may be, which the number of
Initial Securities set forth in Schedule I opposite the name of such Underwriter
under the column "Number of Initial Securities" (or such number of Initial
Securities increased as set forth in Section 10 hereof) bears to the total
number of Initial Securities, subject, in each case, to such adjustments among
the Underwriters as the Representatives in their sole discretion shall make to
eliminate any sales or purchases of fractional shares.
Upon the basis of the representations, warranties and
agreements contained herein and subject to all the terms and conditions set
forth herein, the Company and the Selling Stock holders, acting severally and
not jointly, grant an option (the "over-allotment option") to the Underwriters
to purchase, at the purchase price per share, up to 81,680 Option Securities
from the Company and up to 593,320 Option Securities from the Selling
Stockholders, as set forth in Schedule II. Option Securities may be purchased
solely for the purpose of covering over-allotments
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<PAGE> 4
made in connection with the offering of the Securities and, if purchased, shall
be purchased first from the Selling Stockholders and then, to the extent that
such purchase, together with all previous purchases of Option Securities,
exceeds the number of Option Securities of the Selling Stockholders as set forth
in Schedule II, from the Company. Such option shall expire at 5:00 P.M., Chicago
time, on the 30th day after the date of this Agreement (or, if such 30th day
shall be a Saturday or Sunday or a holiday, on the next business day thereafter
when the New York Stock Exchange is open for trading). Such over-allotment
option may be exercised at any time or from time to time until its expiration.
Upon any exercise of the over-allotment option, each Underwriter, severally and
not jointly, agrees to purchase that proportion of the total number of Option
Securities then being purchased which the number of Initial Securities set forth
in Schedule I opposite the name of such Underwriter under the column "Number of
Initial Securities" (or such number of Initial Securities increased as set
forth in Section 10 hereof) bears to the total number of Initial Securities,
subject, in each case, to such adjustments as the Representatives in their sole
discretion shall make to eliminate any sales or purchases of fractional shares.
3. TERMS OF PUBLIC OFFERING. The Company and the Selling
Stockholders have been advised by you that the Underwriters propose to make a
public offering of the Securities as soon after the Registration Statement and
this Agreement have become effective as in your judgment is advisable and
initially to offer the Securities upon the terms set forth in the Prospectus.
4. DELIVERY OF THE SECURITIES AND PAYMENT THEREFOR. Delivery
to the Underwriters of and payment for the Initial Securities shall be made at
the offices of Skadden, Arps, Slate, Meagher & Flom (Illinois), 333 West Wacker
Drive, Chicago, Illinois 60606, at 9:00 A.M., Chicago time, on the third
(fourth, if the pricing occurs after 4:30 p.m. (Eastern Time) on any given day)
business day after the date hereof (unless postponed in accordance with the
provisions of Section 10 hereof) (the "Closing Date"). The place of closing for
the Initial Securities and the Closing Date may be varied by agreement among
you, the Company and the Selling Stockholders.
Delivery to the Underwriters of and payment for any Option
Securities to be purchased by the Underwriters shall be made at the
aforementioned office of Skadden, Arps, Slate, Meagher & Flom (Illinois) at such
time on such date (an "Option Closing Date"), which may be the same as the
Closing Date but shall in no event be earlier than the Closing Date nor earlier
than two nor later than ten business days after the giving of the notice
hereinafter referred to, as shall be specified in a written notice from you on
behalf of the Underwriters to the
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<PAGE> 5
Company and the Selling Stockholders of the Underwriters' determination to
purchase a number, specified in such notice, of Option Securities. The place of
closing for any Option Securities and the Option Closing Date for such Option
Securities may be varied by agreement between you, the Company and the Selling
Stockholders.
Certificates for the Initial Securities and for any Option
Securities to be purchased hereunder shall be registered in such names and in
such denominations as you shall request by written notice (it being understood
that a facsimile transmission shall be deemed written notice) prior to 9:30
A.M., Chicago time, on the second business day preceding the Closing Date or any
Option Closing Date, as the case may be. Such certificates shall be made
available to you in Chicago, Illinois or New York, New York, as requested by you
in the aforesaid notice, for inspection and packaging not later than 9:30 A.M.,
Chicago time, on the business day next preceding the Closing Date or an Option
Closing Date, as the case may be. The certificates evidencing the Initial
Securities and any Option Securities to be purchased hereunder shall be
delivered to you on the Closing Date or the Option Closing Date, as the case may
be, against payment of the purchase price therefor to the Company and the
Selling Stockholders, as applicable, by wire transfer of immediately available
funds to bank accounts designated by the Company and the Custodian (as defined
in Section 6(b)(iv) hereof) pursuant to each Selling Stockholder's Power of
Attorney and Custody Agreement (as defined in Section 6(b)(ii) hereof), as the
case may be, against delivery to the Representatives for the respective accounts
of the Underwriters of certificates for the Securities to be purchased by them.
It is understood that each Underwriter has authorized you, for its account, to
accept delivery of, acknowledge receipt of, and make payment of the purchase
price for, the Initial Securities and the Option Securities, if any, which it
has agreed to purchase. Vector, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Initial Securities or the Option Securities, if any, to be
purchased by any Under writer whose check has not been received by the Closing
Date or the Option Closing Date, as the case may be, but such payment shall not
relieve such Underwriter from its obligations hereunder.
5. AGREEMENTS OF THE COMPANY. The Company covenants and agrees
with the several Underwriters as follows:
a. The Company will notify the Underwriters
immediately, and confirm the notice in writing, (i) of the effectiveness of the
Registration Statement and any amendment thereto, (ii) of the receipt of any
comments from the Commission, (iii) of any request by the Commission for any
amendment to the
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<PAGE> 6
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the suspension of
qualification of the Securities for offering or sale in any jurisdiction or the
initiation of any proceedings for such purpose and (v) during the period when
the Prospectus is required to be delivered under the 1933 Act or the 1934 Act of
any change, or any event or occurrence which could result in such a change, in
the Company's condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company or the happening of any event,
including the filing of any information, documents or reports pursuant to the
1934 Act, that makes any statement of a material fact made in the Registration
Statement or the Prospectus (as then amended or supplemented) untrue or which
requires the making of any additions to or changes in the Registration Statement
or the Prospectus in order to state a material fact required by the 1933 Act or
the 1933 Act Regulations to be stated therein or necessary in order to make the
statements therein not misleading, or of the necessity to amend or supplement
the Prospectus to comply with the 1933 Act, the 1933 Act Regulations or any
other law. The Company shall use its commercially reason able efforts to prevent
the issuance of any stop order or order suspending the qualification or
exemption of the Securities under any state securities or Blue Sky laws, and, if
at any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, or any state securities commission
or other regulatory authority shall issue an order suspending the qualification
or exemption of the Securities under any state securities or Blue Sky laws, the
Company shall use every reasonable effort to obtain the withdrawal or lifting of
such order at the earliest possible time.
b. The Company will give the Underwriters notice
of its intention to prepare or file any amendment to the Registration Statement
(including any post-effective amendment), any Rule 462(b) Registration
Statement, any Term Sheet or any amendment or supplement to the Prospectus
(including any revised prospectus or Term Sheet and preliminary prospectus which
the Company proposes for use by the Underwriters in connection with the offering
of the Securities which differs from the prospectus on file at the Commission at
the time the Registration Statement becomes effective, whether or not such
revised prospectus or Term Sheet and preliminary prospectus is required to be
filed pursuant to Rule 424(b)), whether pursuant to the 1933 Act, the 1934 Act
or otherwise, will furnish the Underwriters with copies of any Rule 462(b)
Registration Statement, Term Sheet, amendment or supplement a reasonable amount
of time prior to such proposed filing or use, as the case may be, and will not
file any such Rule 462(b) Registration Statement, Term Sheet, amendment or
supplement or use any such prospectus to which the Underwriters or counsel for
the Underwriters shall object.
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<PAGE> 7
c. The Company has furnished or will deliver to
the Underwriters and their counsel, without charge, as many signed and conformed
copies of the Registration Statement as originally filed and of each amendment
thereto (including exhibits filed therewith or incorporated by reference
therein and documents incorporated or deemed to be incorporated by reference
therein) as the Underwriters may reasonably request. If applicable, the copies
of the Registration Statement and each amendment thereto (including exhibits
filed therewith or incorporated by reference therein and documents incorporated
or deemed to be incorporated by reference therein) furnished to the Underwriters
will be identical to the electronically transmitted copies thereof filed with
the Commission pursuant to EDGAR, except to the extent permitted by Regulation
S-T.
d. The Company will furnish to each Underwriter,
without charge, from time to time during the period when the Prospectus is
required to be delivered under the 1933 Act or the 1934 Act, such number of
copies of the Prospectus (as amended or supplemented) as such Underwriter may
reasonably request for the purposes contemplated by the 1933 Act, the 1934 Act,
the 1933 Act Regulations or the rules and regulations of the Commission under
the 1934 Act (the "1934 Act Regulations"). If applicable, the Prospectus and any
amendments or supplements thereto furnished to the Underwriters will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
e. The Company will comply with the 1933 Act and
the 1933 Act Regulations so as to permit the completion of the distribution of
the Securities as contemplated in this Agreement and in the Prospectus. If at
any time when a prospectus is required by the 1933 Act, the 1934 Act, the 1933
Act Regulations or the 1934 Act Regulations to be delivered in connection with
sales of the Securities, any event shall occur or condition shall exist as a
result of which it is necessary, in the opinion of counsel for the Underwriters
or for the Company, to amend the Registration Statement or amend or supplement
the Prospectus in order that the Prospectus will not include any untrue
statements of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to Section
5(b), such amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectus comply with
such requirements and the Company will furnish to the Underwriters such
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<PAGE> 8
number of copies of such amendment or supplement as the Underwriters may
reasonably request.
f. During the period of five years hereafter, the
Company will furnish to you (i) as soon as available, a copy of each report of
the Company mailed to stockholders or filed with the Commission, and (ii) from
time to time such other information concerning the Company as you may reasonably
request.
g. The Company will use its commercially reasonable
efforts, in cooperation with counsel to the Underwriters, to qualify the
Securities for offering and sale under the applicable securities or Blue Sky
laws of such states and other jurisdictions of the United States as the
Underwriters may designate and to maintain such qualifications in effect for a
period of not less than one year from the effective date of the Registration
Statement; provided, however, that the Company shall not be obligated to qualify
as a foreign corporation in any jurisdiction in which it is not so qualified. In
each jurisdiction in which the Securities have been so qualified, the Company
will file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not less
than one year from the effective date of the Registration Statement.
h. The Company will make generally available to
its security holders as soon as practicable, but not later than 45 days after
the close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 of the 1933 Act Regulations) covering
a twelve-month period beginning not later than the first day of the Company's
fiscal quarter next following the "effective date" (as defined in said Rule 158)
of the Registration Statement.
i. The Company will use the net proceeds received
by it from the sale of the Securities in the manner specified in
the Prospectus under "Use of Proceeds."
j. If, at the time that the Registration Statement
becomes effective, any Rule 430A Information or Rule 434 Information shall
have been omitted therefrom, then immediately following the execution of this
Agreement, the Company will prepare, and file or transmit for filing with the
Commission in accordance with Rule 430A or Rule 434 and Rule 424(b), copies of a
Prospectus or Term Sheet containing such Rule 430A Information and Rule 434
Information, respectively, or, if required by Rule 430A, a post-effective
amendment to the Registration Statement (including an amended Prospectus),
containing such Rule 430A Information.
k. If the Company elects to rely upon Rule
462(b), the Company shall both file a Rule 462(b) Registration
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<PAGE> 9
Statement with the Commission in compliance with Rule 462(b) and pay the
applicable fees in accordance with Rule 111 of the 1933 Act Regulations by the
earlier of (i) 10:00 P.M. Eastern Time on the date hereof and (ii) the time
confirmations are sent or given, as specified by Rule 462(b)(2).
l. The Company, during the period when the Prospectus
is required to be delivered under the 1933 Act or the 1934 Act, will file all
documents required to be filed with the Commission pursuant to Section 13, 14 or
15 of the 1934 Act within the time periods required by the 1934 Act and the 1934
Act Regulations.
m. During a period of 90 days from the date of
the Prospectus, the Company will not, without the prior written consent of
Vector, (i) offer, pledge, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase or otherwise transfer or dispose of, directly or indirectly,
any share of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or file any registration statement under the 1933
Act with respect to any of the foregoing or (ii) enter into any swap or any
other agreement or any transaction that transfers, in whole or in part, directly
or indirectly, the economic consequence of ownership of the Common Stock,
whether any such swap or transaction described in clause (i) or (ii) above is to
be settled by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (A) the Securities to be
sold hereunder, (B) any shares of Common Stock issued by the Company upon the
exercise of an option or warrant or the conversion of security outstanding on
the date hereof and referred to in the Prospectus, (C) any shares of Common
Stock issued or options to purchase Common Stock granted pursuant to existing
employee or director benefit plans of the Company referred to in the Prospectus,
or (D) any securities issued as dividends on the Company's Series B Preferred
Stock, par value $.001 per share.
n. The Company has furnished or will furnish to
you "lock-up" letters, in form and substance satisfactory to you, signed by each
of its current officers and directors and each of its stockholders listed on
Schedule III hereto.
o. The Company will not waive, modify or amend,
or otherwise release any of the Investors (as defined below) from their
obligations under, the sale restrictions contained in the Securities Purchase
Agreement, dated as of November 18, 1996, by and among the Company and the
persons and entities whose names are set forth on Schedule I thereto, including
their respective successors and assigns (the "Investors"), in each case without
the prior written consent of Vector.
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<PAGE> 10
p. The Company will supply the Underwriters with
copies of all correspondence to and from, and all documents issued to and by,
the Commission in connection with the registration of the Securities under the
1933 Act.
q. Prior to the Closing Date, the Company shall
furnish to the Underwriters, as soon as they have been prepared, copies of any
unaudited interim consolidated financial statements of the Company and its
subsidiaries, for any periods subsequent to the periods covered by the financial
statements appearing in the Registration Statement and the Prospectus.
r. Prior to the Closing Date, the Company will
issue no press release or other communications directly or indirectly and hold
no press conference with respect to the Company, the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company, or the offering of the Securities, without the prior written consent of
the Representatives unless in the judgment of the Company and its counsel, and
after notification to the Representatives, such press release or communication
is required by law.
s. The Company has not taken, nor will it take,
directly or indirectly, any action designed to, or that might reasonably be
expected to, cause or result in stabilization or manipulation of the price of
the Common Stock to facilitate the sale or resale of the Securities.
t. The Company will use its commercially reasonable
efforts to maintain the listing of the Common Stock (including the Securities)
on the Nasdaq Small Cap Market ("Nasdaq") and will file with Nasdaq all
documents and notices required by Nasdaq of companies that have securities that
are traded in the over-the-counter market and quotations for which are reported
by Nasdaq. The Company will use its commercially reasonable efforts to obtain
approval for the listing of the Common Stock (including the Securities) on the
Nasdaq National Market as soon as reasonably practicable from the date of this
Agreement.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE
SELLING STOCKHOLDERS.
a. The Company represents and warrants to each
Underwriter that:
(i) The Company meets the requirements for use of
Form S-2 under the 1933 Act. When the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendment thereto
becomes effective, at the date of the Prospectus, if different, and at
the Closing Date and the Option
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Closing Date, as the case may be, the Registration Statement, the Rule
462(b) Registration Statement and any amendments and supplements
thereto complied or will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and did not
and will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading. The Prospectus and any
supplements or amendments thereto will not at the date of the
Prospectus, at the date of any such supplements or amendments, or at
the Closing Date or the Option Closing Date, if any, include an untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If Rule 434
is used, the Company will comply with the requirements of Rule 434 and
the Prospectus shall not be "materially different," as such term is
used in Rule 434, from the Prospectus included in the Registration
Statement at the time it became effective. The representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus relating to
any Underwriter made in reliance upon and in conformity with
information furnished to the Company in writing by any Underwriter,
through Vector expressly for use in the Registration Statement or
Prospectus. The Company has not distributed any offering materials in
connection with the offering or sale of the Securities other than the
Registration Statement, the preliminary prospectus, the Prospectus,
the Term Sheet, if applicable, or any other materials, if any,
permitted by the 1933 Act or the 1933 Act Regulations.
(ii) Each preliminary prospectus and the prospectus
filed as part of the Registration Statement as originally filed or as
part of any amendment thereto, or filed pursuant to Rule 424 under the
1933 Act, complied when so filed in all material respects with the 1933
Act Regulations and, if applicable, each preliminary prospectus and the
Prospectus delivered to the Underwriters for use in connection with
this offering was identical to the electronically transmitted copies
thereof filed with the Commission pursuant to EDGAR, except to the
extent permitted by Regulation S-T.
(iii) The documents incorporated or deemed to be
incorporated by reference in the Registration Statement and the
Prospectus, when they became effective or at the time they were or
hereafter are
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<PAGE> 12
filed with the Commission, complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations or the 1934 Act and the 1934 Act Regulations, as
applicable, and, when read together with the other information in the
Prospectus, at the time the Registration Statement became effective,
at the time the Prospectus was issued and on the Closing Date (and, if
any Option Securities are purchased, on each Option Closing Date), did
not and will not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading.
(iv) The accountants who certified the financial
statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933
Act and the 1933 Act Regulations.
(v) The financial statements included in the
Registration Statement and the Prospectus present fairly the financial
position of the Company as of the dates indicated and the results of
its operations for the periods specified; except as otherwise stated in
the Registration Statement, said financial statements have been
prepared in conformity with generally accepted accounting principles
("GAAP") applied on a consistent basis; and the supporting schedules,
if any, included in the Registration Statement present fairly in
accordance with GAAP the information required to be stated therein. The
financial information and statistical data (to the extent derived from
or relating to the Company's financial information) relating to the
Company set forth in the Prospectus are prepared on an accounting basis
consistent with such financial statements.
(vi) Since the respective dates as of which
information is given in the Registration Statement and the Prospectus,
except as otherwise stated therein, (i) there has been no material
adverse change or any development involving a prospective material
adverse change in or affecting the condition, financial or otherwise,
or in the earnings, business affairs or business prospects of the
Company, whether or not arising in the ordinary course of business,
(ii) there have been no transactions entered into by the Company, other
than those in the ordinary course of business, which are material with
respect to the Company, and (iii) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class
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of its capital stock. The Company has no material contingent
obligations which are not disclosed in the Registration Statement.
(vii) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Delaware with corporate power and authority to own, lease
and operate its properties and to conduct its business as described in
the Prospectus and to enter into and perform its obligations under this
Agreement; and the Company is duly qualified as a foreign corporation
to transact business and is in good standing in each jurisdiction in
which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except
where the failure to so qualify would not, singly or in the aggregate,
have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of
the Company.
(viii) The Company does not own, directly or
indirectly, any shares of stock or any other equity or long-term debt
securities of any corporation or have any equity interest in any firm,
partnership, joint venture, association or other entity.
(ix) The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus under
"Capitalization" (except for subsequent issuances, if any, pursuant to
this Agreement or pursuant to reservations, agreements, employee or
director benefit plans or the exercise of convertible securities
referred to in the Prospectus); the shares of issued and outstanding
capital stock of the Company, including the Securities to be purchased
by the Underwriters from the Selling Stockholders, have been duly
authorized and validly issued and are fully paid and non-assessable and
have not been issued in violation of or are not otherwise subject to
any preemptive or other similar rights; the Securities to be purchased
by the Underwriters from the Company have been duly authorized for
issuance and sale to the Underwriters pursuant to this Agreement and,
when issued and delivered by the Company pursuant to this Agreement
against payment of the consideration set forth herein, will be validly
issued and fully paid and non-assessable; the certificates evidencing
the Securities are in due and proper form under Delaware law; the
authorized capital stock of the Company, including the Securities,
conforms to all statements relating thereto contained in the
Prospectus; and the issuance of the
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<PAGE> 14
Securities to be purchased by the Underwriters from the Company is not
subject to preemptive or other similar rights. There are no outstanding
subscriptions, options, warrants, convertible or exchangeable
securities or other rights granted to or by the Company to purchase
shares of Common Stock or other securities of the Company and there are
no commitments, plans or arrangements to issue any shares of Common
Stock or any security convertible into or exchangeable for Common
Stock, in each case other than as described in the Prospectus.
(x) Except as disclosed in the Registration
Statement and except as would not, singly or in the aggregate,
reasonably be expected to have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs
or business prospects of the Company, (A) the Company is in compliance
with all applicable Environmental Laws, (B) the Company has all
permits, authorizations and approvals required under any applicable
Environmental Laws and is in compliance with the requirements of such
permits, authorizations and approvals, (C) there are no pending or, to
the knowledge of the Company, threatened Environmental Claims against
the Company and (D) under applicable law, there are no circumstances
with respect to any property or operations of the Company that are
reasonably likely to form the basis of an Environmental Claim against
the Company.
For purposes of this Agreement, the following terms shall have the following
meanings: "Environmental Law" means any United States (or other applicable
jurisdiction's) federal, state, local or municipal statute, law, rule,
regulation, ordinance, code, policy or rule of common law and any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent decree or judgment, relating to the environment, health, safety
or any chemical, material or substance, exposure to which is prohibited, limited
or regulated by any governmental authority. "Environmental Claims" means any and
all administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation, investigations or
proceedings relating in any way to any Environmental Law.
(xi) The Company is not in violation of its Restated
Certificate of Incorporation, as amended (the "Charter"), or in default
in the performance or observance of any obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, loan
agreement, deed, trust, note, lease, sublease, voting agreement,
voting trust, or other instrument or agreement to which the Company is
a party or by
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<PAGE> 15
which it may be bound, or to which any of the property or assets of the
Company is subject, except such defaults which would not, singly or in
the aggregate, reasonably be expected to have a material adverse effect
on the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company; and the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated herein and compliance by the Company with its
obligations hereunder have been duly authorized by all necessary
corporate action and will not conflict with or constitute a breach of,
or default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company
pursuant to, any contract, indenture, mortgage, loan agreement, deed,
trust, note, lease, sublease, voting agreement, voting trust or other
instrument or agreement to which the Company is a party or by which it
may be bound, or to which any of the property or assets of the Company
is subject, except such conflicts, breaches, defaults, liens, charges
or encumbrances which would not, singly or in the aggregate,
reasonably be likely to have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company, nor will such action result in any
violation of the provisions of the Charter or bylaws of the Company or
result in a violation of any applicable statute, law, rule, regulation,
ordinance, decision, directive or order.
(xii) No labor dispute with the employees of the
Company exists or, to the knowledge of the Company, is imminent; and
the Company is not aware of any existing or imminent labor disturbance
by the employees of any of its principal suppliers, manufacturers or
contractors which might, singly or in the aggregate, be expected to
result in any material ad verse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects
of the Company.
(xiii) There is no action, suit or proceeding before
or by any court or governmental agency or body, domestic or foreign,
now pending, or, to the knowledge of the Company, threatened, against
or affecting the Company, which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which,
singly or in the aggregate, might result in any material adverse change
in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company, or which,
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<PAGE> 16
singly or in the aggregate, might materially and adversely affect the
properties or assets thereof or which might materially and adversely
affect the consummation of this Agreement; all pending legal or govern
mental proceedings to which the Company is a party or of which any of
its property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation
incidental to the business, are, considered in the aggregate, not
material; and there are no contracts or documents of the Company which
are required to be described or referred to in the Registration
Statement, the Prospectus or the documents incorporated by reference
therein or to be filed as exhibits thereto which have not been so
described or referred to therein and filed as required.
(xiv) The Company owns or is licensed to use all
patents, patent applications, inventions, trademarks, trade names,
applications for registration of trademarks, service marks, service
mark applications, copyrights, know-how, manufacturing processes,
formulae, trade secrets, licenses and rights in any thereof and any
other intangible property and assets (herein called the "Proprietary
Rights") which are material to the business of the Company as now
conducted and as proposed to be conducted, in each case as described
in the Prospectus. The description of the Proprietary Rights is correct
in all material respects and fairly and correctly describes the
Company's rights with respect thereto. The Company does not have any
knowledge of, and the Company has not given or received any notice of,
any pending conflicts with or infringement of the rights of others
with respect to any Proprietary Rights or with respect to any license
of Proprietary Rights. No action, suit, arbitration, or legal,
administrative or other proceeding, or investigation is pending, or,
to the best knowledge of the Company, threatened, which involves any
Proprietary Rights. The Company is not subject to any judgment, order,
writ, injunction or decree of any court or any Federal, state, local,
foreign or other governmental department, commission, board, bureau,
agency or instrumentality, domestic or foreign, or any arbitrator, or
has entered into or is a party to any contract which restricts or
impairs the use of any such Proprietary Rights in a manner which would
have a material adverse effect on the use of any of the Proprietary
Rights. To the best knowledge of the Company, no Proprietary Rights
used by the Company, and no services or products sold by the Company,
conflict with or infringe upon any proprietary rights available to any
third party. The Company has not received written notice of any pending
16
<PAGE> 17
conflict with or infringement upon such third-party proprietary rights.
The Company has not entered into any consent, indemnification,
forbearance to sue or settlement agreement with respect to Proprietary
Rights other than in the ordinary course of business. No claims have
been asserted by any person with respect to the validity of the
Company's ownership or right to use the Proprietary Rights and, to the
best knowledge of the Company, there is no reasonable basis for any
such claim to be successful. The Proprietary Rights are valid and
enforceable and no registration relating thereto has lapsed, expired or
been abandoned or cancelled or is the subject of cancellation or other
adversarial proceedings, and all applications therefore are pending and
are in good standing. The Company has complied, in all material
respects, with its contractual obligations relating to the protection
of the Proprietary Rights used pursuant to licenses. To the best
knowledge of the Company, no person is infringing on or violating the
Proprietary Rights owned or used by the Company.
(xv) No registration, authorization, approval,
qualification or consent of any court or governmental authority or
agency is necessary in connection with the offering, issuance or sale
of the Securities hereunder, except such as may be required under the
1933 Act or the 1933 Act Regulations or state securities or Blue Sky
laws (or such as may be required by the National Association of
Securities Dealers, Inc.
("NASD")).
(xvi) The Company possesses and is operating in
compliance in all material respects with all licenses, certificates,
consents, authorities, approvals and permits (collectively, "permits")
from all state, federal, foreign and other regulatory agencies or
bodies necessary to conduct the business now operated by it, and the
Company has not received any notice of proceedings relating to the
revocation or modification of any such permit or any circumstance
which would lead it to believe that such proceedings are reasonably
likely which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially and adversely
affect the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company.
(xvii) This Agreement has been duly executed and
delivered by the Company and constitutes a valid and binding obligation
of the Company, enforce able against the Company in accordance with its
terms,
17
<PAGE> 18
(a) except to the extent that rights to indemnity and contribution
hereunder may be limited by federal or state securities laws or the
public policy underlying such laws and (b) except as enforcement
thereof may be subject to (1) bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights generally and (2)
general principles of equity (regardless whether enforceability is
considered in a proceeding at law or in equity) and the discretion of
the court before which any proceeding therefor may be brought.
(xviii) Except as described in the Prospectus, there
are no persons with registration or other similar rights to have any
securities registered pursuant to the Registration Statement or
otherwise registered by the Company under the 1933 Act which rights
have not been waived.
(xix) No order preventing or suspending the use of
any preliminary prospectus has been issued and no proceedings for that
purpose are pending, threatened, or, to the knowledge of the Company,
contemplated by the Commission; and to the knowledge of the Company,
no order suspending the offering of the Securities in any jurisdiction
designated by the Underwriters pursuant to Section 5(g) of this
Agreement has been issued and, to the knowledge of the Company, no
proceedings for that purpose have been instituted or threatened or are
contemplated.
(xx) The Company has valid title to its properties,
free and clear of all material security interests, mortgages, pledges,
liens, charges, encumbrances, claims and equities of record. The
properties of the Company are, in the aggregate, in good repair
(reasonable wear and tear excepted), and suitable for their respective
uses. Any real properties held under lease by the Company are held by
it under valid, subsisting and enforceable leases with such exceptions
as are not material and do not interfere with the conduct of the
business of the Company.
(xxi) The Company maintains a system of internal
accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management's general
or specific authorization, (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with GAAP
and to maintain accountability for assets, (iii) access to assets is
permitted only in
18
<PAGE> 19
accordance with management's general or specific authorization, and
(iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(xxii) The Company has conducted and is conducting
its business in compliance with all applicable federal, state, local
and foreign statutes, laws, rules, regulations, ordinances, codes,
decisions, decrees, directives and orders, except where the failure to
do so would not, singly or in the aggregate, have a material adverse
effect on the condition, financial or otherwise, or on the earnings,
business affairs or business prospects of the Company.
(xxiii) To the Company's knowledge, neither the
Company nor any employee or agent of the Company has made any payment
of funds of the Company or received or retained any funds in violation
of any law, rule or regulation, which payment, receipt or retention of
funds is of a character required to be disclosed in the Prospectus.
(xxiv) The Company is not now, and after sale of the
Securities to be sold by it hereunder and application of the net
proceeds from such sale as described in the Prospectus under the
caption "Use of Proceeds" will not be, an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
(xxv) All offers and sales of capital stock of the
Company prior to the date hereof were at all relevant times duly
registered or exempt from the registration requirements of the 1933 Act
and were duly registered or subject to an available exemption from the
registration requirements of the applicable state securities or Blue
Sky laws.
(xxvi) The Common Stock is registered pursuant to
Section 12(g) of the 1934 Act. The Securities have been duly
authorized for listing on Nasdaq. The Company has taken no action
designed to, or likely to have the effect of, terminating the
registration of the Common Stock under the 1934 Act or delisting the
Common Stock from Nasdaq, nor has the Company received any notification
that the Commission or Nasdaq is contemplating terminating such
registration or listing.
(xxvii) Neither the Company nor, to its knowledge,
any of its officers, directors or affiliates
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<PAGE> 20
has taken, and at the Closing Date and at any later Option Closing
Date, neither the Company nor, to its knowledge, any of its officers,
directors or affiliates will have taken, directly or indirectly, any
action which has constituted, or might reasonably be expected to
constitute, the stabilization or manipulation of the price of sale or
resale of the Securities.
(xxviii) The Company maintains insurance of the types
and in amounts adequate for its business and consistent with insurance
coverage maintained by similar companies in similar business,
including but not limited to, insurance covering clinical trial
liability, product liability and real and personal property owned or
leased against theft, damage, destruction, acts of vandalism and all
other risks customarily insured against, all of which insurance is in
full force and effect.
(xxix) The Company has filed all material tax returns
required to be filed, which returns are true and correct in all
material respects, and the Company is not in default in the payment of
any taxes, including penalties and interest, assessments, fees and
other charges, shown thereon due or otherwise assessed, other than
those being contested in good faith and for which adequate reserves
have been provided or those currently payable without interest which
were payable pursuant to said returns or any assessments with respect
thereto.
(xxx) Except as described in the Prospectus, to the
Company's knowledge, there are no rulemaking or similar proceedings
before The United States Food and Drug Administration or comparable
federal, state, local or foreign government bodies which involve or
affect the Company, which, if the subject of an action unfavorable to
the Company, could involve a prospective material adverse change in or
effect on the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company.
(xxxi) The Company has not received any communication
(whether written or oral) relating to the termination or threatened
termination or modification or threatened modification of any material
consulting, licensing, marketing, research and development, cooperative
or any similar agreement, including, without limitation, the
collaborative research, distribution and license agreements described
under the sections of the Prospectus entitled "Business--Corporate
Alliance,"
20
<PAGE> 21
"Business--Marketing," "Business--Sources of Materials,"
"Business--Research and Development" and "Business--Patents,
Proprietary Information and Trademarks." Each such collaborative,
distribution and licensing agreement is in effect substantially as
described in such section of the Prospectus.
(xxxii) To the knowledge of the Company, if any
full-time employee identified in the Prospectus has entered into any
non-competition, non-disclosure, confidentiality or other similar
agreement with any party other than the Company, such employee is
neither in violation thereof nor is expected to be in violation thereof
as a result of the business conducted or expected to be conducted by
the Company as described in the Prospectus or such person's performance
of his obligations to the Company; and the Company has not received
written notice that any consultant or scientific advisor of the
Company is in violation of any non-competition, non-disclosure,
confidentiality or similar agreement.
b. Each Selling Stockholder severally and not
jointly represents and warrants to each Underwriter that:
(i) Such Selling Stockholder is not prompted to sell
the Securities to be sold by such Selling Stock holder hereunder by any
material information concerning the Company which is not set forth in
the Prospectus.
(ii) Such Selling Stockholder has the full right,
power and authority to enter into this Agreement and a Power of
Attorney and Custody Agreement, in the form heretofore furnished by the
Representatives (the "Power of Attorney and Custody Agreement"), and to
sell, transfer and deliver the Securities to be sold by such Selling
Stock holder hereunder. The execution and delivery of this Agreement
and the Power of Attorney and Custody Agreement and the sale and
delivery of the Securities to be sold by such Selling Stockholder and
the consummation of the transactions contemplated herein and therein
and compliance by such Selling Stockholder with its obligations
hereunder and thereunder have been duly authorized by such Selling
Stock holder and do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any tax, lien, charge or encumbrance upon the Securities
to be sold by such Selling Stockholder pursuant to, any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
license, lease or other agreement or instrument to which such Selling
21
<PAGE> 22
Stockholder is a party or by which such Selling Stockholder may be
bound, or to which any of the property or assets of such Selling
Stockholder is subject, other than such conflicts, breaches or
defaults that individually or in the aggregate would not impair the
ability of such Selling Stockholder to perform its obligations under
this Agreement, nor will such action result in any violation of the
provisions of the charter or bylaws or other organizational instrument
of such Selling Stockholder, if applicable, or any applicable treaty,
law, statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over such Selling Stockholder or any of such
Selling Stockholder's properties.
(iii) Such Selling Stockholder has and will on the
Closing Date and, if any Option Securities are purchased, on the
Option Closing Date have good and marketable title to the Securities to
be sold by such Selling Stockholder hereunder, free and clear of any
security interest, mortgage, pledge, lien, charge, claim, equity or
encumbrance of any kind, other than pursuant to this Agreement; and
upon delivery of such Securities and payment of the purchase price
therefor as herein contemplated, assuming each such Underwriter has no
notice of any adverse claim, each of the Underwriters will receive good
and marketable title to the Securities purchased by it from such
Selling Stockholder, free and clear of any security interest, mortgage,
pledge, lien, charge, claim, equity or encumbrance of any kind.
(iv) Such Selling Stockholder has duly executed and
delivered the Power of Attorney and Custody Agreement with Paul M.
Frison and J. Donald Payne, or any of them, as attorney(s)-in-fact (the
"Attorney(s)-in-Fact") and Harris Trust & Savings Bank, New York, New
York, as custodian (the "Custodian"); the Custodian is authorized,
subject to the provisions of the Power of Attorney and Custody
Agreement, to deliver the Securities to be sold by such Selling
Stockholder hereunder and to accept payment there for; and each
Attorney-in-Fact is authorized, subject to the provisions of the Power
of Attorney and Custody Agreement, to execute and deliver this
Agreement and the certificate referred to in Section 8(d) hereof or
that may be required pursuant to Sections 8(h) and 8(j) hereof on
behalf of such Selling Stockholder, to sell, assign and transfer to the
Underwriters the Securities to be sold by such Selling Stockholder
hereunder, to determine the purchase price to be paid by the
Underwriters to such Selling Stockholder, as provided in Section 2
hereof, to authorize the delivery of the Securities to be sold by such
Selling Stockholder here-
22
<PAGE> 23
under, to accept payment therefor, and otherwise to act on behalf of
such Selling Stockholder in connection with this Agreement.
(v) Such Selling Stockholder has not taken, and will
not take, directly or indirectly, any action which is designed to or
which might reasonably be expected to cause or result in stabilization
or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(vi) No filing with, or consent, approval,
authorization, order, registration, qualification or decree of, any
court or governmental authority or agency, domestic or foreign, is
necessary or required for the performance by Selling Stockholder of
such Selling Stockholder's obligations hereunder or in the Power of
Attorney and Custody Agreement, or in connection with the sale and
delivery of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement, except such as may have
previously been made or obtained or as may be required under the 1933
Act or the 1933 Act Regulations or state securities laws.
(vii) During a period of 90 days from the date of the
Prospectus, such Selling Stockholder will not, with out the prior
written consent of Vector, (A) offer, pledge, sell, contract to sell,
sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant to purchase or
otherwise transfer or dispose of, directly or indirectly, any share of
Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or cause to be filed any registration
statement under the 1933 Act with respect to any of the foregoing or
(B) enter into any swap or any other agreement or any transaction that
transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of the Common Stock, whether any such swap or
transaction described in clause (A) or (B) above is to be settled by
delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to the Securities to
be sold hereunder.
(viii) Certificates for all of the Securities to be
sold by such Selling Stockholder pursuant to this Agreement, in
suitable form for transfer by delivery or accompanied by duly executed
instruments of transfer or assignment in blank with signatures
guaranteed, have been placed in custody with the Custodian with
irrevocable condi-
23
<PAGE> 24
tional instructions to deliver such Securities to the Under writers
pursuant to this Agreement.
(ix) Except as previously disclosed in writing to
Vector by such Selling Stockholder, neither such Selling Stockholder
nor any of such Selling Stockholder's affiliates directly, or
indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, or has any other
association with (within the meaning of Article I, Section 1(m) of the
Bylaws of the NASD), any member firm of the NASD.
7. INDEMNIFICATION AND CONTRIBUTION.
a. The Company agrees to indemnify and hold
harmless (i) each Underwriter and (ii) each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act (any of the persons referred to in this clause (ii) being
hereinafter referred to as a "controlling person") and (iii) the respective
directors, officers, partners and employees of any of the Underwriters or any
controlling person (any person referred to in clause (i), (ii) or (iii) may
hereinafter be referred to as an "Indemnified Person") to the fullest extent
lawful, from and against any and all losses, claims, damages, liabilities and
expenses whatsoever (including, without limitation, all reasonable costs of
pursuing, investigating and defending any claim, suit or action or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, including the reasonable fees and expenses of counsel to any
Indemnified Person), directly or indirectly, caused by, related to, based upon
or arising out of or in connection with any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or any
amendment thereto, including the Rule 430A Information and Rule 434 Information,
if applicable, or any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading or caused by, related to, based upon, arising out of or in
connection with any untrue statement or alleged untrue statement of a material
fact contained in any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto) or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, except insofar as such losses, claims, damages, liabilities or
expenses arise out of or are based upon any untrue statement or omission or
alleged untrue statement or omission which has been made therein or omitted
therefrom in reliance upon and in conformity with the information relating to
such Underwriter furnished in
24
<PAGE> 25
writing to the Company by or on behalf of any Underwriter through you expressly
for use in connection therewith.
b. Each Selling Stockholder shall indemnify and
hold harmless each Indemnified Person to the fullest extent lawful, from and
against any and all losses, claims, damages, liabilities and expenses whatsoever
(including, without limitation, all reasonable costs of pursuing, investigating
and defending any claim, suit or action or any investigation or proceeding by
any governmental agency or body, commenced or threatened, including the
reasonable fees and expenses of counsel to any Indemnified Person), directly or
indirectly, caused by, related to, based upon or arising out of or in connection
with any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or any amendment thereto, including the
Rule 430A Information and Rule 434 Information, if applicable, or any omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading or caused by,
related to, based upon, arising out of or in connection with any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading, but
only with respect to any untrue or alleged untrue statements, or omissions or
alleged omissions, made in the Registration Statement (or any amendment thereto,
including the Rule 430A and 434 Information, if applicable) or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information relating to the Selling
Stockholder furnished to the Company or the Underwriters expressly for use in
the Registration Statement (or any amendment thereto, including the Rule 430A
and 434 Information, if applicable) or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto). The foregoing indemnity
agreement is in addition to any liability which the Selling Stockholders may
otherwise have to any Underwriter or any controlling person.
c. If any action, suit or proceeding shall be
brought against any Indemnified Person in respect of which indemnity may be
sought against the Company or the Selling Stockholders, such Indemnified Person
shall promptly notify the parties against whom indemnification is being sought
(the "indemnifying parties"), and such indemnifying parties shall assume the
defense thereof, including the employment of counsel and payment of all fees and
expenses. Such Indemnified Person shall have the right to employ separate
counsel in any such action, suit or proceeding and to participate in the defense
thereof, but the
25
<PAGE> 26
fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the indemnifying parties have agreed in writing to pay such
fees and expenses, (ii) the indemnifying parties have failed to assume the
defense and employ counsel or (iii) the named parties to any such action, suit,
investigation or proceeding (including any impleaded parties) include both such
Indemnified Person and the indemnifying parties and representation of such
Indemnified Person and any indemnifying party by the same counsel would, in the
reasonable judgment of the Indemnified Person, be inappropriate due to actual or
potential differing interests between them (in which case the indemnifying party
shall not have the right to assume the defense of such action, suit or
proceeding on behalf of such Indemnified Person). It is understood, however,
that the indemnifying parties shall, in connection with any one such action,
suit or proceeding or separate but substantially similar or related actions,
suits or proceedings in the same jurisdiction arising out of the same general
allegations or circumstances, be liable for the reasonable fees and expenses of
only one separate firm of attorneys (in addition to any local counsel) at any
time for all such Indemnified Persons not having actual or potential differing
interests with you or among themselves, which firm shall be designated in
writing by Vector, and that all such fees and expenses shall be reimbursed as
they are incurred. The indemnifying parties shall not be liable for any
settlement of any such action, suit or proceeding effected without their written
consent, which consent shall not be unreasonably withheld, but if settled with
such written consent, or if there be a final judgment for the plaintiff in any
such action, suit or proceeding, the indemnifying parties agree to indemnify and
hold harmless any Indemnified Person, to the extent provided in the preceding
paragraph, from and against any loss, claim, damage, liability or expense by
reason of such settlement or judgment.
d. Insofar as this indemnity agreement may permit
indemnification for liabilities under the 1933 Act of any person who is a
partner of an Underwriter or who controls an Underwriter within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act and who, at the date of
this Agreement, is a director or officer of the Company or controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act,
such indemnity agreement is subject to the undertaking of the Company in the
Registration Statement under Item 13 thereof.
e. Each Underwriter agrees, severally and not
jointly, to indemnify and hold harmless the Company, its directors, its
officers who sign the Registration Statement, any person who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act, and each Selling Stockholder, to the same extent as the foregoing
indemnity from the Company and the Selling Stockholders to each Indemnified
26
<PAGE> 27
Person, but only with respect to information relating to such Underwriter
furnished in writing by or on behalf of such Underwriter through Vector
expressly for use in the Registration Statement, the Prospectus or any
preliminary prospectus, or any amendment or supplement thereto. If any action,
suit, investigation or proceeding shall be brought against the Company, any of
its directors, any such officer, any such controlling person or any such Selling
Stockholder based on the Registration Statement, the Prospectus or any
preliminary prospectus, or any amendment or supplement thereto, and in respect
of which indemnity may be sought against any Underwriter pursuant to this
paragraph (e), such Underwriter shall have the rights and duties given to the
Company by paragraph (c) above, and the Company, its directors, any such
officer, any such controlling person and any such Selling Stockholder shall have
the rights and duties given to the Indemnified Persons by paragraph (a) above.
f. If the indemnification provided for in this
Section 7 is unavailable to, or insufficient to hold harmless, an indemnified
party under paragraphs (a), (b) or (e) hereof in respect of any losses, claims,
damages, liabilities or expenses referred to therein, then each indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages, liabilities or expenses (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Stockholders on the one hand and the Underwriters on the other hand from
the offering of the Securities or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law or judicial determination, 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 and the
Selling Stockholders on the one hand and the Underwriters on the other hand, as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Selling Stockholders on the one hand and the
Underwriters on the other hand shall be deemed to be in the same proportion as
the total net proceeds from the offering (before deducting expenses) received by
the Company and the Selling Stockholders bear to the total underwriting
discounts and commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus or, if Rule 434 is used,
the corresponding location on the Term Sheet. The relative fault of the Company
and the Selling Stockholders on the one hand and the Underwriters on the other
hand 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 Selling Stockholders on the one hand or by the Underwriters on the other
hand and the parties' relative intent, knowledge,
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<PAGE> 28
access to information and opportunity to correct or prevent such statement or
omission. The indemnity and contribution obligations of the Company and the
Selling Stockholders set forth herein shall be in addition to any liability or
obligation the Company and the Selling Stockholders may otherwise have to any
Indemnified Person.
g. The Company, the Selling Stockholders and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 7 were determined by a pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation that does not take account of the equitable considerations
referred to in the immediately preceding paragraph. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages, liabilities
and expenses referred to in the immediately preceding paragraph shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating any claim or defending any such action, suit or proceeding.
Notwithstanding the provisions of this Section 7, no Underwriter (or any of its
related Indemnified Persons) shall be required to contribute (whether pursuant
to paragraph (a), (b) or (e) or otherwise) any amount in excess of the
underwriting discount applicable to the Securities underwritten by such
Underwriter. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute pursuant to this Section 7 are several
in proportion to the respective numbers of Securities set forth opposite their
names in Schedule I hereto (or such numbers of Securities increased as set forth
in Section 10 hereof) and not joint.
h. No indemnifying party shall, without the prior
written consent of the Indemnified Person, effect any settlement of any pending
or threatened action, suit or proceeding in respect of which any Indemnified
Person is or could have been a party and indemnity could have been sought
hereunder by such Indemnified Person, unless such settlement includes an
unconditional release of such Indemnified Person from all liability on claims
that are the subject matter of such action, suit or proceeding.
i. Any losses, claims, damages, liabilities or
expenses for which an indemnified party is entitled to indemnification or
contribution under this Section 7 shall be paid by the indemnifying party to
the indemnified party as such losses, claims, damages, liabilities or expenses
are incurred. The
28
<PAGE> 29
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Company and the Selling Stockholders set
forth in this Agreement shall remain operative and in full force and effect,
regardless of (i) any investigation made by or on behalf of any Indemnified
Person, the Selling Stockholders, the Company, its directors or officers or any
person controlling the Company, (ii) acceptance of any Securities and payment
therefor hereunder and (iii) any termination of this Agreement.
j. The provisions of this Section 7 shall not
affect any agreement among the Company and the Selling Stockholders with respect
to contribution.
8. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters to purchase the Initial Securities hereunder are
subject to the following conditions:
a. The Registration Statement, including any Rule
462(b) Registration Statement, shall have become effective on the date hereof;
no stop order suspending the effectiveness of the Registration Statement shall
have been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission. If the Company has elected to rely upon Rule
430A, Rule 430A Information previously omitted from the effective Registration
Statement pursuant to Rule 430A shall have been transmitted to the Commission
for filing pursuant to Rule 424(b) within the prescribed time period and the
Company shall have provided evidence satisfactory to the Underwriters of such
timely filing, or a post-effective amendment providing such information shall
have been promptly filed and declared effective in accordance with the
requirements of Rule 430A. If the Company has elected to rely upon Rule 434, a
Term Sheet shall have been transmitted to the Commission for filing pursuant to
Rule 424(b) within the prescribed time period.
b. The Underwriters shall have received:
(i) The favorable opinion, dated as of the Closing
Date, of Fulbright & Jaworski L.L.P., counsel for the Company, in form
and substance satisfactory to counsel for the Underwriters, to the
effect that:
(1) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of
the State of Delaware.
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(2) The Company has corporate power and authority
to own, lease and operate its properties and to conduct its business as
described in the Registration Statement and the Prospectus and to enter
into and perform its obligations under this Agreement.
(3) To such counsel's knowledge, the Company is
duly qualified as a foreign corporation to transact business and is in
good standing in each jurisdiction in which such qualification is
required, except where the failure to be so qualified and in good
standing would not have, singly or in the aggregate, a material adverse
effect on the business or condition, financial or otherwise, of the
Company.
(4) The authorized, issued and outstanding
capital stock of the Company is as set forth in the Prospectus under
"Description of Capital Stock" (except for subsequent issuances, if
any, pursuant to reservations, agreements, employee benefit plans or
the exercise of convertible securities referred to in the Prospectus),
and the shares of issued and out standing capital stock of the Company,
including the Securities to be purchased by the Underwriters from the
Selling Stockholders, have been duly authorized and validly issued and
are fully paid and non-assessable and none of them have been issued in
violation of any preemptive right under the Delaware General
Corporation Law (the "DGCL") or the Company's Charter or by-laws or, to
such counsel's knowledge, any similar right.
(5) The Securities to be sold by the Company
pursuant to this Agreement, when issued and delivered in accordance
with the provisions of this Agreement, will be duly authorized, validly
issued, fully paid and nonassessable and none of them will have been
issued in violation of any preemptive right under the DGCL or the
Company's Charter or by-laws or, to such counsel's knowledge, any
similar right.
(6) To such counsel's knowledge, the Company has
no subsidiaries.
(7) Except as disclosed in the Prospectus, to
such counsel's knowledge, there are no other outstanding options,
warrants or rights calling for the issuance of, and no commitment,
other than pursuant to the LifeCell Corporation Second Amended and
Restated 1992 Stock Option Plan, as amended, and
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<PAGE> 31
LifeCell Corporation Second Amended and Restated 1993 Non-Employee
Director Stock Option Plan, as amended, to issue, any shares of capital
stock of the Company or any security convertible into or exchangeable
for capital stock of the Company.
(8) This Agreement has been duly authorized,
executed and delivered by the Company.
(9) The Registration Statement, as of its
effective date and at the Closing Date (except for the financial
statements and the notes and schedules thereto and the auditor's
report thereon, and any other information of a financial or accounting
nature set forth or referred to therein, as to which such counsel need
express no opinion), appeared on its face to be appropriately
responsive in all material respects to the requirements of the 1933 Act
and the 1933 Act Regulations.
(10) Each of the documents incorporated by
reference in the Prospectus (except for the financial statements and
the notes and schedules thereto and the auditor's report thereon, and
any other information of a financial or accounting nature set forth or
referred to therein, as to which such counsel need express no opinion),
appeared on its face to be appropriately responsive in all material
respects to the requirements of the 1933 Act and the 1933 Act
Regulations or the 1934 Act and the 1934 Act Regulations, as
applicable.
(11) The form of certificate used to evidence
each of the Securities is in due and proper form under the DGCL.
(12) To such counsel's knowledge, there are no
legal or governmental proceedings pending or threatened which are
required to be disclosed in the Registration Statement other than those
disclosed therein, and all pending legal or governmental proceedings
to which the Company is a party or to which any of its property is
subject which are not described in the Registration Statement,
including ordinary routine litigation incidental to the business, are,
considered in the aggregate, not material.
(13) The information in the Prospectus under
"Risk Factors--Patent Infringement Law-
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suit," "Risk Factors--Shares Eligible for Future Sale," "Risk
Factors--Rights of Holders of Series B Preferred Stock,"
"Business--Corporate Alliance," "Business-- Management" and
"Description of Capital Stock," to the extent that it constitutes
matters of law, summaries of legal matters, documents or proceedings,
or legal conclusions, has been reviewed by them and is correct in all
material respects and fairly and correctly presents the information
called for with respect thereto.
(14) To such counsel's knowledge, there are no
contracts, indentures, mortgages, loan agreements, deeds, trusts,
notes, leases, subleases, voting trusts, voting agreements or other
instruments or agreements required to be described or referred to in
the Registration Statement, the Prospectus or the documents
incorporated by reference therein or to be filed as exhibits thereto
other than those described or referred to therein or filed as exhibits
thereto, the descriptions thereof or references thereto are correct;
and to such counsel's knowledge, no default exists in the due
performance or observance of any material obligation, agreement,
covenant or condition contained in any material contract, indenture,
mortgage, loan agreement, deed, trust, note, lease, sublease, voting
trust, voting agreement or other instrument or agreement of the
Company.
(15) No consent, approval, authorization or other
action or filing with any state court, governmental authority or agency
was required for the execution and delivery of this Agreement by the
Company or is required for the consummation by the Company of the
transactions that are the subject of this Agreement, except such as
have been obtained under the 1933 Act and the 1934 Act and such as may
be required under state securities laws (except that such counsel need
express no opinion as to the securities or Blue Sky laws of any state)
in connection with the purchase and distribution of the Securities by
you.
(16) The execution and delivery by the Company
of, and the performance by the Company of its agreements in, this
Agreement and the consummation of the transactions contemplated hereby
will not (a) breach or result in a default under any indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or
instrument to which the Company is a party or to which the Company or
any of its properties are
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subject, in each case, which are filed as exhibits to the Registration
Statement or to any document incorporated by reference into the
Prospectus, (b) violate the Charter or by-laws of the Company or any
judgment, decree or order known to such counsel of any court or
governmental agency or body applicable to the Company or any of its
properties, or (c) violate any applicable provisions of any state or
federal statutory law or regulation (except that such counsel need
express no opinion as to the securities or Blue Sky laws of any state
and no opinion as to the anti-fraud provisions of the federal or any
state securities laws).
(17) To such counsel's knowledge, the Company
possesses and is compliance with all permits issued by the appropriate
regulatory body or agency, including the Food and Drug Administration
and any foreign regulatory agency performing similar functions,
necessary to conduct the business now operated by it, except where the
failure to so possess or comply with any permit would not have, singly
or in the aggregate, a material adverse effect on the business or
condition, financial or otherwise, of the Company. To such counsel's
knowledge, there are no proceedings, pending or threatened, which if
the subject of an unfavorable decision, ruling or finding, would have a
material adverse effect on the business or condition, financial or
otherwise, of the Company.
(18) To such counsel's knowledge, there is no
holder, other than the Selling Stockholders, of any securities of the
Company who has the right to have any Common Stock or other securities
of the Company included in the Registration Statement or the right, as
a result of the filing of the Registration Statement, to require
registration under the 1933 Act of any shares of Common Stock or other
securities of the Company, which rights have not been waived.
(19) The Company is not an "in vestment company"
or a company "controlled" by an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
(20) All sales by the Company of the Company's
capital stock during the three years immediately prior to the date
hereof were at all relevant times duly registered or exempt from the
registration requirements of the 1933 Act.
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(21) Such counsel has been advised by the
Commission that the Registration Statement is effective under the 1933
Act and, to such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement has been issued by the
Commission and no proceedings for that purpose have been instituted by
the Commission.
(ii) The favorable opinion, dated as of the Closing
Date, of Arnold, White & Durkee, patent counsel for the Company, in
form and substance satisfactory to counsel for the Underwriters, to
the effect
that:
(1) Patent Applications. Based upon a review of
the files available in such counsel's office on October 28, 1997, such
counsel is currency prosecuting the following patent applications on
behalf of the Company:
Australian Patent Application Serial No. 650,045, entitled
"Method for Cryopreparation & Dry Stabilization of Vaccines
and Viruses," filed on September 10, 1991 and published for
issue on September 27, 1994.
Australian Patent Application Serial No.94/67405, entitled
"Method for Cryopreparation and Dry Stabilization of Vaccines
and Viruses," filed on July 13, 1994.
Canadian Patent Application Serial No. 2,051,092,
entitled "Method for Cryopreparation & Dry Stabilization of
Vaccines and Viruses," filed on September 10, 1991.
European Patent Application Serial No. 9115480.5,
entitled "Method for Cryopreparation & Dry Stabilization of
Vaccines and Viruses" filed on September 12, 1991.
Japanese Patent Application Serial No. 91/233340,
entitled "Method for Cryopreparation & Dry Stabilization of
Vaccines and Viruses" filed on September 12, 1991.
Canadian Patent Application Serial No. 2089336, entitled
"Method for Processing and Preserving Collagen-Based Tissues
for Transplantation," filed on February 11, 1993.
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<PAGE> 35
European Patent Application Serial No. 93/102264.4,
entitled "Method for Processing and Preserving Collagen-Based
Tissues for Transplantation," filed on February 12, 1993.
Japanese Patent Application Serial No. 93/047373, entitled
"Method for Processing and Preserving Collagen-Based Tissues
for Transplantation" filed on February 12, 1993.
United States Patent Application Serial No. 08/759,801,
entitled "Method for Processing and Preserving Collagen-Based
Tissue for Transplantation," filed December 3, 1996.
United States Patent Application Serial No. 08/752,740,
entitled "Apparatus for Cryopreserving a Suspension of
Biological Material," filed on November 14, 1996.
International Patent Application Serial No. PCT/US96/13616,
entitled "Reconstituted Skin," filed on August 22, 1996.
United States Patent Application Serial No. 08/600,343,
entitled "Prolonged Preservation of Blood Platelets,"
filed on February 13, 1996.
International Patent Application Serial No.
PCT/US97/02365, entitled "Prolonged Preservation of
Blood Platelets," filed February 13, 1997.
United States Patent Application Serial No. 08/844,021,
entitled "Prolonged Preservation of Blood Platelets,"
filed on April 18, 1997.
United States Patent Application Serial No. 08/852,921,
entitled "Prolonged Preservation of Blood Platelets,"
filed on May 8, 1997.
To the best of such counsel's knowledge, the Company is the
sole assignee of each of these patent applications and such assignments have
been properly recorded in the United States Patent and Trademark Office ("PTO").
To the best of such counsel's knowledge, all pertinent prior art references
known to the Company or its counsel during prosecution of these applications
have been disclosed to the PTO and other relevant patent offices, and, to the
best of such counsel's knowledge, all information submitted to the PTO in
connection with the prosecution of these
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<PAGE> 36
applications has been accurate, and neither such counsel nor the Company has
made any intentional misrepresentation to, or has intentionally concealed any
fact from, the PTO during prosecution. To the best of such counsel's knowledge,
there are no material defects of form in the preparation or filing of these
applications, there are no asserted claims of any persons relating to the scope
or ownership of the inventions claimed in these applications, and these
applications are being diligently prosecuted and none have been finally
rejected with no rights to further prosecute or have been abandoned.
There can be no assurance that any patent will issue on the
above applications or that, if patents are issues, they will be of commercially
significant scope or value. To the best of such counsel's knowledge these patent
applications are not subject to any liens, security interests, or encumbrances.
(2) Patents. The Company is the as signee and
record owner of the following patents:
United States Patent No. 5,336,616, entitled "Method
for Processing and Preserving Collagen-Based Tissues
for Transplantation," issued on August 9, 1994.
Australian Patent No. 668,703, entitled "Method for
Processing and Preserving Collagen-Based Tissues for
Transplantation," filed on February 10, 1993 and issued
on September 4, 1996.
United States Patent No. 5,364,756, entitled "Method
for Cryopreparation & Dry Stabilization of Vaccines and
Viruses," issued on November 15, 1994.
United States Patent No. 5,622,867, entitled "Prolonged
Preservation of Blood Platelets," filed on October 19,
1994 and issued on April 22, 1997.
To the best of such counsel's knowledge, without any further
investigation, the above-listed patents are not subject to any liens, licenses,
security interests, or encumbrances, are not the subject of any claims by any
persons relating to their scope or ownership, and are not currently the subject
of any proceedings in the PTO.
(3) Patent Applications. To the best of such
counsel's knowledge, the Company is a licensee of the following patents
(the "Licensed Patents"):
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<PAGE> 37
United States Patent No. 4,567,847, entitled "Apparatus
and Method for Cryopreparing Biological Tissue for
Ultrastructural Analysis," issued February 4, 1986.
United States Patent No. 4,619,257, entitled "Apparatus
and Method for Cryopreparing Corneal Tissue for Surgical
Procedures," issued October 28, 1986.
United States Patent No. 4,676,070, entitled "Apparatus
and Method of Cryopreparing Corneal Tissue of
Ultrastructural Analysis," issued June 30, 1987.
United States Patent No. 4,799,361, entitled "Apparatus
and Method of Cryopreparing Biological Tissue for
Ultrastructural Analysis," issued January 24, 1989.
Canadian Patent No. 1,239,291, entitled "Apparatus and
Method for Cryopreparing Biological Tissue for
Ultrastructural Analysis," issued July 19, 1988.
United States Patent No. 4,801,299, entitled "Body
Implants of Extracellular Matrix and Means and Methods
of Making and Using Such Implants," issued January 31,
1989. (Licensed "Field of Use" excludes cardiovascular
replacement vessels of other uses in human cardiovascular
prosthesis).
Japanese Patent No. 1842777, entitled "Body Implants of
Extracellular Matrix and Means and Methods of Making
Such Implants," issued July 28, 1993. (Licensed "Field
of Use" excludes cardiovascular replacement vessels of
other uses in human cardiovascular prosthesis).
To the best of such counsel's knowledge, the Company is not in
material breach or default of any such licenses. To the best of such counsel's
knowledge, there are no asserted claims of any persons relating to the scope or
ownership of the Licensed Patents, and the Licensed Patents are not subject to
any liens, security interest or encumbrances.
(4) Trademarks. The Company is the registered
owner of the following trademarks:
United States Trademark Registration No. 1,475,428,
"LIFECELL," Int'l Class 42, for preparing and preserving
tissue samples for later analysis issued February 2, 1988.
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United States Trademark Registration No. 1,575,705,
"LIFECELL PROCESS," Int'l Class 42 preparing and
preserving tissue samples for use by others for
later analysis, issued on January 2, 1990.
United States Trademark Registration No. 1,782,561,
"ALLODERM," Int'l Class 10 processed human donor
skin for skin replacement, issued on July 20, 1993.
European Trademark Application Serial No. 446,831,
"ALLODERM," Int'l Class 10 processed human donor
skin replacement, filed on January 8, 1997.
To the best of such counsel's knowledge, the above-listed
trademarks are not subject to any liens, licenses, security interest, or
encumbrances, are not the subject of any claims by any persons relating to their
scope or ownership, and are not currently the subject of any proceedings in the
United States Patent and Trademark Office.
(5) Trademark Applications. The firm has prepared
the following applications for the Company and, to the best of such
counsel's knowledge, the Company is owner thereof:
European Trademark Application Serial No. 548,354, "LIFECELL,"
Int'l Class 10, human and animal tissue for later use, Int'l
Class 42 processing & preserving human animal tissue for
later use, filed on May 28, 1997.
European Trademark Application Serial No. 446,831,
"ALLODERM," Int'l Class 10 processed human donor
skin for skin replacement, filed on January 8,
1997.
To the best of such counsel's knowledge, there are no material
defects of form in the preparation or filing of these applications, and these
applications are being diligently prosecuted and none have been finally
rejected with no rights to further prosecute or have been abandoned.
There can be no assurance that any trademark will issue on any
of the above applications or that, if trademarks are issued, they will be/are of
commercially significant scope or value. To the best of such counsel's
knowledge, the above-listed trademarks applications are not subject to any
liens, licenses, security interests, or encumbrances, and are
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not the subject of any claims by any persons relating to their scope or
ownership.
(6) Other than the information listed above (the
"Intellectual Property"), such counsel has conducted no investigation
of, and has no knowledge of, any other patents, patent applications,
inventions, trademarks, trade names, service marks, service mark
applications, copyrights, know-how, manufacturing processes, formulae,
trade secrets, licenses, rights in any thereof or any other intangible
property or assets licensed, owned or used by the Company.
(7) The description of the Intellectual Property
above is, to the best of such counsel's knowledge and belief, correct
in all material aspects and fairly describes the Company's rights
thereto.
To the best of such counsel's knowledge, the Company's
patents, trademark and service mark registrations are valid and enforceable and
none has lapsed, expired or been abandoned or canceled or is the subject of
interference, reexamination, reissue, cancellation or other adversarial or
administrative proceedings.
To the best or such counsel's knowledge, the Company has
complied, in all material respects, with its contractual obligations relating
to the protection of the Intellectual Property used pursuant to licenses.
To the best of such counsel's knowledge, with exception of the
action identified in the following paragraph and the prosecution of the
above-listed patent and trademark applications, there are no pending or
threatened legal or governmental proceedings, nor allegations on the part of any
person, involving any intellectual property-related rights owned or licensed to
the Company, including, but not limited to, claims for misappropriation of
proprietary information, infringement, ownership dispute, validity or
enforceability challenges, disputes under licenses or other intellectual
property-related agreements, unfair competition, or authorized use or
disclosure of confidential information, and, to the best of such counsel's
knowledge, no such other proceedings are threatened or contemplated.
On November 4, 1997, the Company received notice of a
complaint filed in the United States District Court for the District of
Massachusetts. The complaint alleges that the use of LifeCell's AlloDerm
acellular collagen matrix product
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infringes two patents owned by the Massachusetts Institute of Technology and
exclusively licensed to Integra BioSciences Corporation. The Company has
obtained an opinion of patent counsel that there is no infringement and plans to
vigorously and aggressively pursue its defenses and counterclaims.
(8) Such counsel is not aware of any judgement,
order, writ, injunction or decree of any court or any Federal, state,
local, foreign or other governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, or any
arbitrator, or has entered into or is a party to any contract which
restricts or impairs the use of any of the Intellectual Property in a
manner which would have a material adverse effect on the use of any of
the Intellectual Property. It will be appreciated, however, that in
the course of prosecuting applications for patent and for registrations
of trademarks and service marks the examining authorities frequently
issue rejections of the patentability of the claims in patent
applications or the registrability of trademarks or service marks. The
applicant may often respond to such rejections and at tempt to obtain
their withdrawal, and may further, in some instances, appeal to another
tribunal. Such nonfinal or appealable objections are excluded from this
opinion.
(9) Subject to paragraph (7), such counsel is not
aware of any proprietary rights or any third party with which any of
the products or services sold by the Company conflict.
(10) Subject to paragraph (7), such counsel has
not received written notice of any pending conflict with or
infringement upon any third-party proprietary rights by the Company.
(11) Subject to paragraph (7), such counsel is
not aware that the Company has entered into any consent,
indemnification, forbearance to sue or settlement agreement with
respect to the Intellectual Property other than in the ordinary course
of business.
(12) Subject to paragraph (7), such counsel is
not aware of any claim asserted by any person with respect to the
validity or ownership or the Company's right to use the Intellectual
Property.
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(13) The trademarks and trademark applications
referred to in Sections (4) and (5) above were not subject to any
cancellation or opposition proceedings.
The patents and patent applications referred to in Sections
(1) and (2) above are not currently subject to any interference, reexamination,
reissue, or other proceeding and that no maintenance fees were overdue.
The patent applications referred to in Section (1) above are
pending before the United States Patent & Trademark office and/or the patent
office of the foreign countries or the international body listed and are in
various stages of prosecution and no guarantee can be given that any patent will
issue thereon or that any patent so issued will be of commercially significant
scope or value.
(14) Nothing has come to such counsel's attention
that leads them to believe that, with respect to licenses, patents,
trade secrets, copyrights or other proprietary information or know-how
owned or used by the Company which are the subject of the foregoing
opinions, the Registration Statement, at the time it became effective,
contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus, as of its
date (unless the term "Prospectus" refers to a prospectus which has
been provided to the Underwriters by the Company for use in connection
with the offering of the Securities which differs from the Prospectus
on file at the Commission at the time the Registration Statement
becomes effective, in which case at the time it is first provided to
the Underwriters for such use) or at the Closing Date or the Option
Closing Date, as the case may be, included or includes an untrue
statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(iii) The favorable opinion, dated as of the Closing
Date, of Hogan & Hartson L.L.P., special FDA regulatory counsel for the
Company, in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
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<PAGE> 42
(1) To such counsel's knowledge, the current FDA
regulatory status of AlloDerm is accurately described in all material
respects in the Prospectus under the caption "Risk Factors-Government
Regulation-AlloDerm," in the first sentence of the third paragraph
under the caption "Business-Products and Product Development
Activities-Other Potential Applications of AlloDerm," under the
caption "Business-Products and Product Development Activities-FDA
Status of AlloDerm," in the first sentence of the third paragraph under
"Business-Products and Product Development Activities-Injectable
AlloDerm" and in the second, third, fourth, fifth, sixth and seventh
paragraphs under the caption "Business-Government Regulation."
(2) The statements in the Prospectus under the
captions "Risk Factors-Government Regulation-Proposed Products" and
"Business-Government Regulation," insofar as such statements purport to
summarize applicable provisions of the Federal Food, Drug and Cosmetic
Act, as amended, the Public Health Services Act, as amended, the
National Organ Transplant Act, as amended, and the regulations
promulgated thereunder, are accurate summaries in all material respects
of the provisions purported to be summarized under such captions in the
Prospectus.
(3) Nothing has come to their attention that
leads them to believe that, with respect to federal regulatory matters
which are the subject of the foregoing opinions, the Registration
Statement, at the time it became effective, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, as of its date (unless
the term "Prospectus" refers to a prospectus which has been provided to
the Under writers by the Company for use in connection with the
offering of the Securities which differs from the Prospectus on file at
the Commission at the time the Registration Statement becomes
effective, in which case at the time it is first provided to the
Underwriters for such use) or at the Closing Date or the Option Closing
Date, as the case may be, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary
in order to make the statements
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therein, in the light of the circumstances under which they were made,
not misleading.
(iv) The favorable opinion, dated as of the Closing
Date, of Schwartz, Cooper, Greenberger & Krauss, Chartered, counsel for
the Selling Stockholders, in form and substance satisfactory to
counsel for the Underwriters, to the effect that:
(1) No filing with, or consent, approval,
authorization, license, order, registration, qualification or decree
of, any court or governmental authority or agency, domestic or foreign,
(other than the issuance of the order of the Commission declaring the
Registration Statement effective and such authorizations, approvals or
consents as may be necessary under state securities laws, as to which
such counsel need make no statement) is necessary or required to be
obtained by the Selling Stockholders for the performance by each
Selling Stockholder of its obligations under this Agreement or in the
Power of Attorney and Custody Agreement, or in connection with the
offer, sale or delivery of the Securities.
(2) Each Power of Attorney and Custody Agreement
has been duly executed and delivered by the respective Selling
Stockholder named therein and constitutes the legal, valid and binding
agreement of such Selling Stockholder.
(3) This Agreement has been duly executed and
delivered by or on behalf of each Selling Stockholder.
(4) Each Attorney-in-Fact has been duly
authorized by the Selling Stockholders to deliver the Securities on
behalf of the Selling Stockholders in accordance with the terms of this
Agreement.
(5) The execution, delivery and performance of
this Agreement and the Power of Attorney and Custody Agreement and the
sale and delivery of the Securities and the consummation of the
transactions contemplated herein and in the Registration Statement and
compliance by the Selling Stockholders with their respective
obligations
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under this Agreement have been duly authorized by all necessary action
on the part of the Selling Stockholders and do not and will not,
whether with or without the giving of notice or passage of time or
both, conflict with or constitute a breach of, or default under, or
result in the creation or imposition of any tax, lien, charge or
encumbrance upon the Securities pursuant to, any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, license, lease
or other instrument or agreement to which any Selling Stockholder is a
party or by which it may be bound, or to which any of the property or
assets of the Selling Stockholders may be subject, other than such
conflicts, breaches or defaults that individually or in the aggregate
would not impair the ability of the Selling Stockholders to perform
their respective obligations under this Agreement, nor will such
action result in any violation of the provisions of the charter or
by-laws of the Selling Stockholders or any law, administrative
regulation or, to the knowledge of such counsel, any judgment or order
of any governmental agency or body or any administrative or court
decree having jurisdiction over the Selling Stockholders or any of
their respective properties.
(6) To the best of their knowledge and
information, each Selling Stockholder has full right, power and
authority to sell, transfer and deliver such Securities pursuant to
this Agreement. By delivery of a certificate or certificates therefor
such Selling Stockholder will transfer to the Underwriters who have
purchased such Securities pursuant to this Agreement (without notice of
any defect in the title of such Selling Stockholder and who are
otherwise bona fide purchasers for purposes of the Uniform Commercial
Code) valid and marketable title to such Securities, free and clear of
any pledge, lien, security interest, claim or encumbrance of any kind.
(v) The favorable opinion, dated as of the Closing
Date, of Skadden, Arps, Slate, Meagher & Flom (Illinois), counsel for
the Under writers with respect to the issuance and sale of the
Securities, the Registration Statement and the Prospectus and such
other related matters as the Underwriters shall reasonably request.
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(vi) In giving their opinions required by paragraphs
(b)(i), (b)(iv) and (b)(v), respectively, of this Section 8, Fulbright
& Jaworski L.L.P., Schwartz, Cooper, Greenberger & Krauss, Chartered
and Skadden, Arps, Slate, Meagher & Flom (Illinois) shall each
additionally state that nothing has come to their attention that leads
them to believe that the Registration Statement (except for financial
statements and schedules and other financial information included or
incorporated by reference therein, as to which counsel need make no
statement), at the time it became effective, contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus (except for financial
statements and schedules and other financial information included or
incorporated by reference therein, as to which counsel need make no
statement), as of its date (unless the term "Prospectus" refers to a
prospectus which has been provided to the Underwriters by the Company
for use in connection with the offering of the Securities which differs
from the Prospectus on file at the Commission at the time the
Registration Statement becomes effective, in which case at the time it
is first provided to the Underwriters for such use) or at the Closing
Date or the Option Closing Date, as the case may be, included or
includes an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
c. (i) There shall not have been, since the
date hereof or since the respective dates as of which information is given in
the Registration Statement and the Prospectus, any material adverse change or
any development involving a prospective material adverse change in or affecting
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company, whether or not arising in the ordinary course
of business, (ii) the representations and warranties of the Company in Section
6(a) hereof shall be true and correct with the same force and effect as though
expressly made at and as of the Closing Date, except to the extent that any such
representation or warranty relates to a specific date, (iii) the Company shall
have complied in all material respects with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the Closing
Date, (iv)
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<PAGE> 46
no stop order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been initiated
or threatened by the Commission and (v) the Representatives shall have received
a certificate, dated the Closing Date and signed by the President or any Vice
President and the chief financial or accounting officer of the Company to the
effect set forth in clauses (i), (ii), (iii) and (iv) above.
d. The Underwriters shall have received a
certificate of an Attorney-in-Fact on behalf of each Selling Stockholder, dated
as of the Closing Date, to the effect that (i) the representations and
warranties of each Selling Stockholder contained in Section 6(b) hereof are true
and correct in all respects with the same force and effect as though expressly
made at and as of the Closing Date and (ii) each Selling Stockholder has
complied in all material respects with all agreements and all conditions on its
part to be performed under this Agreement at or prior to the Closing Date.
e. At the time of the execution of this
Agreement, the Underwriters shall have received from Arthur Anderson LLP a
letter dated such date, in form and substance satisfactory to the Underwriters,
together with signed or reproduced copies of such letter for each of the other
Underwriters containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
f. The Underwriters shall have received from
Arthur Anderson LLP a letter, dated as of the Closing Date, to the effect that
they reaffirm the statements made in the letter furnished pursuant to paragraph
(e) of this Section 8, except that the specified date referred to shall be a
date not more than three business days prior to the Closing Date.
g. The Securities shall have been approved
for listing on Nasdaq.
h. In the event that the Underwriters exercise their
option provided in Section 2 hereof to purchase all or any portion of the
Option Securities, the representations and warranties of the Company and
the Selling Stockholders contained herein and the statements in any
certificates furnished by the Company and the Selling Stockholders hereunder
shall be true and correct as of the Option Closing
46
<PAGE> 47
Date and, at the relevant Option Closing Date, the Underwriters shall have
received:
(1) A certificate, dated such Option Closing
Date, of the President or any Vice President of the Company and of the
chief financial or accounting officer of the Company confirming that
the certificate delivered at the Closing Date pursuant to Section 8(c)
hereof remains true and correct as of such Option Closing Date.
(2) A certificate, dated such Option Closing
Date, of an Attorney-in-Fact on behalf of each Selling Stockholder
confirming that the certificate delivered at the Closing Date pursuant
to Section 8(d) hereof remains true and correct as of such Option
Closing Date.
(3) The favorable opinion of Fulbright & Jaworski
L.L.P., in form and substance satisfactory to counsel for the
Underwriters, dated such Option Closing Date, relating to the Option
Securities to be purchased on such Option Closing Date and otherwise to
the same effect as the opinion required by Sections 8(b)(i) and
8(b)(vi) hereof.
(4) The favorable opinion of Arnold, White &
Durkee, in form and substance satisfactory to counsel for the
Underwriters, dated such Option Closing Date, to the same effect as the
opinion required by Section 8(b)(ii) hereof.
(5) The favorable opinion of Hogan & Hartson
L.L.P., in form and substance satisfactory to counsel for the
Underwriters, dated such Option Closing Date, to the same effect as the
Opinion required by Section 8(b)(iii) and 8(b)(vi) hereof.
(6) The favorable opinion of Schwartz, Cooper,
Greenberger & Krauss, Chartered, counsel for the Selling Stockholders,
in form and substance satisfactory to counsel for the Underwriters,
dated such Option Closing Date, to the same effect as the opinion
required by Section 8(b)(iv) and 8(b)(vi) hereof.
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<PAGE> 48
(7) The favorable opinion of Skadden, Arps,
Slate, Meagher & Flom (Illinois), counsel for the Underwriters, dated
such Option Closing Date, relating to the Option Securities to be
purchased on such Option Closing Date and otherwise to the same effect
as the opinion required by Sections 8(b)(v) and 8(b)(vi) hereof.
(8) A letter from Arthur Anderson LLP in form
and substance satisfactory to the Underwriters and dated such Option
Closing Date, substantially the same in form and substance as the
letter furnished to the Underwriters pursuant to Section 8(f) hereof,
except that the "specified date" in the letter furnished pursuant to
this Section 8(h)(7) shall be a date not more than three business days
prior to such Option Closing Date.
i. At the date of this Agreement, the Underwriters
shall have received lock-up agreements, in form and substance satisfactory to
the Underwriters, signed by each of the Company's current officers and directors
and each of its stockholders listed on Schedule III hereto.
j. Counsel for the Underwriters shall have
been furnished with such documents and opinions as they may require for the
purpose of enabling them to pass upon the issuance and sale of the Securities as
herein contemplated and related proceedings, or in order to evidence the
accuracy of any of the representations or warranties or the fulfillment of any
of the conditions herein contained; and all proceedings taken by the Company and
the Selling Stockholders in connection with the issuance and sale of the
Securities as herein contemplated shall be satisfactory in form and substance
to the Underwriters and counsel for the Underwriters.
k. The NASD shall not have raised any objection with
respect to the fairness and reasonableness of the underwriting terms and
arrangements.
l. Any certificate or document signed by any
officer of the Company or any Attorney-in-Fact on behalf of any Selling
Stockholder and delivered to you, as Representatives of the Underwriters, or to
counsel for the Underwriters, shall be deemed a representation and warranty by
the Company or such Selling Stockholder, as applicable, to each Underwriter as
to the statements made therein.
48
<PAGE> 49
m. If any condition specified in this Section
8 shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of Option
Securities, on an Option Closing Date which is after the Closing Date, the
obligations of the several Underwriters to purchase the relevant Option
Securities, may be terminated by the Representatives by notice to the Company at
any time at or prior to the Closing Date or such an Option Closing Date, as the
case may be, and such termination shall be without liability of any party to any
other party except as provided in Section 9 and except that Sections 6 and 7
shall survive any such termination and remain in full force and effect.
9. EXPENSES.
a. The Company will pay or cause to be paid
the following costs and expenses and all other costs and expenses incident to
the performance by it of its obligations hereunder: (i) the preparation,
printing or reproduction, and filing with the Commission of the Registration
Statement (including financial statements and exhibits thereto), each
preliminary prospectus, the Prospectus, and each amendment or supplement to any
of them; (ii) the printing (or reproduction) and delivery (including postage,
air freight and charges for counting and packaging) of such copies of the
Registration Statement, each preliminary prospectus, the Prospectus, and all
amendments or supplements to any of them as may be reasonably requested for use
in connection with the offering and sale of the Securities; (iii) the
preparation, printing, authentication, issuance and delivery of certificates
for the Securities, including any stock or other transfer taxes and any stamp
taxes in connection with the sale, issuance or delivery of the Securities; (iv)
the printing (or reproduction) and delivery of this Agreement, the preliminary
and supplemental Blue Sky Memoranda and all other agreements or documents
printed (or reproduced) and delivered in connection with the sale, issuance or
delivery of the Securities; (v) the listing of the Securities on Nasdaq; (vi)
the registration or qualification of the Securities for offer and sale under
the securities or Blue Sky laws of the several states as provided in Section
5(g) hereof (including the reasonable fees, expenses and disbursements of
counsel for the Underwriters relating to the preparation, printing or
reproduction, and delivery of the preliminary and supplemental Blue Sky
Memoranda and such registration and qualification); (vii) the filing fees and
the reasonable fees and expenses of counsel for the Underwriters incident to
securing any required review by the NASD; and (viii) the fees and expenses of
the Company's accountants and the fees and expenses of
49
<PAGE> 50
counsel (including local and special counsel) for the Company.
b. The Selling Stockholders, severally and
not jointly, will pay all expenses incident to the performance of their
respective obligations under, and the consummation of the transactions
contemplated by this Agreement, including (i) any stamp duties, capital duties
and stock transfer taxes, if any, payable upon the sale of the Securities to
the Underwriters, and (ii) the fees and disbursements of their respective
counsel and accountants (other than the fees and disbursements of one counsel
for all of the Selling Stockholders selected by them which will be paid by the
Company).
If this Agreement shall terminate or shall be
terminated after execution pursuant to any provisions hereof (otherwise than
pursuant to Section 10(b) or pursuant to clauses (ii), (iii), (iv) and (v) of
Section 11(a) hereof) or if this Agreement shall be terminated by the
Underwriters because of any failure or refusal on the part of the Company or any
of the Selling Stockholders to comply, in any material respect, with the terms
or fulfill, in any material respect, any of the conditions of this Agreement,
the Company shall reimburse the Representatives for all reasonable out-of-pocket
expenses (including reasonable fees and expenses of counsel for the
Underwriters) incurred by you in connection herewith.
c. The provisions of this Section shall not
affect any agreement that the Company and the Selling Stock holders may make for
the sharing of such costs and expenses.
10. EFFECTIVE DATE OF AGREEMENT. This Agreement shall become
effective: (i) upon the execution and delivery hereof by or on behalf of the
parties hereto; or (ii) if, at the time this Agreement is executed and
delivered, it is necessary for the Registration Statement or a post-effective
amendment thereto to be declared effective before the offering of the
Securities may commence, when notification of the effectiveness of the
Registration Statement or such post-effective amendment has been released by the
Commission. Until such time as this Agreement shall have become effective, it
may be terminated by the Company or any of the Selling Stockholders by notifying
you, or by you, as Representatives of the several Underwriters, by notifying
the Company and the Selling Stockholders.
50
<PAGE> 51
If one or more of the Underwriters shall fail
on the Closing Date to purchase the Initial Securities which it or they are
obligated to purchase under this Agreement (the "Defaulted Securities"), the
Representatives shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the Representatives shall not have completed such
arrangements within such 24-hour period, then:
a. if the number of Defaulted Securities does
not exceed 10% of the number of Initial Securities, the non-defaulting
Underwriters shall be obligated to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
b. if the number of Defaulted Securities
exceeds 10% of the number of Initial Securities, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall
relieve any defaulting Underwriter from liability in respect
of its default.
In the event of any such default which does
not result in a termination of this Agreement, either the Representatives or the
Company and any Selling Stockholder shall have the right to postpone the Closing
Date for a period not exceeding seven days in order to effect any required
changes in the Registration Statement or Prospectus or in any other documents or
arrangements. As used herein, the term "Underwriter" includes any person
substituted for an Underwriter under this Section 10.
Any notice under this Section 10 may be given
by telegram, telecopy or telephone but shall be subsequently
confirmed by letter.
11. TERMINATION OF AGREEMENT.
a. The Underwriters may terminate this Agreement,
by notice to the Company and the Selling Stockholders, at any time at or prior
to the Closing Date, or Option Closing Date, as the case may be, (i) if there
has been, since the date of this Agreement or since the respective dates as
51
<PAGE> 52
of which information is given in the Registration Statement, any material
adverse change or any development involving a prospective material adverse
change in or affecting the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company, whether or not
arising in the ordinary course of business, (ii) if there has occurred any
change in the financial markets in the United States or elsewhere or any
outbreak of hostilities or escalation thereof or other calamity or crisis the
effect of which is such as to make it, in your judgement, impracticable or
inadvisable to market the Securities or to enforce contracts for the sale of
the Securities, (iii) if trading in the Common Stock has been suspended by the
Commission, or if trading generally on the American Stock Exchange, the New York
Stock Exchange or in the over-the-counter markets has been suspended, or minimum
or maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by such exchange or markets or by order of the
Commission or any other governmental authority, or if a banking moratorium has
been declared by either federal, New York or Illinois authorities, (iv) the
enactment, publication, decree or other promulgation of any federal or state
statute, regulation, rule or order of any court or other governmental authority
which in your judgement materially and adversely affects or may materially or
adversely affect the business or operations of the Company and its subsidiaries
or (v) the taking of any action by any federal, state or local government or
agency in respect of its monetary or fiscal affairs which in your judgement has
a material adverse effect on the securities markets in the United States, and
would in your judgement make it impracticable or inadvisable to market the
Securities or to enforce any contract for the sale thereof. Notice of such
termination may be given by telegram, telecopy or telephone and shall be
subsequently confirmed by letter.
b. If this Agreement is terminated pursuant
to this Section 11, such termination shall be without liability of any party to
any other party except as provided in Section 9 and provided further that
Sections 6 and 7 shall survive such termination and remain in full force and
effect.
12. INFORMATION FURNISHED BY THE UNDERWRITERS. The information
set forth in the last paragraph on the cover page, the stabilization and passive
market making legends on the inside front cover page, and the statements under
the caption "Underwriting" in any preliminary prospectus and in the Prospectus
constitute the only information furnished by or on behalf of the Underwriters
through you as such information is referred to in Sections 6(a) and 7 hereof.
52
<PAGE> 53
13. MISCELLANEOUS. Except as otherwise provided in Sections 5,
10 and 11 hereof, notice given pursuant to any provision of this Agreement shall
be in writing and shall be delivered (i) if to the Company at the office of the
Company, at 3606 Research Forest Drive, The Woodlands, Texas 77381, Attention:
President and Chief Executive Officer, with a copy to Fulbright & Jaworski
L.L.P., 1301 McKinney, Suite 5100 Houston, Texas 77010, Attention: Robert E.
Wilson; (ii) if to the Selling Stockholders, to Schwartz, Cooper, Greenberger &
Krauss, Chartered, 180 N. La Salle St., Suite 2700, Chicago, Illinois 60601,
Attention: _____; or (iii) if to you, as Representatives of the several
Underwriters, care of Vector Securities International, Inc., 1751 Lake Cook
Road, Suite 350, Deerfield, Illinois 60015, Attention: Syndicate Department.
14. APPLICABLE LAW; COUNTERPARTS. This Agreement shall be
governed by and construed in accordance with the laws of the State of Illinois
applicable to contracts made and to be performed within the State of Illinois.
This Agreement may be signed in various counterparts which together constitute
one and the same instrument. If signed in counterparts, this Agreement shall not
become effective unless at least one counterpart hereof shall have been executed
and delivered on behalf of each party hereto.
15. SUCCESSORS. This Agreement has been and is made solely for
the benefit of the several Underwriters, the Selling Stockholders, the Company,
its directors and officers, the other persons referred to in Section 7 hereof
and their respective successors and assigns, to the extent provided herein, and
no other person shall acquire or have any right under or by virtue of this
Agreement. Neither the term "successor" nor the term "successors and assigns" as
used in this Agreement shall include a purchaser from any Underwriter of any of
the Securities in his status as such purchaser.
53
<PAGE> 54
Please confirm that the foregoing correctly sets forth the
agreement among the Company, the Selling Stockholders and the several
Underwriters.
Very truly yours,
LIFECELL CORPORATION
By:
---------------------------------------
Name:
Title:
[Paul M. Frison or J. Donald Payne]
By:
---------------------------------------
As Attorney-in-Fact acting on
behalf of the Selling
Stockholders named in Schedule II hereto
Confirmed as of the date first above mentioned
on behalf of themselves and the
other several Underwriters named in Schedule I
hereto.
VECTOR SECURITIES INTERNATIONAL, INC.
GRUNTAL & CO., L.L.C.
As Representatives of the Several Underwriters
By VECTOR SECURITIES INTERNATIONAL, INC.
By:
--------------------------------------
Vice President
54
<PAGE> 55
SCHEDULE I
<TABLE>
<CAPTION>
Number of Initial
Securities
-----------------
<S> <C>
Vector Securities
International, Inc..........................................................
Gruntal & Co., L.L.C.........................................................
---------
Total............................................................... 4,500,000
=========
</TABLE>
<PAGE> 56
SCHEDULE II
<TABLE>
<CAPTION>
Maximum
Number of Number of
Initial Option
Securities Securities
To Be Sold To Be Sold
---------- ----------
<S> <C> <C>
LifeCell Corporation................................................. 4,000,000 81,680
Allstate Insurance Company........................................... 295,789 593,320
EPEC Insurance Ventures, Inc......................................... 204,211 0
--------- ---------
Total....................................................... 4,500,000 675,000
========= =======
</TABLE>
<PAGE> 57
INSTRUCTIONS
(For completing the Power of Attorney
and Custody Agreement)
A. You have been sent seven copies of the Power of
Attorney and Custody Agreement (the "Agreement"). Please complete and return
all seven copies of the Agreement together with your stock certificate(s)
and/or warrant certificate(s) as set forth in Instruction E below. One
completed copy of the Agreement and your stock certificate(s) and/or warrant
certificate(s) will be retained by the Custodian and one completed copy of the
Agreement will be delivered to each of the Attorneys-in-Fact, the
Representatives, counsel for the Selling Stockholders and you.
B. Complete the information required by Schedule I and
Schedule II attached hereto.
C. Each copy of the Agreement and each stock certificate
and stock power deposited hereunder must be executed by you, with your
signature on the Agreement and the stock certificate(s) and the accompanying
stock power guaranteed by a commercial bank or trust company in the United
States or any broker which is a member firm at the New York Stock Exchange.
Please sign the stock certificate(s), stock power and the Agreement exactly as
your name appears on your stock certificate(s) or warrant certificate(s).
D. Any warrant certificates deposited hereunder must be
accompanied by (i) a fully completed and executed Exercise Subscription Form
(in the form attached to the warrant certificate), (ii) payment of the exercise
price and (iii) a duly executed stock power with respect to the Shares to be
issued upon exercise of the warrant, with the signature guaranteed as described
in Instruction C above.
E. Warrant certificates, related stock powers, endorsed
stock certificate(s), or stock certificate(s) with the stock powers attached,
along with all
<PAGE> 58
seven executed copies of the completed Agreement, should be promptly returned
by hand delivery or certified mail appropriately insured to:
Harris Trust & Savings Bank
88 Pine Street, 19th Floor
Wall Street Plaza
New York, New York 10505
If sent through the mail, it is recommended that the stock certificate(s) not
be endorsed, but an executed stock power be sent under separate cover from the
stock certificate(s).
F. If any stock or warrant certificate that you submit
represents a greater number than the Shares to be sold by you, the Custodian
will cause to be delivered to you a stock certificate for the excess number of
shares within ten days after the closing of the sale to the Underwriters.
G. Please contact Paul M. Frison or J. Donald Payne if
any information or representation included in the Agreement should change at
any time prior to the closing and the Offering.
H. The Custodian will execute the Agreement and the
attached Acknowledgement and Receipt and deliver a signed copy of each to you.
I. If the undersigned has granted the Underwriters an
option to purchase additional shares of Common Stock owned by the undersigned
pursuant to overallotment options, then the maximum number of Shares which may
be purchased by the Underwriters from the undersigned (assuming exercise in
full of the over-allotment option) must be delivered to the Custodian as
provided herein.
2
<PAGE> 59
-----------------------------
(Name of Selling Stockholder)
POWER OF ATTORNEY AND CUSTODY AGREEMENT
for Sale of Common Stock of
LIFECELL CORPORATION
Paul M. Frison and
J. Donald Payne,
As Attorneys-in-Fact
c/o LifeCell Corporation
3606 Research Forest Drive
The Woodlands, Texas 77381
Harris Trust & Savings Bank,
As Custodian
88 Pine Street, 19th Floor
Wall Street Plaza
New York, New York 10505
Gentlemen:
LifeCell Corporation, a Delaware corporation (the "Company"),
the undersigned and certain other stockholders of the Company (the undersigned
and such other stockholders being hereinafter referred to as the "Selling
Stockholders") propose to sell certain shares of Common Stock, $.001 par value
per share, of the Company ("Common Stock") to certain underwriters (the
"Underwriters"), for whom Vector Securities International, Inc. ("Vector") and
Gruntal & Co., L.L.C. will act as representatives (the "Representatives"), for
distribution of the Common Stock under a Registration Statement on Form S-2,
Registration Statement No. 333-37123 (the "Registration Statement"), to the
public at a price and on terms to be hereafter determined. It is understood
that at this time there is no commitment on the part of the Underwriters to
purchase any shares of Common Stock and no assurance that an offering of Common
Stock will take place. The shares of Common Stock which the undersigned
proposes to sell to the Underwriters, as set forth on Schedule I hereto,
pursuant to an underwriting agreement
<PAGE> 60
hereinafter mentioned (the "Underwriting Agreement"), are referred to herein as
the "Shares."
1. Appointment and Powers of Attorneys-in-Fact.
(a) Subject to subsection (g) of this Section, the
undersigned hereby irrevocably makes, constitutes and appoints Paul M. Frison
and J. Donald Payne (the "Attorneys-in-Fact"), or either of them or their
successors, its true and lawful agent and attorney-in-fact, with full power of
substitution, with the full power and authority, in the name and on behalf of
the undersigned to do or cause to be done any of the following things as fully
as could the undersigned if personally present and acting:
(i) prepare, execute and deliver the Underwriting
Agreement, in the form of the proofs, dated November 24, 1997,
delivered to the undersigned herewith, receipt of which is
acknowledged, including the making of all representations and the
preparation, execution and delivery of all agreements provided in the
Underwriting Agreement to be made by, and the exercise of all
authority thereunder vested in, the undersigned, provided that the
Attorneys-in-Fact shall have no authority to expand the scope of the
representations, warranties, covenants or indemnification agreements
made by the undersigned in this Agreement or the Underwriting
Agreement;
(ii) negotiate, determine and agree upon (A) the price at
which the Shares will be initially offered to the public by the
Underwriters pursuant to the Underwriting Agreement, (B) the
underwriting discount with respect to the Shares, and (C) the price at
which the Shares will be sold to the Underwriters by the Selling
Stockholders pursuant to the Underwriting Agreement; provided that
such price is not less than $____ per share;
(iii) sell, assign, transfer and deliver the Shares to the
Underwriters pursuant to the Underwriting Agreement, and sign, date
and deliver to the Underwriters certificates for the Shares so sold
(including pursuant to the exercise of warrants to
2
<PAGE> 61
purchase Shares which are deposited with the Custodian as provided in
Section 2 hereof);
(iv) take any and all steps and do all things which the
Attorneys-in-Fact in their sole discretion may consider necessary or
desirable in connection with the registration of the Shares under the
Securities Act of 1933, as amended (the "Securities Act"), the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
under the securities or "blue sky" laws of various states and
jurisdictions, including, without limitation, the giving or making of
such orders, instructions, undertakings, representations and
agreements and the taking of any and all other steps as the
Attorneys-in-Fact may in their sole discretion deem necessary or
advisable in connection with or to carry out the sale of the Shares to
the Underwriters (provided that no Selling Stockholder shall be
required to subject itself to taxation in any such state or
jurisdiction or consent to general service of process in any such
state or jurisdiction);
(v) order and instruct the Company and the Custodian, as
hereinafter defined, on all matters pertaining to the sale of the
Shares and delivery of certificates therefor, including, without
limitation, with respect to (A) the transfer on the books of the
Company of the certificates representing the Shares to be sold by the
undersigned (including the names in which the new certificates are to
be issued and the denominations thereof), (B) the delivery to or for
the account of the Underwriters of the certificate(s) representing
such Shares against receipt by the Custodian of the purchase price to
be paid therefor and (C) the remittance to the undersigned of the
proceeds less transfer taxes, if any, from any sale of the Shares to
be sold by the undersigned;
(vi) provide, in accordance with and as required by the
Underwriting Agreement, for the payment of expenses of the offering
and sale of the Common Stock covered by the Registration Statement;
(vii) accept and acknowledge receipt of any and all
documents delivered or deliverable to the undersigned
3
<PAGE> 62
as a Selling Stockholder, and any and all checks, drafts or funds
payable to the undersigned as a result of the sale of Shares pursuant
to the Underwriting Agreement; and
(viii) otherwise take all actions and do all things
reasonably necessary or proper, required, contemplated or deemed
advisable or desirable by the Attorneys-in-Fact in their discretion,
including the preparation, execution and delivery of any documents,
and generally act for and in the name of the undersigned with respect
to the sale of the Shares to the Underwriters and the reoffering of
the Shares by the Underwriters as fully as could the undersigned if
then personally present and acting.
(b) Each Attorney-in-Fact may act alone in exercising the
rights and powers conferred on the Attorney-in-Fact by this Agreement, and the
act of any Attorney-in-Fact shall be the act of the Attorneys-in-Fact. Each
Attorney-in-Fact is hereby empowered to determine, in his sole and absolute
discretion, the time or times when, the purposes for which, and the manner in
which, any power herein conferred upon the Attorneys-in-Fact shall be
exercised.
(c) Each Attorney-in-Fact shall have full power to make
and substitute any Attorney-in-Fact in his place and stead, and the undersigned
hereby ratifies and confirms all that the Attorneys-in-Fact or such substitute
or substitutes shall do by virtue of this Agreement. All actions hereunder may
be taken by any one of the persons named herein as Attorney-in-Fact or their
respective substitutes. In the event of the death or incapacity of any
Attorney-in-Fact, the remaining Attorney-in-Fact shall appoint a substitute
therefor. The term "Attorney-in-Fact" as used herein shall include their
respective substitutes.
(d) The Custodian, the Representatives, the Company and
all other person dealing with the Attorneys-in-Fact as such may conclusively
rely and shall incur no liability, except as otherwise provided herein, for
acting upon any instrument or other writing believed in good faith to be
genuine and to be signed by one or more of the Attorneys-in-Fact; each
Attorney-in-Fact may act upon any instrument or other writing believed by him
in
4
<PAGE> 63
good faith to be genuine and to be signed or presented or caused to be sent by
the proper person.
(e) The Attorneys-in-Fact shall not receive any
compensation for their services rendered hereunder, except that they shall be
entitled to receive from the Company reimbursement of any out-of-pocket
expenses incurred under this Agreement.
(f) The Attorneys-in-Fact shall pay on behalf of the
undersigned all transfer and similar taxes, if any, imposed on the sale,
transfer and delivery to the Underwriters of the Shares to be sold by the
undersigned, and the undersigned will advance to the Attorneys-in-Fact or
reimburse them in the full amount of any such taxes.
2. Appointment of Custodian; Deposit of Shares;
Acceptance and Receipt of Certificate(s).
(a) In connection with and to facilitate the sale of the
Shares to the Underwriters, the undersigned hereby appoints Harris Trust &
Savings Bank as Custodian (the "Custodian") and herewith deposits with the
Custodian (i) one or more warrant certificates to purchase Common Stock, each
accompanied by a fully completed Exercise Subscription Form, payment of the
exercise price and a duly executed stock power with respect to the Shares to be
issued upon the exercise of such warrants, and/or (ii) one or more endorsed
certificates for Common Stock or certificate and related stock power, which,
together with the Shares to be issued upon exercise of any warrants deposited
with the Custodian, represent not less than the total number of Shares subject
to sale by the undersigned to the Underwriters, which number is set forth on
Schedule I hereto. Each certificate for Common Stock so deposited is in
negotiable and proper deliverable form endorsed in blank with the signature of
the undersigned thereon guaranteed by a commercial bank or trust company in the
United States or by a member firm of the New York Stock Exchange, or is
accompanied by a duly executed stock power or powers in blank, bearing the
signature of the undersigned so guaranteed. Each warrant certificate is
accompanied by a fully completed Exercise Subscription Form, payment of the
exercise price and a duly executed stock power with respect to the Shares to be
issued upon the exercise of such warrants, bearing the signature of the
undersigned and guaranteed as provided
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<PAGE> 64
in Instruction C. The Custodian is hereby authorized and directed subject to
the instructions of the Attorneys-in-Fact, (i) to hold in custody the
certificate or certificates deposited herewith, (ii) to effect the exercise of
warrants deposited hereunder for Shares of Common Stock at any time following
receipt of warrant certificates, payment of the exercise price and fully
completed Exercise Subscription Forms, (iii) to cause the number of Shares
which are to be sold by the undersigned pursuant to the Underwriting Agreement
to be transferred on the books of the Company into such names as the
Attorneys-in-Fact shall have instructed the Custodian, (iv) to cause to be
issued, against surrender of the certificate(s) representing such Shares, new
certificates for such Shares registered in such names and in such denominations
as the Attorneys-in-Fact shall have instructed the Custodian, (v) to purchase
all stock transfer tax stamps necessary, if any, in connection with the
transfer of such shares, (vi) upon the instructions of the Attorneys-in-Fact,
to deliver such new certificates to the Underwriters against payment therefor
in accordance with the Underwriting Agreement, (vii) to give receipt for such
payment and to deposit such payment in an account in the name of the Custodian,
(viii) within one business day after the Closing Date (as defined in the
Underwriting Agreement), to pay the amount in such account to the undersigned,
and (ix) to return or cause the Company's transfer agent to return to the
undersigned new certificate(s) for Common Stock representing the number of
shares deposited hereunder that are not sold pursuant to the Underwriting
Agreement. The Attorneys-in-Fact will notify the Custodian, at least two full
business days prior to the Closing Date, of the names and denominations in
which the new certificates are to be issued pursuant to this paragraph
(provided that the Attorneys-in-Fact have received such names and denominations
from the Underwriters).
(b) Until the Shares have been delivered to the
Underwriters against payment therefor in accordance with the Underwriting
Agreement, the undersigned shall retain all rights of ownership with respect to
the certificate(s) deposited hereunder, including the right to vote and to
receive all dividends and payment thereon, except the right to retain custody
of or dispose of such certificate(s) which right is subject to this Agreement
and the Underwriting Agreement.
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<PAGE> 65
(c) The Custodian shall acknowledge its acceptance of
this Agreement and receipt of the certificate(s) deposited under this Agreement
by executing and returning to the undersigned a copy of this Agreement with the
attached Acknowledgement and Receipt completed and executed.
3. Sale of Shares; Remitting Net Proceeds.
The Attorneys-in-Fact are hereby authorized and directed to
deliver or cause the Custodian or the Company's transfer agent to deliver
certificates for the Shares to the Representatives, as provided in the
Underwriting Agreement, against delivery to the Attorneys-in-Fact for the
account of the undersigned of the purchase price of the Shares, at the time and
in the funds specified in the Underwriting Agreement. The Attorneys-in-Fact
are authorized, on behalf of the undersigned, to accept and acknowledge receipt
of the payment of the purchase price for the Shares and shall promptly deposit
such proceeds with the Custodian. The Custodian shall promptly remit to the
undersigned its proportionate share of the proceeds (net of the undersigned's
proportionate share of the Underwriters' discount and any applicable stamp,
transfer or similar taxes).
4. Representations, Warranties and Agreements.
The undersigned represents and warrants to, and agrees with,
the other Selling Stockholders, the Company, the Attorneys-in-Fact, the
Custodian and the Underwriters as follows:
(a) The undersigned is not prompted to sell the
Securities to be sold by such Selling Stockholder pursuant to the Underwriting
Agreement by any material information concerning the Company which is not set
forth in the Prospectus.
(b) The undersigned has the full right, power and
authority to enter into this Agreement and the Underwriting Agreement, and to
sell, transfer and deliver the Securities to be sold by such Selling
Stockholder. The execution and delivery of this Agreement and the Underwriting
Agreement and the sale and delivery of the Securities to be sold by such
Selling Stockholder and the consummation of the transactions contemplated
herein and
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<PAGE> 66
therein and compliance by such Selling Stockholder with its obligations
hereunder and thereunder have been duly authorized by such Selling Stockholder
and do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or default
under, or result in the creation or imposition of any tax, lien, charge or
encumbrance upon the Securities to be sold by such Selling Stockholder pursuant
to, any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, license, lease or other agreement or instrument to which such Selling
Stockholder is a party or by which such Selling Stockholder may be bound, or to
which any of the property or assets of such Selling Stockholder is subject,
other than such conflicts, breaches or defaults that individually or in the
aggregate would not impair the ability of the Selling Stockholders to perform
their respective obligations under this Agreement, nor will such action result
in any violation of the provisions of the charter or bylaws or other
organizational instrument of such Selling Stockholder, if applicable, or any
applicable treaty, law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over such Selling Stockholder or any of such
Selling Stockholder's properties.
(c) The undersigned has and will on the Closing Date and,
if any Option Securities are purchased from such Selling Stockholder, on the
Option Closing Date have good and marketable title to the Securities to be sold
by such Selling Stockholder, free and clear of any security interest, mortgage,
pledge, lien, charge, claim, equity or encumbrance of any kind, other than
pursuant to the Underwriting Agreement; and upon delivery of such Securities
and payment of the purchase price therefor as therein contemplated, assuming
each such Underwriter has no notice of any adverse claim, each of the
Underwriters will receive good and marketable title to the Securities purchased
by it from such Selling Stockholder, free and clear of any security interest,
mortgage, pledge, lien, charge, claim, equity or encumbrance of any kind.
(d) No filing with, or consent, approval, authorization,
order, registration, qualification or decree of, any court or governmental
authority or agency,
8
<PAGE> 67
domestic or foreign, is necessary or required for the performance by the
undersigned of such Selling Stockholder's obligations hereunder or in the
Underwriting Agreement, or in connection with the sale and delivery of the
Securities under the Underwriting Agreement, or the consummation of the
transactions contemplated by the Underwriting Agreement, except such as may
have previously been made or obtained or as may be required under the
Securities Act or the rules and regulations promulgated thereunder or state
securities laws.
(e) During a period of 90 days from the date of the
Prospectus, the undersigned will not, without the prior written consent of
Vector, (A) offer, pledge, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant any option, right
or warrant to purchase or otherwise transfer or dispose of, directly or
indirectly, any share of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock or cause to be filed any
registration statement under the Securities Act with respect to any of the
foregoing or (B) enter into any swap or any other agreement or any transaction
that transfers, in whole or in part, directly or indirectly, the economic
consequence of ownership of the Common Stock, whether any such swap or
transaction described in clause (A) or (B) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to the Securities to be sold under the Underwriting
Agreement.
(f) Except as previously disclosed in writing to the
Representatives, neither the undersigned nor any of such Selling Stockholder's
affiliates directly, or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, or has any
other association with (within the meaning of Article I, Section 1(m) of the
Bylaws of the National Association of Securities Dealers, Inc. (the "NASD"),
any member firm of the NASD.
(g) The undersigned is not acting in a fiduciary capacity
or as a nominee, custodian or agent in selling his Shares.
9
<PAGE> 68
(h) The undersigned has reviewed the Registration
Statement, including the preliminary prospectus included therein (as the same
shall have been amended or supplemented through the date hereof, and (i) the
undersigned has no actual knowledge that the Registration Statement or such
preliminary prospectus (as so amended or supplemented) contains, to the extent
that any statements or omissions therein are made in reliance upon and in
conformity with information furnished in writing to the Company by such Selling
Stockholder expressly for use therein, any untrue statement of a material fact
or omits to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, and (ii) the information
contained in such preliminary prospectus (as so amended or supplemented) with
respect to the undersigned is complete and correct in all material respects.
(i) Except as otherwise disclosed on Schedule II hereto,
the undersigned is not directly or indirectly an affiliate of or associated
with any member of the NASD.
(j) Upon execution and delivery of the Underwriting
Agreement by the Attorneys-in-Fact on behalf of the undersigned, the
undersigned agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, to the extent set
forth in Section 6 of the Underwriting Agreement and agrees to make
contributions as set forth in Section 7 of the Underwriting Agreement.
(k) Upon execution and delivery of the Underwriting
Agreement by the Attorneys-in-Fact on behalf of the undersigned, the
undersigned agrees to be bound by and to perform each of the covenants and
agreements of the undersigned as a Selling Stockholder in the Underwriting
Agreement.
(l) The undersigned agrees to deliver to the
Attorneys-in-Fact such documentation as the Attorneys-in-Fact, the Company,
the Selling Stockholders or the Underwriters or any of their respective counsel
may reasonably request in order to effectuate any of the provisions
10
<PAGE> 69
hereof or of the Underwriting Agreement, all of the foregoing, to be in form
and substance satisfactory in all respects to the Attorneys-in-Fact.
(m) The undersigned has not distributed and will not
distribute any prospectus or other offering material in connection with the
offering and sale of the Shares other than the preliminary prospectus and the
prospectus or other material permitted by the Securities Act.
(n) The undersigned has read and is familiar with the
relevant opinion to be rendered pursuant to Section 8(b)(iv) of the
Underwriting Agreement. The undersigned knows of no reason why such opinion
should not be issued.
The foregoing representations, warranties and agreements are
made for the benefit and may be relied upon by the other Selling Stockholders,
the Attorneys-in-Fact, the Company, the Custodian, the Underwriters and their
respective representatives, agents and counsel and are in addition to, and not
in limitation of, the representations, warranties and agreements of the Selling
Stockholders in the Underwriting Agreement.
5. Irrevocability of Instruments; Termination of this Agreement.
(a) This Agreement, the deposit of the Shares, pursuant
hereto and all authority hereby conferred, is granted, made and conferred
subject to and in consideration of (i) the interests of the Attorneys-in-Fact,
the Underwriters, the Company and the other Selling Stockholders who may become
parties to the Underwriting Agreement in and for the purpose of completing the
transactions contemplated hereunder and by the Underwriting Agreement and (ii)
the completion of the registration of Common Stock pursuant to the Registration
Statement and the other acts of the above-mentioned parties from the date
hereof to and including the execution and delivery of the Underwriting
Agreement in anticipation of the sale of Common Stock, including the Shares (to
the extent provided in the Underwriting Agreement), to the Underwriters; and
the Attorneys-in-Fact are hereby further
11
<PAGE> 70
vested with an estate, right, title and interest in and to the Shares deposited
herewith for the purpose of irrevocably (to the extent provided in Section 1(g)
hereof) empowering and securing to them authority sufficient to consummate said
transactions. Accordingly, this Agreement shall be irrevocable beginning at
5:00 P.M. on the business day specified in Section 1(g) hereof and ending on
February 28, 1998 and shall remain in full force and effect during such period.
The undersigned further agrees that this Agreement is an agency coupled with an
interest and all authority conferred hereby shall be irrevocable and shall not
be terminated by any act of the undersigned or by operation of law or upon the
occurrence of any event whatsoever, including the death, disability or
incompetence of the undersigned or any other Selling Stockholder or, if the
undersigned or any other Selling Stockholder is not a natural person, upon any
dissolution, winding up, distribution of assets or other event affecting the
legal existence of the undersigned or such Selling Stockholder. If any event
referred to in the preceding sentence shall occur, whether with or without
notice thereof to the Attorneys-in-Fact, the Custodian, any of the Underwriters
or any other person, the Attorneys-in-Fact and the Custodian shall nevertheless
be authorized and empowered to deliver and deal with the Shares deposited under
this Agreement by the undersigned in accordance with the terms and provisions
of the Underwriting Agreement as if such event had not occurred.
(b) If the sale of the Shares contemplated by this
Agreement is not completed by February 28, 1998 or if the public offering of
Common Stock contemplated by the Registration Statement shall have occurred but
the Underwriters shall not have exercised in full their option to purchase the
Shares as set forth in the Underwriting Agreement within the time prescribed
therein, this Agreement shall terminate (without affecting any lawful action of
the Attorneys-in-Fact or the Custodian prior to such termination), and the
Attorneys-in-Fact shall cause the Custodian to return to the undersigned all
certificates for warrants and/or the Shares deposited hereunder not purchased
by the Underwriters, together with any assignments or stock powers delivered
therewith.
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<PAGE> 71
6. Liability and Indemnification of the Attorneys-in-Fact and Custodian.
(a) The Attorneys-in-Fact and the Custodian assume no
responsibility or liability to the undersigned or to any other person, other
than to hold and dispose of the Shares, the proceeds from the sale of the
Shares and any other shares of Common Stock deposited with the Custodian
pursuant to the terms of this Agreement in accordance with the provisions
hereof. The undersigned hereby agrees to indemnify and hold harmless the
Attorneys-in-Fact and the Custodian and their respective officers, agents,
successors, assigns and personal representatives, severally and not jointly,
from and against any and all liabilities, costs, damages, judgments, attorneys'
fees and disbursements, expenses, losses or liabilities of any kind or nature,
including the costs and expenses of defending against any claim of liability,
with respect to any act or omission of or by any of them in good faith in
connection with any and all matters contemplated by this Agreement or the
Underwriting Agreement.
(b) The indemnification provided for hereunder shall
survive the expiration of this Agreement and the resignation or removal of the
Custodian. The undersigned hereby agrees that the Attorneys-in-Fact and the
Custodian may consult with counsel of their own choice (who may be counsel for
the Company) and that the Attorneys-in-Fact and the Custodian shall have full
and complete authorization and protection for any action taken or suffered by
them hereunder in good faith and in accordance with the opinion of such
counsel.
(c) Notwithstanding anything in this Agreement to the
contrary, in no event shall the Custodian be liable for special, indirect or
consequential loss or damage of any kind whatsoever (including, but not limited
to, lost profits).
7. Interpretation.
(a) The interpretation of any provision of this Agreement
relating to the obligation or responsibility of the undersigned to pay expenses
shall not affect
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<PAGE> 72
any agreement that the Company and the Selling Stockholders may make for the
sharing of such costs and expenses.
(b) The representations, warranties and agreements of the
undersigned contained herein and in the Underwriting Agreement shall survive
the sale and delivery of the Shares and the termination of this Agreement.
(c) The validity, enforceability, interpretation and
construction of this Agreement shall be determined in accordance with the laws
of the State of New York applicable to contracts made and to be performed
within the State of New York, and this Agreement shall inure to the benefit of,
and be binding upon, the undersigned and the undersigned's heirs, executors,
administrators, successors and assigns, as the case may be.
(d) Wherever possible each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, it shall be ineffective only to the extent of such prohibition
or invalidity, without invalidating the remainder of such provision or the
remaining provisions of this Agreement.
(e) The use of the masculine gender in this Agreement
includes the feminine and neuter, and the use of the singular includes the
plural, wherever appropriate.
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<PAGE> 73
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney and Custody Agreement this ______ day of November, 1997.
(To be signed exactly as name appears on Certificate(s))
ALLSTATE INSURANCE
COMPANY
By:
----------------------------
Name:
Title:
Agreed:
LIFECELL CORPORATION
By:
---------------------------
Name
Title:
LifeCell Corporation
3606 Research Forest Drive
The Woodlands, Texas 77381
(NOTE: The signature must be guaranteed by a commercial bank or trust company
in the United States or by a member firm of the New York Stock Exchange.)
Signature guaranteed by:
- ------------------------------
Name:
Title:
15
<PAGE> 74
IN WITNESS WHEREOF, the undersigned has executed this Power of
Attorney and Custody Agreement this ______ day of November, 1997.
(To be signed exactly as name appears on Certificate(s))
EPEC INSURANCE VENTURES,
INC.
By:
----------------------------
Name:
Title:
Agreed:
LIFECELL CORPORATION
By:
---------------------------
Name
Title:
LifeCell Corporation
3606 Research Forest Drive
The Woodlands, Texas 77381
(NOTE: The signature must be guaranteed by a commercial bank or trust company
in the United States or by a member firm of the New York Stock Exchange.)
Signature guaranteed by:
- ------------------------------
Name:
Title:
16
<PAGE> 75
ACCEPTED by the Attorneys-in-Fact ACCEPTED by the Custodian
as of the date above set forth: as of the date above set forth:
- --------------------------------- --------------------------------
By:
- --------------------------------- -------------------------------
SEE THE ATTACHED INSTRUCTIONS
17
<PAGE> 76
SCHEDULE I
Certificate(s) for Shares of Common Stock of
LIFECELL CORPORATION
deposited under
Power of Attorney and Custody Agreement
<TABLE>
<CAPTION>
Warrant or Number of Share of Number of Shares of
Stock Common Stock Repre- Common Stock from such
Certificate sented by Warrant or Warrant or Stock Certifi-
Number Stock Certificate cate Subject to Sale(1)
- ------------- -------------------- --------------------------
<S> <C> <C>
- ------------- -------------------- --------------------------
- ------------- -------------------- --------------------------
- ------------- -------------------- --------------------------
- ------------- -------------------- --------------------------
Total:
--------------------------
Number of shares owned beneficially: (2)
--------------
</TABLE>
- -----------------
(1) If fewer than all shares represented by a warrant or stock certificate
are to be sold, indicate below, if desired for income tax purposes,
the date of purchase or purchase price of the particular shares to be
sold. Date of Purchase: __________________;
Purchase Price: ____________________.
(2) The term "beneficially," when used in connection with the ownership of
securities, means (a) any interest in a security which entitles a
person to any of the rights or benefits of ownership even though such
person may be the owner of record or (b) securities owned by such
person directly or
(continued...)
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<PAGE> 77
SCHEDULE II
List of NASD Affiliates of Selling Stockholder
- ----------------
(...continued)
indirectly, including those held by such person for such person's
benefit (regardless of how registered) and securities held by others
for such person's benefit (regardless of how registered), such as by
custodians, brokers, nominees, pledgees, etc., and including securities
held by an estate or trust in which such person has an interest as
legatee or beneficiary, securities owned by a partnership of which such
person is a partner, securities held by a personal holding company of
which such person is a Stockholder, etc., and securities held in the
name of such person's spouse, minor children and any relative (sharing
the same home). A "beneficial owner" of a security includes any person
who, directly or indirectly, through any contract, arrangement,
understanding, relationship, or otherwise has or shares:
(1) Voting power which includes the power to
vote, or to direct the voting of, such security; and/or
(2) Investment power which includes the power to
dispose, or to direct the disposition of such security.
A person is also deemed to be the beneficial owner of a security if
that person has the right to acquire beneficial ownership of such
security, as defined in the preceding sentence at any time within
sixty days, including but not limited to, any right to acquire:
(1) through the exercise of any option, warrant
or right; or
(2) through the conversion of a security; or
(3) pursuant to the power to revoke a trust,
discretionary account, or similar arrangement.
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<PAGE> 78
ACKNOWLEDGEMENT AND RECEIPT
___________________, as custodian, acknowledges acceptance of
the duties of custodian under the foregoing Power of Attorney and Custody
Agreement and receipt of the certificates referred thereunder and any stock
powers relating thereto.
Dated: __________________, 1997
, as Custodian
------------------------
By:
-----------------------------------
Name:
Title:
20
