<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 20, 1996
REGISTRATION NO. 333-4370
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
THERMATRIX INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
----------------
<TABLE>
<CAPTION>
<S> <C> <C>
DELAWARE 3569 94-2958515
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
----------------
101 METRO DRIVE
SUITE 248
SAN JOSE, CALIFORNIA 95110
(408) 453-0490
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
----------------
JOHN T. SCHOFIELD
CHAIRMAN, PRESIDENT AND CHIEF EXECUTIVE OFFICER
THERMATRIX INC.
101 METRO DRIVE, SUITE 248
SAN JOSE, CALIFORNIA 95110
(408) 453-0490
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
COPIES TO:
MICHAEL J. DANAHER, ESQ. HOWARD L. SHECTER, ESQ.
WILSON SONSINI GOODRICH & ROSATI MORGAN, LEWIS & BOCKIUS LLP
PROFESSIONAL CORPORATION 101 PARK AVENUE
650 PAGE MILL ROAD NEW YORK, NEW YORK 10178
PALO ALTO, CALIFORNIA 94304 (212) 309-6000
(415) 493-9300
----------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: June 20,
1996.
----------------
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 this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act of 1933, 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 OR UNTIL THE 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>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by the Registrant in
connection with the sale of Common Stock being registered. All amounts are
estimates except the registration fee and the NASD filing fee.
<TABLE>
<CAPTION>
AMOUNT
TO BE
PAID
--------
<S> <C>
Registration Fee.................................................... $ 11,104
NASD Filing Fee..................................................... 3,720
Nasdaq National Market listing fee.................................. 37,000
Printing and Engraving.............................................. 100,000
Legal Fees and Expenses............................................. 300,000
Accounting Fees and Expenses........................................ 175,000
Blue Sky Fees and Expenses.......................................... 15,000
Directors and Officers Insurance.................................... 100,000
Transfer Agent Fees................................................. 10,000
Miscellaneous....................................................... 48,176
--------
Total............................................................. $800,000
========
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
As permitted by Section 145 of the Delaware General Corporation Law, the
Registrant's Restated Certificate of Incorporation includes a provision that
eliminates the personal liability of its directors for monetary damages for
breach or alleged breach of their duty of care. In addition, as permitted by
Section 145 of the Delaware General Corporation Law, the Amended and Restated
Bylaws of the Registrant provide that: (i) the Registrant is required to
indemnify its directors and executive officers and persons serving in such
capacities in other business enterprises (including, for example, subsidiaries
of the Registrant) at the Registrant's request, to the fullest extent
permitted by Delaware law, including in those circumstances in which
indemnification would otherwise be discretionary; (ii) the Registrant may, in
its discretion, indemnify employees and agents in those circumstances where
indemnification is not required by law; (iii) the Registrant is required to
advance expenses, as incurred, to its directors and executive officers in
connection with defending a proceeding (except that it is not required to
advance expenses to a person against whom the Registrant brings a claim) for
breach of the duty of loyalty, failure to act in good faith, intentional
misconduct, knowing violation of law or deriving an improper personal benefit;
(iv) the rights conferred in the Amended and Restated Bylaws are not
exclusive, and the Registrant is authorized to enter into indemnification
agreements with its directors, executive officers and employees; and (v) the
Registrant may not retroactively amend the Bylaw provisions in a way that it
adverse to such directors, executive officers and employees.
The Registrant's policy is to enter into indemnification agreements with
each of its directors and executive officers that provide the maximum
indemnity allowed to directors and executive officers by Section 145 of the
Delaware General Corporation Law and the Amended and Restated Bylaws, as well
as certain additional procedural protections. In addition, the indemnity
agreement provide that directors and executive officers will be indemnified to
the fullest possible extent not prohibited by law against all expenses
(including attorney's fees) and settlement amounts paid or incurred by them in
any action or proceeding, including any derivative action by or in the right
of the Registrant, on account of their services as directors or executive
officers of the Registrant or as directors or officers of any other company or
enterprise when they are serving in such capacities at the request of the
Registrant. The Company will not be obligated pursuant to the indemnity
agreements to indemnify or advance expenses to an indemnified party with
respect to proceedings or claims initiated by the indemnified
II-1
<PAGE>
party and not by way of defense, except with respect to proceedings
specifically authorized by the Board of Directors or brought to enforce a
right to indemnification under the indemnity agreement, the Company's Amended
and Restated Bylaws or any statute or law. Under the agreements, the Company
is not obligated to indemnify the indemnified party (i) for any expenses
incurred by the indemnified party with respect to any proceeding instituted by
the indemnified party to enforce or interpret the agreement, if a court of
competent jurisdiction determines that each of the material assertions made by
the indemnified party in such proceeding was not made in good faith or was
frivolous; (ii) for any amounts paid in settlement of a proceeding unless the
Company consents to such settlement; (iii) with respect to any proceeding
brought by the Company against the indemnified party for willful misconduct,
unless a court determines that each of such claims was not made in good faith
or was frivolous; (iv) on account of any suit in which judgment is rendered
against the indemnified party for an accounting of profits made from the
purchase or sale by the indemnified party of securities of the Company
pursuant to the provisions of (S) 16(b) of the Securities Exchange Act of 1934
and related laws; (v) on account of the indemnified party's conduct which is
finally adjudged to have been knowingly fraudulent or deliberately dishonest,
or to constitute willful misconduct or a knowing violation of the law; (vi) an
account of any conduct from which the indemnified party derived an improper
personal benefit; (vii) on account of conduct the indemnified party believed
to be contrary to the best interests of the Company or its stockholders;
(viii) on account of conduct that constituted a breach of the indemnified
party's duty of loyalty to the Company or its stockholders; or (ix) if a final
decision by a court having jurisdiction in the matter shall determine that
such indemnification is not lawful.
The indemnification provision in the Amended and Restated Bylaws and the
indemnification agreements entered into between the Registrant and its
directors and executive officers, may be sufficiently broad to permit
indemnification of the Registrant's officers and directors for liabilities
arising under the 1933 Act.
Reference is made to the following documents filed as exhibits to this
Registration Statement regarding relevant indemnification provisions described
above and elsewhere herein:
<TABLE>
<CAPTION>
EXHIBIT
DOCUMENT NUMBER
-------- -------
<S> <C>
Form of Underwriting Agreement..................................... 1.1
Restated Certificate of Incorporation.............................. 3.2
Amended and Restated Bylaws........................................ 3.4
Form of Indemnification Agreement entered into by the Registrant
with each of its directors and executive officers................. 10.1
</TABLE>
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
Since March 31, 1993, the Registrant has issued and sold the following
securities (assuming the Company's one-for-three stock split):
1. From March 31, 1993 to March 31, 1996 the Registrant issued and sold
118,427 shares of Common Stock to directors, employees and consultants at
prices ranging from $0.30 to $3.00 per share, upon exercise of stock
options pursuant to the Registrant's 1987 Incentive Stock Plan.
2. On April 21, 1993, the Registrant issued and sold 507,541 shares of
Series C Preferred Stock to a total of 5 investors at $7.50 per share.
3. From November 21, 1994 to February 8, 1996 the Registrant issued
warrants to purchase an aggregate of 34,471 shares of Series D Preferred
Stock to a total of 5 investors with an exercise price of $7.50 per share.
4. On November 21, 1994, the Registrant issued and sold 1,614,284 shares
of Series D Preferred Stock to a total of 19 investors at $7.50 per share.
5. On April 11, 1995, the Registrant issued 9,968 shares of Common Stock
to a total of 10 employees as bonuses at a fair market value of $1.50 per
share.
II-2
<PAGE>
6. On February 6, 1996, the Registrant issued and sold 284,594 shares of
Series D Preferred Stock to a total of 18 investors at $7.50 per share.
7. On April 22, 1996, the Registrant issued and sold 4,167 shares of
Common Stock to a director of the Company at $12.00 per share.
The sale of the above securities were deemed to be exempt from registration
under the Securities Act in reliance on Section 4(2) of the Securities Act or
Regulation D promulgated thereunder, or rule 701 promulgated under Section
3(b) of the Securities Act as transactions by an issuer not involving any
public offering or transactions pursuant to compensatory benefit plans and
contracts relating to compensation as provided under such Rule 701. The
recipients of securities in each such transaction represented their intentions
to acquire the securities for investment only and not with a view to or for
sale in connection with any distribution thereof and appropriate legends were
affixed to the share certificates issued in such transactions. All recipients
had adequate access, through their relationship with the Registrant, to
information about the Registrant.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits
<TABLE>
<C> <S>
1.1 Form of Underwriting Agreement.
*3.1 Certificate of Incorporation of the Registrant.
*3.2 Form of Restated Certificate of Incorporation of the Registrant to be
filed prior to the effective date of the offering made under this
Registration Statement.
*3.3 Form of Restated Certificate of Incorporation to be filed immediately
following the closing of the offering made under this Registration
Statement.
*3.4 Amended and Restated Bylaws of the Registrant.
*4.1 Specimen Common Stock Certificate.
*4.2 Amended and Restated Investor Rights Agreement.
*5.1 Opinion of Wilson Sonsini Goodrich & Rosati Professional Corporation.
*10.1 Form of Indemnification Agreement between the Registrant and each of its
directors and executive officers.
*10.2 1987 Incentive Stock Plan, as amended and related agreements.
*10.3 1996 Stock Plan and form of Stock Option Agreement thereunder.
*10.4 Employee Stock Purchase Plan and forms of agreement thereunder.
1996 Director Option Plan and form of Director Stock Option Agreement
*10.5 thereunder.
Asset Purchase Agreement between the Registrant and Purus, Inc. dated
*10.6 January 4, 1996.
Lease dated June 12, 1995 between the Registrant and Westmark Metro
*10.7 Plaza, Inc., as amended.
Lease dated June 24, 1995 between the Registrant and American General
*10.8 Life Insurance Company.
*10.9 Loan and Security Agreement between the Registrant and Cupertino
National Bank and Trust, dated December 15, 1995.
11.1 Statement of computation of pro forma Common Shares and Equivalents.
*21.1 Subsidiary of the Registrant.
*23.1 Consent of Counsel (included in Exhibit 5.1).
*23.2 Consent of Woodcock Washburn Kurtz Mackiewicz & Norris.
*23.3 Consent of Arthur Andersen LLP (see page II-7).
*24.1 Power of Attorney (see page II-5).
*27.1 Financial Data Schedule.
</TABLE>
- --------
* previously filed
(b) Financial Statement Schedules
Report of Independent Public Accountants on Schedule
II--Valuation and Qualifying Accounts
Schedules not listed above have been omitted because the information
required to be set forth therein is not applicable or is shown in the
financial statements or notes thereto.
II-3
<PAGE>
ITEM 17. UNDERTAKINGS
The Registrant 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.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the Delaware General Corporation Law, the Restated
Certificate of Incorporation or Bylaws of the Registrant, the Underwriting
Agreement or otherwise, the Registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act, and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer,
or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered
hereunder, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Act, the
information omitted from the form of Prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form
of Prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Act shall be deemed to be part of this Registration
Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the 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>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
HAS DULY CAUSED THIS POST-EFFECTIVE AMENDMENT NO. 1 TO REGISTRATION STATEMENT
ON FORM S-1 TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF SAN JOSE, STATE OF CALIFORNIA, ON THIS 19TH DAY OF
JUNE, 1996.
Thermatrix Inc.
/s/ Steven J. Guerrettaz
By: _________________________________
STEVEN J. GUERRETTAZVICE
PRESIDENT, FINANCE AND ACCOUNTING
AND CHIEF FINANCIAL OFFICER
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS POST-
EFFECTIVE AMENDMENT NO. 1 TO REGISTRATION STATEMENT HAS BEEN SIGNED BY THE
FOLLOWING PERSONS IN THE CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
*/s/ John T. Schofield Chairman of the Board, June 19, 1996
- ------------------------------------- President and Chief
JOHN T. SCHOFIELD Executive Officer
(Principal Executive
Officer)
/s/ Steven J. Guerrettaz Vice President, Finance and June 19, 1996
- ------------------------------------- Accounting and Chief
STEVEN J. GUERRETTAZ Financial Officer
(Principal Financial and
Accounting Officer)
*/s/ Robi Blumenstein Director June 19, 1996
- -------------------------------------
ROBI BLUMENSTEIN
*/s/ Harry J. Healer, Jr. Director June 19, 1996
- -------------------------------------
HARRY J. HEALER, JR.
Director
- -------------------------------------
REBECCA P. MARK
</TABLE>
II-5
<PAGE>
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<S> <C> <C>
*/s/ Robert W. Page Director June 19, 1996
- -------------------------------------
ROBERT W. PAGE
Director
- -------------------------------------
FRANK R. POPE
*/s/ John M. Toups Director June 19, 1996
- -------------------------------------
JOHN M. TOUPS
/s/ Steven J. Guerrettaz
*By _________________________________
STEVEN J. GUERRETTAZ ATTORNEY-IN-
FACT
</TABLE>
II-6
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT EXHIBIT DESCRIPTION NUMBERED PAGE
------- ------------------- -------------
<C> <S>
1.1 Form of Underwriting Agreement.
*3.1 Certificate of Incorporation of the Registrant.
*3.2 Form of Restated Certificate of Incorporation of the
Registrant to be filed prior to the effective date of
the offering made under this Registration Statement.
*3.3 Form of Restated Certificate of Incorporation to be
filed immediately following the closing of the
offering made under this Registration Statement.
*3.4 Amended and Restated Bylaws of the Registrant.
*4.1 Specimen Common Stock Certificate.
*4.2 Amended and Restated Investor Rights Agreement.
Opinion of Wilson Sonsini Goodrich & Rosati
*5.1 Professional Corporation.
*10.1 Form of Indemnification Agreement between the
Registrant and each of its directors and executive
officers.
1987 Incentive Stock Plan, as amended and related
*10.2 agreements.
1996 Stock Plan and form of Stock Option Agreement
*10.3 thereunder.
Employee Stock Purchase Plan and forms of agreement
*10.4 thereunder.
1996 Director Option Plan and form of Director Stock
*10.5 Option Agreement thereunder.
*10.6 Asset Purchase Agreement between the Registrant and
Purus, Inc. dated January 4, 1996.
*10.7 Lease dated June 12, 1995 between the Registrant and
Westmark Metro Plaza, Inc., as amended.
*10.8 Lease dated June 24, 1995 between the Registrant and
American General Life Insurance Company.
*10.9 Loan and Security Agreement between the Registrant and
Cupertino National Bank and Trust, dated December 15,
1995.
Statement of computation of pro forma Common Shares
11.1 and Equivalents.
*21.1 Subsidiary of the Registrant.
*23.1 Consent of Counsel (included in Exhibit 5.1).
Consent of Woodcock Washburn Kurtz Mackiewicz &
*23.2 Norris.
*23.3 Consent of Arthur Andersen LLP (see page II-7).
*24.1 Power of Attorney (see page II-5).
*27.1 Financial Data Schedule.
</TABLE>
- --------
* previously filed
<PAGE>
EXHIBIT 1.1
2,000,000 Shares
Thermatrix Inc.
Common Stock
UNDERWRITING AGREEMENT
----------------------
June 19, 1996
Oppenheimer & Co., Inc.
Prudential Securities Incorporated
HSBC Securities, Inc.
c/o Oppenheimer & Co., Inc.
Oppenheimer Tower
World Financial Center
New York, New York 10281
On behalf of the Several
Underwriters named in
Schedule I attached hereto.
Gentlemen:
Thermatrix Inc., a Delaware corporation (the "Company"), proposes to
sell to you and the other underwriters named in Schedule I to this Agreement
(the "Underwriters"), for whom you are acting as Representatives, an aggregate
of 2,000,000 shares (the "Firm Shares") of the Company's common stock, $0.001
par value (the "Common Stock"). In addition, the Company proposes to grant to
the Underwriters an option to purchase up to an additional 300,000 shares (the
"Option Shares") of Common Stock from it for the purpose of covering over-
allotments in connection with the sale of the Firm Shares. The Firm Shares and
the Option Shares are together called the "Shares."
1. Sale and Purchase of the Shares. On the basis of the
-------------------------------
representations, warranties and agreements contained in, and subject to the
terms and conditions of, this Agreement:
(a) The Company agrees to sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from
the Company, at $12.50 per share (the "Initial Price"), the number
-1-
<PAGE>
of Firm Shares set forth opposite the name of such Underwriter in
Schedule I to this Agreement.
(b) The Company grants to the several Underwriters an option to
purchase, severally and not jointly, all or any part of the Option Shares
at the Initial Price. The number of Option Shares to be purchased by
each Underwriter shall be the same percentage (adjusted by the
Representatives to eliminate fractions) of the total number of Option
Shares to be purchased by the Underwriters as such Underwriter is
purchasing of the Firm Shares. Such option may be exercised only to
cover over-allotments in the sales of the Firm Shares by the Underwriters
and may be exercised in whole or in part at any time on or before 12:00
noon, New York City time, on the business day before the Firm Shares
Closing Date (as defined below), and only once thereafter within 30 days
after the date of this Agreement, in each case upon written or
telegraphic notice, or verbal or telephonic notice confirmed by written
or telegraphic notice, by the Representatives to the Company no later
than 12:00 noon, New York City time, on the business day before the Firm
Shares Closing Date or at least two business days before the Option
Shares Closing Date (as defined below), as the case may be, setting forth
the number of Option Shares to be purchased and the time and date (if
other than the Firm Shares Closing Date) of such purchase.
2. Delivery and Payment. Delivery by the Company of the Firm
--------------------
Shares to the Representatives for the respective accounts of the Underwriters,
and payment of the purchase price by certified or official bank check or checks
payable in New York Clearing House (same day) funds to the Company, shall take
place at the offices of Oppenheimer & Co., Inc., at Oppenheimer Tower, World
Financial Center, New York, New York 10281, at 10:00 a.m., New York City time,
on the third business day following the date of this Agreement, provided,
however, that if the Shares sold hereunder are priced after 4:30 p.m., New York
time, on any business day, payment and delivery in respect of the Firm Shares
shall take place on the fourth business day following the date of this
Agreement; if it is determined that settlement within the foregoing time frame
is not feasible, then payment and delivery in respect of the Firm Shares shall
occur at such time on such other date, not later than 10 business days after the
date of this Agreement, as shall be agreed upon by the Company and the
Representatives (such time and date of delivery and payment are called the "Firm
Shares Closing Date").
In the event the option with respect to the Option Shares is
exercised, delivery by the Company of the Option Shares to the Representatives
for the respective accounts of the Underwriters and payment of the purchase
price by certified or
-2-
<PAGE>
official bank check or checks payable in New York Clearing House (same day)
funds to the Company shall take place at the offices of Oppenheimer & Co., Inc.
specified above at the time and on the date (which may be the same date as, but
in no event shall be earlier than, the Firm Shares Closing Date) specified in
the notice referred to in Section 1(b) (such time and date of delivery and
payment are called the "Option Shares Closing Date"). The Firm Shares Closing
Date and the Option Shares Closing Date are called, individually, a "Closing
Date" and, together, the "Closing Dates."
Certificates evidencing the Shares shall be registered in such names
and shall be in such denominations as the Representatives shall request at least
two full business days before the Firm Shares Closing Date or, in the case of
Option Shares, on the day of notice of exercise of the option as described in
Section l(b) and shall be made available to the Representatives for checking and
packaging, at such place as is designated by the Representatives, at least one
full business day before the Firm Shares Closing Date (or the Option Shares
Closing Date in the case of the Option Shares).
3. Registration Statement and Prospectus; Public Offering. The
------------------------------------------------------
Company has prepared in conformity with the requirements of the Securities Act
of 1933, as amended (the "Securities Act"), and the published rules and
regulations thereunder (the "Rules") adopted by the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-1 (No. 333-
4370), including a preliminary prospectus relating to the Shares, and has filed
with the Commission the Registration Statement and such amendments thereto as
may have been required to the date of this Agreement. Copies of such
Registration Statement (including all amendments thereto) and of the related
preliminary prospectus have heretofore been delivered by the Company to you.
The Company may also file a related registration statement with the Commission
pursuant to Rule 462(b) under the Act for the purpose of registering certain
additional Shares, which registration shall be effective upon filing with the
Commission. The term "Registration Statement" means the Registration Statement
as amended at the time and on the date it becomes effective (the "Effective
Date"), including all exhibits and information, if any, deemed to be part of the
Registration Statement pursuant to Rule 424(a), Rule 430A and Rule 462(b) of the
Rules. The term "preliminary prospectus" means any preliminary prospectus (as
described in Rule 430 of the Rules) included at any time as a part of the
Registration Statement. The term "Prospectus" means the prospectus in the form
first used to confirm sales of the Shares (whether such prospectus was included
in the Registration Statement at the time of effectiveness or was subsequently
filed with the Commission pursuant to Rule 424(b) of the Rules) or the
preliminary prospectus forming part of the Registration Statement at the time
-3-
<PAGE>
it was declared effective together with the term sheet permitted under Rule
434(b) and filed with the Commission pursuant to Rule 424(b), as applicable.
The Company understands that the Underwriters propose to make a public
offering of the Shares, as set forth in and pursuant to the Prospectus, as soon
after the Effective Date and the date of this Agreement as the Representatives
deem advisable. The Company hereby confirms that the Underwriters and dealers
have been authorized to distribute or cause to be distributed each preliminary
prospectus and are authorized to distribute the Prospectus (as from time to time
amended or supplemented if the Company furnishes amendments or supplements
thereto to the Underwriters).
4. Representations and Warranties of the Company. The Company
---------------------------------------------
hereby represents and warrants to each Underwriter as follows:
(a) On the Effective Date the Registration Statement complied, and
on the date of the Prospectus, on the date any post-effective amendment
to the Registration Statement shall become effective, on the date any
supplement or amendment to the Prospectus is filed with the Commission
and on each Closing Date, the Registration Statement and the Prospectus
(and any amendment thereof or supplement thereto) will comply in all
material respects with the applicable provisions of the Securities Act
and the Rules; the Registration Statement did not, as of the Effective
Date, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to
make the statements therein not misleading; and on the other dates
referred to above neither the Registration Statement nor the Prospectus,
nor any amendment thereof or supplement thereto, will contain any untrue
statement of a material fact or will omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading. When any related preliminary prospectus was
first filed with the Commission (whether filed as part of the
Registration Statement or any amendment thereto or pursuant to Rule
424(a) of the Rules) and when any amendment thereof or supplement thereto
was first filed with the Commission, such preliminary prospectus as
amended or supplemented complied in all material respects with the
applicable provisions of the Securities Act and the Rules and did not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make
the statements therein, in the light of the circumstances under which
they were made, not
-4-
<PAGE>
misleading. The Company makes no representation or warranty as to the
paragraph with respect to stabilization on the inside front cover page of
the Prospectus and the statements contained under the caption
"Underwriting" in the Prospectus. The Company acknowledges that such
statements constitute the only information furnished in writing by the
Representatives on behalf of the several Underwriters specifically for
inclusion in the Registration Statement, any preliminary prospectus or
the Prospectus.
(b) All contracts and other documents required to be filed as
exhibits to the Registration Statement have been filed with the
Commission as exhibits to the Registration Statement.
(c) The financial statements of the Company (including all notes and
schedules thereto) included in the Registration Statement and Prospectus
fairly present the financial position, the results of operations and cash
flows and the stockholders' equity (deficit) and the other information
purported to be shown therein of the Company at the respective dates and
for the respective periods to which they apply; and such financial
statements have been prepared in conformity with generally accepted
accounting principles, consistently applied throughout the periods
involved, and all adjustments necessary for a fair presentation of the
results for such periods have been made.
(d) To the Company's knowledge, Arthur Andersen LLP, whose reports
are filed with the Commission as a part of the Registration Statement,
are and, during the periods covered by their reports, were independent
public accountants as required by the Securities Act and the Rules.
(e) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
The Company has no subsidiary or subsidiaries and does not control,
directly or indirectly, any corporation, partnership, joint venture,
association or other business organization other than Thermatrix Ltd., a
company formed under the laws of England and Wales. The Company is duly
qualified and in good standing as a foreign corporation in each
jurisdiction in which the character or location of its assets or
properties (owned, leased or licensed) or the nature of its business
makes such qualification necessary except for such jurisdictions where
the failure to so qualify would not have a material adverse effect on the
assets or properties, business, results of operations or condition
(financial or otherwise) of the Company. Except as disclosed in the
Registration Statement and the Prospectus, the Company does not own,
lease or license any asset or property or conduct any business outside
the
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<PAGE>
United States of America that is required to be disclosed in the
Registration Statement and Prospectus. The Company has all requisite
corporate power and authority, and all necessary authorizations,
approvals, consents, orders, licenses, certificates and permits of and
from all governmental or regulatory bodies or any other person or entity
("Permits"), to own, lease and license its assets and properties and
conduct its businesses as now being conducted and as described in the
Registration Statement and the Prospectus except where the lack of such
Permit would not, individually or in the aggregate, have a material
adverse effect on the assets or properties, business, results of
operations or condition (financial or otherwise) of the Company; no such
Permit contains a materially burdensome restriction other than as
disclosed in the Registration Statement and the Prospectus; and the
Company has all requisite corporate power and authority, and such
authorizations, approvals, consents, orders, licenses, certificates and
permits to enter into, deliver and perform this Agreement and to issue
and sell the Shares (except as may be required under the Securities Act
and state and foreign Blue Sky laws).
(f) The Company owns each of the patents referred to in the
Registration Statement and the Prospectus under the caption "Business-
Intellectual Property" (the "Patents") and, except as disclosed in the
Registration Statement and the Prospectus, owns or possesses adequate and
enforceable rights to use all other patents, patent applications,
trademarks, trademark applications, service marks, copyrights, copyright
applications, licenses and other similar rights (collectively with the
Patents, "Intangibles") necessary for the conduct of its business as now
being conducted and as described in the Registration Statement and the
Prospectus. The Company has not received any notice of infringement of,
and to the Company's knowledge has not infringed and is not infringing,
any Intangible of any other person and the Company does not know of any
basis therefor. The Company has not received any notice of infringement
of any of its Intangibles and the Company does not know of any basis
therefor.
(g) The Company has good and marketable title to each of the
items of personal property which are reflected in the financial
statements referred to in Section 4(c) or are referred to in the
Registration Statement and the Prospectus as being owned by it and valid
and enforceable leasehold interests in each of the items of real and
personal property which are referred to in the Registration Statement and
the Prospectus as being leased by it, in each case free and clear of all
liens, encumbrances, claims, security interests and defects, other than
those described in the Registration Statement and the Prospectus.
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<PAGE>
(h) Except as disclosed in the Registration Statement and the
Prospectus, there is no litigation or governmental or other proceeding or
investigation before any court or before or by any public body or board
pending or, to the Company's knowledge, threatened (and the Company
does not know of any basis therefor) against, or involving the assets,
properties or businesses of, the Company which, if adversely determined
would materially adversely affect the value or the operation of any such
assets or properties or the business, results of operations or financial
condition of the Company.
(i) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
described therein, there has not been any material adverse change or any
material adverse development or event involving a prospective material
change in the assets or properties, earnings, business affairs or
business prospects, results of operations or condition (financial or
otherwise) of the Company, whether or not arising from transactions in
the ordinary course of business; the Company has not entered into any
transaction, other than in the ordinary course of business, that is
material to the Company; the Company has not sustained any material loss
or interference with its assets, businesses or properties from fire,
explosion, earthquake, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or any court or legislative or other
governmental action, order or decree; and since the date of the latest
balance sheet included in the Registration Statement and the Prospectus,
except as reflected therein, the Company has not undertaken any liability
or obligation, direct or contingent, except for liabilities or
obligations undertaken in the ordinary course of business.
(j) Each agreement listed in the Exhibits to the Registration
Statement is in full force and effect and is valid and enforceable by the
Company in accordance with its terms, assuming the due authorization,
execution and delivery thereof by each of the other parties thereto and
except as the enforcement of such agreement may be limited by bankruptcy,
insolvency, reorganization, arrangement, fraudulent conveyance,
moratorium or other similar laws relating to or affecting creditors'
rights generally and by general principles of equity, regardless of
whether considered in a proceeding in equity or at law. Neither the
Company, nor to the Company's knowledge, any other party is in default in
the observance or performance of any term or obligation to be performed
by it under any such agreement, and no event has occurred which with
notice or lapse of time or both would
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<PAGE>
constitute such a default which default or event would have a material
adverse effect on the assets or properties, business, results of
operations or financial condition of the Company. No default exists, and
no event has occurred which with notice or lapse of time or both would
constitute a default, in the due performance and observance of any term,
covenant or condition, by the Company of any other indenture, mortgage,
deed of trust, note or any other agreement or instrument to which the
Company is a party or by which it or its properties or businesses may be
bound or affected which default or event would have a material adverse
effect on the assets or properties, business, results of operations or
financial condition of the Company.
(k) The Company is not in violation of any term or provision of its
charter or by-laws or of any franchise, license, permit, judgment,
decree, order, statute, rule or regulation, where the consequences of
such violation would have a material adverse effect on the assets or
properties, business, results of operations or financial condition of the
Company.
(l) Neither the execution, delivery and performance of this
Agreement by the Company nor the consummation of any of the transactions
contemplated hereby or thereby (including, without limitation, the
issuance and sale by the Company of the Shares) will give rise to a right
to terminate or accelerate the due date of any payment due under, or
conflict with or result in the breach of any term or provision of, or
constitute a default (or an event which with notice or lapse of time or
both would constitute a default) under, or require any consent or waiver
under, or result in the execution or imposition of any lien, charge or
encumbrance upon any properties or assets of the Company pursuant to the
terms of, any indenture, mortgage, deed of trust or other agreement or
instrument to which the Company is a party or by which it or any its
properties or businesses is bound, or any franchise, license, permit,
judgment, decree, order, statute, rule or regulation applicable to the
Company or violate any provision of the charter or by-laws of the
Company, except for such consents or waivers which have already been
obtained and are in full force and effect.
(m) The Company has an authorized and outstanding capital stock as
set forth under the caption "Capitalization" in the Prospectus as of the
date specified therein. All of the outstanding shares of Common Stock,
Series B Convertible Preferred Stock, Series C Convertible Preferred
Stock and Series D Convertible Preferred Stock have been duly and validly
issued and are
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<PAGE>
fully paid and nonassessable and none of them was issued in violation of
any preemptive or other similar right. The Shares, when issued and sold
pursuant to this Agreement, will be duly and validly issued, fully paid
and nonassessable and none of them will be issued in violation of any
preemptive or other similar right. All of the outstanding shares of
Series B Convertible Preferred Stock, Series C Convertible Preferred
Stock and Series D Convertible Preferred Stock have been, or upon
consummation of this Offering, will be, converted into Common Stock in
accordance with the respective terms of the Series B Convertible
Preferred Stock, Series C Convertible Preferred Stock and Series D
Convertible Preferred Stock. Except as disclosed in the Registration
Statement and the Prospectus, there is no outstanding option, warrant or
other right calling for the issuance of, and no commitment, plan or
arrangement to issue, any share of stock of the Company or any security
convertible into, or exercisable or exchangeable for, such stock. The
Common Stock and the undesignated preferred stock, $0.001 par value (the
"Preferred Stock") and the Shares conform to all statements in relation
thereto contained in the Registration Statement and the Prospectus.
(n) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as
described or referred to therein, the Company has not (i) issued any
securities or incurred any liability or obligation, direct or contingent,
for borrowed money, (ii) entered into any transaction not in the ordinary
course of business or (iii) declared or paid any dividend or made any
distribution on any shares of its stock or redeemed, purchased or
otherwise acquired or agreed to redeem, purchase or otherwise acquire any
shares of its stock.
(o) No holder of any security of the Company has any right to have
any security owned by such holder included in the Registration Statement
or to demand registration of any security owned by such holder during the
period ending 180 days from the date of this Agreement. The Company has
obtained from all officers and directors of the Company, the holders of
certain vested options to purchase Common Stock and certain other
stockholders and warrantholders of the Company, who together hold
5,330,754 shares of Common Stock (including 814,097 shares of Common
Stock issuable upon exercise of stock options and warrants), their
enforceable written agreement that for a period of at least 180 days from
the date of this Agreement they will not, without the prior written
consent of the Company or the Representatives, sell, distribute, pledge,
grant any option for the sale
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<PAGE>
of, or otherwise dispose of or encumber, or exercise any registration
rights with respect to, any shares of Common Stock owned by them. The
Company hereby agrees that it will not consent to the sale, distribution,
pledge, grant of any option for the sale of, or other disposition or
encumbrance of, or exercise of any registration right with respect to,
any shares of Common Stock subject to the above-described lock-ups,
without the prior written consent of the Representatives.
(p) All necessary corporate action has been duly and validly taken
by the Company to authorize the execution, delivery and performance of
this Agreement and the issuance and sale of the Shares. This Agreement
has been duly and validly executed and delivered by the Company and
constitutes and will constitute the legal, valid and binding obligation
of the Company enforceable against the Company in accordance with its
terms, except (A) as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles and (B) with respect to this Agreement, to the
extent that rights to indemnity or contribution under this Agreement may
be limited by federal and state securities laws or the public policy
underlying such laws.
(q) The Company is conducting its business in compliance with all
applicable laws, rules and regulations of the jurisdictions in which it
is conducting business, including, without limitation, all applicable
local, state and federal environmental laws and regulations, except where
the failure to be so in compliance would not have a material adverse
effect on the assets or properties, business, results of operations or
financial condition of the Company.
(r) No transaction has occurred between or among the Company and any
of its officers or directors or any affiliate or affiliates of any such
officer or director that is required to be described in and is not
described in the Registration Statement and the Prospectus.
(s) The Company has not taken, nor will it take, directly or
indirectly, any action designed to or which might reasonably be expected
to cause or result in, or which has constituted or which might reasonably
be expected to constitute, the stabilization or manipulation of the price
of the Common Stock to facilitate the sale or resale of any of the
Shares.
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<PAGE>
(t) The Company has filed all federal, state, local and foreign tax
returns which are required to be filed through the date hereof, or has
received extensions thereof, and has paid all taxes shown on such returns
and all assessments received by it.
(u) The Shares have been approved for quotation on the National
Association of Securities Dealers Automated Quotation ("Nasdaq") National
Market, subject to official notice of issuance.
(v) The Company has complied with all of the requirements and filed
the required forms as specified in Florida Statutes Section 517.075.
(w) The Company and each of its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and
in such amounts as are prudent and customary in the businesses in which
they are engaged; neither the Company nor any such subsidiary has been
refused any insurance coverage sought or applied for; and neither the
Company nor any such subsidiary has any reason to believe that it will
not be able to renew its existing insurance coverage as and when such
coverage expires or to obtain similar coverage from similar insurers as
may be necessary to continue its business.
(x) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's
authorizations and are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles; (ii) access to assets is permitted only in accordance with
management's authorization; and (iii) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(y) The Company has not distributed and, prior to the later of (i)
the Closing Date and (ii) the completion of the distribution of the
Shares, will not distribute any offering material in connection with the
offering and sale of the Shares other than the Registration Statement or
any amendment thereto, any Preliminary Prospectus or the Prospectus or
any amendment or supplement thereto, or other materials, if any permitted
by the Act.
5. Conditions of the Underwriters' Obligations. The obligations
-------------------------------------------
of the Underwriters under this Agreement are several and not joint. The
respective obligations of the
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<PAGE>
Underwriters to purchase the Shares are subject to each of the following terms
and conditions:
(a) The Prospectus shall have been timely filed with the Commission
in accordance with Section 6(A)(a).
(b) No order preventing or suspending the use of any preliminary
prospectus or the Prospectus shall have been or shall be in effect, and
no order suspending the effectiveness of the Registration Statement shall
be in effect and no proceedings for such purpose shall be pending before
or threatened by the Commission, and any requests for additional
information on the part of the Commission (to be included in the
Registration Statement or the Prospectus or otherwise) shall have been
complied with to the satisfaction of the Representatives.
(c) The representations and warranties of the Company contained in
this Agreement and in the certificates delivered pursuant to Section 5(d)
shall be true and correct when made and on and as of each Closing Date as
if made on such date and the Company shall have performed all covenants
and agreements and satisfied all the conditions contained in this
Agreement required to be performed or satisfied by it at or before such
Closing Date.
(d) The Representatives shall have received on each Closing Date a
certificate, addressed to the Representatives and dated such Closing
Date, of the chief executive or chief operating officer and the chief
financial officer or chief accounting officer of the Company, to the
effect that the signers of such certificate have carefully examined the
Registration Statement, the Prospectus and this Agreement and that the
representations and warranties of the Company in this Agreement are true
and correct on and as of such Closing Date with the same effect as if
made on such Closing Date and the Company has performed all covenants and
agreements and satisfied all conditions contained in this Agreement
required to be performed or satisfied by it at or prior to such Closing
Date.
(e) The Representatives shall have received at the time this
Agreement is executed and on each Closing Date a letter or letters signed
by Arthur Andersen LLP, addressed to the Representatives and dated,
respectively, the date of this Agreement and each such Closing Date, in
form and substance satisfactory to the Representatives, confirming that
they are independent accountants within the meaning of the Securities Act
and the Rules, that the response to
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<PAGE>
Item 10 of the Registration Statement is correct insofar as it relates to
them and stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules included in the Registration Statement
and the Prospectus and reported on by them comply as to form in all
material respects with the applicable accounting requirements of the
Securities Act and the Rules;
(ii) on the basis of a reading of the amounts included in the
Registration Statement and the Prospectus under the headings
"Summary Consolidated Financial Information" and "Selected
Consolidated Financial Data," carrying out certain procedures (but
not an examination in accordance with generally accepted auditing
standards) which would not necessarily reveal matters of
significance with respect to the comments set forth in such letter,
a reading of the minutes of the meetings of the stockholders and
directors of the Company, and inquiries of certain officials of the
Company who have responsibility for financial and accounting matters
of the Company as to transactions and events subsequent to the date
of the latest audited financial statements, nothing came to their
attention which caused them to believe that:
(A) the amounts in "Summary Consolidated Financial
Information" and "Selected Consolidated Financial Data"
included in the Registration Statement and the Prospectus do
not agree with the corresponding amounts in the audited and
unaudited financial statements from which such amounts were
derived; or
(B) the unaudited financial statements as of and for the
three months ended March 31, 1996 included in the Registration
Statement (i) do not comply in form in all material respects
with the applicable accounting requirements of the Securities
Act and the Rules and (ii) are not in conformity with generally
accepted accounting principles applied on a basis substantially
consistent with that of the audited financial statements; or
(C) (i) with respect to the Company there were, at a
specified date not more than five business days prior to the
date of the letter, any increases in the short-term and long-
term liabilities of the Company or capital stock of
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<PAGE>
the Company or decreases in working capital or the
stockholders' equity (deficit) of the Company, as compared with
the amounts shown on the Company's unaudited March 31, 1996
balance sheet included in the Registration Statement, or (ii)
for the period from March 31, 1996 to such specified date not
more than five business days prior to the date of the letter,
there were any increases in net losses except for increases in
net losses set forth and in the Registration Statement, in
which case the Company shall deliver to the Representatives a
letter containing an explanation by the Company as to the
significance thereof unless said explanation is not deemed
necessary by the Representatives; and
(iii) they have performed certain other procedures as a result
of which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting,
financial or statistical information derived from the general
accounting records of the Company) set forth in the Registration
Statement and the Prospectus and reasonably specified by the
Representatives agrees with the accounting records of the Company.
References to the Registration Statement and the Prospectus in this
paragraph (e) are to such documents as amended and supplemented at the
date of the letter.
(f) The Representatives shall have received on each Closing Date
from Wilson Sonsini Goodrich & Rosati, Professional Corporation, counsel
for the Company, an opinion, addressed to the Representatives and dated
such Closing Date, and stating in effect that:
(i) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the
State of Delaware.
(ii) The Company has all requisite corporate power and
authority to own, lease and license its assets and properties and
conduct its business as now being conducted and as described in the
Registration Statement and the Prospectus; and the Company has all
requisite corporate power and authority and all necessary
governmental, and all other necessary authorizations, approvals,
consents, orders, licenses, certificates and permits, to enter into,
deliver and perform this Agreement and to issue and
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<PAGE>
sell the Shares, other than those required under the Securities Act
and state and foreign Blue Sky laws.
(iii) The Company has authorized and issued capital stock as
set forth under the caption "Capitalization" in the Prospectus as of
the date specified therein; the certificates evidencing the Shares
are in due and proper legal form and have been duly authorized for
issuance by the Company; all of the outstanding shares of Common
Stock of the Company have been duly and validly authorized and have
been duly and validly issued and are fully paid and nonassessable
and none of them was issued in violation of any statutory preemptive
or other similar statutory right. The Shares when issued and sold
pursuant to this Agreement will, upon payment therefor, be duly and
validly issued, fully paid and nonassessable and none of them will
have been issued in violation of any statutory preemptive or other
similar right. All of the outstanding shares of Series B
Convertible Preferred Stock, Series C Convertible Preferred Stock
and Series D Convertible Preferred Stock have been converted into
Common Stock in accordance with the respective terms of the Series B
Convertible Preferred Stock, Series C Convertible Preferred Stock
and Series D Convertible Preferred Stock. To the best of such
counsel's knowledge, except as disclosed in the Registration
Statement and the Prospectus, there is no outstanding option,
warrant or other right calling for the issuance of, and no
commitment or agreement to issue, any share of stock of the Company
or any security convertible into, exercisable for, or exchangeable
for stock of the Company. The Common Stock, the Preferred Stock and
the Shares conform in all material respects to the descriptions
thereof contained in the Registration Statement and the Prospectus.
(iv) All necessary corporate action has been duly and validly
taken by the Company to authorize the execution, delivery and
performance of this Agreement. This Agreement has been duly and
validly executed and delivered by the Company and this Agreement
constitutes the legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms except
(A) as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by general equitable
principles and (B) with respect to this Agreement, to the extent
that rights to indemnity or contribution under this
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<PAGE>
Agreement may be limited by federal or state securities laws or the
public policy underlying such laws.
(v) Neither the execution, delivery and performance of this
Agreement by the Company nor the consummation of any of the
transactions contemplated hereby (including the issuance and sale by
the Company of the Shares) will give rise to a right to terminate or
accelerate the due date of any payment due under, or conflict with
or result in the breach of any term or provision of, or constitute a
default (or any event which with notice or lapse of time, or both,
would constitute a default) under, or require consent or waiver
under, or result in the execution or imposition of any lien, charge
or encumbrance upon any properties or assets of the Company pursuant
to the terms of, any indenture, mortgage, deed of trust, note or
other agreement or instrument of which such counsel is aware and to
which the Company is a party or by which it or any of its properties
or businesses is bound, or any franchise, license, permit, judgment,
decree, order, statute, rule or regulation of which such counsel is
aware or violate any provision of the charter or by-laws of the
Company.
(vi) To such counsel's knowledge, no default exists, and no
event has occurred which with notice or lapse of time, or both,
would constitute a default, in the due performance and observance by
the Company of any term, covenant or condition, of any indenture,
mortgage, deed of trust, note or any other agreement or instrument
to which the Company is a party or by which its assets or properties
or businesses are bound where the consequences of such default would
have a material and adverse effect on the properties, business,
results of operations or financial condition of the Company.
(vii) To such counsel's knowledge, the Company is not in
violation of any term or provision of its charter or by-laws or any
franchise, license, permit, judgment, decree or order or statute,
rule or regulation where the consequences of such violation would
have a material and adverse effect on the assets or properties,
businesses, results of operations or financial condition of the
Company.
(viii) No consent, approval, authorization or order of any
court or governmental agency or body is
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<PAGE>
required for the performance of this Agreement by the Company or the
consummation of the transactions contemplated hereby or thereby,
except such as have been obtained under the Securities Act and such
as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the
several Underwriters and such as may be required under the rules of
the National Association of Securities Dealers, Inc. with respect to
the underwriting arrangements reflected in this Agreement.
(ix) Except as described in the Registration Statement and the
Prospectus, to such counsel's knowledge, there is no litigation or
governmental or other proceeding or investigation before any court
or before or by any public body or board pending or threatened
against, or involving the assets, properties or businesses of, the
Company, which if determined adversely could have a material adverse
effect on the assets or properties, business, results of operations
or condition (financial or otherwise) of the Company.
(x) The statements in the Prospectus under the captions "Risk
Factors -
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<PAGE>
-Effect of Anti-Takeover Provisions;" "Business -Environmental
Matters" "Management- Employment Agreement;" "-Director
Compensation;" "-Limitation on Liability and Indemnification
Matters;" "-Employee Benefit Plans;" "Shares Eligible For Future
Sale;" "Description of Capital Stock" and "Certain Transactions"
insofar as such statements constitute a summary of documents
referred to therein or matters of law, are fair summaries of the
provisions discussed therein and accurately present the information
called for with respect to such documents and matters. All contracts
and other documents required to be filed as exhibits to, or
described in, the Registration Statement have been so filed with the
Commission or are fairly described in the Registration Statement, as
the case may be.
(xi) The Registration Statement, all preliminary prospectuses
and the Prospectus and each amendment or supplement thereto (except
for the financial statements and notes and schedules and other
financial and statistical data included therein, as to which such
counsel need express no opinion) comply as to form in all material
respects with the requirements of the Securities Act and the Rules.
(xii) The Registration Statement has become effective under
the Securities Act, and no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for
that purpose have been instituted or are threatened, pending or to
such counsel's knowledge are contemplated.
To the extent deemed advisable by such counsel, they may rely as to
matters of fact on certificates of responsible officers of the Company and
public officials and on the opinions of other counsel satisfactory to the
Representatives as to matters which are governed by laws other than the laws of
the State of California, the General Corporation Law of the State of Delaware
and the federal laws of the United States; provided that such counsel shall
state that in their opinion the Underwriters and they are justified in relying
on such other opinions. With respect to the opinion that this Agreement
constitutes the legal, valid and binding obligation of the Company enforceable
against the Company in accordance with its terms, such counsel may assume that
the laws of the State of California are identical to the laws of the State of
New York in each instance without regard to conflicts of laws. Copies of such
certificates and other
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<PAGE>
opinions shall be furnished to the Representatives and counsel for the
Underwriters.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the Representatives and representatives of the
independent certified public accountants of the Company, at which conferences
the contents of the Registration Statement and the Prospectus and related
matters were discussed and, although such counsel is not passing upon and does
not assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement and the Prospectus (except as
specified in the foregoing opinion), on the basis of the foregoing no facts have
come to the attention of such counsel which lead such counsel to believe that
the Registration Statement at the time it became effective (except with respect
to the financial statements and notes and schedules thereto and other financial
and statistical data, as to which such counsel need make no statement) contained
any 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 amended or supplemented (except with
respect to the financial statements and notes and schedules thereto and other
financial and statistical data, as to which such counsel need make no statement)
on the date thereof contained any untrue statement of a material fact or omitted
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.
(g) The Representatives shall have received on each Closing Date
from Woodcock Washburn Kurtz Mackiewicz & Norris, patent counsel for the
Company, an opinion, addressed to the Representatives and dated such
Closing Date, stating in effect that:
(i) The statements in the Registration Statement and
Prospectus under the captions relating to provisions of statutes,
regulations, contracts, agreements, patents, patent applications or
matters of United States patent law are accurate and correct in all
material respects;
(ii) The applications filed by such counsel on behalf of the
Company with the United States Patent and Trademark Office have been duly
and adequately filed;
(iii) To the best of such counsel's knowledge, the Company
owns of record all right, title and interest in and to the patents and
patent applications necessary for the conduct of its business as now
being conducted and
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<PAGE>
as described in the Registration Statement and Prospectus free and clear
of any adverse claim of any third party. To the best of such counsel's
knowledge, the Company has not infringed, is not infringing and has not
received any notice of infringement of any patents of any other person
which might have a material and adverse effect on the properties,
business, financial condition or results of operations of the Company.
(iv) There is no litigation or governmental or other
proceeding relating to the Patents, before any court or before or by any
public body or board (other than the United States Patent and Trademark
Office) pending to which the Company is a party or, to the best of such
counsel's knowledge, threatened against the Company which might
materially and adversely affect the properties, business, financial
condition or results of operations of the Company; the Company has not
given notice to any third party of any claim of infringement of its
patents.
(v) All contracts and other documents relating to the Patents
which have been filed as exhibits to, or described in, the Registration
Statement have been fairly described in the Registration Statement.
(h) All proceedings taken in connection with the sale of the Firm
Shares and the Option Shares as herein contemplated shall be reasonably
satisfactory in form and substance to the Representatives and their
counsel and the Underwriters shall have received from Morgan, Lewis &
Bockius LLP a favorable opinion, addressed to the Representatives and
dated such Closing Date, with respect to the Shares, the Registration
Statement and the Prospectus, and such other related matters, as the
Representatives may reasonably request, and the Company shall have
furnished to Morgan, Lewis & Bockius LLP such documents as they may
reasonably request for the purpose of enabling them to pass upon such
matters.
(i) The Representatives shall have received on each Closing Date a
certificate, including exhibits thereto, addressed to the Representatives
and dated such Closing Date, of the Secretary or an Assistant Secretary
of the Company, signed in such officer's capacity as such officer, as to
the (i) certificate of incorporation and bylaws of the Company, (ii)
resolutions authorizing the execution and delivery of the Registration
Statement, this Agreement and the performance of the transactions
contemplated by this Agreement, the Registration Statement, the
Prospectus and the offering of the Shares, (iii) form of Common Stock
certificate and the number of shares of Common Stock outstanding, and
(iv) incumbency of the person or persons authorized
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<PAGE>
to execute and deliver the Registration Statement, this Agreement and any
other documents contemplated by the offering of the Shares.
(j) The Representatives shall have received on each Closing Date
certificates of the Secretaries of States where the Company is
incorporated and doing business as to the good standing of the Company,
listing all charter documents on file, qualification of the Company to do
business as a foreign corporation, payment of taxes and filing of annual
reports. In addition, the Representatives shall have received copies of
all charter documents of the Company certified by the Secretary of State
of the State of Delaware.
(k) The Representatives shall have received on each Closing Date a
certificate, addressed to the Representatives, and dated such Closing
Date, of an officer of the Company to the effect that the signer of such
certificate has reviewed and understands the provisions of Section
517.075 of the Florida Statutes, and represents that the Company has
complied, and at all times will comply, with all provisions of Section
517.075 and further, that as of such Closing Date, neither the Company
nor any of its affiliates does business with the government of Cuba or
with any person or affiliate located in Cuba.
6. Covenants of the Company. (A) The Company covenants and
------------------------
agrees as follows:
(a) The Company shall prepare the Prospectus in a form approved by
the Representatives and file such Prospectus pursuant to Rule 424(b)
under the Securities Act not later than the Commission's close of
business on the second business day following the execution and delivery
of this Agreement, or, if such second business day would be more than
fifteen business days after the Effective Date of the Registration
Statement or any post-effective amendment thereto, such earlier date as
would permit such Prospectus to be filed without filing a post-effective
amendment as set forth in Rule 430A(a)(3) under the Securities Act, and
shall promptly advise the Representatives (i) when the Registration
Statement shall have become effective, (ii) when any amendment thereof
shall have become effective, (iii) of any request by the Commission for
any amendment of the Registration Statement or the Prospectus or for any
additional information, (iv) of the prevention or suspension of the use
of any preliminary prospectus or the Prospectus or of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the
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<PAGE>
institution or threatening of any proceeding for that purpose and (v) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company shall not file any amendment of the Registration
Statement or amendment or supplement to the Prospectus unless the Company
has furnished the Representatives a copy for its review prior to filing
and shall not file any such proposed amendment or supplement to which the
Representatives reasonably object. The Company shall use its best
efforts to prevent the issuance of any such stop order and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Shares is
required to be delivered under the Securities Act and the Rules, any
event occurs as a result of which the Prospectus as then amended or
supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary to make the statements therein
in the light of the circumstances under which they were made not
misleading, or if it shall be necessary to amend or supplement the
Prospectus to comply with the Securities Act or the Rules, the Company
promptly shall prepare and file with the Commission, subject to the
second sentence of paragraph (a) of this Section 6(A), an amendment or
supplement which shall correct such statement or omission or an amendment
which shall effect such compliance.
(c) The Company shall make generally available to its security
holders and to the Representatives as soon as practicable, but not later
than 45 days after the end of the 12-month period beginning at the end of
the fiscal quarter of the Company during which the Effective Date occurs
(or 90 days if such 12-month period coincides with the Company's fiscal
year), an earnings statement (which need not be audited) of the Company,
covering such 12-month period, which shall satisfy the provisions of
Section 11(a) of the Securities Act or Rule 158 of the Rules.
(d) The Company shall furnish to the Representatives and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement (including all exhibits thereto and amendments thereof) and to
each other Underwriter a copy of the Registration Statement (without
exhibits thereto) and all amendments thereof and, so long as delivery of
a prospectus by an Underwriter or dealer may be required by the
Securities Act or the Rules, as many copies of any preliminary prospectus
and the
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<PAGE>
Prospectus and any amendments thereof and supplements thereto as the
Representatives may reasonably request.
(e) The Company shall cooperate with the Representatives and their
counsel in endeavoring to qualify the Shares for offer and sale under the
laws of such jurisdictions as the Representatives may designate and shall
maintain such qualifications in effect so long as required for the
distribution of the Shares; provided, however, that the Company shall not
be required in connection therewith, as a condition thereof, to qualify
as a foreign corporation or to execute a general consent to service of
process in any jurisdiction or subject itself to taxation as doing
business in any jurisdiction.
(f) For a period of five years after the date of this Agreement, the
Company shall supply to the Representatives, and to each other
Underwriter who may so request in writing, copies of such financial
statements and other periodic and special reports as the Company may from
time to time distribute generally to the holders of any class of its
capital stock and to furnish to the Representatives a copy of each annual
or other report it shall be required to file with the Commission.
(g) Without the prior written consent of the Representatives, for a
period of 180 days after the date of this Agreement, the Company shall
not issue, sell or register with the Commission, or otherwise encumber or
dispose of, directly or indirectly, any equity securities of the Company
(or any securities convertible into or exercisable or exchangeable for
equity securities of the Company), except for (i) the issuance of the
Shares pursuant to the Registration Statement and (ii) the issuance of
shares pursuant to the exercise of outstanding options under the
Company's existing stock option plans and the issuance of shares under
the Company's Employee Stock Purchase Plan.
(h) On or before completion of this offering, the Company shall make
all filings required under applicable securities laws and by the Nasdaq
National Market (including any required registration under the Exchange
Act).
(B) The Company agrees to pay, or reimburse if paid by the
Representatives, whether or not the transactions contemplated hereby are
consummated or this Agreement is terminated, all costs and expenses of the
Company incident to the public offering of the Shares and the performance of the
obligations of the Company under this Agreement including those relating to (i)
the preparation, printing, filing and distribution of the Registration Statement
including all exhibits thereto, each preliminary prospectus, the Prospectus, all
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<PAGE>
amendments and supplements to the Registration Statement and the Prospectus, and
the printing, filing and distribution of this Agreement; (ii) the preparation
and delivery of certificates for the Shares to the Underwriters; (iii) the
registration or qualification of the Shares for offer and sale under the
securities or Blue Sky laws of the various jurisdictions referred to in Section
6(A)(e), including the fees and disbursements of counsel for the Underwriters in
connection with such registration and qualification and the preparation,
printing, distribution and shipment of preliminary and supplementary Blue Sky
memoranda; (iv) the furnishing (including costs of shipping and mailing) to the
Representatives and to the Underwriters of copies of each preliminary
prospectus, the Prospectus and all amendments or supplements to the Prospectus,
and of the several documents required by this Section to be so furnished, as may
be reasonably requested for use in connection with the offering and sale of the
Shares by the Underwriters or by dealers to whom Shares may be sold; (v) the
filing fees of the National Association of Securities Dealers, Inc. in
connection with its review of the terms of the public offering; (vi) the
furnishing (including costs of shipping and mailing) to the Representatives and
to the Underwriters of copies of all reports and information required by Section
6(A)(f); and (vii) inclusion of the Shares for quotation on the Nasdaq National
Market.
7. Indemnification.
----------------
(a) The Company 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 against any and all losses, claims, damages and liabilities,
joint or several (including any reasonable investigation, legal and other
expenses incurred in connection with, and any amount paid in settlement
of, any action, suit or proceeding or any claim asserted), to which they,
or any of them, may become subject under the Securities Act, the Exchange
Act or other federal or state law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities arise
out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in any preliminary prospectus, the
Registration Statement or the Prospectus or any amendment thereof or
supplement thereto, or arise out of or are based upon 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;
provided, however, that such indemnity shall not inure to the benefit of
any Underwriter (or any person controlling such Underwriter) on account
of any losses, claims, damages or liabilities arising from the sale of
the Shares to any person by such Underwriter if such
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<PAGE>
untrue statement or omission or alleged untrue statement or omission was
made in such preliminary prospectus, the Registration Statement or the
Prospectus, or such amendment or supplement, in reliance upon and in
conformity with information furnished in writing to the Company by the
Representatives on behalf of any Underwriter specifically for use therein
and, provided further, that the indemnity agreement provided in this
section 7(a) with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter from whom the person asserting any
losses, claims, damages, liabilities or expenses based upon any untrue
statement of a material fact or omission or alleged omission to state
therein a material fact purchased shares, if a copy of the Prospectus in
which such untrue statement or alleged untrue statement or omission or
alleged omission was corrected has not been sent or given to such person
within the time required by the Securities Act and the Rules, provided
that copies of the Prospectus shall have been provided to such
Underwriter in a timely fashion by the Company in compliance with Section
6(A)(d). This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act, each director of the Company, and each officer of
the Company who signs the Registration Statement, to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only
insofar as such losses, claims, damages or liabilities arise out of or
are based upon any untrue statement or omission or alleged untrue
statement or omission which was made in any preliminary prospectus, the
Registration Statement or the Prospectus, or any amendment thereof or
supplement thereto, contained in the last paragraph of the cover page, in
the paragraph relating to stabilization on the inside front cover page of
the Prospectus and the statements with respect to the public offering of
the Shares under the caption "Underwriting" in the Prospectus; provided,
however, that the obligation of each Underwriter to indemnify the Company
(including any controlling person, director or officer thereof) shall be
limited to the net proceeds received by the Company from such
Underwriter.
(c) Any party that proposes to assert the right to be indemnified
under this Section will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which
a claim is to be made against an indemnifying party or parties under this
Section, notify each such indemnifying party of the commencement of such
action, suit or proceeding, enclosing a copy of all papers served. No
indemnification provided for in Section 7(a) or 7(b) shall be available
to any party who shall fail to give notice as provided in this Section
7(c) if the party to whom notice was not given was unaware of the
proceeding to which such notice would have related and was prejudiced by
the failure to give such notice but the omission so to notify such
indemnifying party of any such action, suit or proceeding shall not
relieve it from any liability that it may have to any indemnified party
for contribution or otherwise than under this Section. In case any such
action, suit or
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<PAGE>
proceeding shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in, and, to the
extent that it shall wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
reasonably satisfactory to such indemnified party, and after notice from
the indemnifying party to such indemnified party of its election so to
assume the defense thereof and the approval by the indemnified party of
such counsel, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses, except as provided
below and except for the reasonable costs of investigation subsequently
incurred by such indemnified party in connection with the defense
thereof. The indemnified party shall have the right to employ its
counsel in any such action, but the fees and expenses of such counsel
shall be at the expense of such indemnified party unless (i) the
employment of counsel by such indemnified party has been authorized in
writing by the indemnifying parties, (ii) the indemnified party shall
have reasonably concluded that there may be a conflict of interest
between the indemnifying parties and the indemnified party in the conduct
of the defense of such action (in which case the indemnifying parties
shall not have the right to direct the defense of such action on behalf
of the indemnified party) or (iii) the indemnifying parties shall not
have employed counsel to assume the defense of such action within a
reasonable time after notice of the commencement thereof, in each of
which cases the fees and expenses of counsel shall be at the expense of
the indemnifying parties. An indemnifying party shall not be liable for
any settlement of any action, suit, proceeding or claim effected without
its written consent.
8. Contribution. In order to provide for just and equitable
------------
contribution in circumstances in which the indemnification provided for in
Section 7(a) is due in accordance with its terms but for any reason is held to
be unavailable from the Company, the Company and the Underwriters shall
contribute to the aggregate losses, claims, damages and liabilities (including
any investigation, legal and other expenses reasonably incurred in connection
with, and any amount paid in settlement of, any action, suit or proceeding or
any claims asserted, but after deducting any contribution received by the
Company from persons other than the Underwriters, such as persons who control
the Company within the meaning of the Securities Act, officers of the Company
who signed the Registration Statement and directors of the Company, who may also
be liable for contribution) to which the Company and one or more of the
Underwriters may be subject in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the
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<PAGE>
Underwriters on the other from the offering of the Shares or, if such allocation
is not permitted by applicable law or indemnification is not available as a
result of the indemnifying party not having received notice as provided in
Section 7 hereof, in such proportion as is appropriate to reflect not only the
relative benefits referred to above but also the relative fault of the Company
on the one hand and the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Underwriters shall be
deemed to be in the same proportion as (x) the total proceeds from the offering
(net of underwriting discounts but before deducting expenses) received by the
Company, as set forth in the table on the cover page of the Prospectus, bear to
(y) the underwriting discounts received by the Underwriters, as set forth in the
table on the cover page of the Prospectus. The relative fault of the Company
and the Underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact related to
information supplied by the Company or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 8
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above. Notwithstanding
the provisions of this Section 8, (i) in no case shall any Underwriter (except
as may be provided in the Agreement Among Underwriters) be liable or responsible
for any amount in excess of the underwriting discount applicable to the Shares
purchased by such Underwriter hereunder, and (ii) the Company shall be liable
and responsible for any amount in excess of such underwriting discount;
provided, however, that no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Securities Act
or Section 20(a) of the Exchange Act shall have the same rights to contribution
as such Underwriter, and each person, if any, who controls the Company within
the meaning of the Section 15 of the Securities Act or Section 20(a) of the
Exchange Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to clauses (i) and (ii) in the
immediately preceding sentence of this Section 8. Any party entitled to
contribution will, promptly after receipt of notice of commencement of any
action, suit or proceeding against such party in respect of which a claim for
contribution
-27-
<PAGE>
may be made against another party or parties under this Section, notify such
party or parties from whom contribution may be sought, but the omission so to
notify such party or parties from whom contribution may be sought shall not
relieve the party or parties from whom contribution may be sought from any other
obligation it or they may have hereunder or otherwise than under this Section.
No party shall be liable for contribution with respect to any action, suit,
proceeding or claim settled without its written consent. The Underwriter's
obligations to contribute pursuant to this Section 8 are several in proportion
to their respective underwriting commitments and not joint.
9. Termination. This Agreement may be terminated with respect to
-----------
the Shares to be purchased on a Closing Date by the Representatives by notifying
the Company at any time
(a) in the absolute discretion of the Representatives at or before
any Closing Date: (i) if there has been any material adverse change in
the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company, whether or not arising in the ordinary
course of business; (ii) if on or prior to such date, any domestic or
international event or act or occurrence has materially disrupted, or in
the opinion of the Representatives will in the future materially disrupt,
the securities markets; (iii) if there has occurred any new outbreak or
material escalation of hostilities or other calamity or crisis the effect
of which on the financial markets of the United States is such as to make
it, in the judgment of the Representatives, inadvisable to proceed with
the offering; (iv) if there shall be such a material adverse change in
general financial, political or economic conditions or the effect of
international conditions on the financial markets in the United States is
such as to make it, in the judgment of the Representatives, inadvisable
or impracticable to market the Shares; (v) if trading in the Shares has
been suspended by the Commission or trading generally on the New York
Stock Exchange, Inc. or on the American Stock Exchange, Inc. has been
suspended or limited, or minimum or maximum ranges for prices for
securities shall have been fixed, or maximum ranges for prices for
securities have been required, by said exchanges or by order of the
Commission, the National Association of Securities Dealers, Inc., or any
other governmental or regulatory authority; or (vi) if a banking
moratorium has been declared by any state or federal authority, or
(b) at or before any Closing Date, that any of the conditions
specified in Section 5 shall not have been fulfilled when and as required
by this Agreement.
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<PAGE>
If this Agreement is terminated pursuant to any of its provisions, the
Company shall not be under any liability to any Underwriter, and no Underwriter
shall be under any liability to the Company, except that (y) if this Agreement
is terminated by the Representatives or the Underwriters because of any failure,
refusal or inability on the part of the Company to comply with the terms or to
fulfill any of the conditions of this Agreement, the Company will reimburse the
Underwriters for all out-of-pocket expenses (including the fees and
disbursements of their counsel) incurred by them in connection with the proposed
purchase and sale of the Shares or in contemplation of performing their
obligations hereunder and (z) no Underwriter who shall have failed or refused to
purchase the Shares agreed to be purchased by it under this Agreement, without
some reason sufficient hereunder to justify cancellation or termination of its
obligations under this Agreement, shall be relieved of liability to the Company
or to the other Underwriters for damages occasioned by its failure or refusal.
10. Substitution of Underwriters. If one or more of the
----------------------------
Underwriters shall fail (other than for a reason sufficient to justify the
cancellation or termination of this Agreement under Section 9) to purchase on
any Closing Date the Shares agreed to be purchased on such Closing Date by such
Underwriter or Underwriters, the Representatives may find one or more substitute
underwriters to purchase such Shares or make such other arrangements as the
Representatives may deem advisable or one or more of the remaining Underwriters
may agree to purchase such Shares in such proportions as may be approved by the
Representatives, in each case upon the terms set forth in this Agreement. If no
such arrangements have been made by the close of business on the business day
following such Closing Date,
(a) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall not exceed 10% of the Shares that
all the Underwriters are obligated to purchase on such Closing Date, then
each of the nondefaulting Underwriters shall be obligated to purchase
such Shares on the terms herein set forth in proportion to their
respective obligations hereunder; provided, that in no event shall the
maximum number of Shares that any Underwriter has agreed to purchase
pursuant to Section 1 be increased pursuant to this Section 10 by more
than one-ninth of such number of Shares without the written consent of
such Underwriter, or
(b) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall exceed 10% of the Shares that all
the Underwriters are obligated to purchase on such Closing Date, then the
Company shall be entitled to an additional business day within which it
may, but is not obligated to, find one or more substitute
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<PAGE>
underwriters reasonably satisfactory to the Representatives to purchase
such Shares upon the terms set forth in this Agreement.
In any such case, either the Representatives or the Company shall have
the right to postpone the applicable Closing Date for a period of not more than
five business days in order that necessary changes and arrangements (including
any necessary amendments or supplements to the Registration Statement or
Prospectus) may be effected by the Representatives and the Company. If the
number of Shares to be purchased on such Closing Date by such defaulting
Underwriter or Underwriters shall exceed 10% of the Shares that all the
Underwriters are obligated to purchase on such Closing Date, and none of the
nondefaulting Underwriters or the Company shall make arrangements pursuant to
this Section within the period stated for the purchase of the Shares that the
defaulting Underwriters agreed to purchase, this Agreement shall terminate with
respect to the Shares to be purchased on such Closing Date without liability on
the part of any nondefaulting Underwriter to the Company and without liability
on the part of the Company, except in both cases as provided in Sections 6B, 7,
8 and 9. The provisions of this Section shall not in any way affect the
liability of any defaulting Underwriter to the Company or the nondefaulting
Underwriters arising out of such default. A substitute underwriter hereunder
shall become an Underwriter for all purposes of this Agreement.
11. Miscellaneous. The respective agreements, representations,
-------------
warranties, indemnities and other statements of the Company or its officers and
of the Underwriters set forth in or made pursuant to this Agreement shall remain
in full force and effect, regardless of any investigation made by or on behalf
of any Underwriter or the Company or any of the officers, directors or
controlling persons referred to in Sections 7 and 8 hereof, and shall survive
delivery of and payment for the Shares. The provisions of Sections 6(B), 7, 8
and 9 shall survive the termination or cancellation of this Agreement.
This Agreement has been and is made for the benefit of the
Underwriters and the Company and their respective successors and assigns, and,
to the extent expressed herein, for the benefit of persons controlling any of
the Underwriters, or the Company, and directors and officers of the Company, and
their respective successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include any purchaser of Shares from any Underwriter merely
because of such purchase.
All notices and communications hereunder shall be in writing and
mailed or delivered or by telephone or telegraph if subsequently confirmed in
writing, (a) if to the Representatives,
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<PAGE>
c/o Oppenheimer & Co., Inc., Oppenheimer Tower, World Financial Center, New
York, New York 10281 Attention: Marshall A. Heinberg, and (b) if to the Company,
to its agent for service as such agent's address appears on the cover page of
the Registration Statement.
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<PAGE>
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
Please confirm that the foregoing correctly sets forth the agreement
among us.
Very truly yours,
THERMATRIX INC.
By _____________________________
Title: President and Chief
Executive Officer
Confirmed:
OPPENHEIMER & CO., INC.
PRUDENTIAL SECURITIES INCORPORATED
HSBC SECURITIES, INC.
Acting severally on behalf of itself
and as representative of the several
Underwriters named in Schedule I annexed
hereto.
By Oppenheimer & Co., Inc.
By____________________________
Title: Managing Director
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<PAGE>
<TABLE>
<CAPTION>
SCHEDULE I
Number of
Firm Shares to
Name Be Purchased
---- --------------
<S> <C>
Oppenheimer & Co., Inc. ......................................... 400,000
Prudential Securities Incorporated .............................. 400,000
HSBC Securities, Inc. ........................................... 200,000
Alex. Brown & Sons Incorporated ................................. 85,000
Cowen & Company ................................................. 85,000
A.G. Edwards & Sons, Inc. ....................................... 85,000
Hambrecht & Quist LLC ........................................... 85,000
Advest, Inc. .................................................... 55,000
Dain Bosworth Incorporated ...................................... 55,000
First Albany Corporation ........................................ 55,000
First of Michigan Corporation ................................... 55,000
Furman Selz LLC ................................................. 55,000
Jeffries & Company .............................................. 55,000
Legg Mason Wood Walker, Incorporated ............................ 55,000
Needham & Company, Inc. ......................................... 55,000
Pacific Growth Equities, Inc. ................................... 55,000
Pennsylvania Merchant Group Ltd. ................................ 55,000
Raymond James & Associates, Inc. ................................ 55,000
Van Kasper & Company ............................................ 55,000
TOTAL....................................................... 2,000,000
---------
</TABLE>
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<PAGE>
EXHIBIT 11.1
THERMATRIX INC.
STATEMENTS OF COMPUTATION OF PRO FORMA COMMON
SHARES AND EQUIVALENTS
(IN THOUSANDS, EXCEPT FOR PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31,
--------------------
1995 1995 1996
------- --------- ---------
<S> <C> <C> <C>
Net Loss........................................ $(5,194) $(1,353) $(1,243)
======= ========= =========
Weighted average common shares outstanding...... 86 64 129
Weighted average common equivalent shares:
Weighted average preferred stock outstanding.. 4,169 4,169 4,169
Adjustments to reflect requirements of the
Securities and Exchange
Commission's Staff Accounting Bulletin No. 83:
Preferred Stock Issuances..................... 284 284 284
Preferred Stock Warrants...................... 17 17 17
Common Stock Option Grants.................... 350 350 350
Additional preferred stock issuances if an
initial public offering is
completed by July 15, 1996 (1)............... 814 814 814
------- --------- ---------
Pro forma total weighted average common shares
and equivalents................................ 5,720 5,698 5,763
======= ========= =========
Pro forma net loss per share.................... $ (0.91) $ (0.24) $ (0.22)
======= ========= =========
</TABLE>
- --------
(1)See Note 6 and Note 10 of Notes to the Consolidated Financial Statements.
