EXHIBIT 1.1
CRYOLIFE, INC.
2,500,000 Shares
Common Stock
($0.01 Par Value)
UNDERWRITING AGREEMENT
___________________, 1998
UNDERWRITING AGREEMENT
_________________, 1998
SBC WARBURG DILLON READ INC.
PIPER JAFFRAY INC.
as Managing Underwriters
c/o SBC WARBURG DILLON READ INC.
535 Madison Avenue
New York, New York 10022
Dear Sirs:
CryoLife Inc. (the "Company") proposes to issue and sell and the
persons named in Schedule B annexed hereto (the "Selling Shareholders") propose
to sell to the underwriters named in Schedule A annexed hereto (the
"Underwriters") an aggregate of 2,500,000 shares (the "Firm Shares") of Common
Stock, $0.01 par value per share (the "Common Stock"), of the Company, of which
________________ shares are to be issued and sold by the Company and an
aggregate of ________________ shares are to be sold by the Selling Shareholders
in the respective amounts set forth under the caption "Firm Shares" in Schedule
B annexed hereto. In addition, solely for the purpose of covering over-
allotments, the Company proposes to grant to the Underwriters the option to
purchase from the Company up to an additional 375,000 shares of Common Stock
(the "Additional Shares"). The Firm Shares and the Additional Shares are
hereinafter collectively sometimes referred to as the Shares. The Shares are
described in the Prospectus which is referred to below.
The Company has filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively called the "Act"), with the Securities and Exchange Commission
(the "Commission") a registration statement (the "initial registration
statement") on Form S-3, including a prospectus, relating to the Shares, which
incorporates by reference documents which the Company has filed or will file in
accordance with the provisions of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (collectively called the
"Exchange Act"). All of the Shares have been duly registered under the Act
pursuant to such initial registration statement or, if an additional
registration statement has been, or is proposed to be, filed pursuant to Rule
462(b) of the Act, all of the Shares have been or will be, on the date of this
Agreement, duly registered under the Act pursuant to the initial registration
statement and such additional registration statement. If an additional
registration statement has been, or is proposed to be, filed with the Commission
pursuant to Rule 462(b), such additional registration statement was or will be
prepared by the Company in conformity with the requirements of the Act, has
become or will become, on the date of this Agreement, effective under the Act
and copies thereof have been or will be, prior to or concurrently with, filing
with the Commission, delivered by the Company to you. As used in this
Agreement, "Effective Time" means the date and the time as of which the initial
registration statement, or the most recent post-effective amendment thereto, if
any, was declared effective by the Commission or has become effective upon
filing pursuant to Rule 462(c); "Effective Date" means the date of the Effective
Time; the "Initial Registration Statement" means the initial registration
statement as amended as of the Effective Time, including any documents
incorporated by reference therein at such time and including (i) all portions of
any additional registration statement filed pursuant to Rule 462(b) under the
Act which are deemed to be a part of such initial registration statement and
(ii) all information contained in any final prospectus filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations in accordance with Section
5(c)(ii) hereof and deemed to be a part of such initial registration statement
as of the Effective Time pursuant to paragraph (b) of Rule 430A of the Rules and
Regulations; the "Rule 462(b) Registration Statement" means the additional
registration statement, if any, relating to the Common Stock and filed pursuant
to Rule 462(b) under the Act at the time it becomes effective pursuant to the
Rules and Regulations, including (i) the contents of the Initial Registration
Statement incorporated therein by reference and (ii) all information deemed to
be a part of such additional registration statement pursuant to paragraph (b) of
Rule 430A of the Rules and Regulations; and the "Registration Statements" means
the Initial Registration Statement and the Rule 462(b) Registration Statement,
if any. "Preliminary Prospectus" means each prospectus included in the initial
registration statement, or amendments thereof, before it became effective under
the Act and any prospectus filed with the Commission by the Company with your
consent pursuant to Rule 424(a) of the Act, and "Prospectus" means such final
prospectus, as first filed with the Commission pursuant to paragraph (1) or (4)
of Rule 424(b) of the Act or, if no such filing is required, the form of final
prospectus included in the Initial Registration Statement. Reference made
herein to any Preliminary Prospectus or to the Prospectus shall be deemed to
refer to and include any documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Act, as of the date of such Preliminary Prospectus
or the Prospectus, as the case may be, and any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include any document filed under the Exchange Act after the date of
such Preliminary Prospectus or the Prospectus, as the case may be, and
incorporated by reference in such Preliminary Prospectus or the Prospectus, as
the case may be; and any reference to any amendment to a Registration Statement
shall be deemed to include any annual report of the Company filed with the
Commission pursuant to Section 13(a) or 15(d) of the Exchange Act after the
Effective Time that is incorporated by reference in such Registration Statement.
The Company, the Selling Shareholders and the
Underwriters agree as follows:
1. Sale and Purchase. Upon the basis of the warranties and
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representations and the other terms and conditions herein set forth, the Company
and each of the Selling Shareholders, severally and not jointly, agree to sell
to the respective Underwriters and each of the Underwriters, severally and not
jointly, agrees to purchase from the Company and each Selling Shareholder the
respective number of Firm Shares (subject to such adjustment as you may
determine to avoid fractional shares) which bears the same proportion to the
number of Firm Shares to be sold by the Company or by such Selling Shareholders,
as the case may be, as the number of Firm Shares set forth opposite the name of
such Underwriter in Schedule A annexed hereto bears to the total number of Firm
Shares to be sold by the Company and the Selling Shareholders, in each case at a
purchase price of $____________ per Share. The Company and each Selling
Shareholder is advised by you that the Underwriters intend (i) to make a public
offering of their respective portions of the Firm Shares as soon after the
Effective Date as in your judgment is advisable and (ii) initially to offer the
Firm Shares upon the terms set forth in the Prospectus. You may from time to
time increase or decrease the public offering price after the initial public
offering to such extent as you may determine.
In addition, the Company hereby grants to the several Underwriters the
option to purchase, and upon the basis of the warranties and representations and
the other terms and conditions herein set forth, the Underwriters shall have the
right to purchase, severally and not jointly, from the Company ratably in
accordance with the number of Firm Shares to be purchased by each of them
(subject to such adjustment as you shall determine to avoid fractional shares),
all or a portion of the Additional Shares as may be necessary to cover over-
allotments made in connection with the offering of the Firm Shares, at the same
purchase price per share to be paid by the Underwriters to the Company for the
Firm Shares. This option may be exercised at any time (but not more than once)
on or before the thirtieth day following the date hereof, by written notice to
the Company. Such notice shall set forth the aggregate number of Additional
Shares as to which the option is being exercised, and the date and time when the
Additional Shares are to be delivered (such date and time being herein referred
to as the "additional time of purchase"); provided, however, that the additional
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time of purchase shall not be earlier than the time of purchase (as defined
below) nor earlier than the second business day* after the date on which the
option shall have been exercised nor later than the tenth business day after the
date on which the option shall have been exercised. The number of Additional
Shares to be sold to each Underwriter shall be the number which bears the same
proportion to the aggregate number of Additional Shares being purchased as the
number of Firm Shares set forth opposite the name of such Underwriter on
Schedule A hereto bears to the total number of Firm Shares (subject, in each
case, to such adjustment as you may determine to eliminate fractional shares).
Pursuant to powers of attorney, which shall be satisfactory to counsel
for the Underwriters, granted by each Selling Shareholder, Steven G. Anderson
and Edwin B. Cordell, Jr. will act as representatives of the Selling
Shareholders. The foregoing representatives (the "Representatives of the
Selling Shareholders") are authorized, on behalf of each Selling Shareholder, to
execute any documents necessary or desirable in connection with the sale of the
Shares to be sold hereunder by each Selling Shareholder, to make delivery of the
certificates of such Shares, to receive the proceeds of the sale of such Shares,
to give receipts for such proceeds, to pay therefrom the expenses to be borne by
each Selling Shareholder in connection with the sale and public offering of the
Shares, to distribute the balance of such proceeds to each Selling Shareholder
in proportion to the number of Shares sold by each Selling Shareholder, to
receive notices on behalf of each Selling Shareholder and to take such other
action as may be necessary or desirable in connection with the transactions
contemplated by this Agreement.
2. Payment and Delivery. Payment of the purchase price for the Firm
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Shares shall be made to the Company and one or both of the Representatives of
the Selling Shareholders (for the account of each Selling Shareholder) by check
or, if wire instructions are given on or prior to the time this Agreement is
executed, by wire transfer of immediately available funds, against delivery of
the certificates for the Firm Shares to you for the respective accounts of the
Underwriters. Such payment and delivery shall be made at 10:00 A.M., New York
City time, on __________________, 1998 (unless another time shall be agreed to
by you, the Company and the Representatives of the Selling Shareholders or
unless postponed in accordance with the provisions of Section 10 hereof). The
time at which such payment and delivery are actually made is hereinafter
sometimes called the time of purchase. Certificates for the Firm Shares shall
be delivered to you in definitive form in such names and in such denominations
as you shall specify on the second business day preceding the time of purchase.
For the purpose of expediting the checking of the certificates for the Firm
Shares by you, the Company and the Selling Shareholders
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* As used herein "business day" shall mean a day on which the New York Stock
Exchange is open for trading.
agree to make such certificates available to you for such purpose at least one
full business day preceding the time of purchase.
Payment of the purchase price for the Additional Shares shall be made
at the additional time of purchase in the same manner as the payment for the
Firm Shares. Certificates for the Additional Shares shall be delivered to you
in definitive form in such names and in such denominations as you shall specify
on the second business day preceding the additional time of purchase. For the
purpose of expediting the checking of the certificates for the Additional Shares
by you, the Company agrees to make such certificates available to you for such
purpose at least one full business day preceding the additional time of
purchase.
3. Representations and Warranties of the Company. The Company
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represents and warrants to, and agrees with, each of the Underwriters that:
(a) The Registration Statements, as of the Effective Date, and
Prospectus, and any further amendments or supplements thereto, fully
comply, or will fully comply, in all material respects with the provisions
of the Act, no part of a Registration Statement as of its effective date
will contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Prospectus, as of its filing
date, will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no warranty
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or representation with respect to any statement contained in a Registration
Statement or the Prospectus in reliance upon and in conformity with
information concerning the Underwriters and furnished in writing by or on
behalf of any Underwriter through you to the Company expressly for use in
the Registration Statements or the Prospectus; the documents incorporated
by reference in the Prospectus, at the time they were filed with the
Commission, complied in all material respects with the requirements of the
Exchange Act, and do not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they
were made, not misleading; no document relating to the offering of the
Shares has been filed, or transmitted for filing, with the Commission,
unless previously delivered to you, and no document has been or will be
prepared, distributed or filed in reliance on Rule 434 under the Act. The
Company and the offering of the Shares meet the eligibility requirements
for the use of Form S-3.
(b) As of the date specified in such table, the Company had the
capitalization set forth under the heading entitled "Actual" in the section
of the Prospectus entitled "Capitalization" and, as of such date, on a pro
forma basis, giving effect to the sale of the Shares (including the
exercise of options and the partial conversion of the convertible debenture
described in a footnote to the table) and the application of the net
proceeds as contemplated in the Prospectus, the Company had the
capitalization set forth under the heading entitled "As Adjusted" in the
section of the Prospectus entitled "Capitalization"; between the date
specified in such table and the date of this Agreement, there has not been,
and from the date specified in such table until the time of purchase and
the additional time of purchase, as the case may be, there will not be (i)
any change in the number of shares of capital stock outstanding other than
shares of Common Stock issued pursuant to currently outstanding options or
(ii) any significant change in the amount of
debt outstanding; all of the issued and outstanding shares of capital stock
including Common Stock of the Company have been duly and validly authorized
and issued and are fully paid and non-assessable; the Company has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Florida, with full power and authority to
own its properties and conduct its business as described in the Prospectus,
to execute and deliver this Agreement and to issue and sell the Shares as
herein contemplated;
(c) The Company and each of its subsidiaries (the "Subsidiaries")
are duly qualified or licensed by and are in good standing in each
jurisdiction in which they conduct their respective businesses and in which
the failure, individually or in the aggregate, to be so licensed or
qualified could have a material adverse effect on the business, financial
condition or results of operations of the Company and its Subsidiaries,
taken as a whole; and the Company and each of its Subsidiaries are in
compliance with the laws, orders, rules, regulations and directives issued
or administered by such jurisdictions and for which the failure,
individually or in the aggregate, to be in compliance could have a material
adverse effect on the business, financial conditions or results of
operations of the Company and its Subsidiaries, taken as a whole;
(d) Neither the Company nor any of its Subsidiaries is in breach
of, or in default under (nor has any event occurred which with notice,
lapse of time, or both would constitute a breach by the Company or a
Subsidiary, or default by the Company or a Subsidiary under) its respective
charter or by-laws or, in a manner which could have a material adverse
effect on the financial condition or results of operations of the Company
and its Subsidiaries, taken as a whole, in the performance or observance of
any obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, bank loan or credit agreement or other
agreement or instrument to which the Company or any of its Subsidiaries is
a party or by which any of them is bound, and the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby will not conflict with, or result in any breach of or
constitute a default under (nor constitute any event which with notice,
lapse of time, or both would constitute a breach of, or default under), any
provisions of the charter or by-laws of the Company or any of its
Subsidiaries or under any provision of any license, indenture, mortgage,
deed of trust, bank loan or credit agreement or other agreement or
instrument to which the Company or any of its Subsidiaries is a party or by
which any of them or their respective properties may be bound or affected,
or under any federal, state, local or foreign law, regulation or rule or
any decree, judgment or order applicable to the Company or any of its
Subsidiaries;
(e) This Agreement has been duly authorized, executed and
delivered by the Company and is a legal, valid and binding agreement of the
Company enforceable in accordance with its terms;
(f) The Shares have been duly and validly authorized; the Shares
being sold by the Selling Shareholders, to the extent currently issued,
are, and the Shares being sold by the Company and the remaining Shares
being sold by the Selling Shareholders, when issued and delivered pursuant
to this Agreement, will be, duly and validly issued and fully paid and non-
assessable; the Shares conform to the description thereof contained in
the Registration Statement and the Shares will conform to the description
thereof contained in the Prospectus;
(g) The capital stock of the Company, including the Shares,
conforms in all material respects to the description thereof contained in
the Prospectus, and the certificates for the Shares are in due and proper
form and the holders of the Shares will not be subject to personal
liability by reason of being such holders;
(h) No approval, authorization, consent or order of or filing
with any national, state or local governmental or regulatory commission,
board, body, authority or agency is required in connection with the
issuance and sale of the Shares as contemplated hereby other than
registration of the Shares under the Act, approval required from the New
York Stock Exchange (the "NYSE") and any necessary qualification under the
securities or blue sky laws of the various jurisdictions in which the
Shares are being offered by the Underwriters;
(i) Except as disclosed in the Prospectus, waived or satisfied,
no person has the right, contractual or otherwise, to cause the Company to
issue to it, or register pursuant to the Act, any shares of capital stock
of the Company upon the issue and sale of the Shares to the Underwriters
hereunder, nor does any person have preemptive rights, rights of first
refusal or other rights to purchase any of the Shares;
(j) Ernst & Young LLP, whose reports on the consolidated
financial statements of the Company and its Subsidiaries are filed with the
Commission as part of the Initial Registration Statement and Prospectus,
are independent public accountants as required by the Act and the
applicable published rules and regulations thereunder;
(k) KPMG Peat Marwick LLP, whose reports on the consolidated
financial statements of the Company and its Subsidiaries are filed with the
Commission as part of the Initial Registration Statement and Prospectus,
are independent public accountants as required by the Act and the
applicable published rules and regulations thereunder;
(l) Each of the Company and its Subsidiaries has all licenses,
authorizations, consents and approvals and has made all filings required
under any federal, state, local or foreign law, regulation or rule, and has
obtained all authorizations, consents and approvals from other persons, in
order to conduct its respective business, in all cases, at least to the
extent the failure of having, obtaining or making such license,
authorization, consent, approval or filing could, individually or in the
aggregate, have a material adverse effect on the business, financial
condition or results of operations of the Company, and its Subsidiaries,
taken as a whole; neither the Company nor any of its Subsidiaries is in
violation of, or in default under, any license, authorization, consent or
approval or any federal, state, local or foreign law, regulation or rule or
any decree, order or judgment applicable to the Company or any of its
Subsidiaries the effect of which could have a material adverse effect on
the business, financial condition or results of operations of the Company
and its Subsidiaries taken as a whole;
(m) All legal or governmental proceedings, contracts or documents
of a character required to be described in a Registration Statement or the
Prospectus (including
any document incorporated by reference) or to be filed as an exhibit to a
Registration Statement have been so described or filed as required;
(n) There are no actions, suits or proceedings pending or
threatened against the Company or any of its Subsidiaries or any of their
respective properties, at law or in equity, or before or by any federal,
state, local or foreign governmental or regulatory commission, board, body,
authority or agency which could result in a judgment, decree or order
having a material adverse effect on the business, financial condition or
results of operations of the Company and its Subsidiaries taken as a whole;
(o) The financial statements included in the Initial Registration
Statement and the Prospectus present fairly in all material respects the
consolidated financial position of the Company and its Subsidiaries as of
the dates indicated and the consolidated results of operations and changes
in financial position of the Company and its Subsidiaries for the periods
specified; such financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
during the periods involved, except that unaudited financial statements do
not contain footnotes and are subject to normal year-end adjustments;
(p) The pro forma financial statements and other pro forma
financial information (including the notes thereto) included in the
Registration Statements and the Prospectus have been prepared in accordance
with the Commission's rules and guidelines with respect to pro forma
financial statements and have been properly computed on the basis described
therein. The assumptions used in the preparation of the pro forma
financial statements and other pro forma information in the Registration
Statements and the Prospectus are set forth therein and are believed to be
reasonable by the Company (based upon its consultations with its
independent public accountants about each of its assumptions underlying the
pro forma information), and the adjustments used therein are believed to be
appropriate by the Company (based upon its consultations with its
independent public accountants about each of its assumptions underlying the
pro forma information) to give pro forma effect to the transactions or
circumstances referred to therein. The pro forma financial and operating
information does not purport to represent what the Company's results of
operations would have been if the transactions described had in fact
occurred, nor does it purport to indicate the future financial position or
results of future operations of the Company. The other financial and
statistical information and data relating to the Company set forth in the
Registration Statements and the Prospectus have been prepared on a basis
consistent with the financial statements and books and records of the
Company;
(q) Subsequent to the respective dates as of which information is
given in the Registration Statements and Prospectus, and except as may be
otherwise stated therein, there has not been (A) any material and
unfavorable change, financial or otherwise, in the business, properties,
prospects, regulatory environment, results of operations or condition
(financial or otherwise), present or prospective, of the Company and its
Subsidiaries taken as a whole, (B) any transaction, which is material to
the Company and its Subsidiaries taken as a whole, contemplated or entered
into by the Company or any of its Subsidiaries or (C) any obligation,
contingent or otherwise, directly or indirectly incurred by the Company or
any of its Subsidiaries which is material to the Company and its
Subsidiaries taken as a whole;
(r) Each of the Company and its Subsidiaries has good title to
all tangible properties and assets owned by it, in each case, except as set
forth in the Registration Statements and the Prospectus, free and clear of
all pledges, liens, encumbrances, security interests, charges, mortgages
and defects of title other than liens for taxes which taxes are not yet due
and payable, with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such properties and assets by
the Company and its Subsidiaries; the properties and assets leased by the
Company and its Subsidiaries are held by them under valid, subsisting and
enforceable leases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such properties and
assets by the Company and its Subsidiaries;
(s) The Company has not violated any foreign, federal, state or
local law, regulation, decree, order, directive, requirement or judgment
applicable to the Company relating to the protection of human health and
safety, the environment or hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"), nor any federal or state
law relating to discrimination in the hiring, promotion or pay of employees
nor any applicable federal or state wages and hours laws, nor any
provisions of the Employee Retirement Income Security Act or the rules and
regulations promulgated thereunder, which violation could have a material
adverse effect on the business, financial condition or results of
operations of the Company and the Company has not received any notice which
is pending alleging any violation thereof or liability thereunder;
(t) Each of the Company and its Subsidiaries has such permits,
licenses, consents, approvals, franchises and authorizations as are
required by federal, state, local, foreign or other governmental or
regulatory authorities ("Permits") and for which the failure to have such
permit, license, consent, approval, franchise or authorization,
individually or in the aggregate, could have a material adverse effect on
the business, financial condition or results of operations of the Company
and its Subsidiaries, taken as a whole. Each of the Company and its
Subsidiaries has made such filings as are required to own, lease and
operate its properties and to conduct its business and for which the
failure to have made such filing, individually or in the aggregate, could
have a material adverse effect on the business, financial condition or
results of operations of the Company and its Subsidiaries, taken as a
whole. Neither the Company nor any of its Subsidiaries is in violation of,
or has failed to fulfill or perform, any of its obligations with respect to
its Permits, which violation or failure, individually or in the aggregate,
could have a material adverse effect on the business, financial condition
or results of operations of the Company and its Subsidiaries, taken as a
whole. Neither the Company nor any Subsidiary has received notice from any
governmental authority of the revocation or termination, or threatened
revocation or termination, of any Permits or any other material impairment
of the rights of the holder of any Permit, which revocation, termination or
impairment, individually or in the aggregate, could have a material adverse
effect on the business, financial condition or results of operations of the
Company or its Subsidiaries, taken as a whole; and, except as described in
the Prospectus, the Permits contain no restrictions that are burdensome to
the Company or its Subsidiaries in a manner which could have a material
adverse effect on the business, financial condition or results of
operations of the Company and its Subsidiaries, taken as a whole;
(u) There is no claim pending or, to the best knowledge of the
Company, threatened or contemplated under any Environmental Laws against
the Company which, if adversely determined, individually or in the
aggregate, could have a material adverse effect on the business, financial
condition or results of operations of the Company; there are no past or
present actions or conditions, including, without limitation, the release
of any hazardous substance or waste regulated under any Environmental Law
that are likely to form the basis of any such claim against the Company, if
adversely determined, individually or in the aggregate could have a
material adverse effect on the business, financial condition or results of
operations of the Company;
(v) Neither the Company, nor to the best of the Company's
knowledge, any employee of the Company has made any payment of funds of the
Company prohibited by law, and no funds of the Company have been set aside
to be used for any payment prohibited by law;
(w) The Company has filed all federal or state income and
franchise tax returns required to be filed and has paid all taxes shown
thereon as due, and there is no material tax deficiency which has been or
might be asserted against the Company; all material tax liabilities of the
Company are adequately provided for on the books of the Company;
(x) Neither the Company nor any of its affiliates has incurred
any liability for any finder's fees or similar payments in connection with
the transactions herein contemplated;
(y) Except as specifically disclosed in the Prospectus, the
Company and its Subsidiaries own, possess, have enforceable licenses to
use, or can acquire on terms which the Company believes will be
commercially reasonable, adequate rights to use all patent, patent rights,
inventions, trade secrets, know-how, trademarks, service marks, trade names
and copyrights (collectively, "Intellectual Property Rights") the absence
of which could have a materially adverse effect on the conduct of the
businesses of the Company and its Subsidiaries as described or contemplated
in the Registration Statements and Prospectus; neither the Company nor any
Subsidiary has received any notice of, or has knowledge of, any
infringement of or conflict with asserted rights of the Company or a
Subsidiary by others with respect to any Intellectual Property Rights;
neither the Company nor any Subsidiary has received any notice of, or has
knowledge of, any infringement of or conflict with asserted rights of
others with respect to any Intellectual Property Rights which, singly or in
the aggregate, if the subject of an unfavorable decision, ruling or
finding, might have a material adverse effect on the business, financial
condition or results of operations of the Company and its Subsidiaries,
taken as a whole; and to the knowledge of the Company, none of the patents
owned by the Company or any of its Subsidiaries are unenforceable or
invalid. The Company has duly and properly filed or caused to be filed
with the United States Patent and Trademark Office (the "PTO") and
applicable foreign and international patent authorities all patent
applications described or referred to in the Prospectus, and the Company
believes it and each Subsidiary has complied with the PTO's duty of candor
and disclosure for each of the United States patent applications described
or referred to in the Prospectus; the Company is unaware of any facts which
would preclude the grant of a patent from each of the patent applications
described or referred to in the Prospectus; and the Company has no
knowledge of any facts which would preclude it or the applicable Subsidiary
from having clear title to patent applications described or referred
to in the Prospectus;
(z) No labor disturbance by the employees of the Company exists
or, to the Company's knowledge, is imminent which could be expected to have
a material adverse effect on the business, financial condition or results
of operations of the Company. No collective bargaining agreements exists
with any of the Company's employees and, to the best of the Company's
knowledge, no such agreement is imminent;
(aa) The Company has made all material filings and received all
material regulatory authorizations necessary to conduct the Company's
business as it is currently conducted in any foreign countries, based on
all available information provided to the Company through the date hereof
by applicable regulatory authorities; the Company is not in violation of
any such regulatory authorizations, any of which violations could have a
material adverse effect on the business, financial condition or results of
operations of the Company and the Company has no reason to believe that any
party granting any such authorization is considering limiting, suspending
or revoking the same and knows of no basis for any such limitation,
suspension or revocation;
(ab) The Company has obtained agreements (which are subject to
certain exceptions previously agreed to by the Managing Underwriters) from
each of the Selling Shareholders and of each of its directors and officers
and certain of its other shareholders not to sell, contract to sell, grant
any option to sell or otherwise dispose of, directly or indirectly, any
shares of Common Stock or securities convertible into or exchangeable for
Common Stock or warrants or other rights to purchase Common Stock for a
period of 90 days after the date of the Prospectus;
(ac) Neither the Company nor any of its subsidiaries is, or will
be, after giving effect to the issuance and sale of the Shares by the
Company, an "investment company" or a company "controlled" by an
"investment company" within the meaning of the Investment Company Act of
1940, as amended; and
(ad) The Shares have been approved for listing on the New York
Stock Exchange subject to official notice of issuance.
4. Representations and Warranties of the Selling Shareholders. Each
----------------------------------------------------------
Selling Shareholder, severally and not jointly, represents and warrants to each
Underwriter that:
(a) Such Selling Shareholder is either the lawful owner of the
number of Shares to be sold by such Selling Shareholder pursuant to this
Agreement or is the lawful owner of securities convertible into or
exercisable for at least the number of Shares to be sold by such Selling
Shareholder, will be the lawful owner of the number of Shares to be sold by
such Selling Shareholder pursuant to this Agreement at the time of purchase
and will have valid and marketable title to such Shares at the time of
purchase; upon delivery of and payment for such Shares the Underwriters
will acquire valid and marketable title to such Shares free and clear of
any claim, lien, encumbrance, security interest, community property right,
restriction on transfer or other defect in title;
(b) Such Selling Shareholder has and at the time of delivery of
such Shares (whether the time of purchase or additional time of purchase,
as the case may be)
will have, full legal right, power and capacity, and any approval required
by law (other than those imposed by the Act, the NYSE and the securities or
blue sky laws of certain jurisdictions), to sell, assign, transfer and
deliver such Shares in the manner provided in this Agreement;
(c) This Agreement and the Custody Agreement and Power-of-
Attorney among the Company, as custodian and the Selling Shareholders and
the Representatives of the Selling Shareholders (the "Custody Agreement")
have been duly executed and delivered by or on behalf of such Selling
Shareholder and each is a legal, valid and binding agreement of such
Selling Shareholder enforceable in accordance with its terms, subject to
the bankruptcy, insolvency, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors rights and to
general equitable principles;
(d) When each part of a Registration Statement became or will
become effective and at all times subsequent thereto through the latest of
the time of purchase or the termination of the offering of the Shares, the
Registration Statements and Prospectus, and any supplements or amendments
thereto will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading to the extent any statement or
omission relates to such Selling Shareholder;
(e) Such Selling Shareholder has duly and irrevocably authorized
the Representatives of the Selling Shareholders, on behalf of such Selling
Shareholder, to execute and deliver this Agreement and any other document
necessary or desirable in connection with the transactions contemplated
thereby and to deliver the Shares to be sold by such Selling Shareholder
and receive payment therefor pursuant hereto; and
(f) The sale of such Selling Shareholder's Shares pursuant to
this Agreement is not prompted by any information concerning the Company
which is not set forth in the Prospectus.
5. Certain Covenants of the Company. The Company hereby agrees:
--------------------------------
(a) To furnish such information as may be required and otherwise
to cooperate in qualifying the Shares for offering and sale under the
securities or blue sky laws of such states as you may designate and to
maintain such qualifications in effect so long as required for the
distribution of the Shares, provided that the Company shall not be required
to qualify as a foreign corporation or to consent to the service of process
under the laws of any such state (except service of process with respect to
the offering and sale of the Shares); and to promptly advise you of the
receipt 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;
(b) To make available to you in New York City, as soon as
practicable after the Initial Registration Statement becomes effective, and
thereafter from time to time to furnish to the Underwriters, as many copies
of the Prospectus (or of the Prospectus as amended or supplemented if the
Company shall have made any amendments or supplements thereto after the
Effective Date) as the Underwriters may reasonably request
for the purposes contemplated by the Act;
(c) To advise you promptly and (if requested by you) to confirm
such advice in writing, (i) when a Registration Statement has become
effective and when any post-effective amendment thereto becomes effective
and (ii) if Rule 430A under the Act is used, when the Prospectus is filed
with the Commission pursuant to Rule 424(b) under the Act (which the
Company agrees to file in a timely manner under the Act);
(d) To advise you promptly, confirming such advice in writing, of
any request by the Commission for amendments or supplements to a
Registration Statement or the Prospectus or for additional information with
respect thereto, or of notice of institution of proceedings for, or the
entry of, a stop order suspending the effectiveness of a Registration
Statement and, if the Commission should enter a stop order suspending the
effectiveness of a Registration Statement, to make every reasonable effort
to obtain the lifting or removal of such order as soon as possible; to
advise you promptly of any proposal to amend or supplement a Registration
Statement or the Prospectus including by filing any documents that would be
incorporated therein by reference and to file no such amendment or
supplement to which you shall object in writing;
(e) To furnish to you and, upon request, to each of the other
Underwriters for a period of five years from the date of this Agreement (i)
copies of any reports or other communications which the Company shall send
to its shareholders or shall from time to time publish or publicly
disseminate, (ii) copies of all annual, quarterly and current reports filed
with the Commission on Forms 10-K, 10-Q and 8-K, or such other similar form
as may be designated by the Commission and such other documents, if any, as
may be incorporated by reference into a registration statement, and (iii)
such other information as you may reasonably request regarding the Company
or its Subsidiaries;
(f) To advise the Underwriters promptly of the happening of any
event known to the Company within the time during which a prospectus
relating to the Shares is required to be delivered under the Act which, in
the judgment of the Company, would require the making of any change in the
Prospectus then being used, or in the information incorporated therein by
reference, so that the Prospectus would not include an untrue statement of
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they are
made, not misleading, and, during such time, to prepare and furnish, at the
Company's expense, to the Underwriters promptly such amendments or
supplements to such Prospectus as may be necessary to reflect any such
change and to furnish you a copy of such proposed amendment or supplement
before filing any such amendment or supplement with the Commission;
(g) To make generally available to its security holders, and to
deliver to you, an earnings statement of the Company (which need not be
audited but must satisfy the provisions of Section 11(a) of the Act or Rule
158 thereunder) covering a period of twelve months beginning after the
Effective Date, as soon as is reasonably practicable after the termination
of such twelve-month period and, in any event, not later than 45 days after
the end of the fiscal quarter in which the first anniversary of the
Effective Date falls;
(h) To furnish to you three manually signed copies of each
Registration Statement, as initially filed with the Commission, and of all
amendments thereto (including
all exhibits thereto and documents incorporated by reference therein) and
sufficient conformed copies of the foregoing (other than exhibits) for
distribution of a copy to each of the other Underwriters; and to maintain
in the Company's files manually signed copies of such documents for at
least five years from the date of filing;
(i) To furnish to you as early as practicable prior to the time
of purchase and the additional time of purchase, as the case may be, but
not later than two business days prior thereto, a copy of the latest
available unaudited interim consolidated financial statements, if any, of
the Company and its Subsidiaries which have been read by the Company's
independent certified public accountants, as stated in their letter to be
furnished pursuant to Section 8(d) of this Agreement;
(j) To apply the net proceeds from the sale of the Shares in the
manner set forth under the caption "Use of Proceeds" in the Prospectus;
(k) To furnish to you, before filing with the Commission
subsequent to the Effective Date and during the period referred to in
paragraph (f) above, a copy of any document proposed to be filed by the
Company pursuant to Sections 13, 14 or 15(d) of the Exchange Act;
(l) Not to sell, contract to sell, grant any option to sell or
otherwise dispose of, directly or indirectly, any shares of Common Stock or
securities convertible into or exchangeable for Common Stock or warrants or
other rights to purchase Common Stock or permit the registration under the
Act of any shares of Common Stock, except for the registration of the
Shares and the sales to the Underwriters pursuant to this Agreement and
except for issuances of Common Stock upon the exercise of outstanding
options, warrants and debentures, for a period of 90 days after the date
hereof, without the prior written consent of the Managing Underwriters;
provided, however, during such 90-day period, the Company may grant options
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to purchase shares of Common Stock under the Company's existing stock
option plans from amounts currently reserved therefore and in amounts
consistent with past practice, so long as no such options are exercisable
during such 90-day period; and
(m) To use its best efforts to cause the Shares to be listed on
the New York Stock Exchange.
6. Certain Covenants of the Company and the Selling Shareholders.
-------------------------------------------------------------
The Company and each of the Selling Shareholders agree with each Underwriter as
follows:
(a) The Company will pay all expenses, fees and taxes (other than
any transfer taxes and fees and disbursements of counsel for the
Underwriters except as set forth under Section 7 hereof or (iii) or (iv)
below) in connection with (i) the preparation and filing of the
Registration Statement, each Preliminary Prospectus, the Prospectus, and
any amendments or supplements thereto, and the printing and furnishing of
copies of each thereof to the Underwriters and to dealers (including costs
of mailing and shipment), (ii) the issuance, sale and delivery of the
Shares by the Company and the Selling Shareholders, (iii) the word
processing and/or printing of this Agreement, any Agreement Among
Underwriters, any dealer agreements, any Statements of Information, the
Custody Agreement and the Powers of Attorney and the reproduction and/or
printing and
furnishing of copies of each thereof to the Underwriters and to dealers
(including costs of mailing and shipment), (iv) the qualification of the
Shares for offering and sale under state laws and the determination of
their eligibility for investment under state law as aforesaid (including
the reasonable legal fees and filing fees and other disbursements of
counsel to the Underwriters) and the printing and furnishing of copies of
any blue sky surveys or legal investment surveys to the Underwriters and to
dealers, (v) any listing of the Shares on the NYSE and any registration
thereof under the Exchange Act, (vi) the filing for review of the public
offering of the Shares by the National Association of Securities Dealers,
Inc. (the "NASD"), and (vii) the performance of the Company's and the
Selling Shareholders' other obligations hereunder; and
(b) At the time of purchase, all transfer taxes that are required
to be paid in connection with the sale or transfer of Shares to the
Underwriters by each Selling Shareholder will be paid or provided for by
such Selling Shareholder.
7. Reimbursement of Underwriters' Expenses. If the Shares are not
---------------------------------------
delivered for any reason other than the termination of this Agreement pursuant
to the default by one or more of the Underwriters in its or their respective
obligations hereunder, the Company shall reimburse the Underwriters for all of
their out-of-pocket expenses, including the reasonable fees and disbursements of
their counsel.
8. Conditions of Underwriters' Obligations. The several obligations
---------------------------------------
of the Underwriters hereunder are subject to the accuracy of the representations
and warranties on the part of the Company and the Selling Shareholders on the
date hereof and at the time of purchase (and the several obligations of the
Underwriters at the additional time of purchase are subject to the accuracy of
the representations and warranties on the part of the Company and the Selling
Shareholders on the date hereof and at the time of purchase (unless previously
waived) and at the additional time of purchase, as the case may be), the
performance by the Company and the Selling Shareholders of their obligations
hereunder and to the following conditions:
(a) The Company shall furnish to you at the time of purchase and
at the additional time of purchase, as the case may be, an opinion of
Arnall Golden & Gregory, LLP, counsel for the Company, addressed to the
Underwriters, and dated the time of purchase or the additional time of
purchase, as the case may be, with reproduced copies for each of the other
Underwriters and in form satisfactory to Palmer & Dodge LLP, counsel for
the Underwriters, stating that:
(i) The Company has been incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Florida, with adequate corporate power and authority to own its
properties and conduct its business as described in the Prospectus, to
execute and deliver this Agreement and to issue, sell and deliver the
Shares as herein contemplated;
(ii) Each of the Subsidiaries has been incorporated and
is validly existing as a corporation in good standing under the laws
of its respective jurisdiction of incorporation with adequate
corporate power and authority to own its respective properties and to
conduct its respective business;
(iii) The Company and its Subsidiaries are qualified or
licensed
and are in good standing in each jurisdiction in which they conduct
their respective businesses and in which they own or lease real
property or maintain an office, except where the failure to so qualify
or be licensed individually or in the aggregate, would not have a
material adverse effect on the business, financial condition or
results of operations of the Company;
(iv) This Agreement has been duly authorized, executed
and delivered by the Company;
(v) The Shares, when issued and delivered to and paid
for by the Underwriters, will be duly and validly authorized and
issued and will be fully paid and non-assessable;
(vi) The Company has an authorized capitalization as set
forth under the heading "Capitalization" in the Prospectus; the
outstanding shares of capital stock of the Company have been duly and
validly authorized and issued, and are fully paid, nonassessable and
free of statutory and contractual preemptive rights; the Shares when
issued will be free of statutory and contractual preemptive rights;
the certificates for the Shares are in due and proper form and the
holders of the Shares will not be subject to personal liability by
reason of being such holders;
(vii) The capital stock of the Company, including the
Shares, conforms in all material respects to the description thereof
contained in the Prospectus;
(viii) The Registration Statements and the Prospectus
(except as to the financial statements and schedules and other
financial and statistical data contained or incorporated by reference
therein, as to which such counsel need express no opinion) comply as
to form in all material respects with the requirements of the Act;
(ix) Each Registration Statement has become effective
under the Act and, to such counsel's knowledge, no stop order
proceedings with respect thereto are pending or threatened under the
Act;
(x) No approval, authorization, consent or order of or
filing with any national, state or local governmental or regulatory
commission, board, body, authority or agency is required in connection
with the issuance and sale of the Shares as contemplated hereby other
than registration of the Shares under the Act, application to list
additional shares with the NYSE and qualification by brokers and
dealers under state securities or blue sky laws;
(xi) The execution, delivery and performance of this
Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby do not and will not if consummated
on the date of this opinion conflict with, or result in any breach of,
or constitute a default under (nor constitute any event which with
notice, lapse of time, or both, would constitute a breach of or
default under), any provisions of the charter or by-laws of the
Company or any of its Subsidiaries or
under any provision of any license, indenture, mortgage, deed of
trust, bank loan, credit agreement or other agreement or instrument
known to such counsel to which the Company or any of its Subsidiaries
is a party or by which any of them or their respective properties may
be bound or affected, or under any law, regulation or rule or any
decree, judgment or order applicable to the Company or any of its
Subsidiaries;
(xii) To such counsel's knowledge, neither the Company
nor any of its Subsidiaries is in breach of, or in default under (nor
has any event occurred which with notice, lapse of time, or both would
constitute a breach of, or default under), its charter or by-laws or,
in a manner which could have a material adverse effect on the
business, financial condition or results of operations of the Company
and its Subsidiaries, taken as a whole, any license, indenture,
mortgage, deed of trust, bank loan or any other agreement or
instrument to which the Company or any of its Subsidiaries is a party
or by which any of them or their respective properties may be bound or
affected or under any law, regulation or rule or any decree, judgment
or order applicable to the Company or any of its Subsidiaries;
(xiii) To such counsel's knowledge, there are no
contracts, licenses, agreements, leases or documents of a character
which are required to be filed as exhibits to a Registration Statement
(including any document incorporated by reference) or to be described
in any document incorporated by reference into the Prospectus or
required to be summarized or described in the Prospectus pursuant to
Item 11 of Form S-3 which have not been so filed, summarized or
described;
(xiv) To such counsel's knowledge, there are no actions,
suits or proceedings pending or threatened against the Company or any
of its Subsidiaries or any of their respective properties, at law or
in equity or before or by any commission, board, body, authority or
agency which are required to be described in any document incorporated
by reference into the Prospectus or required to be described in the
Prospectus pursuant to Item 11 of Form S-3 but are not so described;
(xv) The documents incorporated by reference in the
Registration Statements and Prospectus, when they were filed (or, if
an amendment with respect to any such document was filed when such
amendment was filed), complied as to form in all material respects
with the Exchange Act (except as to the financial statements and
schedules and other financial and statistical data contained or
incorporated by reference therein as to which such counsel need
express no opinion);
(xvi) The statements in the Prospectus relating to
requirements and procedures under the Federal Food, Drug and Cosmetic
Act or Food and Drug Administration regulations are accurate and
complete in all materials respects and present fairly matters set
forth therein;
(xvii) Such counsel has no actual knowledge of any
action, suit or
proceeding pending or threatened by the FDA or other federal
regulatory authority, except in each case as described in the
Prospectus; and
In addition, such counsel shall state that such counsel
have participated in conferences with officers and other
representatives of the Company, representatives of the independent
public accountants of the Company and representatives of the
Underwriters at which the contents of the Registration Statements and
Prospectus were discussed and, although such counsel is not passing
upon and does not assume responsibility for the accuracy, completeness
or fairness of the statements contained in the Registration Statements
or Prospectus (except as and to the extent stated in subparagraphs
(vi) and (vii) above), on the basis of the foregoing (relying as to
materiality to a large extent upon the opinions of officers and other
representatives of the Company) nothing has come to the attention of
such counsel that causes them to believe that the Initial Registration
Statement, including any documents incorporated therein by reference,
any 462(b) Registration Statement or any amendment to such
registration statements or documents, on the Effective Date, contained
an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus or any supplement
thereto at the date of such Prospectus or such supplement, and at all
times up to and including the time of purchase or additional time of
purchase, as the case may be, contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading (it
being understood that such counsel need express no opinion with
respect to the financial statements and schedules and other financial
and statistical data included in a Registration Statement or
Prospectus).
In rendering such opinion, such counsel may rely (to the extent such
counsel deems proper) as to matters specified in paragraphs (i) and (ii)
upon the opinion of Ronald D. McCall, Esq., or other counsel satisfactory
to counsel for the Underwriters.
(b) The Company shall furnish to you at the time of purchase and
at the additional time of purchase, as the case may be, opinions of patent
counsel for the Company, addressed to the Underwriters, and dated the time
of purchase or the additional time of purchase, as the case may be, with
reproduced copies for each of the other Underwriters and in form
satisfactory to Palmer & Dodge LLP, counsel for the Underwriters, stating
substantially the following:
(i) All patents and pending patent applications with
respect to which such counsel has provided legal representation and
all contracts with respect to which such counsel has provided legal
representation and pursuant to which the Company has rights to any
patents or pending patent applications are listed on Schedule A;
(ii) Based upon such counsel's (a) inquiry of the
Company's representatives responsible for patent matters, (b) such
counsel's review of the chain of title in the PTO of the Company's
United States patents and patent applications listed in Schedule A:
(i) the patents listed on Schedule A (the
"Patents") and patent applications listed on Schedule A (the
"Applications") have been validly assigned to the Company and (ii)
except as indicated on Schedule A, the Company is listed as the sole
holder of record in the records of the PTO of each of the Patents and
each of the Applications. Such counsel knows of no claims of third
parties to any ownership interest or lien with respect to any of the
Patents or Applications and such counsel has no knowledge of any facts
which would preclude the Company from having clear title and
unencumbered right to the Patents and Applications. None of the
pending Applications has been abandoned;
(iii) To the best of such counsel's knowledge, the
Company has complied with the PTO's duty of candor and disclosure for
each of the United States Patents and Applications;
(iv) To the best of such counsel's knowledge, there are
no legal or governmental proceedings relating to the Company's patent
rights, other than PTO review of Applications or comparable foreign
proceedings, and to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities
or others. To the best of such counsel's knowledge, there is no
pending or threatened interference proceeding or public use proceeding
with respect to any Application;
(v) No facts have come to such counsel's attention that
cause such counsel to believe that any of the claims of the Patents or
Applications is unenforceable or invalid. To the best of such
counsel's knowledge, there is no pending action, suit, proceeding or
claim by others challenging the validity or enforceability of any
claim of the Patents;
(vi) Specified statements in the Prospectus which apply
to Patents and Applications, insofar as such statements constitute a
summary of legal matters, documents or proceedings, are accurate and
complete in all material respects and present fairly the matters set
forth therein; and
(vii) Such counsel is not aware of any action, claim or
proceeding pending or threatened against the Company that the Company
is infringing or otherwise violating any patents owned by others; such
counsel is not aware of any contractual rights granted by the Company
to third parties in respect to any of the Patents or Applications; and
such counsel has not been consulted by the Company regarding any
infringement by any third parties of any of the Patents.
In addition, such counsel shall state that no facts have
come to such counsel's attention which cause such counsel to believe
that specific statements in the Prospectus contained an untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, or as of the
date hereof, contain an untrue statement of a material fact or omit to
state a 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.
(c) The Selling Shareholders shall furnish to you at the time of
purchase and at the additional time of purchase, as the case may be, an
opinion of Arnall Golden & Gregory, LLP, counsel for the Selling
Shareholders, addressed to the Underwriters, and dated the time of purchase
or the additional time of purchase, as the case may be, with reproduced
copies for each of the other Underwriters, and in form and substance
satisfactory to Palmer & Dodge LLP, counsel for the Underwriters, stating
that:
(i) This Agreement and the Custody Agreement have been
duly executed and delivered by or on behalf of each of the Selling
Shareholders;
(ii) Each Selling Shareholder has adequate legal right
and power, and, to such counsel's knowledge, has not failed to obtain
any authorization or approval required by law (other than those
imposed by the Act and the securities or blue sky laws of certain
jurisdictions), to sell, assign, transfer and deliver the Shares to be
sold by such Selling Shareholder in the manner provided in this
Agreement;
(iii) Assuming the Underwriters are purchasers in good
faith without notice of any adverse claim, upon payment for and
delivery of the Shares to be sold by the Selling Shareholders in
accordance with this Agreement, the Underwriters will acquire all of
the rights of the Selling Shareholders in said Shares and will also
acquire interests in said Shares free of any adverse claim (within the
meaning of Section 8-302 of the Uniform Commercial Code).
(iv) Each of the Representatives of the Selling
Shareholders has been duly authorized by each Selling Shareholder to
execute and deliver on behalf of such Selling Shareholder this
Agreement and any other document necessary or desirable in connection
with the transactions contemplated hereby and to deliver the Shares to
be sold by such Selling Shareholder; and
(v) To such counsel's knowledge, the statements in the
Prospectus under the caption "Principal and Selling Shareholders"
insofar as such statements relate to such Selling Shareholders present
fairly the information with respect to such matters.
In rendering such opinion, Arnall Golden & Gregory, LLP
may rely upon the opinions of other counsel to the extent Arnall, Golden &
Gregory, LLP acknowledges such reliance in their opinion and states in
their opinion that they believe it is reasonable for both you and them to
rely upon such opinion or opinions.
(d) You shall have received from Ernst & Young LLP letters dated,
respectively, the date of this Agreement and the time of purchase and
additional time of purchase, as the case may be, and addressed to the
Underwriters (with reproduced copies for each of the Underwriters) in the
forms heretofore approved by the Managing
Underwriters.
(e) You shall have received from KPMG Peat Marwick LLP letters
dated, respectively, the date of this Agreement and the time of purchase
and additional time of purchase, as the case may be, and addressed to the
Underwriters (with reproduced copies for each of the Underwriters) in the
forms heretofore approved by the Managing Underwriters.
(f) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, the favorable opinion of
Palmer & Dodge LLP, counsel for the Underwriters, dated the time of
purchase or the additional time of purchase, as the case may be, as to the
matters referred to in subparagraphs (iv), (v), (vii), (viii) and (ix) of
paragraph (a) of this Section 8.
In addition, such counsel shall state that such counsel have
participated in conferences with officers and other representatives of the
Company, counsel for the Company, representatives of the independent public
accountants of the Company and representatives of the Underwriters at which
the contents of the Registration Statements and 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 a Registration Statement or the
Prospectus (except as to matters referred to under subparagraph (vii) of
paragraph (a) of this Section 8), on the basis of the foregoing (relying as
to materiality to a large extent upon the opinions of officers and other
representatives of the Company), no facts have come to the attention of
such counsel which lead them to believe that any part of a Registration
Statement or any amendment thereto at the time such part or amendment
became effective contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading or that the Prospectus as of
its date or any supplement thereto as of its date contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading (it being
understood that such counsel need express no comment with respect to the
financial statements and schedules and other financial and statistical data
included in the Registration Statements or Prospectus).
(g) No amendment or supplement to a Registration Statement or the
Prospectus, including documents deemed to be incorporated by reference
therein, shall be filed prior to the time any 462(b) Registration Statement
becomes effective, or, if none, the Initial Registration Statement, to
which you object in writing, which objection shall be timely and
reasonable.
(h) The Initial Registration Statement shall become effective, or
if Rule 430A under the Act is used, the Prospectus shall have been filed
with the Commission pursuant to Rule 424(b) under the Act, at or before
5:00 P.M., New York City time, on the date of this Agreement, unless a
later time (but not later than 5:00 P.M., New York City time, on the second
full business day after the date of this Agreement) shall be agreed to by
the Company, the Representatives of the Selling Shareholders and you in
writing or by telephone, confirmed in writing; provided, however, that the
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Company, the Representatives of the Selling Shareholders and you and any
group of Underwriters, including you, who have agreed hereunder to purchase
in the aggregate at least 50% of the Firm Shares may from time to time
agree on a later date. The Company agrees to file any additional
registration statement which is proposed to be filed pursuant to Rule
462(b) with the Commission, in accordance with the Rules and Regulations,
by 10:00 p.m., Eastern Standard Time or Eastern Daylight Savings Time,
whichever is currently in effect, on the date of this Agreement, and,
concurrently with or prior to filing such additional
registration statement, to pay the associated filing fee or give
irrevocable instructions for payment in accordance with Rule 111(b) of the
Act.
(i) Prior to the time of purchase or the additional time of
purchase, as the case may be, (i) no stop order with respect to the
effectiveness of a Registration Statement shall have been issued under the
Act or proceedings initiated under Section 8(d) or 8(e) of the Act; (ii)
the Registration Statements and all amendments thereto, or modifications
thereof, if any, shall not contain an untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; and (iii) the Prospectus and
all amendments or supplements thereto, or modifications thereof, if any,
shall not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they are
made, not misleading.
(j) Between the time of execution of this Agreement and the time
of purchase or the additional time of purchase, as the case may be, (i) no
material and unfavorable change, financial or otherwise (other than as
referred to in the Prospectus), in the business, condition or prospects of
the Company and its Subsidiaries taken as a whole shall occur or become
known and (ii) no transaction which is material and unfavorable to the
Company shall have been entered into by the Company or any of its
Subsidiaries.
(k) The Company will, at the time of purchase or additional time
of purchase, as the case may be, deliver to you a certificate of two of its
executive officers (including its agent for service of process) to the
effect that the representations and warranties of the Company as set forth
in this Agreement and the conditions set forth in paragraph (i) and
paragraph (j) have been met and that they are true and correct as of each
such date.
(l) You shall have received signed letters, dated on or prior to
the date of this Agreement, from each of the Selling Shareholders and each
of the directors and officers of the Company and certain of its other
shareholders to the effect that, subject to certain exceptions previously
agreed to by the Managing Underwriters, such persons shall not sell,
contract to sell, grant any option to sell or otherwise dispose of,
directly or indirectly, any shares of Common Stock of the Company or
securities convertible into or exchangeable for Common Stock or warrants or
other rights to purchase Common Stock for a period including the 90 days
after the date of the Prospectus without the prior written consent of SBC
Warburg Dillon Read Inc.
(m) The Company and the Selling Shareholders shall have furnished
to you such other documents and certificates as to the accuracy and
completeness of any statement in the Registration Statement and the
Prospectus as of the time of purchase and the additional time of purchase,
as the case may be, as you may reasonably request; provided no Selling
Shareholder shall be required to provide documents or certificates
regarding information unrelated to such Selling Shareholder and his, her or
its sales of Shares.
(n) The Company and the Selling Shareholders shall perform such
of their respective obligations under this Agreement as are to be performed
by the terms
hereof at or before the time of purchase and at or before the additional
time of purchase, as the case may be.
(o) The Shares shall have been approved for listing on the New
York Stock Exchange, subject only to notice of issuance at or prior to the
time of purchase.
(p) The Selling Shareholders will at the time of purchase and the
additional time of purchase, as the case may be deliver to you a
certificate of the Representatives of the Selling Shareholders to the
effect that the representations and the warranties of the Selling
Shareholders as set forth in this Agreement are true and correct as of each
such date.
(q) Between the time of execution of this Agreement and the time
of purchase or additional time of purchase, as the case may be, there shall
not have occurred any downgrading, nor shall any notice have been given of
(i) any intended or potential downgrading or (ii) any review or possible
change that does not indicate an improvement, in the rating accorded any
securities of or guaranteed by the Company or any subsidiary of the Company
by any nationally recognized statistical rating organization.
9. Effective Date of Agreement; Termination. This Agreement shall become
----------------------------------------
effective (i) if Rule 430A under the Act is not used, when you shall have
received notification of the effectiveness of the Initial Registration
Statement, or (ii) if Rule 430A under the Act is used, when the parties hereto
have executed and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be subject to
termination in the absolute discretion of you or any group of Underwriters
(which may include you) which has agreed to purchase in the aggregate at least
50% of the Firm Shares, if, since the time of execution of this Agreement or the
respective dates as of which information is given in the Registration Statements
and Prospectus, (x) there has been any material adverse and unfavorable change,
financial or otherwise (other than as referred to in the Prospectus), in the
business, condition or prospects of the Company and its Subsidiaries taken as a
whole, which would, in your judgment or in the judgment of such group of
Underwriters, make it impracticable to market the Shares, or (y) there shall
have occurred any downgrading, or any notice shall have been given of (i) any
intended or potential downgrading or (ii) any review or possible change that
does not indicate an improvement, in the rating accorded any securities of or
guaranteed by the Company or any subsidiary of the Company by any nationally
recognized statistical rating organization or (z) if, at any time prior to the
time of purchase or, with respect to the purchase of any Additional Shares, the
additional time of purchase, as the case may be, trading in securities on the
New York Stock Exchange shall have been suspended or minimum prices shall have
been established on the New York Stock Exchange, or if a banking moratorium
shall have been declared either by the United States or New York State
authorities, or if the United States shall have declared war in accordance with
its constitutional processes or there shall have occurred any material outbreak
or escalation of hostilities or other national or international calamity or
crisis of such magnitude in its effect on the financial markets of the United
States as, in your judgment or in the judgment of such group of Underwriters, to
make it impracticable to market the Shares.
If you or any group of Underwriters elects to terminate this Agreement as
provided in this Section 9, the Company, the Representatives of the Selling
Shareholders and each other Underwriter shall be notified promptly by letter or
telegram.
If the sale to the Underwriters of the Shares, as contemplated by this
Agreement, is not carried out by the Underwriters for any reason permitted under
this Agreement or if such sale is not carried out because the Company or the
Selling Shareholders, as the case may be, shall be unable to comply with any of
the terms of this Agreement, the Company or the Selling Shareholders, as the
case may be, shall not be under any obligation or liability under this Agreement
(except to the extent provided in Sections 6(a), 7 and 11 hereof), and the
Underwriters shall be under no obligation or liability to the Company and the
Selling Shareholders under this Agreement (except to the extent provided in
Section 11 hereof) or to one another hereunder.
10. Increase in Underwriters' Commitments. If any Underwriter shall
-------------------------------------
default in its obligation to take up and pay for the Firm Shares to be purchased
by it hereunder and if the number of Firm Shares which all Underwriters so
defaulting shall have agreed but failed to take up and pay for does not exceed
10% of the total number of Firm Shares, the non-defaulting Underwriters shall
take up and pay for (in addition to the aggregate principal amount of Firm
Shares they are obligated to purchase pursuant to Section 1 hereof) the number
of Firm Shares agreed to be purchased by all such defaulting Underwriters, as
hereinafter provided. Such Shares shall be taken up and paid for by such non-
defaulting Underwriter or Underwriters in such amount or amounts as you may
designate with the consent of each Underwriter so designated or, in the event no
such designation is made, such Shares shall be taken up and paid for by all non-
defaulting Underwriters pro rata in proportion to the aggregate number of Firm
Shares set opposite the names of such non-defaulting Underwriters in Schedule A.
Without relieving any defaulting Underwriter from its obligations
hereunder, the Company and the Selling Shareholders agree with the non-
defaulting Underwriters that they will not sell any Firm Shares hereunder unless
all of the Firm Shares are purchased by the Underwriters (or by substituted
Underwriters selected by you with the approval of the Company or selected by the
Company with your approval, which approval will not be unreasonably withheld or
delayed).
If a new Underwriter or Underwriters are substituted by the Underwriters or
by the Company for a defaulting Underwriter or Underwriters in accordance with
the foregoing provision, the Company or you shall have the right to postpone the
time of purchase for a period not exceeding five business days in order that any
necessary changes in the Registration Statements and Prospectus and other
documents may be effected.
The term Underwriter as used in this agreement shall refer to and include
any Underwriter substituted under this Section 10 with like effect as if such
substituted Underwriter had originally been named in Schedule A.
11. Indemnity by the Company, the Selling Shareholders and the
----------------------------------------------------------
Underwriters.
- ------------
(a) The Company and the Selling Shareholders jointly and severally agree to
indemnify, defend and hold harmless each Underwriter, its directors and
officers, and any person who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, from and against any
loss, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, any such Underwriter or any such
person may incur under the Act, the Exchange Act or otherwise insofar as such
loss, expense, liability or claim arises out of or is based upon any untrue
statement or alleged untrue statement of a material
fact contained in a Registration Statement (or in a Registration Statement as
amended by any post-effective amendment thereof by the Company) or in a
Prospectus (the term Prospectus for the purpose of this Section 11 being deemed
to include any Preliminary Prospectus, the Prospectus and the Prospectus as
amended or supplemented by the Company), or arises out of or is based upon any
omission or alleged omission to state a material fact required to be stated in
either the Registration Statement or the Prospectus or necessary to make the
statements made therein not misleading, except insofar as any such loss,
expense, liability or claim arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact contained in and in conformity
with information furnished in writing by any Underwriter through you to the
Company expressly for use with reference to such Underwriter in such
Registration Statement or such Prospectus or arises out of or is based upon any
omission or alleged omission to state a material fact in connection with such
information required to be stated in either such Registration Statement or
Prospectus or necessary to make such information not misleading, provided,
--------
however, that the indemnity agreement contained in this subsection (a) with
- -------
respect to any Preliminary Prospectus shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such Underwriter) from
whom the person asserting any such loss, expense, liability or claim purchased
the Shares which is the subject thereof if the Prospectus corrected any such
alleged untrue statement or omission and if such Underwriter failed to send or
give a copy of the Prospectus to such person at or prior to the written
confirmation of the sale of such Shares to such person; provided, further, that
-------- -------
no Selling Shareholder shall be responsible, either pursuant to this indemnity
or as a result of any breach of this Agreement, for losses, expenses, liability
or claims arising out of or based upon such untrue statement or omission or
allegation thereof based upon information furnished by any party other than such
Selling Shareholder and, in any event, no Selling Shareholder shall be
responsible, either pursuant to this indemnity or as a result of any breach of
this Agreement, for losses, expenses, liability or claims for an amount in
excess of the proceeds to be received by such Selling Shareholder (before
deducting expenses) from the sale of Shares hereunder.
If any action is brought against an Underwriter or any such person in
respect of which indemnity may be sought against the Company or any Selling
Shareholder pursuant to the foregoing paragraph, such Underwriter or such person
shall promptly notify the Company and the Representatives of the Selling
Shareholders in writing of the institution of such action and the Company or
such Selling Shareholder, as the case may be, shall assume the defense of such
action, including the employment of counsel reasonably satisfactory to such
indemnified party and payment of all fees and expenses, provided, however, that
the omission to so notify the Company or the Representative of the Selling
Shareholders shall not relieve the Company or any Selling Shareholder from any
liability which they may have to any Underwriter or any such person or
otherwise. Such Underwriter or such controlling person shall have the right to
employ its or their own counsel in any such case, but the fees and expenses of
such counsel shall be at the expense of such Underwriter or of such person
unless the employment of such counsel shall have been authorized in writing by
the Company or such Selling Shareholder in connection with the defense of such
action or the Company or such Selling Shareholder shall not have employed
counsel to have charge of the defense of such action or such indemnified party
or parties shall have reasonably concluded that there may be defenses available
to it or them which are different from or additional to those available to the
Company or such Selling Shareholder (in which case the Company or such Selling
Shareholder shall not have the right to direct the defense of such action on
behalf of the indemnified party or parties), in any of which events such fees
and expenses shall be borne by the Company or such Selling Shareholder, as the
case may be, and paid as incurred (it being understood, however, that the
Company or such Selling Shareholder
shall not be liable for the expenses of more than one separate counsel in any
one action or series of related actions in the same jurisdiction representing
the indemnified parties who are parties to such action). The Company or such
Selling Shareholder shall not be liable for any settlement of any such claim or
action effected without its written consent but if settled with the written
consent of the Company or such Selling Shareholder, the Company or such Selling
Shareholder agrees to indemnify and hold harmless any Underwriter and any such
person from and against any loss or liability by reason of such settlement. The
first clause of the foregoing sentence shall not be applicable if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
sentence of this paragraph and (i) such settlement is entered into more than 60
business days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement and (iii) such
indemnified party shall have given the indemnifying party at least 30 days'
prior notice of its intention to settle; in such a situation the indemnifying
party agrees that it shall be liable for any settlement of any proceeding
effected without its written consent. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(b) Each Underwriter severally agrees to indemnify, defend and hold
harmless the Company, its directors and officers, each Selling Shareholder and
any person who controls the Company or any Selling Shareholder within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act from and
against any loss, expense, liability or claim (including the reasonable cost of
investigation) which, jointly or severally, the Company, any Selling Shareholder
or any such person may incur under the Act or otherwise, insofar as such loss,
expense, liability or claim arises out of or is based upon any untrue statement
or alleged untrue statement of a material fact contained in and in conformity
with information furnished in writing by or on behalf of such Underwriter
through you to the Company expressly for use with reference to such Underwriter
in a Registration Statement (or in a Registration Statement as amended by any
post-effective amendment thereof by the Company) or in a Prospectus, or arises
out of or is based upon any omission or alleged omission to state a material
fact in connection with such information required to be stated either in such
Registration Statement or Prospectus or necessary to make such information not
misleading.
If any action is brought against the Company, any Selling Shareholder or
any such person in respect of which indemnity may be sought against any
Underwriter pursuant to the foregoing paragraph, the Company, such Selling
Shareholder or such person shall promptly notify such Underwriter in writing of
the institution of such action and such Underwriter shall assume the defense of
such action, including the employment of counsel reasonably satisfactory to such
indemnified party and payment of all fees and expenses, provided, however, that
the omission to so notify such Underwriter shall not relieve such Underwriter,
from any liability which they may have to the Company, any Selling Shareholder
or any such person or otherwise. The Company, such Selling Shareholder or such
person shall have the right to employ its own counsel in any such case, but the
fees and expenses of such counsel shall be at the expense of the Company, such
Selling Shareholder or such person unless the employment of such counsel shall
have been authorized in writing by such Underwriter in connection with the
defense of such action or such Underwriter shall not have employed counsel to
have charge of the defense of such action
or such indemnified party or parties shall have reasonably concluded that there
may be defenses available to it or them which are different from or additional
to those available to such Underwriter (in which case such Underwriter shall not
have the right to direct the defense of such action on behalf of the indemnified
party or parties, but such Underwriter may employ counsel and participate in the
defense thereof but the fees and expenses of such counsel shall be at the
expense of such Underwriter), in any of which events such fees and expenses
shall be borne by such Underwriter and paid as incurred (it being understood,
however, that such Underwriter shall not be liable for the expenses of more than
one separate counsel in any one action or series of related actions in the same
jurisdiction representing the indemnified parties who are parties to such
action). No Underwriter shall be liable for any settlement of any such claim or
action effected without the written consent of such Underwriter but if settled
with the written consent of such Underwriter, such Underwriter agrees to
indemnify and hold harmless the Company, any Selling Shareholder and any such
person from and against any loss or liability by reason of such settlement. The
first clause of the foregoing sentence shall not be applicable if at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
sentence of this paragraph; and (i) such settlement is entered into more than 60
business days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement and (iii) such
indemnified party shall have given the indemnifying party at least 30 days'
prior notice of its intention to settle; in such a situation the indemnifying
party agrees that it shall be liable for any settlement of any proceeding
effected without its written consent. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(c) If the indemnification provided for in this Section 11 is unavailable
to an indemnified party under subsections (a) and (b) of this Section 11 in
respect of any losses, expenses, liabilities or claims referred to therein, then
each applicable indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, expenses, liabilities or claims (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Shareholders on the one hand and the Underwriters on the
other hand from the offering of the Shares or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Selling Shareholders on
the one hand and of the Underwriters on the other in connection with the
statements or omissions which resulted in such losses, expenses, liabilities or
claims, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Selling Shareholders on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total proceeds from the offering (net of underwriting discounts and
commissions but before deducting expenses) received by the Company and the
Selling Shareholders bear to the total underwriting discounts and commissions
received by the Underwriters. The relative fault of the Company and the Selling
Shareholders on the one hand and of the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue statement or
alleged untrue statement of a material fact or omission or alleged omission
relates to information supplied by the Company, by the Selling Shareholders or
by the Underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, expenses,
liabilities and claims referred to above shall be deemed to include any legal or
other fees or expenses reasonably incurred by such party in connection with
investigating or defending any claim or action.
(d) The Company, the Selling Shareholders and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this Section
11 were determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation that does
not take account of the equitable considerations referred to in subsection (c)
above. Notwithstanding the provisions of this Section 11, no Underwriter shall
be required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by such Underwriter and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue
statements or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriter's obligations to
contribute pursuant to this Section 11 are several in proportion to their
respective underwriting commitments and not joint.
(e) The indemnity and contribution agreements contained in this
Section 11 and the covenants, warranties and representations of the Company and
the Selling Shareholders contained in this Agreement shall remain in full force
and effect regardless of any investigation made by or on behalf of any
Underwriter, its directors and officers or any person who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, or by or on behalf of the Company, its directors and officers, any
Selling Shareholder or any person who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, and shall survive any
termination of this Agreement or the issuance and delivery of the Shares. The
Company, each Selling Shareholder and each Underwriter agree promptly to notify
the others of the commencement of any litigation or proceeding against it and,
in the case of the Company, against any of the Company's officers and directors
in connection with the issuance and sale of the Shares, or in connection with
the Registration Statement or Prospectus.
12. Notices. Except as otherwise herein provided, all statements,
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requests, notices and agreements shall be in writing or by telegram and, if to
the Underwriters, shall be sufficient in all respects if delivered or sent to
SBC Warburg Dillon Read Inc., 535 Madison Avenue, New York, N.Y. 10022,
Attention: Syndicate Department, if to the Company, shall be sufficient in all
respects if delivered or sent to the Company at the offices of the Company at
1655 Roberts Boulevard, N.W., Kennesaw, Georgia 30144, Attention: Chief
Financial Officer and, if to any of the Selling Shareholders, shall be
sufficient in all respects if delivered or sent to the Representatives of the
Selling Shareholders at 1655 Roberts Boulevard, N.W., Kennesaw, Georgia 30144,
Attention: Edwin B. Cordell, Jr.
13. Construction. This Agreement shall be governed by, and construed in
------------
accordance with, the laws of the State of New York. The Section headings in
this Agreement have been inserted as a matter of convenience of reference and
are not a part of this Agreement.
14. Submission to Jurisdiction. The Company irrevocably submits to the
--------------------------
nonexclusive jurisdiction of any State or Federal court sitting in New York over
any suit, action or
proceeding arising out of or relating to this agreement. The Company irrevocably
waives, to the fullest extent permitted by law, any objection it may now or
thereafter have to the laying of venue of any such court and any claim that any
such suit, action or proceeding brought in such a court has been brought in an
inconvenient forum. The Company agrees that a final judgment in any such suit,
action or proceeding brought in any such court shall be conclusive and binding
upon the Company and may be enforced in any other court to the jurisdiction of
which the Company is or may be subject, by suit upon such judgment.
15. Parties at Interest. The Agreement herein set forth has been and is
-------------------
made solely for the benefit of the Underwriters, the Company, the Selling
Shareholders and the controlling persons, directors and officers referred to in
Section 11 hereof, and their respective successors, assigns, executors and
administrators. No other person, partnership, association or corporation
(including a purchaser, as such purchaser, from any of the Underwriters) shall
acquire or have any right under or by virtue of this Agreement.
16. Counterparts. This agreement may be signed by the parties in
------------
counterparts which together shall constitute one and the same agreement among
the parties.
17. Miscellaneous. SBC Warburg Dillon Read Inc., an indirect, wholly
-------------
owned subsidiary of Swiss Bank Corporation, is not a bank and is separate from
any affiliated bank, including any U.S. branch or agency of Swiss Bank
Corporation. Because SBC Warburg Dillon Read Inc. is a separately incorporated
entity, it is solely responsible for its own contractual obligations and
commitments, including obligations with respect to sales and purchases of
securities. Securities sold, offered or recommended by SBC Warburg Dillon Read
Inc. are not deposits, are not insured by the Federal Deposit Insurance
Corporation, are not guaranteed by a branch or agency, and are not otherwise an
obligation or responsibility of a branch or agency.
A lending affiliate of SBC Warburg Dillon Read Inc. may have lending
relationships with issuers of securities underwritten or privately placed by SBC
Warburg Dillon Read Inc. To the extent required under the securities laws,
prospectuses and other disclosure documents for securities underwritten or
privately placed by SBC Warburg Dillon Read Inc. will disclose the existence of
any such lending relationships and whether the proceeds of the issue will be
used to repay debts owed to affiliates of SBC Warburg Dillon Read Inc.
On December 8, 1997, Swiss Bank Corporation announced its intention to
merge with Union Bank of Switzerland. References in this document to Swiss Bank
Corporation include references to its successor entity following completion of
the merger.
References to the parties include references to their successors,
including, without limitation, an entity which assumes the rights and
obligations of the relevant party by operation of the law of the jurisdiction of
incorporation or domicile of such party.
If the foregoing correctly sets forth the understanding among the Company,
the Selling Shareholders and the Underwriters, please so indicate in the space
provided below for the purpose, whereupon this letter and your acceptance shall
constitute a binding agreement among the Company, the Selling Shareholders and
the Underwriters, severally.
Very truly yours,
CRYOLIFE, INC.
By:
Title:
THE SELLING SHAREHOLDERS NAMED IN
SCHEDULE B ATTACHED HERETO
By:
Attorney-in-Fact
Accepted and agreed to as of the date first above written, on behalf of
themselves and the other several Underwriters named in Schedule A
SBC WARBURG DILLON READ INC.
PIPER JAFFRAY INC.
By: SBC WARBURG DILLON READ INC.
By:
Title:
By:
Title:
SCHEDULE A
Number of
Underwriter Firm Shares
- ----------- -----------
Total
SCHEDULE B
Number of
Selling Shareholders Firm Shares
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Total